State ex rel. Postel v. Marcus

• Decision Date: 15 March 1915
• Citation: 160 Wis. 354,152 N.W. 419
• Parties: STATE EX REL. POSTEL v. MARCUS.
• Court: Wisconsin Supreme Court

160 Wis. 354

152 N.W. 419

STATE EX REL. POSTEL

v.MARCUS.

Supreme Court of Wisconsin.

Jan. 12, 1915.

On Motion for Rehearing, Feb. 27, 1915.

On Rehearing March 23, and April 13 and 15, 1915.

Syllabus by the Judge.

In determining whether an amendment, in form, to the fundamental law, is such in fact, the court may, and must look to effects and consequences to the end that the importance of changing the supposed fundamental law may be fully appreciated.

The people created the court, answerable for fidelity to duty only to the people and charged with the function of determining what is law of the things having the forms of law, and that extends to the constitution as well as to ordinary legislation.

“Under our system of constitutional government regulated by law, a determination of whether an amendment to the constitution has been validly proposed in and agreed to by the legislature * * * is necessarily required to be in a judicial forum where the constitution provides no other method therefor.”

To secure the requisite degree of deliberation and judgment on the part of the people in adopting a proposed amendment to the constitution, particular steps were made a condition of their possessing competency to pass upon the question.

The people, in creating this government, were competent to, and did, disable themselves from saying whether their constitution should be changed otherwise than in a particular manner.

In carrying out the constitutional plan of proposing amendments to the constitution to the people, the legislature does not exercise its legislative power,--only a specially granted ministerial authority.

The right of the legislature to propose amendments to the constitution rests in grant and not in inherent authority, and must be followed with reasonable strictness as to every material step, the same as in other cases of such grants.

What is material and what is not, in the procedure to amend the constitution prescribed therein, must be determined by what the people in creating the government said was material, and it must be presumed that they so said as to all the steps, in detail, mentioned in the fundamental law.

Section 1, art. 12, of the constitution prescribes the steps essential to enable the people to efficiently vote on the question of amending it. The amendment must be proposed in one of the two houses. It must be agreed to by a majority of the members elected to each house. The agreement, as to each house, must be evidencedby a yea and nay recorded vote on its journal. The proposition, as agreed to, must be entered on the journal of each house. The agreed proposal must be referred to the legislature next to be elected. It must be published for three months previous to the time of holding the election. It must be agreed to by a majority of all the members elected to the legislature at such election, evidenced by a yea and nay vote, recorded on the journals of the two houses.

While at the second legislative action upon a proposal to amend the constitution, it is not essential that the proposal should, as agreed to, be entered upon the journals of the two houses, that course is advisable.

The term “entered, if agreed to, on the journals” of the two houses, as used in the constitution, means recorded in extenso upon the journal of each house and in such connection as to show, with reasonable clearness, that it is the precise proposal agreed to by the recorded yea and nay vote.

This conclusion pronounced in State, etc., v. Timme, 54 Wis. 318, 11 N. W. 785, is approved. “No amendment can be made to the constitution without complying with the provisions of section 1, art. 12, both in the passage of the amendment by the legislature and in the manner of the submission.”

This rule is approved: “Where the existing constitution prescribes a method for its enactment, one to be valid must be adopted” in substantial “conformity to that method. * * * It is the duty of the court 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 effect.”

In case of an amendment, in form, to the constitution, which is not such in fact, tested by settled principles as ordinarily applied, yet is so characterized by the circumstances of long acquiescence and consequences that establishment of the real status in accordance with such principles would be disastrous, the expansibility of other and controlling principles in great emergencies, might enable the court to prevent those designed for use on all ordinary occasions to conserve rights from being so used as to destroy them.

Additional Syllabus by Editorial Staff.

“Fundamental Law” is law made by the people in such manner, at first, as they may determine to express sovereign will, and, as to changes made by them, by the predesigned fundamental procedure. Such law is 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 both to conditions in præsenti and as far in futuro as human foresight can reach, thus rendering remote any necessity for change.

“Ordinary written law” is law made, within constitutional restrictions, by the legislature.

The amendment to Const. art. 3, § 1, prescribing the qualifications of electors, was legally adopted, though the legislative proposal in its final form was not entered at large on the journals of both houses; the word “entered,” as used in Const. art. 12, § 1, requiring that the proposed amendment be entered on the journal of each house, having been given a practical construction by the legislative and executive branches of the government, as well as by the people, so that it now means simply entering by number, title, or by such other descriptive reference as makes identification certain.

Where a person elected to the office of village trustee was a voter and eligible to hold such office at the time of his election, and remained so until December 1, 1912, when, through failure to become a citizen he ceased, under the express provisions of Const. art. 3, § 2, subd. 2, to be an elector, he was entitled to a reasonable time thereafter in which to become a full citizen before he could be ousted from office.

Marshall, Timlin, and Vinje, JJ., dissenting on rehearing.

Appeal from a Judgment of the Circuit Court for Dane County; E. Ray Stevens, Circuit Judge. Affirmed.

Action to try title of the defendant to the office of Trustee of the Village of Muscoda.

Defendant was, in form, duly elected in April, 1912. He, in form, duly qualified and entered upon performance of the duties of the office. He was not a citizen of the United States. He had taken out first citizenship papers. He was a resident elector of the Village of Muscoda at the time of his election by reason of having so taken out first papers; but this status was subject to termination on the first day of December, 1912, by failure to take out final citizenship papers by that time. Section 1, art. 3, State Constitution. By statute, a person not a resident elector of the village, was not eligible to the office of trustee. Section 875, Stats. Defendant failed to become a citizen of the United States by the time limited as aforesaid and so ceased to be a residentelector of the village, and eligible to office therein. He nevertheless continued in possession of the office until after the commencement of this action and was so circumstanced when judgment herein was rendered, his right being referable to his election as aforesaid. Some time after such commencement he became a citizen of the United States.

The court decided on such facts that, as defendant was eligible to the office when he was elected thereto, and was when the action was terminated, that the period of disability as to eligibility during his incumbency, did not warrant a judgment of ouster. Judgment was, therefore, rendered in his favor.

Burnham & Black, of Richland Center, for appellant.

Otto Kuenzli, of Watertown, for respondent.

MARSHALL, J.

Several questions are presented for solution in this case. If either were decided in respondent's favor it would be fatal to the appeal. The overshadowing and only one which, as will be seen, need be discussed, is whether the effort to amend section 1, art. 3, 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 eligibility under section 875, Stats., the fact has been otherwise, and the judgment must be affirmed.

[1][2] 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 to 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...