State ex rel. Hay v. Alderson , 49 Mont. 387 ( 1914 )

Opinion:

PER CURIAM.

1. The relator’s first contention is that the amendment in question is invalid, because not submitted in conformity with the provision of section 9, Article XIX of the Constitution, as follows: “Should more amendments than one be submitted at the same election, they shall be so prepared and distinguished by numbers or otherwise that each can be voted upon separately.”

From the language of the amendment itself, from the nature of the functions involved, and from historical considerations, it is possible to view the initiative and the referendum as separable propositions and thus to construct an argument of such plausibility as to completely justify the reference of the question to this court, in order that doubt upon the subject should be set at rest. To briefly illustrate: It is suggested by the relator that the amendment itself distinguishes the initiative from the referendum, specifically characterizes them as "the first power” and "the second power,” respectively, and prescribes different conditions upon which they may be invoked; that, as submitted, the elector was obliged to accept or reject both, although one of them — the initiative — is wholly legislative in character, and commends itself to minds who might oppose the referendum as calculated to disturb rights vested under enactments of the legislature, while the referendum is a veto, pertains to the executive power, and commends itself to many who might view the initiative as wholly vicious because dispensing with the kind of deliberation supposed to give to enactments of the legislature their principal title to respect; and, finally, that the initiative is neither contemporaneous in origin nor coextensive in use with the referendum; hence their independence of each other is historically established. Suggestive as all this is, it fails to require that the amendment be annulled, for reasons which we proceed to state.

In the case of statutes passed by the legislative assembly and assailed as unconstitutional the question is not whether it is possible to condemn, but whether it is possible to uphold; and we [1] stand committed to the rule that a statute will not be declared unconstitutional unless its nullity is placed, in our judgment, beyond reasonable doubt. (State v. Camp Sing, 18 Mont. 128, 137, 56 Am. St. Rep. 551, 32 L. R. A. 635, 44 Pac. 516.) The application of this rule is especially commended in the ease of an amendment to the Constitution solemnly and decisively adopted, the invalidity of which is charged to the method, of its submission and made dependent upon a possible theory of its nature. (State v. Herried, 10 S. D. 109, 72 N. W. 93; Koehler v. Hill, 60 Iowa, 543, 14 N. W. 738.) “Constitutions,” says Judge Story, “are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them with the help of common sense, and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss.” This [2] language applies with equal force to amendments, and the fact

that an amendment can be separated into two or more propositions concerning the value of which diversity of opinion may exist is not alone decisive. If, in the light of common sense, the propositions have to do with different subjects, if they are so essentially unrelated that their association is artificial, they are not one; but if they may be logically viewed as parts or aspects of a single plan, then the constitutional requirement is met in their submission as one amendment. This was the clear intimation of this court in State ex rel. Teague v. Board of Commissioners, 34 Mont. 426, 87 Pac. 450, and finds expression in the following authorities from other jurisdictions: State v. Timme, 54 Wis. 318, 11 N. W. 785; State v. Herried, supra; Gabbert v. Chicago, R. I. & P. Ry. Co., 171 Mo. 84, 70 S. W. 891; Lobaugh v. Cook, 127 Iowa, 181, 102 N. W. 1121; People v. Prevost (Colo.), 134 Pac. 129; People v. Sours, 31 Colo. 369, 102 Am. St. Rep. 34, 74 Pac. 167; Hammond v. Clark, 136 Ga. 313, 38 L. R. A. (n. s.) 77, 71 S. E. 479; State v. Mason, 43 La. Ann. 590, 9 South. 776. The unity of subject implicitly required by the provision in question does not essentially differ from the unity of subject required by section 23, Article V, of the Constitution, concerning Acts of the legislative assembly: “Nobill, except general appropriation bills, and bills for the codification and general revision of the laws sliall be passed containing more than one subject which shall be clearly expressed in its title.” We have repeatedly held that the unity required by this section is served notwithstanding the existence of many provisions in an Act where such provisions are germane to the general subject expressed. (Hotchkiss v. Marion, 12 Mont. 218, 225, 29 Pac. 821; State v. McKinney, 29 Mont. 375, 1 Ann. Cas. 579, 74 Pac. 1095; In re Terrett, 34 Mont. 325, 331, 86 Pac. 266; Carlson v. City of Helena, 39 Mont. 82, 17 Ann. Cas. 1233, 102 Pac. 39.) “No provision in a statute,” says the supreme court of Missouri, “having natural connection with the subject expressed” in it, “is to be deemed within the constitutional inhibition” that no bill shall contain more than one subject. (Lynch v. Murphy, 119 Mo. 163, 24 S. W. 774.)

So premising, we return to the amendment in question and observe:

(a) That its submission was in manner and form as prescribed [3] by the legislative assembly. (Laws 1905, p. 139 et seq.) In this connection the language of the supreme court of Wisconsin is apt: “There can be no dispute that the two legislatures which agreed to the proposition proceeded upon the theory that the several propositions amounted to but one amendment of the Constitution. They were all included in one resolution adopted by the first legislature, and ratified * * * hy the second as one, and they declare it to be but one amendment. * * * We also agree * * * that no amendment can be made to the Constitution without complying with the provisions of section 1, Article XII, above quoted, both in the passage of the amendment by the legislatures and in the manner of the submission. * * * This provision can have but two constructions: First, it may be construed * * # that every proposition in the shape of an amendment to the Constitution which, standing alone, changes or abolishes any of its present provisions, or adds any new provision thereto, shall be so drawn that it can be submitted separately, and must be so submitted. Such a construction would, we think, be so narrow as to render it practically impossible to amend the Constitution; or, if not practically impossible, it would compel the submission of an amendment which, although having but one object in view, might consist of considerable detail, and each separate provision, though all promotive of the same object and necessary to the perfection and practical usefulness thereof, if adopted as a whole, in such form that a defeat of one of its important matters of detail might destroy the usefulness of all the other provisions when adopted. * * * We think amendments to the Constitution, which the section above quoted requires shall be submitted separately, must be construed to mean amendments which have different objects and purposes in view. In order to constitute more than one amendment, the propositions submitted must relate to more than one subject, and have at least two distinct and separate purposes not dependent upon or connected with each other. # * # We do not contend that the legislature, if it had seen fit, might not have adopted these changes as separate amendments and have submitted them to the people as such; but we think, under the Constitution, the legislature has a discretion, within the limits above suggested, of determining what shall be submitted as a single amendment, and they are not compelled to submit, as- separate amendments, the separate propositions necessary to accomplish a single purpose.” (State v. Timme, supra.)

(b) Only one provision of the Constitution was changed, to-wit, the provision by which the entire legislative authority of the state had been lodged in the legislative assembly. This fact is not of great importance, but it is important that but one change was made, vis.; To express a reservation of legislative authority in the people. That such authority could be used in two ways — designated, respectively, as the power to propose and enact laws, and the power to approve or reject laws enacted by the legislative assembly — does not suggest disconnection, but enumeration of the parts of a whole. Nor is the fact that a greater proportion of the electorate is required for the initiative than lor the referendum necessarily significant of more than that one mode of using the reserved authority is deemed of greater value than the other. These provisions are purely detail, which might, without injury to the amendment, have been left for the legislative assembly to establish. So, too, the referendum, while in political effect a veto, is not such in the sense in which that term is used in our Constitution, and is not an invasion of the executive function. Under it the people proceed toward bills enacted by the assembly, expressing assent or dissent, in essentially the same manner as the Senate upon a bill which has p'assed the House; they are an additional body through which Acts of the legislature must pass in certain cases, and disapproval, when it occurs, is purely legislative.

(c) It is undoubtedly true that, as the amendment was submitted, persons who approved the initiative, and not the referendum, or vice versa, were obliged to take both or neither. But this circumstance is not fatal if they were both parts of a single plan or general purpose; such divergencies of opinion are conceivable as to any amendment involving particularization. “The unity of object is to be looked for in the ultimate end, and not in the detail or steps leading to the end.” (Lobaugh v. Cook, supra.) In this connection the supreme court of South Dakota has spoken in terms which commend themselves to our judgment: “Does the resolution contain more than one amendment, within the meaning of the Constitution? It is contended with much apparent reason that two distinct objects were intended, namely, the abolition of the trustees and a change in the number and powers of the regents; that these objects are independent of each other; that either might have been adopted without adopting the other and that there are numerous reasons why an elector might have desired one change, and not the other. The defect in this argument consists in substituting for the real object or purpose one of its incidents. Control of the state educational institutions is the subject to which the proposed amendment relates. Its purpose or object is to place such institutions under the control of a single board. The membership of such board, its powers, and the abolition of the local boards are but incidental to and necessarily connected with the object intended. Hence we conclude that only one amendment was submitted.” (State v. Herried, supra.)

(d) After all is said, then, the question is an historical one. Much is made of the fact that the initiative is wholly foreign to our institutions, whereas the referendum has been with us, in one form or another, since early ages; but the referendum established by the amendment in question is the Swiss referendum, and is not the plebiscite resorted to in American practice from the earliest times for the settlement of constitutional or local questions; and while it is a fact that the initiative is the later invention, and does not prevail in all the communities which have the referendum, a very brief glance into political history will disclose that the initiative and the referendum came to us together and at a time when they were considered as essentially complementary. It will readily be recalled that for at least fifteen years prior to 1906 distrust of legislatures as truly representative of popular will was widespread, and there was vigorous agitation for a corrective. The press teemed with discussions of the initiative and referendum, always bracketed together, as a supposed panacea; many states adopted them as one, and there cannot be the slightest doubt that to the common understanding of our people they presented the aspect of a single plan to control the power of the legislature through the means of “direct legislation.” (See Oberholtzer on Referendum, Chap. 15; Phelps on Initiative and Referendum.) By them, as the supreme court of California has said, the people reserved to themselves supervisory control of legislation (In re Pfahler, 150 Cal. 71, 76, 77, 11 Ann. Cas. 911, 11 L. R. A. (n. s.) 1092, 88 Pac. 270), they are the positive and negative poles of the same magnet — opposite sides of the same shield.

We are cited by the relator to many decisions upon this branch of the case, all of which we have carefully examined. Some of them are not in point; others, invoking principles not materially different from those expressed above, announce results which are ■manifestly correct; and all serve to illustrate the difficulties and doubts which sometimes surround the application of acknowledged principles to concrete causes. None of them furnish any warrant for us to say that, as a matter of law, the amendment is clearly unconstitutional because of the method of submission, and we cannot pronounce it void on that account.

2. Defective Publication, (a) Publication of the proposed amendment was made but once a week, though in some instances [4] in daily papers and in others in semi-weeklies. The provision of the Constitution which requires publication is to be considered in the light of local history contemporaneous with its adoption. In 1889 there were few newspapers published daily in Montana. The weekly paper was the almost universal medium for the dissemination of current news or information, and when the framers of our Constitution provided for newspaper publication of any proposed amendment, it is but reasonable to suppose they contemplated the medium through which notice would then be given. If publication in a weekly paper in most of the counties would meet the demands of this constitutional' provision, then publication for once a week in daily or semi-weekly papers would be sufficient for the same reason. It is to be observed that this provision for publication does not indicate the number of issues of the paper in which the proposed amendment must appear; neither does it designate the character of the paper as monthly, weekly, or daily. These matters were properly left to the control of the legislature or the discretion of the secretary of state, in the absence of legislative action.

Our Constitution is the charter of our government — the body of rules and maxims in accordance with which the powers of sovereignty are exercised. ‘ ‘ Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done; and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules by which all departments of the government must at all times shape their conduct; and if it descends to prescribing mere rules of order in unessential matters, it is lowering the proper dignity of such an instrument, and usurping the proper province of ordinary legislation.” (Cooley’s Constitutional Limitations, p. 114.) Of necessity, the terms employed in the Constitution are general, and, under the provision requiring publication, a wide latitude is allowed to the secretary of state for the exercise of his discretion. Furthermore, there prevails throughout our theory of state government, as exemplified by the Constitution, the principle of uniformity in all public matters and proceedings wherever possible, and, in the absence of express requirement that the publication shall occur oftener than once a week, control of the subject was referable to the sound discretion of the secretary of state. His adoption of a uniform system of weekly publications, in the absence of any intimation that there was the slightest abuse of discretion, must be held to meet fully the demands made upon him. Under a like constitutional provision this same conclusion was reached in Hammond v. Clark, above.

(b) Publication on Sunday. The publication of the proposed [5] amendment in the Sunday issue of one paper did not vitiate the notice. ‘ ‘ The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this state, or of the Codes, is the rule of-decision in all the courts of this state.” (Rev. Codes, see. 3552.) It was the rule at common law that Sunday was dies non juridicus, but the prohibition involved extended only to acts strictly judicial in character. It had no application whatever to ministerial acts. (27 Am. & Eng. Ency. of Law, 2d ed., 389; 37 Cyc. 583, and numerous cases cited.) In this state Sunday is a legal holiday. (Rev. Codes, see. 6217.) It has no other distinguishing characteristic in law. In the exercise of its police power, the state has forbidden certain acts to be done on that day, as, for instance, barber-shops to be open for business. There is not any prohibition against the performance of any public act on Sunday, as such. Every holiday — including every Sunday — is qualifiedly a nonjudieial day (Rev. Codes, sec. 6296); but the prohibition of the statute extends only to strictly judicial acts, and some of them are excepted. In the absence of a prohibitory statute, the rule of the

common law prevails, and any ministerial act, sucli as the publication of the amendment in question, could be done on Sunday and as efficaciously as if done on any other day. (Heisen v. Smith, 138 Cal. 216, 94 Am. St. Rep. 39, 71 Pac. 180.)

In the early case of Hauswirth v. Sullivan, 6 Mont. 203, 9 Pac. 798, it was held that valid service of a summons could not be made on Sunday, but this was overruled when the like question again presented itself in Burke v. Interstate S. & L. Assn., 25 Mont. 315, 87 Am. St. Rep. 416, 64 Pac. 879.

Counsel for relator cite Ormsby v. Louisville, 79 Ky. 197, Scammon v. Chicago, 40 Ill. 146, Shaw v. Williams, 87 Ind. 158, 44 Am. Rep. 756, Sawyer v. Cargile, 72 Ga. 290, and Sewall v. City of St. Paul, 20 Minn. 511 (Gil. 459), as supporting their contention; but every one of these cases was decided upon a particular statute held to prohibit the act in question on Sunday. Such eases are not even precedents here, where we do not have such a statute. They also direct our attention to Schwed v. Hartwitz, 23 Colo. 187, 58 Am. St. Rep. 221, 47 Pac. 295, but the Colorado court is in direct conflict with our own holding in the Burke Case above. The decisions of courts of other states are not binding upon us. Precedents are valuable or invaluable as they appeal to our reason, on the one hand, or fail to do so, on the other. "We prefer to adhere to the doctrine announced by our own court in the Burke Case, as clearly correct in principle and having the support of the decided weight of authority.

Counsel for relator err in assuming that we have an austere statute prohibiting publication of this character on Sunday. They cite section 6220, Revised Codes, identical with section 12 of the same Codes. Each of those two sections reads as follows: “Whenever any act of a secular nature, other than a work of necessity or mercy, is appointed, by law or contract, to be performed upon a particular day, which day falls upon a holiday, it may be performed upon the next business day, with the same effect as if it had been performed upon the day appointed.” Instead of embodying a prohibition, this statute merely provides an extra day of grace. Any of the enumerated acts may be done lawfully on a holiday, but are in time if not done until the next business day.

(e) It is charged that certain publications ran for less than three months, and certain ones ceased several days before election day. Whether the publication in the last issue of a weekly paper runs forward and serves the purpose of giving continuous notice for the ensuing seven days until the next regular day of publication, or whether the publication is complete for all purposes of imparting notice, upon the day the last issue comes off the press, is not of sufficient consequence at this time to deserve special consideration. Also, for the purposes of this proceeding, it may be admitted that the constitutional requirement for three months’ publication previous to the election refers to the three-month period immediately preceding election day; and it may be conceded, further, that in the two respects now under consideration the publication of this proposed amendment in several of the counties was not according to the Strict letter of the law, as declared by the Constitution itself in section 9, Article XIX. It would not, however, be argued by anyone that there was not a substantial compliance in every particular, so that, after all, the serious question presented is one of construction.

In the absence of any declaration upon the subject, we would be inclined to hold that, from the very nature of the document itself, every provision of a state Constitution positive in form is mandatory, but in this state we are not left in doubt. “The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.” (Mont. Const., Art. Ill, sec. 29.)

The provision for publication of a proposed amendment falls within the general rule, and, because of this fact, it is insisted that nothing less than an absolute, literal compliance will suffice. [6] If this canon of construction be adopted, the amendment under consideration must fail; but law is supposed to be the perfection of reason, and any rule which either offends against every dictate of common sense, or defeats the very object of the provision to which it is applied, ought not to be adopted.

The purpose of requiring publication is manifest: To impart notice to the electors that their fundamental law is sought to be changed, and, as well, the extent of the change. The purpose in requiring such notice to be given immediately before election day is to keep the fact of the proposed change fresh in the minds of those called upon to effect or defeat it at the polls. The section of the Constitution now under immediate consideration, reads as follows: “The secretary of state shall cause the said [7] amendment or amendments to be published in full in at least one newspaper in each county (if such there be) for three months previous to the next general election.” (Section 9, Art. XIX.) Must this provision be complied with to the very letter? An illustration or two will suffice to demonstrate the absurdity of applying the rule of literal compliance:

(a) Assume that there was absolute compliance with the language above in every county save one, and in that one there was a bona fide intention to make the same strict compliance, but on the day of the last publication, which occurred on the day before election, after the type had been set, the forms all arranged, and the presses ready to start, lightning should set fire to the building and destroy the entire plant. Because of this act of God there was not full three months’ publication in that one county, and yet, according to the rule or literal compliance, the amendment would fail, even though every qualified elector in that county had notice and actually voted in favor of the amendment.

(b) Again, the amendment must not only be published, but published in full. The rule of literal compliance will not permit the omission of a single sentence, phrase, or word. Let us assume again the facts in the illustration above, except that instead of the intervention of an act of God, a careless printer had omitted the word “all” in paragraph 5 of the amendment under consideration, beginning, “All elections on measures referred to the people,” etc., and in the last issue of the paper before election that paragraph was made to commence, “Elections on measures referred to the people,” etc. The omission does not change the meaning of the sentence in the least, and yet the omission of this single word in a single paper for a single issue prevents a compliance with the very letter of the constitutional provision above, and would, under the rule of literal compliance, defeat the amendment, even though it was adopted by an overwhelming vote and the defect was not discovered for years afterward.

(c) Indeed, to reach the very acme of absurdity, we need only-say that the rule of literal compliance requires that every word be spelled correctly, and if in the last illustration the printer inadvertently omitted the letter “a” from the word “measures,” and this was the only departure, the amendment would fail under the rule in question. A court which would nullify the expressed will of-the people upon such a flimsy pretext as any. one illustrated above would deservedly forfeit every claim to the respect or confidence of the community.

• But the enforcement of such a rule would also defeat the very purpose of the provision under consideration. Our Bill of Rights declares: “The people of the state have the sole and exclusive right of governing themselves, as a free, sovereign and independent state, and to alter and abolish their Constitution and form of government, whenever they may deem it necessary to their safety and happiness, provided such change be not repugnant to the Constitution of the United States.” (Const., Art. Ill, sec. 2.) Section 9, Article XIX, deals with but one subject — amendments to the Constitution. In its adoption it was not the purpose of the people to render their fundamental law incapable of change, but, on the contrary, to provide a plain, simple and easily executed method of amendment.

So long as human agencies are to be employed in carrying out the constitutional scheme of amendment, slight errors and defects in procedure are certain to occur, and to impose the rule of literal compliance would, for all practical purposes, render the adoption of any amendment absolutely impossible and defeat one of the very purposes of the Constitution itself. We ought not, by any strained construction, make the language of our Constitution mean something altogether different from what the people had in contemplation in its adoption. No rule of construction should be invoked which will trammel the people in their efforts to exercise the right reserved to themselves to change their Constitution by popular vote.

In speaking of a slight deviation from the constitutional method of proposing an amendment, the supreme court of Mississippi said: “This objection would have more force if the Act of itself operated as an alteration of the Constitution. But it is merely a proposition to be submitted to the action of the people. It is a means provided by which the people may exercise their sovereign right of declaring whether they will change their Constitution or not, thereby establishing the mode in which the government shall be changed, instead of leaving it to unregulated popular impulse. -The proposition is presumed to emanate from the people, through their representatives, and is regularly submitted for the action of the whole people. There is nothing in the nature of the submission which should cause the free exercise of it to be obstructed, or that could render it dangerous to the stability of the government; because the measure derives all its vital force from the action of the people at the ballot-box, and there can never be danger in submitting, in an established form, to a free people, the proposition whether they will change their fundamental law. The means provided for the exercise of their sovereign right of changing their Constitution should receivé such a construction as not to trammel the exercise of the right. Difficulties and embarrassments in its exercise are in derogation of the right of free government, which is inherent in the people; and the best security against tumult and revolution is the free and unobstructed privilege to the people of the state to change their Constitution in the mode prescribed by the instrument.” (Green v. Weller, 32 Miss. 650.)

If publication of a proposed amendment was one of the successive steps in its adoption, or if universal notice of the proposed amendment throughout the state before election was the sine qua non to the valid adoption of such amendment, then gome foundation would be laid for argument that the slightest defect in publication would defeat the effort to amend; but neither of these premises can be insisted upon. The only purpose of publication is to give notice to the electors, and the framers of our Constitution in preparing the draft for submission, and the people in adopting it with a full realization of the fact that they were prescribing only general rules and remitting matters of detail to the legislature or to the discretion of the proper officer, wisely left a margin to cover the frailties of human nature as well as defective machinery for giving notice. Nothing whatever is said as to the number of issues of the newspapers in which the proposed amendment must appear; nothing as to the character of the paper, whether of general or extremely limited circulation, or whether a monthly, weekly or daily; and finally, no provision whatever was made for giving any notice at all to the people of an entire county, if, perchance, there should be such county, in which a newspaper was not published. Since notice was the sole object of publication, all these matters of detail were wisely left for control by legislation or official discretion.

The proper proposal of the amendment by the legislature and the will of the people expressed at the polls in favor of such amendment are clearly emphasized as the factors of paramount importance in effecting-a change of our Constitution. (Constitutional Prohibitory Amendment Cases, 24 Kan. 700.) Whatever may be said of the rigidity with which the rules of law must be drawn whenever either of these paramount factors is in issue, we are clearly of the opinion that any question which may arise upon other features of the amending process is referable to the rule of substantial compliance, even though the provision of the Constitution invoked is mandatory.

Much confusion has arisen by assuming that every mandatory provision requires literal compliance, while a directory provision only is satisfied with substantial compliance. The terms “mandatory” and “directory” are employed in the same sense, whether applied to statutes or to constitutional provisions. The entire disregard of a provision would not necessarily invalidate action taken under it if directory, but would if it was mandatory. (Cooley’s Constitutional Limitations, p. 109; 36 Cyc. 1157; Custer County v. Yellowstone County, 6 Mont. 39, 9 Pac. 586.) Any intimation to the contrary in Evers v. Hudson, 36 Mont. 135, 92 Pac. 462, is merely dictum.

In Abbott’s Law Dictionary we find this exposition of the words “mandatory” and “directory”: “Mandatory. The principal technical use of this word is in distinguishing statutes which must be obeyed according to the substantial import of their terms under sanction of having the Act or proceeding adjudged void, from those which ought indeed to he obeyed, but, if disobeyed, do not invalidate what is done under them; which latter class of enactments are called directory.” (Abbott’s Law Dictionary, 78.)

In Purdum v. Laddin, 23 Mont. 387, 59 Pac. 153, this court, in considering section 3612, Political Code of 1895, said: “The statute is mandatory, and substantial compliance with its provisions is necessary.”

In Walker v. Pennington, 27 Mont. 369, 71 Pac. 156, we said: “In the judgment of this court the decision in the ease of Purdum v. Laddin, above, has little or no application to the facts in this ease; but, so far as the statement contained therein to the effect that the provisions of section 3612, above, are mandatory, and that substantial compliance therewith is necessary to perfect a valid location, is concerned, we have no hesitancy in here reaffirming it.”

The rule that substantial compliance with the mandatory provisions of the Constitution for its own amendment is sufficient in the absence of any intimation that injury — substantial or unsubstantial — resulted was adopted by the supreme court of Kansas in Constitutional Prohibitory Amendment Cases, above, and by the supreme court of Georgia in Hammond v. Clark, above.

If these attacks had been made upon the proceedings prior to the election of 1906, doubtless they would have prevailed (Potter v. Furnish, 46 Mont. 391, 128 Pac. 542); but the general rule

is that every reasonable intendment will be indulged in favor of [8] the validity of a constitutional amendment after its ratification by the people at the polls. (People v. Sours, 31 Colo. 369, 102 Am. St. Rep. 34, 74 Pac. 167.)

In State ex rel. Woods v. Tooker, 15 Mont. 8, 25 L. R. A. 560, 37 Pac. 840, the proposed constitutional amendment under consideration was published but two weeks. The opinion delivered by the court, though covering more than nine printed pages, goes no further than to hold that the provision for publication is mandatory, and that, because the proposed amendment was published but two weeks, it was not legally adopted. No one would contend that two weeks’ publication substantially meets the requirement for three months’ publication; on the contrary, no one can seriously insist that in every detail the proceedings for publication of the initiative and referendum amendment did not substantially comply with the requirements of section 9, Article XIX, above.

The election returns of 1906 disclose that the proposed amendment was adopted by a vote of 5.5 to 1. That proportion was maintained or exceeded in every county where the publication is called in question, excepting in Cascade, Fergus, and Park counties. The vote in those counties follows:

Counties. For. Against.

Beaverhead..... 1050 135

Cascade...... 2486 883

Deer Lodge____ 1346 105

Fergus ........ 1666 494

Gallatin ....... 1856 343

Lewis and Clark 2712 446

Missoula....... 1087 147

Park........... 1431 412

Silver Bow ____ 7783 1211

Yellowstone____ 1128 194

When the proclamation of the Governor was made after the election in 1906, the initiative and referendum amendment became prima facie a part of the Constitution of this state (State ex rel. Teague v. Board, above), and it ought not now to be set aside and declared inoperative for mere technical departures from the letter of the law, which, in view of the vote cast upon the amendment, could not have affected any substantial right either of this relator or anyone else.

The order to show cause is discharged and this proceeding is dismissed.

Dismissed.