General Assembly

to be chosen at the general elec

tion to be held on the second Tuesday in October in the year of our Lord one thousand eight hundred and seventy-two." The amendments of 1881 contained no such provision. Hence the opponents of the measures claimed that the amendments had not been "referred" to the General Assembly of 1883. In his message to the General Assembly of 1883, Governor Porter said: "The Constitution is silent respecting the manner in which a proposed amendment shall be referred from the first to the second General Assembly. The main object, no doubt, is to get it before the second Assembly. If the genuine resolution passed comes before the second Assembly, and is acted upon, the object of a reference would seem to have been attained, and the purpose of the framers of that instrument to have been carried out.” This question was decided in the same manner and at the same time that the question of entry on the journals was determined. Of the subsequent amendments adopted by two succeeding General Assemblies, all contain an express provision referring them to the next succeeding General Assembly and this is doubtless the proper form. It should be observed that if an amendment is adopted by one General Assembly, either át a regular or special session, it may be readopted by the next succeeding General Assembly at a regular or special session. The only requirement is that an election shall intervene so that the second General Assembly shall consist of newly elected members. The Wabash and Erie Canal amendment was adopted by the regular session of 1871; the general election occurred in November, 1872; on November 14, 1872, a special session was convened and since it was a different body from that which assembled in 1871 it proceeded to re-adopt the pending amendment.

Submission to Electors. Amendments which have been adopted by two succeeding General Assemblies are embodied in an act, duly passed by the legislature and signed by the Governor, and are submitted at any general or special election. The amendments are invariably indicated by number and some other brief appropriate designation on a separate ballot. The Wabash and Erie Canal amendment was submitted at a special election on February 18, 1873; the suffrage amendments were first submitted at the general spring election of township officers in 1880, but having failed of adoption they were re-submitted at a special election held on March 14, 1881; the lawyer amendment has always been submitted at a general election.

Re-Submission. In 1880, when the suffrage amendments failed of adoption, the General Assembly, in compliance with a plan proposed in State v. Swift, re-submitted the amendments by a new act and without readopting the amendments de novo. In all other cases when an amendment has not secured enough votes to insure its adoption, even though it was considered pending, it has been re-adopted by two succeeding General Assemblies. The constitutional duty of the General Assembly is discharged according to the Boswell case when there has been one submission. A resubmission is not required.

Majority of the Electors. The question, what constitutes a majority of the electors, has been the most controverted of all questions involved in the amendment of the Constitution. The plain language of the Constitution would seem to imply that a majority of the electors means one more than half of the persons who are qualified and entitled to vote. The only way of ascertaining how many electors there are is to take a census. This is done every six years and is used to determine the apportionment of senators and representatives. For all practical purposes, it would be necessary to assume that during the intervals between sexennial enumerations the number of electors had not increased, and if a constitutional amendment were submitted four years after an enumeration had been taken, to declare it adopted if it obtained a vote equal to one more than half the number of electors enumerated at the last preceding enumeration. The difficulty of applying this standard has led the court to say in the Swift, Denny and Boswell cases that for practical purposes, the number of electors in the State shall be assumed to be the number who actually vote at a given election. No amendment has ever been approved by a majority of the electors of the State. The Wabash and Erie Canal amendment was approved by 158,400 electors. But we know that there were at least 378,000 electors in the State at that time. According to a strict construction of this provision, the amendment should have received at least 189,000 votes. The total number of votes cast at the election was 159,430 and of this number an overwhelming majority was cast for the amendment. The same was true of the suffrage amendments which were submitted at a special election in 1881. We may, therefore, say that if an amendment receives a majority of the votes cast at the election at which it is submitted it is considered adopted.

Pendency of Amendments. In 1881, the Supreme Court held

that if an amendment failed to receive a majority of the votes cast at the election at which it was submitted but if more votes were cast in favor than in opposition to it, it was neither adopted nor rejected but was pending and therefore obstructive of the introduction of further amendments. That reasoning prevailed until 1900 when the Denny case held that if an amendment was voted on and failed to receive a majority of the votes cast at the election at which it was submitted that it not only had not been ratified but had been defeated and rejected, and this reasoning has since been confirmed in the cases called In re Boswell and Ellingham v. Dye.

Amendments

Incorporation of Amendment in Constitution. which have been ratified by a majority of the electors are formally incorporated in the Constitution by a proclamation of the Governor, who names the date when the amendment shall take effect.

Withdrawal of Amendment from Consideration. Only one attempt has ever been made to withdraw an amendment from consideration after it had been adopted by two succeeding General Assemblies and voted upon by the people but when it failed to secure sufficient votes to insure its ratification. Governor Gray recommended this plan to the General Assembly of 1881 after the Swift case decided that the amendments had not been adopted. In 1913, Senator Stotsenburg introduced such a measure to withdraw the lawyer amendment from consideration. The resolution. passed the Senate but before it could be acted upon by the House the Boswell case disposed of the amendment by the declaration that it was not pending, and it also laid down the rule that a General Assembly may formally withdraw an amendment from consideration.

Form of Amendments. An amendment may be embodied in a bill, a joint resolution or a concurrent resolution. All the amendments which have ever been adopted were embodied in resolutions; the Wabash and Erie Canal amendment was embodied in a joint resolution and the amendments of 1881 in concurrent resolutions. In 1867 a select committee of the Senate, on instructions, reported that either a joint or a concurrent resolution was valid. In 1855, when a series of resolutions were introduced in the House embodied in a bill, the Judiciary Committee reported that a joint resolution was the proper form for amendments and the general practice of the General Assembly has undoubtedly borne out that assertion. A measure, such as a bill or joint resolution may contain any number of amendments.

Amendment of Amendment. It may be stated with assurance that a proposed amendment may undergo any amount of amendment in either house of the first General Assembly which has it under consideration, but that not even the slightest amendment may be made by the second General Assembly. It must pass precisely as it is referred.