ANNEX APERTINENT
PORTIONS OF THE MINNESSOTA
SUPREME
COURTDECISION
ON THE CASEIN
RE McCONAUGHY
"(a) An
examination of the decisions shows that
the courts have almost uniformly exercised the authority to determine
the
validity of the proposal, submission, or ratification of constitutional
amendments. It has been judicially determined whether a proposed
amendment
received the constitutional majority of votes [Dayton v. St. Paul, 22
Minn.
400; Rice v. Palmer, 78 Ark. 432, 96 S.W. 396; Bott v. Wurtz, 63 N.J.
Law,
289, 43 Atl. 744, 881, 45 L.R.A. 251; State v. Foraker, 46 Ohio St.
677,
23 N.E. 49l; 6 L.R.A. 422; Tecumseh National Bank V. Saunders, 51 Neb.
801, 71 N.W. 779; Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95
Am.
St. Rep. 169; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722;
Knight
v. Shelton (C.C.) 134 Fed. 423]; whether a proposed amendment is a
single
amendment, within the constitutional requirement that every amendment
must
be separately submitted [State v. Powell, 77 Miss. 543, 27 South. 927;
Gabbert v. Chicago, etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v.
Timme,
54 Wis. 318, 11 N.W. 785; In re Denny, 156 Ind. 104, 59 N.E. 359, 51
L.R.A.
722; Lobaugh v. Cook, 127 Iowa, 181, 102 N.W. 1121; People v. Sours, 31
Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; State v. Board, 34 Mont.
426,
87 Pac. 450; State v. Winnett (Neb.) 110 N.W. 1113, 10 L.R.A. (N.S.)
149];
whether the failure to enter the resolution of submission upon the
legislative
journals invalidates the amendment [Koehler v. Hill, 60 Iowa, 543,14
N.W.
738,15 N.W. 609; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3;
West v. State, 50 Fla. 154, 39 South. 412; Durfee v. Harper, 22 Mont.
354,
56 Pac. 56; State v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am. St. Rep.
895);
whether the description of the amendment and the form of the ballot are
sufficient (Russell v. Croy, 164 M 69, 63 S.W. 849; State v. Winnett (
Neb.) 110 N.W. 1113, L.R.A. (N.S.)149; Murphy Chair Co. v. Attorney
General
[Mich.] 112 N.W. 127]; whether the method of submission sufficient
[Lovett
v. Ferguson,, 10 S.D. 44, 71 N.W. 765; Russell v. Croy, 164 Mo. 69, 63
S.W. 849]; whether the publication of the amendment, or of a notice
relative
to it, is sufficient [Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50
L.R.A.
568; Russell v. Croy, 164 Mo. 69, 63 S.W. 849]; whether the submission
may be well by resolution as by a legislative act approved by the
executive
[Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R. 568; Warfield vi
Vandiver,
101 Md. 78, 60 Atl. 538; Edward Lesueur, 132 Mo. 410, 33 S.W. 1130, 31
L.R.A. 815; Hays v. Hays, 5 Idaho, 154, 47 Pac. 732; State v. Dahl, 6
N.D.
81, 6 N.W. 418, 34 L.R.A. 97]; at what election the amendment be
submitted
[People v. Curry, 130 Cal. 82, 62 Pac. 516].cralaw:red
In Rich v. Board
of Canvassers, 100 Mich. 458,
59 N.W. 183, the court said: "It is contended that the determination of
the question whether an amendment to the Constitution has been carried
involves the exercise of political, and not judicial, power. If this be
so, it follows that the promulgation of any purported amendment by the
executive or any executive department is final, and that the action
cannot
be questioned by the judiciary; but, with reference to the conditions
precedent
to submitting a proposed amendment to a vote of the people, it has been
repeatedly held, by courts of the highest respectability, that it is
within
the power of the judiciary to inquire into the question, even in a
collateral
proceeding. It is to be noted that under Section 1 of Article 20 of the
Constitution of the state, no amendment can become a part of the
Constitution
until ratified by a vote of the people. One prerequisite is equally as
essential as the other. The amendment must first receive the requisite
majority in the Legislature, and afterwards be adopted by the requisite
vote. It is the fact of a majority vote which makes the amendment
a part of the Constitution."
"In considering
the cases it is necessary to note
whether in the particular case the court was called upon to determine
between
rival governments, or whether the Legislature, or some board or
official,
had legally performed the duty imposed by the Constitution or statutes.
In re State v. McBride, 4 Mo. 303, 29 Am. Dec. 636, it was held that
the
General Assembly, under the power granted by the Constitution, could
change
the Constitution only in the manner prescribed by it, and that it was
the
duty of the court to determine whether all prerequisites had been
complied
with. In Collier v. Frierson, 24 Ala. 100, it was held that a
Constitution
can be changes only by the people in convention or in a mode described
by the Constitution itself, and that if the latter mode is adopted
every
requisite of the Constitution must be observed. 'It has been said,"
says
the court, "that certain acts are to be done, certain requisitions are
to be observed, before a change can be effected; but to what purpose
are
these acts required, or these requisitions enjoined, if the Legislature
or any other department of the government can dispense with them. To do
so would be to violate the instrument which they are sworn to support;
and every principle of public law and sound constitutional policy
requires
the court to pronounce against every amendment which is shown not to
have
been made in accordance with the rules prescribed by the fundamental
law.'
"In State v.
Swift, 69 Ind. 505, it was said that:
'The people of a State may form an original Constitution, or abrogate
an
old one and form a new one, at any time, without any political
restriction,
except the Constitution of the United States, but if they undertake to
add an amendment, by the authority of legislation to a Constitution
already
in existence, they can do it only by the method pointed out by the
Constitution
to which the amendment is added. The power to amend a Constitution by
legislative
action does not confer the power to break it, any more than it confers
the power to legislate on any other subject contrary to its
prohibitions.'
So, in State v. Timme, 54 Wis. 318, 11 N.W. 785, it was held that no
amendments
can be made to the Constitution of the state without compliance with
the
provisions thereof, both in the passage of such amendment by the
Legislature
and the manner of submitting it to the people. The courts have not all
agreed as to the strictness of compliance which should be required.cralaw:red
"In the
Prohibition and Amendment Case, 24 Kan.
700, the Court determined judicially whether an amendment to the
Constitution
had been legally adopted. After approving the statement quoted from
Collier
v. Frierson, supra, that 'we entertain no doubt that, to change
the Constitution in an other mode than by a convention, every requisite
which is demanded by the instrument itself must be observed, and the
omission
of any one is fatal to the amendment,' the Court held that, 'as
substance
of right is grander and more potent than methods of form,' there had
been
substantial compliance with the constitutional requirement that a
proposed
amendment to the Constitution must be entered at length on the
legislative
journal. It appears that the joint resolution making submission simply
provided that a proposition should be submitted to the electors at the
general election of 1880. It did not declare that the machinery of the
general election law should control, or that any particular officers or
board would receive, count, or canvass the votes cast. But the existing
election machinery was adequate, and the votes were received, counted,
and canvassed, and the result declared as fully as though it had been
in
terms so ordered. These methods had been followed in the adoption of
previous
amendments, and was held that, conceding the irregularity of the
proceedings
the Legislature and the doubtful scope of the provisions for the
election,
yet in view of the very uncertainty of such provision, the past
legislative
history of similar propositions, the universal prior acquiescence in
the
same forms of procedure and the popular and unchallenged acceptance of
the legal pendency before the people of the question of the amendment
for
decision, and in view of the duty cast upon the court taking judicial
knowledge
of anything affecting the existence and validity of any law or portion
of the Constitution, it must be adjudged that the proposed amendment
became
part of the Constitution. The effect was to hold that a provision of
the
Constitution requiring the proposed amendment to be entered in full on
the journals was directory, and not mandatory. This liberal view was
approved
in State v. Winnett [Neb.] 110 N. 1113, 10 L.R.A. [N.S.] 149, and
People
v. Sours, 31 Colo. 369, Pac. 167, 102 Am. St. Rep. 34. But it has not
been
universally accepted.cralaw:red
"In Oakland
Paving Co. v. Hilton, 69 Cal. 479,
11 Pac. 3, the court, in commenting upon the Kansas case said: 'The
reasoning
by which the learned court reached the conclusion it did is not based
on
any sound legal principles, but contrary to them. Neither the argument
nor the conclusion can command our assent or approval. The argument is
illogical, and based on premises which are without any sound
foundation,
and rests merely on assumption.' See, also, the well-considered case of
Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222. All these
cases
concede the jurisdiction of the Court to determine whether, in
submitting
a proposed amendment to the people, the Legislature legally observed
the
constitutional provisions as to the manner of procedure. In Livermore
v.
Waite, 102 Cal. 113, 36 Pac. 424, 25 L.R.A. 312, the Court, at the
instance
of a citizen and a taxpayer, restrained the Secretary of State from
taking
steps to submit to the people a proposed amendment to the Constitution
agreed to by the Legislature on the ground that the Legislature had not
acted in conformity with the Constitution and that the proposed
amendment
was of such a character that it could not properly become a part of the
Constitution. The Supreme Court of Colorado, in People v. Sours, supra,
refused to exercise this authority.cralaw:red
"The entire
question received elaborate consideration
in Koehler v. Hill, 60 Iowa, 543, 14 N.W. 738, 15 N.W. 609. The
amendment,
which concededly had been adopted by the people, had not, before its
submission,
been entered in full upon the legislative journals, as required by the
Constitution, and it was held that this was a material variance in both
form and substance from the constitutional requirements, and that the
amendment
did not, therefore, become a part of the Constitution. As to the claim
that the question was political, and not judicial, it was said that,
while
it is not competent for courts to inquire into the validity of the
Constitution
and the form of government under which they themselves exist, and from
which they derive their powers, yet, where the existing Constitution
prescribes
a method for its own amendment, an amendment thereto, to be valid, must
be adopted in strict conformity to that method; and it is the duty of
the
courts in a proper case, when an amendment does not relate to their own
power or functions, to inquire whether, in the adoption of the
amendment,
the provisions of the existing Constitution have been observed, and, if
not, to declare the amendment invalid and of no force. This case was
followed
in State v. Brookhart, 113 Iowa, 250, 84 N.W. 1064.cralaw:red
"In University v.
McIver, 72 N.C. 76, the question
whether a proposed amendment to the Constitution had been legally
adopted
was treated as a judicial question. By the Constitution, a proposed
amendment
was required to be approved by Legislatures before its submission to
the
people. In this instance a bill was passed which contained 17
amendments.
The next Legislature rejected 9 and adopted 8 of the amendments, and
submitted
them to the people. The majority of the people voted for their
adoption;
but it was contended that the Constitution contemplated and required
that
the same bill and the same amendments, without change, should be
approved
by both Legislatures, and that it did not follow because the second
Legislature
adopted separately 8 out of 17 amendments adopted by the first
Legislature,
it would have adopted the 17, or any of them, if they had been voted
upon
the second time in the form adopted by the first body. The substance of
the contention was that there had not been a concurrence of the two
Legislatures
on the same amendments, according to the letter and spirit of the
Constitution.
The court held that the power of the Legislature in submitting
amendments
could not be distinguished from the powers of convention, and that, as
the people had spoken and ratified the amendments, they became a part
of
the Constitution.cralaw:red
"In Westinghausen
v. People, 44 Mich. 265, 6 N.W.
641, it was held that prior to 1876, a proposed amendment to the
Constitution
could not be submitted to the people at any other time than in a
general
election; but, as the amendment under consideration had been submitted
after the Constitution had been changed, it had been legally
submitted
and adopted.cralaw:red
"In State v.
Powell, 77 Miss. 543, 27 South. 927,
the question whether an amendment to the Constitution had been legally
submitted and adopted by the people was held to be judicial, and not
political,
in its nature. The amendment under consideration changed the
Constitution
by providing for an elective, instead of an appointive, judiciary. It
was
contented that the amendments had been improperly submitted and adopted
by a majority of the qualified voters voting at election, as required
by
the Constitution. The law did direct how the result of the election
should
be determined. The Legislature by joint resolution recited that the
election
had been duly held throughout the state, and, as it appeared from the
returns
made to the Secretary of State, that 21,169 votes were cast in favor
of,
and 8,643 votes against, the amendment, it resolved 'that said
amendment
be, and hereby is, inserted into the Constitution of the state of
Mississippi
as a part of the Constitution.' In fact, the amendment was not
submitted
in the manner prescribed by the Constitution, and it did not receive a
majority of all the qualified voters voting at the election. It was
argued
that the rules prescribed by the Constitution "are all for the guidance
of the Legislature, and from the very nature of the thing the
Legislature
must be the exclusive judge of all questions to be measured or
determined
by these rules. Whether the question be political, and certainly a
legislative
one, or judicial, to be determined by the courts, this section of
rules,
not only of procedure, but of final judgment as well, confides to the
separate
magistracy of the legislative department full power to hear, consider,
and adjudge that question. The Legislature puts the question to the
qualified
electors. The qualified electors answer back to the Legislature. "If it
shall appear" to the Legislature that its question has been answered in
the affirmative, the amendment is inserted and made a part of the
Constitution.
The Governor and the courts have no authority to speak at any stage of
the proceedings between the sovereign and the Legislature, and when the
matter is thus concluded it is closed, and the judiciary is as
powerless
to interfere as the executive.' But it was held that the question
whether
the proposition submitted to the voters constituted one, or more than
one,
amendment, whether the submission was according to the requirements of
the Constitution, and whether the proposition was in fact adopted, were
all judicial, and not political, questions. 'We do not,' said Chief
Justice
Whitfield, 'seek a jurisdiction not imposed upon us by the
Constitution.
We could not, if we would, escape the exercise of that jurisdiction
which
the Constitution has imposed upon us. In the particular instance in
which
we are now acting, our duty to know what the Constitution of the state
is, and in accordance with our oaths to support and maintain it in its
integrity, imposed on us a most difficult and embarrassing duty, one
which
we have not sought, but one which, like all others, must be discharged."
"In Bott v.
Wurtz, 63 N.J. Law, 289, 43 Atl. 744,
881, 45 L.R.A. 251, it was held that it was the duty of the judicial
department
of the government to determine whether the legislative department or
its
officers had observed the constitutional injunctions in attempting to
amend
the Constitution, and to annul their acts if they had not done so. The
case is an interesting and well-considered one. The Constitution
provided
the manner in which proposed amendments should be submitted to the
people,
but did not provide a method for canvassing the votes. The Legislature
having agreed to certain proposed amendments, passed an act for
submitting
the same to the people. This statute provided for the transmission to
the
Secretary of State of certificate showing the result of the voting
throughout
the state, and made it the duty of the Governor at the designated time
summon four or more Senators, who, with the Governor, should constitute
a board of state canvassers to canvass and estimate the votes for and
against
each amendment. This board was to determine and declare which of the
proposed
amendments had been adopted and to deliver a statement of the results
to
the Secretary of State, and "any proposed amendment, which by said
certificate
and determination of the board of canvassers shall appear to have
received
in its favor the majority of all the votes cast in the state for and
against
said proposed amendment, shall from the time of filing such certificate
be and become an amendment to and a part of the Constitution of the
state;
and it shall be the duty of the Governor of the state forthwith, after
such a determination, to issue a proclamation declaring which of the
said
proposed amendments have been adopted by the people." This board was
required
to file a statement of the result of the election, and the Governor to
issue his proclamation declaring that the amendment had been adopted
and
become a part of the Constitution. At the instance of a taxpayer the
Supreme
Court allowed a writ of certiorari to remove into the court for review
the statement of the results of the election made by the canvassing
board,
in order that it might be judicially determined whether on the facts
shown
in that statement the board had legally determined that the proposed
amendment
had been adopted. The Supreme Court decided that the concurrence of the
board of state canvassers and the executive department of the
government
in their respective official functions placed the subject-matter beyond
the cognizance of the judicial department of the state. The Court of
Appeals,
after a full review of the authorities, reversed this decision, and
held
that the questions were of a judicial nature, and properly determinable
by the court on their merits. Mr. Justice Dixon, after stating the
facts,
said: 'It thus becomes manifest that there was present in the Supreme
Court,
and is now pending in this court, every element tending to maintain
jurisdiction
over the subject-matter, unless it be true, as insisted, that the
judicial
department of the government has not the right to consider whether the
legislative department and its agencies have observed constitutional
injunctions
in attempting to amend the Constitution, and to annul their acts in
case
that they have not done so. That such a proposition is not true seems
to
be indicated by the whole history of jurisprudence in this country.'
The
court, after considering the case on the merits, held that the proper
conclusion
had been drawn therefrom, and that the amendment in question was
legally
submitted and adopted.cralaw:red
"The recent case
of Rice v. Palmer, 78 Ark. 432,
96 S.W. 396, presented the identical question which we have under
consideration.
In reference to the contention that the Constitution intended to
delegate
to the Speaker of the House of Representatives the power to determine
whether
an amendment had been adopted, and that the question was political, and
not judicial, the court observed: "The argument has often been made in
similar cases to the courts, and it is found in many dissenting
opinions;
but, with probably a few exceptions, it is not found in any prevailing
opinion."
"In State v.
Tooker, 15 Mont. 8, 37 Pac. 840,
25 L.R.A. 560, it was held that the constitutional requirement of
publication
of a proposed constitutional provision for three months prior to the
election
at which it is to be submitted to the people is mandatory and that
noncompliance
therewith renders the adoption of an amendment of no effect." ______________________________ANNEX BMALACAÑANGMANILABY
THE PRESIDENT OF THE PHILIPPINESPRESIDENTIAL
DECREE NO. 86-BDefining
Further the Role of Barangays[Citizens
Assemblies]
WHEREAS, since
their creation pursuant to Presidential
Decree No. 86 dated December 31, 1972, the Barangays (Citizens
Assemblies)
have petitioned the Office of the President to submit to them for
resolution
important national issues;
WHEREAS, one of
the questions persistently mentioned
refers to the ratification of the Constitution proposed by the 1971
Constitutional
Convention;
WHEREAS, on the
basis of the said petitions, it
is evident that the people believe that the submission of the proposed
Constitution to the Citizens Assemblies or Barangays should be taken as
a plebiscite in itself in view of the fact that freedom of debate has
always
been limited to the leadership in political, economic and social
fields,
and that it is now necessary to bring this down to the level of the
people
themselves through the Barangays or Citizens Assemblies;
NOW, THEREFORE,
I, FERDINAND E. MARCOS, President
of the Philippines, by virtue of the powers in me vested by the
Constitution,
do hereby order that important national issues shall from time to time
be referred to the Barangays (Citizens Assemblies) for resolution in
accordance
with Presidential Decree No. 86-A dated January 5, 1973 and that the
initial
referendum shall include the matter of ratification of the Constitution
proposed by the 1971 Constitutional Convention.cralaw:red
The Secretary of
the Department of Local Government
and Community Development shall insure the implementation of this Order.
Done in the
City of Manila, this 7th day of January
in the year of Our Lord, nineteen hundred and seventy-three.
(SGD.) FERDINAND E. MARCOS
By the President:
(SGD.) ALEJANDRO MELCHOR
Executive Secretary |