new government. Governments, thus accepted and ratified by silent sul mission, afford no precedents for the power of a convention in a time of profound tranquillity, and for a people living under self-established, safe institutions:" AGNEW, C. J. pp. 71, 72, 73: the same effect is the opinion of the Justices, January 23, 1883, 6 Cushing (Mass.) 573

Notwithstanding these sentiments, SHARSWOOD, J., in Northampton Co. v. Lehigh C. & N. Co., decided May 11, 1874, and reported in the same volume (75 Pa. 461), incidently remarked "the Constitution did not go into operation until January 1st, 1874, Schedule, Sec. 1." This quite agrees with ruling in Texas: infra page 245.

This Pennsylvania incident is cited as a strong method of distinguishing the principal case in several particulars. And, first, in the principal case, unlike that in Pennsylvania, no question did or should arise as to the power of the convention to make an ordinance. Consequently a discussion of the powers of a constitutional convention may be omitted here, with the caution that the language quoted on page 235 is entirely too loose even for the purposes of the principal case. Second, both in Pennsylvania and in Montana, schedules were properly appended to the proposed constitutional provisions; this will appear from a brief examination into the functions and force of such temporary additions.

The true function of a schedule or ordinance accompanying a proposed Constitution and submitted for the approval of the voters at the same time, came up for decision in Watson v. Chester & D. R. R. R. Co. (1877), 83 Pa. 253, 255. The Court, speaking through Chief Justice AGNEW, said that the Schedule to the Pennsylvania Con

stitution of 1874 was "intended to Iridge over the chasm be:ween the two frames of government, and make the transition, from one to the oth.r, easy ani without unnatural disturbance of the affairs of the people." To the same effect are Sigur v. Crenshaw (1853). 8 La. An. 401, 422; citations ante page 235; The Comm. ex ril. v. Collins (1839), 8 Watts. (Pa.,) 348, 336; Plowman v. Thornton, (1875), 52 Ala. 559, 568. Griffin's Ex'r v. Cunninghim, (1870) 20 Grat. (Va.) 31; The Richmond Mayoralty Case (1870),19 id. 673.

Such being the purpose of these additional documents, their force may readily be inferred and has not involved auch contention. Thus, in Ridley v. Sherbrook (1866), 3 Coldw. (Tenn.) 569, 575, the effect of a schedule, submitted and adopted by the requisite ballots, was discussed. Lack of time prevented more than an announcement of the decision, that "the provisions of the Schedule, for all the purposes for which they were designed, [became part of the Constitution], and had all the force of constitutional provisions." Hence the provisions of the ninth section of the Schedule, authorizing the General Assembly, at its fust ensuing session, to fix the qualification of voters, was valid and abrogated the provisions of the previous Constitution of 1834.

This Tennessee decision was followed in State v. Johnson (1870), 26 Ark. 281, being the only one on the point, accessible to the Supreme Court of Arkansas.

Years before, the same result had been reached in l'ennsylvania in The Comm. ex rel. v. Collins (1839), 8 Watts. (Pa.) 331, 335, 348, and, also, in 1855, in Texas, supra p. 235.

It is true that an Ordinance appended to the Constitution of Alabam 1, framed in 1819, was denied to be such part of

that instrument as only to be " abrogated and annulled in the same manner as any other part :" GOLDTHWALET, J. Dukes, Cahr: ba Nr. Cò. (1846), 10 Ala. 82,88. The Ordinance provided, among other things, that "all navigable waters within this State shall forever remain public highways, free to the citizens of this State and of the United States, without any tax, duty, impost, or toll therefor, imposed by this State; and this Ordinance is hereby declared irrevocable, without the consent of the United States." (1 Poore's Const. 46.) This Ordinance was merely the acknowledgment of this obligation, laid upon the Convention by 46 of the enabling Act of March 2, 1819; 3 Stat. at L. 492. The State, by Act of January 10, 1827, incorporated the Navigation Company and authorized it to charge and collect tolls: to this Act Congress gave assent by their Act of May 24, 1828: 4 Stat. at L. 308. The Alabama Court very properly said, that "The State Government being invested with the entire authority of the people, except where they have chosen to restrict the government, it follows that all the external relations of the people, with the citizens of other States, or with the Government of the United States, must be conducted by the State government. The Ordinance itself indicates that it is revocable with the consent of the United States, and as the consent of the people of this State can only be expressed through the State government, it follows that when the assent of both is given by the constituted authorities of each, the powers disclaimed, may be resumed and immediately exercised by the State authorities, under the general powers, these not being restricted otherwise than by the Ordinance." (10 Ala. 88-9.) All this is still true, and was precisely the course taken during the reconstruction of the Southern States, the VOL. XXXVIII.—16.

State Legislatures being required to make certain alterations in the proposed Constitutions before Congress would approve them: see the cases of Shorter v. Cobb, (1869), 39 Ga. 285, 303-4; Hardemann V. Downer (1869), id. 425, 443-4; Peak v. Swindle (1887), 68 Texas 242, 248; The State v. Williams (1873), 49 Miss. 640, 661; Plowman v. Thornton, (1875) 52 Ala, 559, 565.

A Schedule, or Ordinance, pro, osed by a Constitutional Convention and within the powers confided to such a body, has now sufficiently appeared to be of equal force with the provisions of the amendment or new constitution itself, and, therefore, the question may now be considered as to the time when a constitutional provision becomes the supreme law.

As some of the cases to be cited. arose from the reconstruction of the Southern States, and a full discussion of these cases woul! involve the powers of Congress, much in the same manner. as the principal case might equally challenge those powers, it will not be amiss to state briefly that there are three theories of the time when the transformation occurs from a Territory of the United States into a State of and in the Union. Beyond this, the discussion of the powers of Congress is unnecessary and wou'd distract from the main question for this annotation: that is, at what time is a constitutional provision the supreme law?

The three theories were alluded to in the opinion delivered in Secombe v. Kit:lson (1882), 29 Minn. 555, 559, as follows: First, that the adopted Constitution of the new State cannot take effect, and the new government cannot go into operation, until Congress admits the State into the Union. This would leave the State still a Territory, until admission. This theory has been

exploded by the decisions upon the reconstruction Constitutions of Virginia, Mississippi and Texas, infra.

Second, that the adoption of a State Constitution, under the provisions of an enabling Act of Congress, and the formation of a State government, create a State, although not in the Union. This theory seems to be the proper one and to exclude any effort to organize a State without permission of Congress: Shorter v. Cobb (1869), 39 Ga. 285, 298, 299; Hardeman v. Downer (1869), id. 425, 443.

Third, that compliance with any conditions required by Congress, (as the ratification of the last amendment to the Constitution of the United States,) is sufficient to complete the organization of the State. This theory does not seem to be law, under the Virginia, Texas and Mississippi decisions, infra.

Coming now to the consideration of the question as to when the constitutional provision becomes the supreme law, and overrides previous constitutions and laws, the argument presented for the respondent may be observed; for it will appear to be a suitable introduction to the answer required to sustain the Montana Court.

No doubt the contention in the principal case was based upon a sound premise, considered by itself. That is, if there had been no Ordinances of the Convention and no provisions in the Act of Congress authorizing such Ordinan ces, the Constitution, when adopted, would have required legislation to put it into operation, and would seem to be subject to the same rule of common sense which perpetuates former legislation when a State adopts a new Constitution or amends an existing one. That is, where legislation is necessary to give effect to constitutional provisions nd former legislation is not abrogated

by the new provisions, such former leg islation continues until new laws are enacted: Cahoon's Case (1871), 20 Grat. (Va.) 733,789; (composition of grand juries); Supervisors v. Stout (1876), 9 W. Va. 703,705 (road juries).

Perhaps it might be safe to go further and say that where legislation is not nec sary for the operation of the new constitutional provisions, that a literal in terpretation will not be adopted unless absolutely required. This may be understood from the following case, though the decision there finally turned upon the necessity of legislation to en force the plain prohibition.

The effect of the third section of the Fourteenth Amendment to the Consti tution of the United States, came into consideration before CHASE, C. J., in Cæsar Griffin's Case, heard in the United States Circuit Court for the District of Virginia at May term, 1869, and reported in Chase's Dec. 364-426. The words of the Amendment are : "3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each house, remove such disability. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

Under this section, Griffin prayed for discharge, under a Habeas Corpus, from a conviction in a criminal court presided over by a person who had, as a member

of a State legislature, engaged in insurrection or rebellion against the United States. The discharge was refused, CHASE, C. J., saying-" In the examination of questions of this sort, great attention is properly paid to the argument from inconvenience. This argument it is true, cannot prevail over plain words or clear reason. But, on the other hand, a construction which must necessarily occasion great public and private mischief, must never be preferred to a construction which will occasion neither, or neither in so great a degree, unless the terms of the instrument absolutely require such preference. *** But, in all these [Southern] States, all offices had been filled, before the ratification of the Amendment, by citizens who, at the time of the ratification, were actively in the performance of their several duties. Very many, if not a majority of these officers, had, in one or another of the capacities described in the third section, taken an oath to support the Constitution, and had afterwards engaged in the late rebellion; and most, if not all of them continued in the discharge of their functions after the promulgation of the amendment, not supposing that, by its operation, their offices could be vacated without some action of Congress. If the construction now contended for be given to the prohibitive section, the effect must be to annul all official acts performed by these officers." (pp. 417, 18.) And after alluding to the fifth section, the Chief Justice proceeded,— 'Taking the third section then, in its completeness with this [its] final clause, t seems to put beyond reasonable quesion, the conclusion that the intention of the people of the United States, in dopting the Fourteenth Amendment, was to create a disability, to be removed, in proper cases, by a two-thirds vote, und to be made operative in other cases, y the legislation of Congress, in its

ordinary course. " (p. 422.)

So far as confirming the power of such a de facto judge, the Chief Justice announced (pp. 425-6) that he was authorized to say that his action was in accordance with the unanimous opinion of the other Judges of the Supreme Court of the United States, who had examined into the case upon an appli cation for a writ of prohibition against the United States District Judge who had ordered the discharge of Griffin upon this Habeas Corpus. The case came before the Chief Justice on an appeal from the District Judge's order of discharge.

The principle here upheld was before the judges of the reconstructed States, Lut was properly thought inapplicable where legislation was not needed: see especially the opinion in The State v. Williams, (1873), 49 Miss. 640, 664. 682, where Musgrove v. Leachman (1871), 45 id. 511, was distinguished.

When the Territory of Minnesota passed into the State of that name, the difference between the Territorial law and the Constitution of the new State, gave rise to the case of Parker v. Smith (1859), 3 Minn. 243. The defendant was elected to be the District Attorney of Dakota County, at the same, as the electors voted for the proposed Constitution of the new State, but his time of residence had been insufficient under the Territorial laws to become a candidate for office, though ample under the Constitution then approved by the necessary ballots of the electors. The Territorial laws were applied, the Court saying, that the Constitution was not operative until after its adoption by the people, and did not change any rights, daties, requirements, or obligations that were created by, or dependent upon any Territorial act until it had received such sanction." Not that the Court took the Pennsylvania and New York view of the adoption when the votes had

been fully counted: Infra. page 247 A far less tenable theory was advanced : "At the election in October, 1857, at which the Constitution was submitted, there were two distinct elections, although held on the same day and at the same places, for convenience. This was absolutely necessary in the event of the Constitution being rejected by the people, in which case all the votes cast for any of the officers created by the Constitution, would have been of no effect, and the whole State scheme would have fallen to the grour d, and the Territorial form of government would have continued as if no such election had taken place, and all the officers, from Delegate to Congress to those of precinct jurisdiction, elected under the Territorial Laws, would have entered upon their functions precisely as they did the previous year." FLANDRAU, J., (id.) 243-4. But this theory overlooks the origin of the new officers, such as members of Congress, as well as those of the same function in Territory and in State, and was probably based upon the language of the enabling act of Congress (February 26, 1857, 11 Stat. at Large 166) which differed from the enabling act for Dakota, Montana and Washington (February 22, 1889, 25 Stat. at Large 676), in authorizing the Convention (3) to determine whether the people desired admission as a State, and if so, authorized the framing and submission of a constitution, and, also, (4) in the event said convention shall decide in favor of the immediate admission of the proposed State into the Union, providing for a special census for the basis of the representation in Congress. In the Act of 1889, no State could come into existence without adopting its Constitution (287 and 24) and the difficulties which might arise from use of this theory, ca be inferred from reflection upon the case of Secombe v. Kittelson (1882), 29

can

Minn. 555, where the Court dismissed a discussion upon the power to amend the State Constitution, not yet in force according to this theory, by a rough and ready and common sense short cut, that this amendment had afterwards been amended out of the Constitution: (id. 561.)

The weight of Stewart v. Crosby, ante page 235, is much diminished by the absence of any explanation of the reasons upon which it is founded. "The time remaining will not permit an extended discussion of even the material questions in the case, on which its decision depends. But as a decision at the present Term is earnestly desired by the parties, and may be important to the attainment of their rights, we shall proceed to dispose of the case, upon grounds deemed clear and sufficient to determine the litigation between the parties; and shall state only our conclusions upon the material questions involved in the decision; so as to indicate distinctly the grounds of our judgment; reserving for a future occasion, it may be for a future case, the statement at length of the reasons on which we rest our conclusions:" WHeeler, J. pp. 547-8.

Perhaps the disposition of the Texas judges can be fathomed after consideration of a much later decision rendered by their Supreme Court, in the case of Peak v. Swindle (1887), 68 Texas 242, which turned on the suspension of the Statute of Limitations during the seccession period, by the reconstruction Constitution. "The inquiry as to when the Constitution, ratified by the people in 1869, became operative, is now directly presented; and if it be true that it so became when ratified by the people, it is clear that the instructions given were correct and that the judgment, as to the appellee, must be affirmed. **** These acts, which led to the formation of the Constitution,