[§1. Grounds on which courts may upset amendments by convention.]
{149} To what extent can the judicial branch of the government interfere with the procedure of constitutional amendment by the convention method?
We can best understand the discussion of this question if we first consider the matter of judicial interference with amendments adopted under constitutional methods. Such a study will show us how ready the courts are to seize on the slightest flaw as a ground for declaring a supposed amendment to be void. Taking up first the case of amendments submitted by the legislature to a popular vote, we find the courts upsetting amendments, even after popular ratification, on the following grounds: Because not enough legislators voted thereon;1 because the amendment had been entered in the House Journal by title instead of in full;2 because the amendment was proposed by a special instead of regular session;3 because of slight discrepancies in the journal entries of two sessions, although it was clear that both sessions acted on the identical amendment;4 because the proposed amendment was not advertised in the newspapers at just the right time;5 because the amendment treated two separable subjects;6 and for other similar reasons.7
{150} Of course, there are some decisions in which the courts have been more liberal, but these are mostly in earlier cases, before the control of the courts over the constitution had been fully developed, and are in the minority. Dodd points out that since 1890 the courts have frequently exercised supervision over all steps in the amending process,8 and he goes on to say,
It may be said then that the courts exercise supervision over all steps of the amending process which are specified by the constitution.9
The italics in the last quotation are the present author's. They point out an important distinction. Following that distinction, it is probable that the courts would exercise the same supervision over a convention, so far as that convention was authorized by the constitution,10 as they would over the legislative method of amending.
As Dodd says:
Although, then, a convention, in framing a complete constitution or a revised instrument, would seem, in theory, to be bound by existing constitutional restrictions upon the exercise of its power, as strictly as is the legislature in proposing constitutional amendments, yet there are difficulties in the way of enforcing this rule. If a constitution has been proposed for the approval of the people, a court would hardly enjoin its submission, although this might be done; if this were not done the only other opportunity for the court to act would be after a constitution had been approved and before it had gone into operation, for after it had become effective a court would hardly dare overturn the government organized under it when there were no opposing bodies claiming to be the lawful government — the question as to the validity of the constitution would have become a political question with which the court should properly refuse to meddle. On the whole it would seem that because of practical considerations courts must pursue a more liberal policy in passing upon the acts of a convention, especially after they have been approved by the people, than it has [sic] pursued in {151} interpreting the constitutional restrictions placed upon the legislative power to propose amendments.11
Or, as the Supreme Court of Alabama has said:
We entertain no doubt that, to change the Constitution in any other mode than by a Convention, every requisition which is demanded by the instrument itself must be fulfilled, and the omission of any one is fatal to the amendment.12
The real reason for this is probably the fact, as we have already seen, that as conventions may be held in the absence of constitutional provisions, or in the face of provisions prohibiting them, or even in a different manner from provisions permitting them, the constitution has really little to do with conventions, and hence constitutional provisions authorizing such conventions have no higher standing than bits of ordinary legislation to the same effect. This may explain the reason why courts are more hesitant to interfere with this amending process. We will therefore consider the judicial interference with the convention method, as if it were altogether an extraconstitutional proceeding.
[§2. Interference by state courts with pending convention proceedings.]
Can the courts interfere with such proceedings while they are pending? There is a good deal of authority that courts will not interfere with even the legislative method of amendment while it is pending, but will wait to pass on the validity of the finally adopted constitutional provisions.13 A fortiori, courts ought not to interfere with the convention method while it is pending. Yet courts have so interfered. The Pennsylvania Supreme Court issued an injunction prohibiting the convention of 1872 from submitting their constitutional changes to the people in a way different from that prescribed by the convention act.
The court said:
The first remark to be made is, that all the departments of government are yet in full life and vigor, not being displaced by any authorized act of the people. As a court we are still bound to administer justice as heretofore. If the acts complained of in these bills are invasions of rights without authority, we must exercise our lawful jurisdiction to restrain them. One of our equity {152} powers is the prevention or restraint of the commission or continuance of acts contrary to law, and prejudicial to the interests of the community or the rights of individuals. ... In this case we are called upon not to strike down, but to protect a lawful system, and to prevent intrusion by unlawful authority. If this ordinance is invalid, as we have seen it is as to the city elections, the taxes of the citizens will be diverted to unlawful uses, the electors will be endangered in the exercise of their lawful franchise, and an officer necessary to the lawful execution of the election law ousted by unlawful usurpation of his functions.14
Yet this court refused to interfere in matters of internal management, even though they were in violation of the provisions of the convention act, saying:
If they do this wrong, no appeal is given to the judiciary, and the error can be corrected only by the people themselves, by rejecting the work of the convention.15
The Supreme Court of Oklahoma refused to interfere with a convention of that State, saying:
The courts will not interfere by injunction or otherwise with the exercise of legislative or political conventions.16
Dodd comments on this decision as follows:
This is simply a statement that the court would not interfere with the process of constitution-making, but would hold itself free to declare an act of the convention invalid, after it had been approved by the people, if it were in excess of the convention's power.17
The process of amendment is a process of superior legislation, and the courts ordinarily decline to interfere with the processes of legislation, although they may always pass upon the validity of the completed product of such process.18
In one instance, in New York, the court, after taking jurisdiction of a proceeding to interfere with the internal government of the convention, dismissed the proceeding because of a sharp rebuke administered by the convention.19 The convention said, in the course of this rebuke:
{153} It is far more important that a Constitutional Convention should possess these safeguards of its independence than it is for an ordinary Legislature; because the Convention's acts are of a more momentous and lasting consequence and because it has to pass upon the power, emoluments and the very existence of the judicial and legislative officers who might otherwise interfere with it.20
[§3. Interference by state courts with constitutional changes ratified by the people.]
So much for the interference of the courts with pending convention proceedings. How about their interference with the constitutional changes, when these are finally adopted by the people? Some of the cases, which hold that the courts cannot interfere with pending proceedings, intimate that the time for interference is after the proceedings have been completed. Thus the Supreme Court of Oklahoma says:
The moment the constitution is ratified by the people, and approved by the President of the United States, then every section, clause, and provision therein becomes subject to judicial cognizance.21
And compare:
It [i.e. the court] has the power, and it is its duty, whenever the question arises in the usual course of litigation, wherein the substantial rights of any actual litigant are involved, to decide whether any statute has been legally enacted, or whether any change in the constitution has been legally effected, but it will hardly be contended that it can interpose in any case to restrain the enactment of an unconstitutional law. ... If they (the courts) cannot prevent the legislature from enacting unconstitutional laws, they cannot prevent it and the electors from making ineffectual efforts to amend the constitution.22
But as Dodd points out:
But after a constitution has been submitted to and adopted by the people, additional difficulties present themselves in the way of declaring it or even particular portions of it invalid.23
The Harvard Law Review has recently set forth, in an editorial note, the following exhaustive views on this subject:
Consider first the power of the courts to deal with a constitution {154} which has been enacted by the convention without submission to popular vote, but has been accepted as in force by the other branches of the government. If the court assumes to declare the whole constitution invalid, maintaining that it is organized under the old, such a proceeding should be entirely futile. There is no organized government under the old constitution and by its hypothesis, the court has disclaimed its authority to bind any government claiming to be organized under the new. Where, as in the principal case, the court apparently admits the validity of the new constitution, but declares part of it invalid, its course seems even less justifiable. In recognizing part of the new constitution it must recognize its complete validity. Since a court cannot attack the fundamental law, it can declare the new constitution invalid only by action under the old. But this can no longer exist, for its existence is hopelessly inconsistent with the validity of the new. For whether it be called a lawful revision or a peaceful revolution, by an enactment of the new constitution the old government has been displaced and a new one substituted. The court is further beset in these cases by the difficulty that this acquiescence by the legislature may amount to a ratification by the people through the organized government as their agent. If the court recognizes the power of the legislature to bind the convention, it is inconsistent to deny the legislature the power to unloose that bond. If it believe in conventional sovereignty it will, of course, never declare the constitution invalid. If in addition the constitution has been submitted and adopted by popular vote, it would seem that any court which admits that the ultimate sovereignty is in the people must recognize its validity.
But where the convention has merely amended the existing constitution a different question is presented. Here assuming the validity of the restrictions imposed on the convention, a court should have no difficulty in enjoining the submission of an amendment which involves a violation of those restrictions. But if the amendment is submitted for popular approval and is ratified, it seems that that expression of popular will should override any irregularity in violating any restriction not imposed by the constitution itself. If the amendment is merely enacted without submission to popular vote, then unless the acquiescence of the legislature can be construed to be an adoption, its validity may certainly be attacked.24
The Supreme Court of Pennsylvania, after interfering with the pending procedure (i.e. the convention ordinance establishing {155} a new election system for the submission of the constitution) in the case of Wells v. Bain, refused to interfere with the completed constitution in the case of Wood's Appeal. The court said:
The change made by the people in their political institutions, by the adoption of the proposed Constitution ... forbids any inquiry into the merits of the case. The question is no longer judicial.25
Judge Jameson took the same view of the matter and said of this case:
The constitution framed by the convention had been submitted to and adopted by the people, including the change recommended to be made in the Bill of Rights; and thus, however irregular, or even revolutionary, its inception had been, it had become the fundamental law of the State, and the Supreme Court must accept it as such.26
Dodd, however, feels that the court might have acted in the second case as it did in the first, and says:
Inasmuch as the Pennsylvania court regarded the statutory restriction as having a binding force equal to that of a constitutional restriction, it would seem that it might, in a case properly brought before it, logically have declared invalid the amendments to the bill of rights, in the same manner as courts declare invalid amendments not proposed in accordance with constitutional forms, even after their approval by the people. The provisions tainted by irregularity were here clearly separable from the remainder of the constitution.27
But he goes on to say:
The courts would unquestionably be cautious about singling out and declaring invalid particular clauses in constitutions which had been approved by the people, but with reference to which constitutional requirements had not been strictly observed. No cases have squarely arisen upon this point, and cases would hardly arise where certain clearly separable parts of constitutions would be so tainted with irregularity as to warrant judicial annulment; should such cases arise, however, it is difficult to see why the judicial {156} attitude should be any more liberal than with respect to constitutional amendments. The better view is that courts should not inquire too technically into irregularities in the submission of a constitution or of an amendment which has been ratified by the people.28
The Supreme Courts of Kentucky and Virginia concur with the Supreme Court of Pennsylvania in holding that the adoption of a constitutional amendment changes the question from a judicial one to a political one. Both cases involved the validity of constitutions which the convention had promulgated without submitting to the people, although required by the convention act to do so.
The Kentucky Court elected to treat the question as one affecting the validity of the constitution as a whole and said:
It is a matter of current history that both the executive and legislative branches of the government have recognized its validity as a constitution, and are now daily doing so. Is this question, therefore, one of a judicial character? Does its determination fall within the organic power of the court?
The court further said that the people had acted under the constitution, the political power of the government has in many ways recognized it, and under such circumstances it is our duty to treat and regard it as a valid constitution and now the organic law of our Commonwealth.29
The Virginia Court said of the constitution of 1902:
The Constitution having been thus acknowledged and accepted by the officers administering the government and by the people of the State, and being, as a matter of fact, in force throughout the State, and there being no government in existence under the constitution of 1869 opposing or denying its validity, we have no difficulty in holding that the Constitution in question . . . is the only rightful, valid, and existing Constitution of this State, and that to it all the citizens of Virginia owe their obedience and loyal allegiance.30
{157} But
The distinction between such a case and one involving merely an amendment, not in any manner pertaining to the judicial authority, must at once be apparent to the legal mind. The authorities recognize the distinction.31
[§4. Courts bound to constitution under which they hold office.]
The value of a judicial determination of the validity of a constitution is minimized by the principle which requires the members of a court to decide in favor of the constitution under which they themselves hold office. Thus the Rhode Island Supreme Court said at the trial of Dorr:
If a government had been set up under what is called the People's Constitution, and they had appointed judges to give effect to their proceedings, and deriving authority from such a source, such a court might have been addressed on a question like this. But we are not that court. We know and can know but one government, one authority in the State. We can recognize the Constitution under which we hold our places, and no other. All other proceedings under any other are to us as nullities.32
Likewise the United States Supreme Court said, in a case growing out of the Dorr controversy:
Where a claim exists by two governments over a country, the courts of each are bound to consider the claims of their own government as right, being settled for the time being by the proper political tribunal.33
And this principle was carried out by a court acting under the new government in a West Virginia case:
The legality of the election for officers held on the 22nd day of August, 1872, after the ratification of the new constitution and schedule, is not to be called in question by any court created or continued by the provisions of that constitution. When it is proposed that this Court shall determine that the sovereign power of this state cannot lawfully commission a judge of its own creation, it is invited to commit judicial suicide. Courts sit to {158} expound the laws made by their government, and not to declare that government itself an usurpation.34
The idea of "judicial suicide" expressed by the West Virginia Court has also been phrased as follows:
A court which under the circumstances named, should enter upon an inquiry as to the existence of the constitution under which it was acting, would be like a man trying to prove his personal existence, and would be obliged to assume the very point in dispute, before taking the first step in the argument.35
The singular spectacle of a court sitting as a court to declare that we are not a court.36
And if a state court should enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted had been put aside and displaced by an opposing government, it would cease to be a court, and be incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power.37
Thus a judicial determination of the validity or invalidity of a new constitution merely means that the judges who render it are very much attached to their positions.
[§5. Interference by state courts in matters outside proper functions of convention.]
All of the foregoing discussion has related to interference with the amending process. The power of the courts to interfere with the convention when it is exercising powers outside the main purpose of its creation, presents an entirely different question.
As Dodd says:
It has already been suggested that a court would find it difficult to declare a complete constitution invalid because of irregularities in the proceedings or action of a convention. What is the attitude of the courts in enforcing these implied restrictions upon the powers of a convention, in preventing encroachments by a convention, upon powers reserved to other governmental organs of the state? In the first place it should be said that a convention's action in {159} these matters may be controlled by the courts much more easily than irregularities in the framing of a complete constitution. If a convention should attempt to remove an officer of the state government and to appoint another in his place, the court may properly restore the removed officer without in any way interfering with the convention's proper functions; if the convention passes an ordinance of a purely legislative character, the court in a case properly brought before it may declare the ordinance invalid and decline to enforce it. Improper acts committed by a convention in the framing of a constitution may be acts done in the exercise of a power within the competence of the convention, and are difficult to correct, because of the close interrelation of the irregular acts with those which may be regular and proper. When it encroaches upon the existing government, a convention acts in excess of power and its action may be controlled without interference with the functions which properly belong to it.38
[A]nd see also the following quotations from other sources:
The claim for absolute sovereignty in the convention, apparently sustained in the opinion, is of such magnitude and overwhelming importance to the people themselves, it cannot be passed unnoticed. In defence of their just rights, we are bound to show that it is unsound and dangerous. Their liberties would be suspended by a thread more slender than the hair which held the tyrant's sword over the head of Damocles, if they could not, while yet their existing government remained unchanged, obtain from the courts protection against the usurpation of power by their servants in the convention. ...
There is no subject more momentous or deeply interesting to the people of this state than an assumption of absolute power by their servants. The claim of a body of mere deputies to exercise all their sovereignty, absolutely, instantly, and without ratification, is so full of peril to a free people, living under their own instituted government, and a well matured bill of rights, the bulwark and security of their liberties, that they will pause before they allow the claim and inquire how they delegated this fearful power and how they are thus absolutely bound and can be controlled by persons appointed to a special service. Struck by the danger, and prompted by self-interest, they will at once distinguish between their own rights and the powers they commit to others. These rights it is, the judiciary is called in to maintain.39
{160} While it [i.e. the convention] acts within the scope of its delegated powers, it is not amenable for its acts, but when it assumes to legislate, to repeal and displace existing institutions before they are displaced by the adoption of its propositions, it acts without authority, and the citizens injured thereby are entitled, under the declaration of rights, to an open court and to redress at our hands.40
But the question was made whether the convention which passed the ordinance was not limited by the purpose for which it was assembled; and I am of opinion that it was so limited. And this detracts in no degree from the sovereign character of its act when within that purpose. We have no authority to judge of, revise or control any act of the people; but when any thing is presented to us as the act of the people, we must of necessity judge and determine whether it be indeed their act. The sole difficulty seems to me to have arisen from confounding together the authority attributed by the constitution to the people, with that of the convention. Certainly the convention was not the people for any other purpose than that for which the people elected and delegated them.41
We have already seen that the convention is really a fourth branch of the government.42 The same rules with respect to judicial interference ought to apply as would apply to judicial interference with either the legislature or the executive. So long as the convention is acting within the scope of its duties as a framer of constitutions, the courts ought not to interfere, no matter how much the convention appears to exceed its powers. But the moment a convention strays into legislative, executive, or judicial fields, it is the duty of the court, acting under the existing constitution, to promptly put a stop to such usurpation.
[§6. Interference by Federal courts in state constitutional convention.]
So much for the State courts. What should be the attitude of the Federal courts toward a State constitutional convention? It would seem that the Federal courts ought not to interfere, except in the case of a violation of the Federal Constitution. There are no Federal decisions on amendments adopted by the convention method, but the language of the decisions relating to legislative amendments is broad enough to cover the case of conventions. There are two decisions on this point in inferior Federal courts. The case of Smith v. Good was an action upon {161} a promissory note given for the purchase of liquor in violation of the Rhode Island prohibition amendment of 1866. The plaintiff contended that the amendment had not been legally adopted. But the court said:
When the political power of the state declares that an amendment to the constitution has been duly adopted, and the amendment is acquiesced in by the people, and has never been adjudged illegal by the state court, the jurisdiction of a federal court to question the validity of such a change in the fundamental law of a state should clearly appear. ... The very framework of the federal government presupposes that the states are to be the judges of their own laws; and it is not for the federal courts to interpose, unless some provision of the federal constitution has been violated. It is not pretended in this case that any federal question is raised.43
An opposite position was taken in the later case of Knight v. Shelton. This was a suit for damages brought against election officials because they refused to receive the plaintiff's vote for member of Congress. The defendant relied on the failure of the plaintiff to pay a poll tax as required by an Arkansas amendment in 1892. The court held that this amendment had not been legally adopted.44 Dodd says:
Knight v. Shelton and Smith v. Good are, of course, easily distinguishable on the ground that in the first case no federal question was involved, while in Knight v. Shelton a federal question was raised as to the right to vote for members of Congress. But whether the plaintiff had been improperly deprived of such right depended upon an amendment which had been acted upon by the state as valid for twelve years, and which had not been passed upon by the state court.45
In Knight v. Shelton the question was not raised as to the impropriety and possible inconvenience of a federal court's passing upon the validity of a state constitutional amendment as tested by the requirements of the state constitution. It happens that the Arkansas court has in a later case taken a view similar to that taken by the federal court, but suppose it had taken a contrary view, and should insist upon treating as valid an amendment which the federal court had declared invalid. We should then have the {162} absurd situation of an amendment valid in the state courts and at the same time invalid in the federal courts, unless the federal courts should follow the state decision after it is rendered.46
An attempt has recently been made in the Federal courts to set aside a State constitutional amendment, on the ground that it was contrary to the principles of republican government guaranteed by the Federal Constitution to the States. But the court refused to pass on this point, saying that it was a political question.47 In view of this decision, it is unlikely that the Federal courts will ever again be called on to interfere with amendments to State constitutions, unless a Federal question is involved.
[§7. Interference by courts in convention a political question.]
On the whole, the question of judicial interference by either the State or the Federal judiciary with the exercise by the convention of its fourth-branch power is seen to be a political question, and hence outside the jurisdiction of the court. See the following quotations on this point:
The change made by the people in their political institutions, by the adoption of the proposed Constitution since this decree, forbids an inquiry into the merits of this case. The question is no longer judicial.48
In forming the constitutions of the different States, after the Declaration of Independence, and in the various changes and alterations which have since been made, the political department has always determined whether the proposed constitution or amendment was ratified or not by the people of the State, and the judicial power has followed its decision.49
The question, whether the new matter contained in the Constitution adopted by the convention of 1913 is satisfactory to the people of this state and should be retained in force and effect, is, in my humble opinion, a political question, and not a legal question.50
A closely related question is whether the validity of adoption is a political or judicial question; a difficulty which can only be pointed out without discussion here. The difficulty of treating {163} it as a judicial question is evidenced by a peculiar doctrine of our law. Courts which declare their power to overthrow an invalid amendment, will refuse to do so if such an amendment has been in force unquestioned for a considerable time. To reconcile these two ideas seems impossible; but the doctrine may indicate that this should more properly be treated as a political question, and that the courts should have no power to overthrow any amendment which the other branches of the government have recognized as valid.51
Courts and Juries, gentlemen, do not count votes to determine whether a constitution has been adopted, ... It belongs to the Legislature to exercise this high duty ... we cannot revise and reverse their acts, in this particular, without usurping their power. ... if we did so, we should cease to be a mere judicial, and become a political tribunal, with the whole sovereignty in our hands. ... Sovereignty is above Courts or Juries, and the creature cannot sit in judgment on its creator.52
[§8. Courts can assist the convention.]
If the courts cannot interfere with the fourth-branch functions of a convention, can they assist the convention? By analogy from the attitude of the courts toward the functions of the executive and legislative branches, it would seem that the courts ought to render this assistance.
An example of this is furnished by a recent Michigan case. The Secretary of State refused to submit the constitution prepared by the convention of 1908 on the ballots of the November election, contending that action ought to be had in April. The president of the convention applied to the Supreme Court for a mandamus to compel the Secretary of State to obey the convention's orders. The Supreme Court granted this mandamus.53
In North Dakota, the legislature, without constitutional authorization, passed a joint resolution, submitting to the electorate the question of holding a convention, and secured a mandamus forcing the Secretary of State to place the question on the ballots.54
Thus the courts will assist, if necessary, in putting through the convention procedure.
Another way in which the courts can assist the convention {164} method of amendment would be to render judicial advice if requested. Judicial advice has been rendered by the Supreme Courts in New York, Massachusetts, Rhode Island, and New Hampshire to the legislatures of those States on matters pertaining to the constitutional convention.55
Whether the court would render advice at the request of the convention itself would depend upon the general attitude of the court toward its advisory functions. Thus the Supreme Court of New York, which rendered its opinion to the legislature without any constitutional duty to do so, would undoubtedly take the same attitude if requested by the convention. The Supreme Court of Massachusetts, on the other hand, always strictly interprets the constitutional provision for rendering advice to the Governor and legislature and refuses to do so unless absolutely bound. This court, therefore, would probably refuse to advise the convention.
On the whole, it may be said that the courts have no power to interfere with convention proceedings relative to the framing of the constitution and will probably treat the finally adopted changes as a political question, although the courts will prevent the convention from usurping the powers of other departments. The courts will assist the convention to perform its legitimate functions and will prevent the encroachment of any other branches of government upon it. The courts will advise the other branches of the government relative to the convention and will advise the convention in States where the courts do not interpret their advisory duties too strictly.
1. Holmberg v. Jones (1901), 7 Ida. 752, 757-758.
2. Koehler v. Hill (1883), 60 Ia. 543; State v. Brookhart (1901), 113 Ia. 250; People v. Strother (1885), 67 Cal. 624; Thomason v. Ruggles (1886), 69 Cal. 465; Paving Co. v. Hilton (1886), 69 Cal. 479; Paving Co. v. Tompkins (1887), 72 Cal. 5; People v. Loomis (1904), 135 Mich. 556; Re Senate File, 25 Neb. 864, 883-886; Durfee v. Harper (1899), 22 Mont. 354; State v. Tufley (1887), 19 Nev. 391.
3. People v. Curry (1900), 130 Cal. 82. This amendment, however, had not yet been acted on by the people.
4. Koehler v. Hill (1883), 60 Ia. 543.
5. State v. Tooker (1894), 15 Mont. 8.
6. State v. Powell (1900), 77 Miss. 543. The real reason for this decision, however, was that the amendment in question affected the tenure of the judges who rendered the decision. McBee v. Brady (1909), 15 Ida. 761; Armstrong v. Berkey (1909), 23 Ok. 176.
7. McConaughty v. Secy. of State (1909), 106 Minn. 392; State v. Swift (1880), 69 Ind. 505; Re Denny (1901), 156 Ind. 104; State v. Brooks (1909), 17 Wyo. 344; Hatch v. Stoneman (1885), 66 Cal. 632, State v. Dams (1888), 20 Nev. 220; Livermore v. Waite (1894), 102 Cal. 113; Collier v. Frierson (1854), 24 Ala. 100.
8. Dodd, p. 212, n. 157.
9. Dodd, p. 215.
10. The author has been unable to find any instances of this, however.
11. Dodd, pp. 102-103.
12. Collier v. Frierson (1854), 24 Ala. 100, 108.
13. Dodd, pp. 230-232.
14. Wells v. Bain (1872), 75 Pa. 39, 56-57.
15. Wood's Appeal (1874), 75 Pa. 59.
16. Franz v. Autry (1907), 18 Okla. 561, 604.
17. Dodd, p. 95.
18. Dodd, p. 232.
19. See [Ch. XIV §2] pp. 170-171, infra.
20. Report of Judiciary Committee, Rev. Record, N. Y. Conv. 1894, Vol. I, p. 245.
21. Franz v. Autry (1907), 18 Okla. 561, 605.
22. Cranmer v. Thorson (1896), 9 S. D. 149, 154-155.
23. Dodd, p. 96.
24. XXIX "Harv. Law Rev." 531-532.
25. Wood's Appeal (1874), 75 Pa. 59.
26. Jameson, p. 407.
27. Dodd, p. 97.
28. Dodd, p. 98.
29. Miller v. Johnson (1892), 92 Ky. 589.
30. Taylor v. Commonwealth (1903), 101 Va. 829, 831.
31. Koehler v. Hill (1883), 60 Ia. 543, 614.
32. "Trial of Dorr," p. 38.
33. Luther v. Borden (1849), 7 How. 1, 57; citing Williams v. Suff. Ins. Co., 3 Sumner 270.
34. Loomis v Jackson (1873), 6 W Va 613, 708.
35. Koehler v. Hill (1883), 60 Ia 543, 608-609.
36. Brittle v. People (1873), 2 Neb 198, 214.
37. Luther v. Borden (1849), 7 How. 1, 40.
38. Dodd, pp. 108-109.
39. Wood's Appeal (1874), 75 Pa. 59, 69.
40. Wells v. Bain (1872), 75 Pa. 39, 57.
41. McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 270.
42. See [Ch. VII §1] pp. 89-91, supra.
43. Smith v. Good (1888), 34 Fed. 204, 205-206.
44. Knight v. Shelton (1905), 134 Fed. 423, 441.
45. Dodd, pp. 226-227, n. 190.
46. Dodd, p. 227.
47. Pac. States Tel. Co. v. Oregon (1912), 223 U. S. 118.
48. Wood's Appeal (1874), 75 Pa. 59, 68-69.
49. Luther v. Borden (1849), 7 How. 1, 39.
50. Foley v. Dem. Com. (1915), 70 So. 104, 105.
51. XXIX "Harv. Law Rev.," 532-535.
52. "Trial of Dorr," p. 85.
53. Carton v. Secy. of State (1908), 151 Mich. 337.
54. State v. Dahl (1896), 6 N. D. 81.
55. Journal, 69th N. Y. Assembly, p. 918; Opinion of Justices (1833), 6 Cush. 573; 1917 Mass. Senate Doc., 512; Opinion of Justices (1883), 14 R. I. 649; Opinion of Justices, 76 N. H. 586 and 612.
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