Commonwealth v. Griest

46 A. 505, 196 Pa. 396

• Court: Supreme Court of Pennsylvania
• Decided: May 29, 1900
• Docket: Appeal, No. 8
• Status: Published

Opinion

Opinion by

Mr. Chief Justice Green,

The pleadings in this case develop the question, whether a proposed amendment to the constitution of Pennsylvania must be submitted to the governor for his action thereon, in the course of the proceedings for its establishment. The solution of the question depends upon the interpretation to be given to the 18th article of the constitution of 1874. That article is the last of, all the articles of the constitution, and it is entitled as follows and is in the following words :

“ARTICLE XVIII.

“FUTURE AMENDMENTS.

“ Section 1. Any amendment or amendments to this constitution may be proposed in the senate or house of representatives; and if the same shall be agreed to by a majoritjr of the members elected to each house, such proposed amendment or amendments shall be entered on their journals with the yeas and nays taken thereon and the secretary of the commonwealth shall cause the same to be published three months before the next general election in at least two newspapers in every county in which such newspapers shall be published; andif in the general assembly next afterwards chosen, such proposed amendment or amendments shall be agreed to by a majority of the members elected to each house the secretary of the commonwealth shall cause the same again to be published in the manner aforesaid; and such proposed amendment or amendments shall be submitted to the qualified electors of the state in such manner, and at such time at least three months after being so agreed to by the two houses, as the general assembly shall prescribe; and if such amendment or amendments shall be approved by a majority of those voting thereon such amendment or amendments shall become a part of the constitution; but no amendment or amendments shall be submitted of tener than once in five years. When two or more amendments shall be submitted they shall be voted upon separately.”

It will be observed that the method of creating amendments to the constitution is fully provided for by this article of the existing constitution. It is a separate and independent article standing alone and entirely unconnected with any other subject. Nor does it contain any reference to any other provision of the constitution as being needed, or to be used, in carrying out the particular work to which the 18th article is devoted. It is a system entirely complete in itself, requiring no extraneous aid, either in matters of detail or of general scope to its effectual execution. It is also necessary to bear in mind the character of the work for which it provides. It is constitution making, it is a concentration of all the power of the people in establishing organic .law for the commonwealth, for it is provided by the article that, “ if such amendment or amendments shall be approved by a majority of those voting thereon, such amendment or amendments shall become a part of the constitution.” It is not lawmaking, which is a distinct and separate function, but it is a specific exercise of the power of a people to make its constitution. Recurring to this subject later on, and proceeding now to analyze the requirements of the 18th article in the process of creating amendments, we notice in their order the successive particulars to be observed. First, the amendment is to be proposed in the senate or house. Second, it must be “ agreed to by a majority of the members elected to each house.” Third, it must “be entered on their journals with the yeas and nays taken thereon.” Fourth, in immediate sequence to the entry on the journals and as a part of the same sentence, the article provides, “ and the secretary of the commonwealth shall cause the same to be published three months before the next general election in at least two newspapers in every county in which such newspapers shall be published.”

It will be observed that the duty of the secretary of the commonwealth follows immediately upon the entry of the'amendment on the journals of the two houses with the yea and nay votes of the members. There is no other action by any department of the state government that is either required or allowed, prior to the action of the secretary. And that action of the secretary is prescribed in mandatory language, thus, “ And the secretary of the commonwealth shall cause the same to be published,” etc. He has no discretion in the premises. His action does not depend upon any other action whatever. It is his own, personal, individual and official duty, imperative in its character, and of the very highest and gravest obligation because it is imposed by the constitution itself, and he can only discharge that duty by literally performing its terms. He cannot excuse himself for nonperformance by setting up advice, opinion or action of any other person, organization or department, official or otherwise, for the simple reason that the article of the constitution which prescribes his duty does not allow it. There is no opportunity for any, even the least, intervention, between the entry of the amendment on the journals and the publication in the newspapers in the whole course of the proceeding for the creation of the amendment.

The subsequent provisions of the article are equally devoid of any right or authority to intervene, derived from any source whatever. For, in the fifth place, the articles provide that, “ if in the general assembly next afterwards chosen such proposed amendment or amendments shall be agreed to by a majority of the members elected to each house, the secretary of the commonwealth shall cause the same again to be published in the manner aforesaid.” Here again the only precedent to the duty of a second publication by the secretary is the agreement by the two houses to the amendment. The same duty of publication the second time is imposed, and in the same mandatory terms, as in the first. Thus, “the secretary of the commonwealth shall cause the same again to be published in the manner aforesaid.” Immediately thereafter follows the provision in the sixth place, that the amendment shall be submitted to a vote of the people, and lastly, if the amendment is approved by a majority of the voters it becomes a part of the constitution. These then are the several stages in the proceedings to create an amendment. A, proposal of the amendment in either house, an agreement to the same by both houses, a publication thereof by the secretary of the commonwealth, a second agreement by the two houses, a second publication by the secretary, a vote of the people, which, if a majority vote favorably, causes the amendment to become a part of the constitution.

In the orderly and logical sequence of such preceding facts it follows with, apparently, an unanswerable certainty, that an amendment thus originated, proceeded with and terminated, becomes on integral part of our state constitution.

It remains only to consider the reasons which are urged against the validity of such a conclusion. They are all concentrated and find their only life in the provisions of another article of the constitution, to wit: the third, in the 26th section of which it is contended there is a provision which makes it necessary to the validity of a proposed amendment that it must be submitted to the governor for his action thereon, and that if he disapproves of it, it fails at once, and no further proceedings can take place in the way of its establishment unless his disapproval shall be overcome by a vote of two-thirds of the members of both houses. The seriousness and gravity of this proposition will be at once conceived, when it is' considered that it confers upon the governor alone the power to prevent the adoption of an amendment to the organic law of the state, by a mere exercise of his veto power, unless the amendment is passed over his veto by a two thirds vote of the members. It will be necessary to consider the 26th section of the 3d article with care in order to determine the question raised by this contention.

The section is in these words: “ Every order, resolution or vote, to which the concurrence of both houses may be necessary except on the question of adjournment, shall be presented to the governor and before it shall take effect be approved by him, or being disapproved shall be repassed by two thirds of both houses according to the rules and limitations prescribed in case of a bill.” The question is, must a proposed amendment to the constitution be submitted to the governor and be subjected to the requirement of his approval ? The first and most obvious answer to this question is, that the article which provides for the adoption of an amendment is a complete system in itself, from which the submission to the governor is carefully excluded, and therefore such submission is not only not required, but cannot be permitted. It can only be done by reading into the 18th article words which are not there, and which are altogether inconsistent with, and contrary to, the words which are there. Under that article the amendment becomes a part of the constitution without any action of the governor. Under the opposing contention it cannot become a part of the constitution without the positive approval of the governor, when no such approval is either expressed in, or implied from, the explicit words of the article. They cannot be implied because there is no necessity for such implication, and without such necessity there can be no implication. This is a most familiar principle in the construction of mere ordinary statutes, and also in the construction of written contracts. And more than this, if the proposed amendment is to be submitted for the approval of the governor, it follows that if he disapproves it, it may fail altogether and thus an element of defeat be introduced into the 18th article, when that article manifestly does not permit the existence of such an element. The only authorities which have any right to assent or to dissent, to the adoption of the amendment are the two houses of the general assembly, and the people. If these latter vote adversely it falls; if the two houses do not agree it never has any existence even as a proposition. But nowhere in the article is any other assent, or any other dissent, permitted to affect the question of adoption, nor is there any place in the article into which the necessity or the propriety of any other assent or dissent imported by implication. Therefore it follows, upon the most obvious and ordinary principles of statutory interpretation, that, there being no warrant for executive intervention contained in the 18th article, it cannot be placed there by any kind of implication from the 26th section of the 3d article.

But in the second place the language of that section does not purport, nor attempt to impose any such construction upon the 18th article, nor does it give, by expression or by implication, any control over the subject of ‘'future amendments,” in the designation of the subjects over which the veto power may be exercised. The 3d article of the constitution is confined exclusively to the subject of legislation. It is entitled “ Of legislation” and only purports to be an authorization and limitation of the legislation of the commonwealth. It prescribes the manner in which the business of making laws must be conducted, and the subjects with reference to which it may, and may not, be exercised. Thus in its earlier sections it provides that no law shall -be passed except by bill and that no bill shall be so altered by either house as to change its original purpose; that no bill be considered unless referred to a committee, returned therefrom and printed; that no bill except appropriation bills shall be passed containing more than one subject which shall be clearly expressed in its title; that every bill shall be read in each house on three different days and prescribing the terms upon which alone it shall become a law; that all amendments to bills shall be concurred in by a majority of the members of each house and directing the manner in which this shall be done; that bills shall be revived, amended or extended in a particular manner. These provisions cover the first six sections. The 7th section prohibits all local or special legislation upon a great variety of enumerated subjects, and the 8th requires that public notice shall first be given of an intent to pass any kind of local legislation. The remaining sections down to the 26th, contain prohibitive limitations as to some subjects and directory provisions as to others, but all of an exclusively legislative character. Then follows the 26th section providing for the submission of “ every order, resolution or vote,” to the governor for his approval or disapproval, and how a bill may be passed again notwithstanding his disapproval. Then follow a few further restrictions of the subjects of legislation, and provisions for criminal penalties for prohibited acts, and with these the article closes. Nowhere in the article is there the slightest reference to, or provision for, the subject of amendments to the constitution. It is not even alluded to in the remotest manner. On the contrary the entire article is confined exclusively to the subject of legislation, that is the actual exercise of the lawmaking power of the commonwealth in its usual and ordinary acceptation. It is too plain for argument that unless there were somewhere else in the constitution, a provision for creating amendments thereto, that power could not be exercised under any provision of the 8d article. It follows that a direction to submit “ every order, resolution or vote ” of the two houses, to the governor for his approval, does not carry with it any other matter than such as is authorized by the article. As constitutional amendments are not authorized by the 3d article they cannot be within the purview of those orders, resolutions or votes, which must be submitted for the action of the governor.

But, independently of this consideration, which seems conclusive, it is perfectly manifest that the orders, resolutions and votes, which must be so submitted, are, and can only be, such as relate to and are a part of the business of legislation, as provided for and regulated by the terms of article 3. These are the affairs that are the exclusive subjects of the article. They constitute the matters which are fully and carefully committed to that department of the government which is clothed with • its whole legislative power. The things that are to be done by the two houses are legislative only, and hence, when orders, resolutions and votes are directed to be submitted to the governor it is orders, resolutions and votes referring to matters of legislation only that are to be so submitted. It is not contended that an “ order or a “ vote ” is an amendment to the constitution, but it is contended that, because a resolution is the form in which a proposed amendment must be introduced, that ' kind of a resolution must be submitted. This is a non sequitur, because the word “ resolution ” has a subject which it necessarily embraces and fills, to wit: legislation, the whole legislation which may be enacted by the two houses, and it has no need of an enlarged meaning in order to take in something which is not otherwise provided for. But a still more serious objection to its being enlarged so as to include constitutional amendments is, that the 18th article excludes it from such enlargement, by giving a different name to that thing which the two houses must do in performing their part of the work of establishing a constitutional amendment. The jurisdiction is conferred by providing that “ any amendment to this constitution may be proposed in the senate or house,” etc., “ and if the same shall be agreed to by a majority .... such proposed amendment or amendments shall be entered on their journals,” etc. It is not a law, an order, a bill or a resolution, that may thus be proposed and must be enrolled, but distinctively and exclusively-“ an amendment to the constitution” that must be so introduced and dealt with. Now “an amendment to the constitution ” is specially named as the subject of the power to be exercised by the two houses in this connection, and the form of their action is to be “an agreement ” and nota,n enactment, as it is also provided that, “ if the same shall be agreed to by a majority of the members elected to each house, such proposed amendment or amendments shall be entered on their journals,” etc. Thus it is seen that throughout the article, the separate and distinctive character of this particular exercise of the power of the two houses is preserved, and is excluded from association with the orders, resolutions and votes, which constitute the ordinary legislation of the legislative body. But the great and overshadowing distinction, between this and the ordinary legislation, lies in the fact that the organism which decides questions of constitutional amendment, is an entirely different and distinct organism from that which decides questions of legislation even in its broadest sense. The two houses and the governor constitute the entirety of the body which considers and finally determines all matters of legislation. But it is the two houses and the great mass of the electors of the commonwealth combined, which constitute the body which considers and determines questions of constitutional amendment. With all matters of legislation the people in their capacity of electors have nothing to do. But with constitutional amendments they have, everything to do, for the ultimate fate of all proposed amendments depends absolutely upon their approval. If they approve, the proposed amendment at once becomes a part of the constitution; if they disapprove, it falls utterly and never comes into existence. The fundamental distinction which thus becomes most manifest, between the mere legislative machinery of the government, and that machinery which alone possesses the power to ordain amendments to the constitution of the commonwealth is most radical and extreme. Hence it follows by an inevitable conclusion that when the 26th section of the 3d article of the constitution says that “ every order, resolution or vote ” of the two houses shall be submitted to the governor for his approval or disapproval, it does not and cannot hav'e, any reference to the action which the two houses take in performing their part of the work of creating amendments. After them comes the governor in matters of legislation, but after them come the electors of the commonwealth in matters of constitutional amendment. In the latter the power and will of the people are final and conclusive, in the former the power and the will of the governor are supplemental only. His action may be final, or it may not, depending on an ultimate vote of the two houses by a two-thirds, instead of a majority vote. If it is two thirds he is not an element even in matters of legislation, but he is never an element in matters of constitutional amendment. Before passing to the question of authority, only one more thought needs expression. It is (3) that these two articles,of the constitution are not inconsistent with each other, and both may stand and be fully executed without any conflict. One relates to legislation only, and the other relates to the establishment of constitutional amendments. Each one contains all the essentials for its complete enforcement without impinging at all upon any function of the other. And it follows further that because each of these articles is of equal dignity and obligatory force with the other, neither can be used to change, alter or overturn the other. It is not a tenable proposition, therefore, that because the 26th section of the 3d article requires that all orders, resolutions and votes of the two houses shall be submitted to the governor, the same provision shall be thrust into the 18th article, where it is not found and does not belong.

It remains only to consider the question of authority, which while it is not, and would not be considered, as controlling in the interpretation of our own constitution, if it were adverse, is a matter of satisfaction, if it is concurring. Perhaps the most noted, instance of direct expression upon this general subject is to be found in the case of Hollingsworth v. Virginia, 3 Dallas, 378. The question arose whether the eleventh amendment to the constitution of the United States, which prohibited actions in the federal courts by citizens against states did not destroy the jurisdiction of such courts in cases pending at the time of its adoption. It was argued that the amendment had not been proposed in the form prescribed by the constitution and it was therefore void. It appeared upon inspection that the amendment was never submitted to the president for his approbation. It was further said in’argument that, “The constitution declares that every order, resolution or vote, to which the concurrence of the senate and house of representatives may be necessary (except on a question of adjournment) shall be presented to the president of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be passed by two thirds of the senate and house of representatives. The attorney general being about to reply to this argument, Mr. Justice Chase interrupted him, saying, “ There can surely be no necessity to answer that argument. The negative of the president applies only to the ordinary cases of legislation; he has nothing to do with the proposition or adoption of amendments to the constitution.” On the next day the court (Supreme Court of the United States) delivered a unanimous opinion that the amendment had been constitutionally adopted, and that there could be no jurisdiction in any case past or future, in which a state was sued by the citizens of another state. This was in entire accord with the. statement made by Chase, J., on the argument. It will be observed that the provision of article 1, section 7 of the constitution of the United States directing the submission to the president of every order, resolution or vote for his action, is in almost identical language with section 26 of article 3 of our constitution. It is said in Jamison on Constitutional Conventions, p. 588, sec. 551, that the federal amendments of 1789, 1794, 1803 and 1867 were submitted to the states without any previous submission to the -president. In the case of State ex rel. Morris v. Mason, 43 La. Ann. 590, the question was distinctly presented, under a constitutional provision respecting the submission of orders, resolutions and votes to the governor for his action, exactly similar to ours and in almost identical words, and after a most elaborate discussion of the whole subject, the court summed up its conclusions as follows, on page 649: “ Our conclusion is that the signature of the governor to the proposition for the amendment of the constitution under discussion, is not required by the constitution, and that his disapproval of it did not affect its validity.” The requirements of their constitution in providing for propositions for amendments are very similar to those 'of our own constitution. They are, first, a reading in each house on the three separate days; second, the yeas and nays thereon; third, the entry or spreading on the journal; fourth, publication by the secretary of state; fifth, a majority vote of the electors; sixth, the proclamation of the governor. It is quite apparent that this decision must be regarded as one directly in point upon the question now before us.

A similar ruling was made, though in somewhat different circumstances, in the case of In re Senate File No. 31, 25 Neb. 864. The case of Hollingsworth v. Virginia, supra, was recognized as of binding force, the court saying of it in the opinion, “ The amendment was sustained by the court, and that decision has been followed in making all the amendments to the constitution of the United States from that time to the present. See also Green v. Weller, 32 Miss. 650, and Koehler v. Hill, 60 Iowa, 543.” On page 877 the court says, “ It will be conceded that under our constitution it is unnecessary to submit a proposition to amend the constitution, only passed by each branch of the legislature, to the governor for his approval, as such proposition is not ordinary legislation.”

In the case of Hatch v. Stoneman, 66 Cal. 632, cited for appellee, the constitutional provision directing the manner in which amendments shall be proposed and submitted to the people is quite different from the provision in our article 18 on that subject, and it was there held that the signature of the governor was essential. On page 834 the court said: “ The proposal of the amendment or amendments is not by the legislature as such, in the ordinary enactment of a law, and with the proposal the governor has nothing to do. The act is that of two thirds of each branch of the legislature. But the matter of submitting the proposed amendment or amendments to the vote of the people is quite different. That is to be done by the legislature by a law to that effect, and in the enactment of a law the governor is a part of the lawmaking power.” For this reason, and because as a part oE the constitutional provision, it was the duty of the legislature to submit the proposed amendment to the people “in such manner and at such time and after such publication as may be deemed expedient ” it was held that this duty could only be performed by means of a law and it therefore required the governor’s signature. It is only necessary to add that we have not been referred, by counsel for the appellee, to any case, in which a court of last resort has decided that a submission to the governor was required under a constitutional article similar to ours, authorizing amendments. Nor have we been able to find such a case. The only authorities that have been found are to the contrary effect. It seems clear, therefore, that upon authority the contention of the appellant is sustained, and the governor is without right to intervene in the proceedings for the creation of the amendments. We have endeavored to show heretofore, and we are of opinion and so decide, that upon the proper construction of our article 18 of the constitution, he has not authority to approve or to disapprove of the- proposed amendments, and, therefore, that his action in withholding his approval was altogether nugatory.

Two other questions arose upon the hearing in the court below and they are brought before us by the appeal. The first of them is, that as no appropriation was made of moneys from the public treasury to defray the cost of publication in the newspapers, the secretary of the commonwealth could not lawfully make the publication. We do not consider that this question is of any serious force, because, in the first place, it does not appear, and is not averred, that any newspapers have refused to make the publication without being paid or secured for the cost, or even that any of them have been asked to make the publication. The secretary is not therefore able to say that he cannot make the publication for the reason stated, and hence such inability cannot be set up as a bar to the enforcement of the act proposing the amendments. It was at least his duty to try to make the publication before he could be heard to say that it could not be done. But, in the next place, the mandate of the constitution is upon him and he must obey it in terms. If it is utterly impossible for him to obey it literally, he can make that clear to the court, stating the reasons, and then it would be for the court to determine in a proper proceeding whether the publication can be made or not. In the third place, it is not to be assumed that the state will not pay, or cannot be made to pay, by judicial decree, the necessary cost of carrying out a peremptory order which has been officially promulgated by the state legislature, in strict conformity with the requirements of the state constitution. Indeed it is not possible to conceive that the state legislature would be so derelict to its manifest duty, as to refuse to make the necessary appropriation to pay for the execution of its own order. Or even if it did so refuse, can it be seriously doubted that a way would he found by means of a judicial proceeding, to enforce the clear monetary liability of the commonwealth to defray the necessary expense in question ?

The other proposition upon which reliance is placed by the appellee is, that the secretary cannot be compelled to do a vain thing, to wit: publish for three months prior to an election which was to take place in November, 1899, the amendments in question. There are two replies to this, the first of which is, that it is by no means certain that the publication must necessarily be made three months before, that general election which followed next after the amendments were agreed to by the two houses. The very next succeeding clause of article 18 is in these words, “ And if in the general assembly next afterwards chosen, such proposed amendment or amendments shall be agreed to by a majority of the members elected to each house, the secretary of the commonwealth shall cause the same again to be published in the manner aforesaid,” etc. Now the next general election at which “the general assembly next after-wards chosen,” is, or can be, elected, does not occur till the month of November in the year 1900, as there was no such election held in 1899. It is manifest, therefore, that the next general election after the amendments were agreed to by the two houses, was of no importance, so far as the publication was concerned, and that the next general assembly that had any authority to act in the matter is the one which is to be elected in November, 1900. So far as that general assembly is concerned, there is abundance of time in which to make the publication, and any order now made for such publication will not be a vain order by any means. The second reply to the contention of the appellee is, that where a thing is to be done, on or before a certain date, if a literal compliance as to the date becomes impossible without fault of the power which created the duty, the thing may be done, or the act performed, as soon as it becomes possible to be done after the time fixed has passed. Thus in the execution of criminals guilty of a capital offense, and sentenced or ordered to be executed on or before a fixed date, the sentence or order may be executed after the day fixed has passed. This was decided by this court in an exhaustive opinion by our Brother Mitchell in the case of Com. v. Hill, 185 Pa. 385. We there held that the time of execution in a capital case is no part of the judgment but a mere ministerial or executive act in pursuance of it, and the judgment is, therefore, not affected by the prisoner’s escape, or other occurrence which merely prevents or delays execution. The judgment is not satisfied until the sentence is fully carried out. It is also very familiar doctrine in the law of contracts that where money is to be paid, or other acts done, on or before a fixed date, if performance on or before the day named is prevented, subsequent performance will satisfy the demand of the contract, unless indeed in the exceptional instances in which time is of the very essence of the contract. So we apprehend in matters of legislation where a performance of an authorized act has become impossible through no fault of the law, a later performance, if it satisfy the terms of the original duty, will be a sufficient compliance. We think that the provision as to the publication three months before the next general election, as prescribed in the first clause of article 18, should be regarded as merely a directory provision, where strict compliance with a time limit is not essential. There are very numerous decisions upon this subject, a few of which only need be cited. They are fully collected in Endlich on the Interpretation of Statutes, at section 436. The author says, “ On the other hand the prescriptions of a statute often relate to the performance of a public duty, and to affect with invalidity acts done in neglect of them would work serious general inconvenience or injustice to persons having no control over those intrusted with the duty, without promoting the essential aims of the legislature. In such case they are said not to be of the essence or substance of the thing required, and depending upon this quality of not being of the essence or substance of the thing required, compliance being rather a matter of convenience, and the direction being given with a view simply to proper, orderly and prompt conduct of business, they seem to be generally understood, as mere instructions for the guidance of those on whom the duty is imposed or, in other words, as directory only. ... It has often been held for instance, when an act ordered a thing to be done by a public body, or public officers, and pointed out the specific time when it was to be done, that the act was directory only, and might be complied with after the prescribed time. Such is, indeed, the general rule, unless the time specified is of the essence of the thing, or the statute shows it was intended as a limitation of power, authority or right. Thus the 13 Hen. 4, c. 7, which required justices to try rioters, ‘within a month after the riot,’ was held not to limit the authority of the justices to that space of time. ... So a direction to sell land for taxes at a certain time, there being nothing in the act from which to imply a prohibition against doing it at a later date; a provision in a statute that the secretary of state should cause it to be published for three months. . . . And so, as to the time limited, was the requirement of a statute directing the secretary of state to advertise for sealed proposals for the state printing, which provided that the proposals be deposited in his office ‘on or before ’ a certain date. ... In a word where a statute fixes a time within which public officers are to perform some act touching the rights of others, and there is no substantial reason apparent from the statute itself .... why the act might not be as well done after the expiration of the period limited, as during the same, .... the latter will, as regards third persons, be treated as directory, and the fixing of it will not invalidate or prevent official acts, under the statute, after the expiration of the prescribed period.” In section 437, the author continues thus, “ In general, statutes directing the mode of proceeding by public officers, are deemed advisory, and strict compliance with their detailed provisions is not indispensable to the validity of the proceedings themselves, unless a contrary intention can be clearly gathered from the statute construed in the light of other rules for interpretation.” In further illustration of the general doctrine the author at section 441, speaks of the cases in which there are impossibilities in the way of a literal performance of the statutory conditions, thus, “ Enactments which impose duties on conditions' are, when these are not conditions precedent to the exercise of a jurisdiction, subject to the maxim that lex non cogit ad impossibilia aut inutilia. They are understood as dispensing with the performance of what is prescribed, when performance is impossible ; for the law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling impossibilities, and this general exception is a general rule of statutory construction.” In support of these text quotations, the author makes the most extensive citations of authorities, which it is not necessary to review in detail as there can be no real controversy over them. It will be seen at once how extremely apposite they are to the situation in the case at bar. The legislature that is to act upon the proposed amendments is not the one which was in existence when the amendments were proposed and “ agreed to.” There was no election in 1899 for members of the' legislature, and the first election of members of the next succeeding legislature is the one which will take place in November, 1900, as has been already explained. That is the legislature which is to take the next action upon these proposed amendments, and a publication of the amendments, three months before the election of 1899, could serve no possible purpose that cannot be equally well served by a publication for three months before the general election of the year 1900. We are very clearly of opinion, therefore, that such an order may now be made without the least material violation of the terms of the law proposing the amendments. We are of opinion that the learned court below was in error in refusing the mandamus prayed for.

The decree of the court below is reversed, and the petition and proceedings for the writ of mandamus are reinstated, the petition is considered as amended praying for publication three months before November election of the year 1900, and the record is remitted to the court below wifh instructions that an order be issued directing the secretary of the commonwealth to publish the proposed amendments three months before the general election to be held in November in the year 1900, the costs to be paid by the commonwealth.