The following opinion was filed January 12, 1915:
Mabshall, J.
Several questions are presented for solution in this case. If either were decided in respondent's [357]*357favor it would be fatal to tbe appeal. The overshadowing and only one which, as will be seen, need be discussed, is whether the effort to amend sec. 1, art. Ill, of the state constitution, purporting to have been consummated in 1908, was' successful. If not, then, though it has seemed that full citizenship instead of mere declaration in that regard was a condition of capacity to exercise the right of suffrage and of eligibility under sec. 875, Stats., the fact has been otherwise, and the judgment must be affirmed.
While dealing with the subject suggested might be avoided at this particular time, it does not seem best to do so; but rather to face the situation and solve it. Much harm may come by uncertainty as to an important constitutional question being permitted to exist until affairs, public and private, shall have been adjusted to a condition apparently legitimately created by a legislative effort; — and that is most emphatically so when such condition rests on a purported but illegitimate change in the fundamental law. The policy and duty here is rather to embrace than to repel opportunity to remove such uncertainties.
No feature of the judicial function is of equal dignity with that which requires dealing with what is and what is not, really, a part of the constitution, of those things which may have been engrafted upon the original instrument. None requires an equal degree of care to reach a right conclusion and courage to pronounce it. The court may, and should, and must, on such great occasions, look to effects and consequences. Not do so with the thought of hesitation, much' less omission to do what duty to here-and to the public requires; but as an inspiration to reach the highest' attainable degree of certainty of the right being vindicated in the end.
The people, through their chosen instrumentalities and by subsequent direct approval, created the constitution. It was wisely conceived to’ be as necessary to the conservation of inherent rights as those rights are to a worth-while existence. [358]*358In their wisdom, it' was thought, that it was of as much importance to have a delegated guardian to expound, apply, defend, and preserve their creation, — one independent of any other power but that of the creator, exerted in the particular way provided, — one as high up as possible above danger of being “swayed by fear, favor, affection, or hope of reward, by personal influence or public opinion,” — as to have such creation, itself. They made a supreme court to be such guardian, and provided for instrumentalities answerable only, except in a very narrow degree, to the sovereign, — the people.
So it happens that, upon being properly interrogated on the subject, it is as much the duty of this court, even after a proposed amendment to the constitution shall have apparently traversed the entire course from initiation to official publication as the law, and have been indorsed by a majority of the people, however large, to give judicial answer thereto of approval or nullification according to the facts.
Thus, as indicated, whether an effort to amend the constitution was effectual is a judicial, not a political, question. This coiwt ihferentially passed upon that matter in State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N. W. 785. Other courts have done so many times and the rule in that regard has been as clearly read out of our system as it could be if placed therein in the plainest language, looking thereto in its letter. Edwards v. Lesueur, 132 Mo. 410, 33 S. W. 1130; Gabbert v. C., R. I. & P. R. Co. 171 Mo. 84, 70 S. W. 891; Rice v. Palmer, 18 Ark. 432, 96 S. W. 396; Bolt v. Wurts, 63 N. J. Law, 289, 43 Atl. 144, 881; Secombe v. Kittelson, 29 Minn. 555, 12 N. W. 519; Oakland P. Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; Kadderly v. Portland, 44 Oreg. 118, 74 Pac. 710, 75 Pac. 222; Collier v. Frierson, 24 Ala. 100; State v. Swift, 69 Ind. 505; Trustees, etc. v. Melver, 72 N. C. 76; Sproule v. Fredericks, 69 Miss. 898, 11 South. 472; Crawford v. Gilchrist, 64 Fla. 41, 59 South. 963; Rich v. Board of State Canv. 100 Mich. 453, 59 N. W. 181; McBee v. Brady, 15 [359]*359Idaho, 761, 100 Pac. 97; Ellingham v. Dye, 178 Ind. 336, 99 N. E. 1; State ex rel. McClurg v. Powell, 77 Miss. 543, 27 South. 927; McConaughy v. Secretary of State, 106 Minn. 392, 119 N. W. 408.
The gist of those decisions on the subject and decisions, in general, is quite tersely stated in Crawford v. Gilchrist, supra, thus:
“Under our system of constitutional government regulated by law, a determination of whether an amendment to the constitution has been validly proposed and agreed to by the legislature ... is necessarily required to be in a judicial forum where the constitution provides no other means of authoritatively determining such questions.”
Guided by the conception of duty indicated, it has been, with varying degrees of strictness, held by courts in general, and must be regarded as the written law by implication and the unwritten by long time universality of its declaration and application, that, unless the constitutional requirements shall have been satisfied as to manner of proposal and submission,— though a proposition to amend shall have run the full course of two legislatures, and been approved by a majority vote of the electors, and the change has been, by state agencies, placed in the official publication and recognized as having been legitimate for a considerable length of time, — the fundamental law remains the same, in fact, and it is the duty of the’court to so judicially declare, thus clearing away the cloud cast upon the constitution by the meaningless proceedings.
Doubtless it is true, as said in some cases, that the most important step in changing the constitution is a favorable vote by the electors. But that does not warrant the sovereign will being overruled as to any other step. Moreover, experience shows that, generally, exercise of the right reserved by the people to pass upon fundamental changes, is very difficult to secure, and that often a large proportion of the electorate gives no personal attention to the matter. It must be pre-[360]*360snrned that such, difficulty was foreseen, and so, to meet' it, as far as practicable, tbe most careful provision was made by the people, not only to secure but to compel individual attention of legislators t'o, and participation by them in, considering every proposition to amend the constitution, — not only those of one legislature but of a second elected after opportunity by the people to know the purport of the proposal. It was, doubtless, supposed that the safeguards thus thrown around the matter would enable the people, upon their coming to the point of voting directly in respect to such a proposition, to have the benefit of that individual considerate judgment of the members of the legislature which they had provided should occur. So they, in effect, created a disability for themselves to efficiently pass upon a legislative proposition to change the state charter, in advance of the creation of the condition precedent they so carefully provided for their protection against danger of unwise attempts to change it.
A constitution which is to stand as the charter by which to test, to guard, and to afford practicable individual and collective enjoyment of, inherent rights, is not like a code of ordinary law. The distinction is well put in Jameson on Constitutional Conventions (4th'ed.) 84 — 86: .
“Ordinary laws áre enactments and rules for the government of civil conduct. . . . They are tentatory, occasional, and in the nature of temporary expedients. Eundamental laws . . . are expressions of the sovereign will in relation to the structure of the government. . . . Eundamental laws are primary, being the commands of the sovereign establishing the governmental machine, and the most general rules for its operation. Ordinary laws are secondary, being commands of the .sovereign, having reference to the exigencies of time and place resulting from the ordinary working of the machine. . . . Eundamental laws are either structural, or expressive of the settled policy of the state . . laid down in advance, for ages to come, whilst . . : ordinary laws are merely temporary expedients or adjustments.”
[361]*361He might' well have added as an epitome of all: Eundamen-tal law is law made by the people in snch manner, at first, as they may determine to express sovereign will and, as to changes, made by them by the predesigned fundamental procedure. Ordinary written law is law made within constitutional restrictions by the legislature. The latter is necessarily subject to frequent changes to meet new conditions, or broaden or narrow old ones, which may be of a somewhat permanent or of quite a temporary nature. The former is, in the main, a direct sovereign declaration of principles evolved from long experience, conservative of, or necessary to, efficient vitality of the basic idea of human government and adaptable to conditions in prcesenti and so far into the future as human foresight can reach, thus rendering necessity for any change quite remote, and danger of any undue attempt in that regard likewise remote.
The danger1 mentioned was especially guarded against by the procedure designed to secure the most careful individual attention of the members of two legislatures to a proposal to amend the constitution before submitting it to the people, and to produce conviction in the minds of the voters before exercising their final judgment in the matter that the proposal had received that attention and, so, might well have reasonable doubts resolved in its favor.
That the people, until recent years, acted upon that theory is evidenced by the fact that but few attempts were made during the fifty years subsequent to the adoption of the constitution to amend it, and, in general, they were successful; while, latterly, another view has been taken, as shown by changes in great number' having .been acted upon by the legislature, no less than eighteen at the last session, and all which reached the ultimate step were disapproved at the polls. If that means that confidence in legislative consideration of such matters has been weakened, the record in this case shows sound basis for it; and to the end that there may be as efficient re[362]*362turn to the safe methods which the framers of the constitution designed, the matter has been brought to the attention of the court none too soon.
Enough, perhaps, has been said to show a logical basis for the idea that the people created their own disability to pass by their votes upon a legislative proposal to amend the constitution in advance of its having reached the proper stage by a particular road.
The legislature in executing its function does not legislate, in a technical sense. The result does not need the approval of the governor. The duty is ministerial in character. There is good reason why the manner of procedure, so far as material — and the people must be presumed to have settled the question of what is material — must be followed. The power to make law, within fundamental limitations, is inherent in the division of the government formed for that purpose. It does not need any express grant, but does not include making or proposing fundamental law. The power to so propose is a special grant and must be exercised within the scope of the grant. Well said in Ellingham v. Dye, 178 Ind. 336, 99 N. E. 1, quoting with approval from Oakland P. Co. v. Hilton, 69 Cal. 479, 11 Pac. 3:
“The power given to the legislature is a grant of power. It has it not without the constitutional provision. The grant is given to be exercised in the mode conferred on the legislature by the constitution. It is so limited by the people acting in the exercise of their highest sovereign power. In such case, the mode is the measure of the power. Its action outside of the mode prescribed is as much a nullity as that of a board of supervisors of a city outside of the statute defining its power in regard to the grading of a street. The rule . . . is .just as applicable here, for the constitutional provision is a statute ordained by a people as part of its paramount law: . . . The legislature, acting outside of the constitution, is without jurisdiction and its action null.”
[363]*363Much might be written, in a general way, leading up to and as a firm basis for consideration of the particular question we are called upon to decide; but, perhaps, enough has been said in a prefatory and basic way. Were the principles involved, or as treated by the courts, new, on account of their importance now, particularly, because of the possible results of our conclusion upon other attempts to change the fundamental law, we should feel justified in going much further.
We may say, in passing, that it is believed the possible results mentioned do not extend backward many years. Until confronted with the necessity for dealing with such a situation as the one here presented, and coming to appreciate the underlying principles of fundamental law and the importance of submitting to be ruled thereby, the idea that the people, by their own creation, deliberately put such disability upon themselves to change the result of their original effort that their favorable vote upon a legislative proposal cannot lift the bar unless such proposal reaches them in the prescribed way, seemed quite strange and, may be, to some, rather illogical; but the contrary is the fact, and will become manifest to one who examines the subject carefully. As said in Dllingham v. Dye, supra:
“The idea of the people thus restricting themselves in making changes in the constitution, is original, and is one of the most signal evidences that amongst us liberty means not giving rein to passion or to the thoughtless impulse; but the exercise of power by the people for the general good and, therefore, always under restraints of law.”
Perhaps there is no greater danger to worth-while liberty and equality than that of undigested, undemonstrated by experience, ideas of well-meaning innovators and idealists, being, unwittingly, attached to our system of government with the power of inseparability which inheres in fundamental law. The constitution has, in the judgment of its framers, within [364]*364itself, the most efficient protection practicable against such danger; hut the most perfect instrumentality that human ingenuity can invent, is useless if not given proper direction to do its work by the contemplated human vitalizing force.
Prom 1882 to the attempt in question to change sec. 1, art. Ill, of the constitution, it, so far as relates to this case, was worded thus :
“Section 1. Every male person, of the age of twenty-one years or upwards, belonging to either of the following classes, who shall have resided in the state for one year next preceding any election, and in the election district where he offers to vote such time as may be prescribed by the legislature, not exceeding thirty days, shall be deemed a qualified elector at such election:
“1. Citizens of the United States.
“2. Persons of foreign birth who shall have declared their intentions to become citizens conformably to the laws of the United' States on the subject of naturalization.”
After such attempt sub. 2 took this form in the official publication :
“Persons of foreign birth who, prior to the first day of December, A. -D. 1908, shall have declared their intentions to become citizens conformable to the laws of the United States on the subject of naturalization, provided that the rights hereby granted to such persons shall cease on the first day of December, A. D. 1912.”
The recorded history of such change may be thus told: At the legislative session of 1905, a. resolution was introduced in the Assembly to amend such section and wás entered on the Assembly Journal thus :
“Jt. Res. No. 16, A.
“Joint resolution striking out paragraph 2 of section 1, article 3, of the constitution of the state of Wisconsin.
“Resolved by the assembly, the senate concurring, that [365]*365section 1 of article 3, of the constitution of the state of Wisconsin, he amended by striking out paragraph 2 of said section.”
In due course, the resolution was reported by the committee to which it was referred with recommendation for passage of a substitute. The nature of the substitute was not entered upon the journal. In further proceedings to final action, that situation was not changed. In the various steps the journal record was confined to giving the number of the resolution, its origin, and reference thereto as a resolution “providing for an amendment to section 1 of article III of the constitution, relating to electors.” The original title was discarded after the first entry. Under the substitute title and the committee amendment, very materially changing the original proposition, the resolution was adopted in the Assembly by the requisite vote. Nothing in respect thereto except the substitute title was spread upon the record.
Upon the action of the Assembly being reported to the Senate, it was thus entered on the Senate Journal: “Jt. Res. No. 16, A. Joint resolution providing for an amendment to section 1 of article 3 of the constitution relating to electors.”
Further proceedings were recorded by similar or less definite journal entries. The finality was recorded under this journal entry: “Jt. Res. No. 16, A., was read a third time and concurred in. The ayes and noes being required, it was decided in the affirmative: Ayes, 22; noes, I; absent or not voting, 3,” followed by the vote in detail.
At the legislative session of 1907, a proposition purporting to be the one agreed upon before was again considered. The first step was recorded under this journal entry of Assembly proceedings: “Read first and second times and referred. Jt. Res. No. 47, A., by Mr. Schauer, to committee on Elections.” Further proceedings until the finality were recorded under a mere reference to “Jt. Res. No. 47, A.” In its course an [366]*366amendment was proposed and adopted without any journal entry being made, except this: “Substitute Amendment No. 1, A., to Jt. Res. No. 47, A.”
Tbe last journal entry is as follows:
“Jt. Res. No. 47, A. Joint resolution to amend section 1 of article III of tbe constitution, relating to electors.
"Resolved by the assembly, the senate concurring, That subsection 2 of section 1, of article III of tbe constitution of tbe state of Wisconsin, be amended so as to read as follows: 2. Persons of foreign birth wbo, prior to the first day of December, 1908, shall have declared their intentions to become citizens conformable to tbe laws of tbe United States on tbe subject of naturalization, provided that tbe rights hereby granted to such persons shall cease on tbe first day of December, A. D. 1912.
“Was read a third time at length.
“Tbe question was, Shall the resolution be adopted ?
“The ayes and noes being required, it was decided in the affirmative: Ayes, 86; noes, 4; absent or not voting, 10. . . .”
The first record in the Senate is this: “Jt. Res. No. 47, A.,” with a statement,of the committee reference.
In due course and without any more suggestive journal entry, this appears: “Substitute amendment No. 1, S., was offered by Senator Martin and adopted. The question was, Shall Jt. Res. No. 47, A., as amended, be concurred in? The ayes and noes being required, it was decided in the affirmative: Ayes, 22; noes, none; absent or not voting, 11,” followed by a statement of the vote in detail.
Further record in the Assembly appeal's under various repetitions of “Jt. Res. 47, A.,” up to the last showing concurrence in the Senate substitute, no indication appearing of the nature thereof.
Does the procedure thus had satisfy sec. 1, art. XII, of the constitution which provides as follows:
“Any amendment or amendments to this constitution may be proposed in either house of the legislature, and if the same shall be agreed to by a majority of the members elected to [367]*367each of tbe two bouses, such proposed amendment or amendments shall be entered on their journals, with the yeas and nays taken thereon, and-referred to the legislature to be chosen at-the next general election, and shall be published for three months previous to the time of holding such election; and if, in the legislature so next chosen, such proposed amendment or amendments shall be agreed to by a majority of all the members elected, then it shall be the duty of the legislature to submit such proposed amendment or amendments to the people in such manner and at such time as the legislature shall prescribe. . . .”
It is significant that if the proposition “shall be agreed to,” etc., it “shall be entered” on the journals of the two houses, “with the yeas and nays taken thereon.” That means that the proposition as agreed to must be so entered, and that the agreement is a condition precedent to the mandatory requirement as to entry on the journals. If entered at some time during the progress of the proceedings with such reference thereto on such associate or connecting entries as to show clearly that, as so entered, it was agreed to by a recorded yea and nay vote, it would doubtless be sufficient; but since the language seems to suggest association of the entry with the vote, the better way would be, even though the proposition were entered when introduced, to re-enter it in connection with the yea and nay vote. That is, really, the only absolutely safe way in case of changes having occurred after the introduction and, most especially, where the action of remodeling affords no information of the nature of the changes.
While the requirements at the second session do not include any express direction as to entering on the journals of the two houses, the proceedings otherwise being the same, the safe way, — the only really careful way, — is' to make the journal entries, regardless of the initiatory action, by recording the proposition in extenso, in connection with the record of the essential yea and nay vote, thus making a complete record of the proposition on the journals of the two houses at each ses[368]*368sion, in connection with tbe record of the yea and nay vote, in respect- thereto.
The course indicated would observe the constitutional command with technical accuracy. Why not so follow it in a matter of such dignity as that of taking administrative steps, pursuant to granted power, to enable the people, intelligently and with full assurance of the judgment of the legislature, to act on such- a very important matter as changing the fundamental law ? Nothing could evidence more plainly a growing want of appreciation of the need of constitutional restraints than progressive disrespect for, or negligence in respect to, the wise safeguards erected to secure a high degree of deliberation and care in making fundamental changes. When such progression reaches the point of treating the subject, so far as appears by the official history, with no more care than is devoted to the most ordinary legislation, it is well to open wide our sensibilities to that admonishment of the fathers: “The blessings of a free government can only be maintained ... by frequent recurrence to fundamental principles.”
¡■\ The words “entered on their journals” must mean entered as agreed to, — sometime, at least, at the first session, on the journals of each house. The legislative practice when the constitution was adopted was for each house to keep a journal history of its proceedings. The words “their journals” are too plain to be open to construction. Any attempt to do so by reading out of the language the meaning that an entry on the journal of one house is an entry “on their journals” because the two make but one legislature, and each branch has the benefit, day by day, of the journal of the other, would be an arbitrary way of evading the plain meaning the framers of the constitution had in mind.
We cannot well avoid concluding that, at the first session for acting upon a proposition of the kind under consideration, no efficient action can occur without entry of it, as agreed to, upon the journal of each house and, if a sufficient entry be [369]*369made at first, in case of any change of 'the proposition, there must be an entry showing the nature thereof, so that, in the end, the journal will exhibit the amendment as finally agreed to by the yea and nay vote.
We are inclined to hold that the journal entries with the fulness suggested at the second session,' are not essential, because the express requirement for the first session is not repeated as to the second. However, the spirit of the initiative is so carried forward to the end, that we have no hesitancy in holding that the scrupulous care which.should be exercised in such a matter, ought to efficiently ‘admonish spreading the proposition, in extenso, on the journal of each house at each session, in connection with the yea and nay vote thereon.
■ In the great number of instances where the courts of this country have treated the subject under 'discussion, there is no feature so often and so fully discussed as that involved in the word “entered.” Many have held expressly or in effect, to a broad comprehensive meaning, .requiring full recording of the proposed amendment in such close connection with or relation to the yea and nay vote as to show the precise matter acted •upon. The following are illustrations: Koehler v. Hill, 60 Iowa, 543, 14 N. W. 738, 15 N. W. 609; McMillen v. Blattner, 67 Iowa, 287, 25 N. W. 245; State ex rel. Bailey v. Brookhart, 113 Iowa, 250, 84 N. W. 1064; Oakland P. Co. v. Hilton, 69 Cal. 479, 11 Pac. 3 (overruled later); Ellingham v. Dye, 178 Ind. 336, 99 N. E. 1; McBee v. Brady, 15 Idaho, 761, 100 Pac. 97; State ex rel. Stevenson v. Tufly, 19 Nev. 391, 12 Pac. 835; Kadderly v. Portland, 44 Oreg. 118, 74 Pac. 710, 75 Pac. 222; Prohibitory Amendment Cases, 24 Kan. 700; Worman v. Hagan, 78 Md. 152, 27 Atl. 616; Nesbit v. People, 19 Colo. 441, 36 Pac. 221; Oakland P. Co. v. Tompkins, 72 Cal. 5, 12 Pac. 801; State ex rel. Adams v. Herreid, 10 S. Dak. 109, 72 N. W. 93; Cudihee v. Phelps, 76 Wash. 314, 136 Pac. 367.
It will be seen upon examination that the decisions in Iowa [370]*370bead those bolding tbat “entered” means spread in extenso; tbat tbe second Oakland Paving Company Oase in California, ratber leads as to tbe idea tbat entry of tbe title on tbe journals satisfies tbe constitutional requirement; and tbat tbe Kansas case goes to tbe length of bolding tbat substantially all requirements are directory except tbe one that there shall be a yea and nay vote on tbe proposition in each bouse at each of tbe two sessions, and tbat there shall be approval by a majority vote of tbe electors voting on tbe same. Only a few of tbe large number of cases at band have been cited. It is believed tbat substantially all to be found in tbe books have been examined.
Nothing further need be said to demonstrate tbat there is an irreconcilable conflict in tbe authorities. In each instance of tbe birth of a theory upon which an amendment to tbe constitution can be supported notwithstanding more or less looseness in respect to following tbe fundamental mandate as to procedure, a line of logic was adopted which met a difficult situation and made a troublesome precedent. In tbat way constitutions may easily be weakened or superseded by judicial construction or determination as to what is directory and what is mandatory, what is material and vital and what is immaterial and may be omitted. Tbat may be carried so far a¿ to not only weaken tbe fundamental law but breed disrespect for a constitutional system. ¡
If tbe legislature may disregard tbe letter of the fundamental law, in its most material particulars, and tbe court may ingeniously bend its provisions or say tbat it means one thing when, in its letter, it means another, and thus adapt it to a dangerous legislative tendency to regard its provisions lightly or not at all, — certainly, there is great danger' of its failing to fully accomplish tbe great purpose of tbe people in tbe beginning. Tbat purpose should be sturdily adhered to until tbe people see fit, in tbe way designed therefor, to indicate tbat something different is to prevail.
What right has tbe court to say tbat any part of tbe con[371]*371stitution is immaterial or directory, or that its plain reasonable words do not mean just wbat would be ordinarily supposed ? It seems that courts should presume the people meant just what they said in using the language: “If the same shall be agreed to . . . such proposed amendment or amendments shall be entered on their journals.” We have no more right to change it than the legislature. It would be much more unbecoming here to attempt it than for the legislature, purposely, or negligently, to overlook it.
It would extend this opinion to a very great length to take up and discuss, even a goodly part of, the decisions respecting the subject here dealt with. If we were entirely free to choose the position which seems to us most logical, with the plain letter of the constitution before us, we should incline to the declaration in State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N. W. 785: No amendment can be made to the constitution without complying with the provisions of sec. 1, art. XII, both in the passage of the amendment by the legislature and in the manner' of its submission.
True, the particular matters material now were not when the cited case was decided, but the principle involved is the same now as then. Adhering to that, as it seems we ought, we cannot follow Prohibitory Amendment Gases, 24 Kan. 700. Indeed, we quite agree with the expression of the Cali-fornia court, though later it was weakened there, somewhat, that “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 rest merely in assumption.”
We must reason from these premises, which are recognized by all the eases in the first class and nearly all in the second, though they commonly quote the Kansas case without appearing, always, to appreciate the extent of it.
In proposing an amendment to the constitution the legis[372]*372lature does not exercise its legislative function. The authority given by the people to the legislature to propose amendments to the fundamental law is independent of its inherent power to make law. It is a grant of power, ministerial in character. Since the power rests in grant, and not inherency, it is measured as to extent by the terms of the grant.
The method provided by the constitution for executing the grant of power to propose amendments to the constitution,, is •with reasonable strictness, “binding upon the people and the legislature.”
It must be presumed that every feature of the grant of power to the legislature to propose amendments to the constitution, was deemed by the people in making such grant to be material, and neither the legislature nor the court has jurisdiction to ignore it.
The people featured the manner of executing the grant of power to propose amendments to the constitution, as they did, to secure deliberate individual legislative judgment with precise knowledge of the matter to be passed upon and for assurance that when they should come to act upon the matter at the polls they would have the benefit of such judgment for guidance.
Standing upon such premises the conclusion easily follows that the decision in State ex rel. Hudd v. Timme, supra, though the matter was then little discussed and no authority was cited, is sound.
To hold that a mere identifying reference which does not, on inspection, suggest the purport of an amendment, satisfies the mandate as to entry on the journals, is to emasculate the particular provision most effectually.
The word “entered” must have a sensible construction to carry out the intent with which it was used, not an unnatural one — under the circumstances, justified only because of its being within the broad scope of the word — to meet the necessities of a particular situation. Ear better that such a situ[373]*373ation be judged as involving fatal infirmity tlian that a basic principié tbe people incorporated into the fundamental law be superseded and a bad precedent created, fruitful of future mischief.
With all proper deference to the eminent jurists who have held that an identifying journal reference to a proposed amendment satisfies the constitutional requirement, we cannot so hold. We could not as an original proposition, nor without overruling State ex rel. Hudd v. Timme, supra. If such a reference will suffice, what is the necessary scope of it? Will a mere resolution number or a title, neither of which the constitution requires, do?- If nothing special was intended by the language chosen to express a definite material matter, why was not the procedure left to be governed by ordinary legislative rules ? If a mere identifying journal reference, such as to number of the resolution, with, perhaps, a brief suggestion that the purpose is to ámend the constitution, or a particular part thereof, which might be made in the course of legislative consideration long in advance of the precise formulation agreed upon, why the particular language, “if (as) agreed to it shall be entered,” etc. ? Why select of the many meanings reasonably ascribable to the word “entered” the one which would often be meaningless as regards .the real purpose the creators of the constitution had in mind, yet would, in a sense, satisfy the term, in preference to one which would evidence the fact as to whether the members of the legislature had in mind in taking the requisite yea an,d nay vote, the precise proposition acted upon, such as “to inscribe, to enroll, to enter with particulars of an account ?” Webster, New Internat. Diet. “To cause to be inscribed or enrolled.” Cent. Diet. Thus, notwithstanding some holdings to the contrary, it seems clear that1 if the constitution is to be upheld according to the design of it, the step mentioned as to the particular matter must be followed with substantial accuracy. That, as indicated, requires an amendatory pro[374]*374posal, at tbe first legislative session to be, as agreed to, spread upon tbe journal of eacb bouse in snob connection as to evidence that, in snob form, it was tbe subject of a successful yea and nay vote. Not, necessarily, that it must be so recorded wben first suggested, but at some time before, or in connection with the record of tbe vote, so with reasonable definiteness, to connect tbe two matters.
Tbe result of tbe great labor devoted to tbe subject of bow best to amend a constitution without unduly weakening tbe necessary stability of tbe fundamental law, has been treated rather too lightly by some courts. They seem to have failed in appreciation of tbe fact that the method of amendment incorporated into most of tbe constitutions of this country is but a crystallization “of tbe accumulated wisdom of tbe ages.” No part of it was deemed otherwise than matter of substance. In Jameson’s Constitutional Conventions (4th ed.) § 529, it is well said that tbe problem of tbe constitution makers in this field is “one of tbe most difficult in our whole system, to reconcile tbe requisites for progress with tbe requisites for safety.” Tbe particular procedure by which the legislature, in lieu of a convention, is given power to propose fundamental law, indicates tbe sovereign conception of “tbe requisites for safety.”
In tbe light of such distinguished commendation of Mr. Jameson’s work as that of Judge Cooley and others of significant eminence, bis statement of tbe following, cited from tbe Iowa court with State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N. W. 785, as an illustrative authority, is entitled to a place here:
“Wben tbe 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 tbe duty of courts, ... to inquire whether, in tbe adoption of tbe amendment, tbe provisions of tbe existing constitution have been observed, and, if not, to declare the amendment invalid and of no effect.” § 574s.
[375]*375Tbe learned, text-writer quoted from gives special attention to tbe fact that tbe legislature, in proposing to the people a change in tbe fundamental law, does not exercise legislative power. As before indicated, such power is strictly ministerial in character, — authority delegated by tbe people within precise limitations, — therefore it must be exercised within its prescribed scope and in the manner directed. That is apparent on principle and from the very nature of the matter. This court has not spoken on the subject prior to this, but in many other jurisdictions the subject has been treated, and the nature of the authority has been, all along, the guide to judicial footsteps. McBee v. Brady, 15 Idaho, 761, 100 Pac. 97; Oakland P. Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; Livermore v. Waite, 102 Cal. 113, 36 Pac. 424; Koehler v. Hill, 60 Iowa, 543, 14 N. W. 738, 15 N. W. 609; Collier v. Frierson, 24 Ala. 100; State v. Powell, 77 Miss. 543, 27 South. 927; State v. Cox, 8 Ark. 436; Edwards v. Lesueur, 132 Mo. 410, 33 S. W. 1130; Warfield v. Vandiver, 101 Md. 78, 60 Atl. 538; Miller v. Johnson, 92 Ky. 589, 18 S. W. 522. So exercise of this delegated ministerial power must be viewed as in other cases of like grants. Validity of activity is dependable upon keeping within the scope of the grant. A fundamental restraint upon legislative activity within the lawmaking field, is a limitation of power to make law. A delegation of authority to propose amendments, is a grant of power. The efficiency of every act under the latter is dependable upon the integrity of the grant being vindicated in performance.
Thus, we reiterate, it happens that the people, themselves, have no authority to pass upon the question of whether a legislative proposal shall be written into the fundamental law, unless it shall have been submitted to them in the manner they prescribed in exercise of their original right to create a form of government. It follows, logically, that it is of no avail for the people by their votes to approve a proposed change of [376]*376the constitution, if it shall not have been submitted in such manner as they in their sovereign authority provided. Otherwise such approval, however emphatically pronounced, does not authorize writing the proposition into the basic law.
Referring back to the history of the proceedings in the particular case, fatal infirmity therein is plain. To restate in brief: The proposal at first was to strike out par. 2 of sec. 1 of art. III. Thereafter that was discarded and the body was materially changed. The new title did not disclose the nature of the proposal nor was the substitute entered. That condition persisted to the end. A like defective record appears on the Senate Journal. At the second session the proposal was first offered in the Assembly and read first and second times without any record of title or subject matter being made. After adoption of an amendment without any formal record showing how it changed the original proposition, the resolution was brought to a vote as a proposition to amend sec. 1, art. Ill, of the constitution relating to electors, and the proposal, in extenso, was entered, but it does not check up with any previous journal entry. In the Senate the proposal was amended and concurred in; but how, as finally agreed to, it conforms to anything which previously was voted on, does not appear of record.
It is thought that the situation described hardly satisfies even the so-called liberal rule, outside of the Kansas Prohibitory Cases. They, as we have seen, gave no greater dignity to the constitutional requirement as to the journal entries, than that of mere directory regulations.
Whether an amendment of the constitution purporting to have been adopted, actually incorporated into the published fundamental law, and acquiesced in for a great length of time, characterized by important public and private interests having grown up on the faith of its having been duly proposed and approved, — -would be proof against some such departures as those above indicated, need neither be now as[377]*377serted or denied. A condition might well he imagined, created by long continued unquestioned, and supposed unquestionable state of the fundamental law and such adjustment of public and private matters thereto, that a judicial determination of invalidity would be fraught with calamitous consequences, calling into activity all the reserve power, so to speak, of the court to legitimately deal with it and prevent such penalty. The court reasoned along that line, successfully, in Prohibitory Amendment Gases, 24 Ran. 700, as a supplementary support for the main ground of the decision. The California court, after rejecting both grounds, in Oakland P. Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, came very near, if not quite to the point of adopting the second ground, later, in Oakland P. Co. v. Tompkins, 72 Cal. 5, 12 Pac. 801. The first ground would seem to be the more logical in circumstances justifying its application.
It may be that principles exist appropriate for solution of such a situation as the one suggested. One would not care to venture, unnecessarily, the decision that there is none which would apply to the exigencies of such a case. The principles of justice which seem to have precise limitations as to all ordinary situations, are often expansible to cope with great emergencies to the end that the very safeguards created to conserve rights be not used so as to destroy them. It were better, it seems, to accord to words their common, ordinary meaning, and which in all fair probability was in mind in the particular instance, and let the natural consequences follow, of to lay hold of some principle broad enough to save the latter without sacrificing the former and usurping the functions of constitution making. The fact that calamitous consequences will follow from obedience to law, does not excuse its violation. A law without a penalty for its violation is of no more strength than a rope of sand.
We should say, as companion to the foregoing, that if the emergency course were efficiently open in any case of this [378]*378sort, lapse of more time and a fundamental change affecting the form or essentials of the state government in far greater degree, and consequences of a much more serious nature, than in the particular case, would be required to justify resorting to any extraordinary application of principles to avoid the results of a manifest inefficient effort to amend the constitution.
It follows from what has been said that sub. 2, sec. 1, art. Ill, of the constitution, was not changed by the attempted amendment thereof, culminating in the vote on the proposal to that end at the November election, 1908. It is now as before, to wit: “Persons of foreign birth who shall have declared their intentions to become citizens conformably to the laws of the United States on the subject of naturalization.” Therefore respondent was eligible to the office in question when this action was commenced, and the judgment in his favor was properly rendered.
By the CouH. — The judgment is affirmed.
The following opinion was filed January 15, 1915: