Armstrong v. King 281 Pa. 207, 126 A. 263 (Penn. 1924) SIMPSON, J. On November 6, 1923, an amendment to the Constitution of the state was submitted to its qualified electors and approved by them. Because the defendant, as secretary of the commonwealth, proposes to advertise another amendment for submission to them at the election to be held on November 4th of this year, and to notify the county commissioners throughout the state, to print the official ballots accordingly, a taxpayer's bill was filed in the court below, asking that he be enjoined from so doing, because, inter alia, article 18 of our Constitution expressly provides that "no amendment or amendments shall be submitted oftener than once in five years." The court below dismissed the bill, and plaintiff appeals. The constitutional provision (article 18) referred to is as follows: Any amendment or amendments to this Constitution may be proposed in the Senate or House of Representatives; and, if the same shall be agreed to by a majority of the members elected to each house, such proposed amendment or amendments shall be entered on their journals with the yeas and nays taken thereon, and the secretary of the commonwealth shall cause the same to be published three months before the next general election, in at least two newspapers in every county in which such newspapers shall be published; and if, in the General Assembly next afterwards chosen, such proposed amendment or amendments shall be agreed to by a majority of the members elected to each house, the secretary of the commonwealth shall cause the same again to be published in a manner aforesaid; and such proposed amendment or amendments shall be submitted to the qualified electors of the state in such manner, and at such time at least three months after being so agreed to by the two houses, as the General Assembly shall prescribe; and, if such amendment or amendments shall be approved by a majority of those voting thereon, such amendment or amendments shall become a part of the Constitution; but no amendment or amendments shall be submitted oftener than once in five years. When two or more amendments shall be submitted they shall be voted upon separately. It is clear that unless we wholly ignore the words "but no amendment or amendments shall be submitted oftener than once in five years," a conclusion for which no one does or reasonably can contend, we must either construe the language exactly as it is written, namely, as prohibiting the submission of any amendments "oftener than once in five years," or we must interpret it as referring to the amendments specified in the preceding part of the article, which would result in precluding only the resubmission of amendments once defeated by the people. We cannot take this latter alternative, however, because the language used will not permit us to do so. When it was intended to refer to the amendment or amendments dealt with in the earlier part of the article, the clause so providing was always preceded by the word "such." Thus it is said, if “any amendment or amendments" agreed to by the Legislature, “such proposed amendment or amendments" shall be entered on their journals and duly advertised, and if the next Legislature shall agree to "such proposed amendment or amendments" another publication shall be had, and "such proposed amendment or amendments" shall be submitted to the electors for approval, and if "such proposed amendment or amendments" are approved by a majority of those voting thereon, "such amendment or amendments shall become a part of the Constitution." On the other hand, the prohibiting clause does not use this or any similar word; it simply says: "But no amendment or amendments shall be submitted oftener than once in five years." This broadening of the language necessarily implies an intentional broadening of thought; hence it must be construed as it is written, namely, as a purpose on the part of the people that they shall not be asked to amend their Constitution "oftener than once in five years." As bearing upon this question, though not conclusive of it, we have several supporting facts. In the constitutional convention of 1838, after a number of long debates on the general subject of amendments, the words "but no amendment or amendments shall be submitted to the people oftener than once in five years" were presented as an amendment to the pending article on the subject. Volume 12, Proceedings and Debates of Pennsylvania Constitutional Convention 1838, p. 307. It was repeatedly stated as a reason for its adoption by those favoring it and for its rejection by those opposing it that, if adopted, no amend ments of any kind could be submitted oftener than once in five years. Nevertheless, it was approved by the convention, ratified by the people, and for 36 years, during the entire time that Constitution was in force, the five-years limitation was never infringed; the Legislature thus apparently observing the construction expressed in the convention. The committee on future amendments of the constitutional convention of 1873 omitted those words from the article as reported by it, but the convention reinserted them (5 Debates of the Constitutional Convention. p. 13), the entire debate showing once more that they were considered as excluding any and all amendments within the period stated. Again the people ratified the action of their convention, and for 38 more years the five-year period was never infringed by amendments of any kind. We therefore have the fact that two constitutional conventions interpreted the language to mean exactly what it says, without any qualification whatsoever, and for 74 years this construction was apparently accepted as correct by the people acting through 57 of their Legislatures. It is of course true that possibly other reasons explain some of these facts, but it is improbable that all of them could be otherwise accounted for; be this as it may, however, the matter is of importance in considering the instant question, and certainly it wholly excludes any idea that those words, because of usage, should be given any other than their normal meaning. For the purpose of antagonizing this inevitable conclusion, we are told that the practice has been to submit proposed amendments without reference to the five-years limitation; that large sums have been loaned on the faith of the people's approval of amendments thus submitted, and that these loans will be imperiled, if we sustain the contention made upon this point. If this were so, it would be a cause of much regret; but we would nevertheless be required to uphold the Constitution and ignore the erroneous practice, whatever the result might be (Heisler v. Thomas Colliery Co., 274 Pa. 448, 453, 118 Atl. 394, 24 A. L. R. 1215); especially as we have never heretofore decided, or even been asked to decide, what is the meaning of the constitutional provision. Evidently the court below was impressed by the argument thus presented, for although the trend of its opinion shows it believed the true construction of the provision to be as stated, this interpretation was not accepted because, while the Legislature's construction "is not binding on the courts, yet the fact that the Constitution has been thus amended, and large amounts of bonds issued on the strength of such amendments, without question, is, to some extent, indicative of the intention of the people in adopting this Constitution." The effect of this statement is that, because the legislature on four different occasions, beginning in 1911, violated this clause of the Constitution, and no one legally attacked its action in so doing, these facts indicate what the people meant when they adopted it in 1838 and 1873. Of course such a conclusion could not be possible under any circumstances, but the facts already detailed show how especially inaccurate it is in the present instance. Moreover, although contemporaneous and long-continued uniform interpretation should and does assist in construction, if there is any doubt whatever as to the actual meaning, the courts cannot go beyond this, even in determining whether or not a statute is unconstitutional (Cooley's Constitutional Limitations [7th Ed.] 106; Kucker v. Sunlight Oil & Gasoline Co., 230 Pa. 528, 79 Atl. 747, Ann. Cas. 1912A. 503; Collins v. Kephart, 271 Pa. 428, 117 Atl. 440); a fortiori they cannot in deciding the meaning of a constitutional provision. The present Constitution was amended in 1901, 1909, 1911, 1913, 1915, 1918, 1920, and 1923, those of 1911, 1915, 1918, and 1920, being amendments of article 9, section 8, relating to municipal indebtedness. It will be noticed that the untimely submissions were in 1911, 1913, 1918, and 1923. Had injunctions been sought at an appropriate time against their then present submission, doubtless they would have been enjoined. No such action was applied for however, the people gave their approval to the amendments, and to this day no one has challenged the fact that they are properly a part of the Constitution. The affirmative action of two successive Legislatures, the form of submission, the approval by a majority of the electors, and all other steps necessary to give the amendments validity, were duly and properly taken; only the dates of submission were mistakes. It is now too late to directly attack the amendments on this ground, and they cannot be collaterally attacked for any reason. Under what circumstances, if any, a direct attack can be made on a constitutional amendment, after adoption by the people, because of a failure to comply strictly with some procedural condition leading up to the submission, has been the subject of many and lengthy opinion, with results impossible of reconciliation. Usually the assaults upon proposed amendments have been made before submission; but the curious will find practically all of the cases decided prior to 1909 cited and reviewed in McConaughy v. Secretary of State, 106 minn. 392, 119 N.W. 408. One of the extreme authorities is Koehler & Lange v. Hill, 60 Iowa, 543, 14 N.W. 738, 15 N.W. 609, where the state Constitution provided that a proposed amendment must be entered upon the legislative journals, and it was held that because it was not there entered at length the amendment was not effective, even though it had been adopted by the people. The opinion states (page 549 [14 N.W. 741]). "It matters not if not only every elector, but every adult person in the state, should desire and vote for an amendment to the Constitution, it cannot be recognized as valid unless such vote was had in pursuance of, and in substantial accord with, the requirements of the Constitution," including an exact entry on the journals. That is to say, if the clerk in copying a proposed amendment by mistake or fraud omits even an immaterial part of it as was the omission in that case, and the members of the Legislature do not examine the journal to see that it is correct, the amendment would fail even though approved by the unanimous vote of all the electors. Other courts of last resort have taken a more reasonable view, but we shall refer, at this time, to only two of their decisions. In the Constitutional Prohibitory Amendment Cases, 24 Kan. 700, 710, it is said in an opinion written by Justice Brewer, who later became a Justice of the Supreme Court of the United States, that "The two important, vital elements in any constitutional amendment, are, the assent of two-thirds of the Legislature and a majority of the popular vote. Beyond these other provisions are mere machinery and forms. They may not be disregarded, because, by them, certainty as to the essentials is secured. But they are not themselves the essentials." The other case to which attention is called, in this connection, is State v. Winnett, 78 Neb. 379, 387, 110 N.W. 1113, 1116 (10 L.R.A. [N.S.] 149, 15 Ann. Cas. 781), where it is said that, if a too strict adherence were given to some of the requirements "... the will of the people of the state would be defeated by an unimportant accident over which they had no control. If other provisions of the Constitution are mandatory and are to be taken literally, those provisions by which the people have consented to place restrictions upon their own power in adopting amendments to the Constitution should not be so construed [after approval by the people]. We should inquire into the fair purpose and meaning of such restrictions, and should regard the substance rather than the letter of such requirements." It would be idle to attempt to review the irreconcilable opinions on the subject. Our own decisions, while few in number, apply the "rule of reason" in construing constitutional provisions, as well as in interpreting statutes, and no just cause appears why this should not be so. The Constitution is, of course, the paramount law, and must be construed in that light; but after all, it is an instrument prepared by human beings, and contains within itself the proof of their frailties, as we are frequently advised by the arguments presented on the many questions arising under it. Although, being a Constitution, it should contain only that which is fundamental, we are constantly made aware of the fact that many details are embodied in it which more properly belong in legislation. See Commonwealth v. Moir, 199 Pa. 534, 553, 49 Atl. 351, 53 L.R.A. 837, 85 Am. St. Rep. 801. Because of these facts, all that is said in the Constitution is not of the same mandatory force; in the nature of things, some of the detailed provisions must be treated as directory only, as we pointed out in Commonwealth v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568, when we were considering this article on amendments. Indeed, the Constitution itself expresses this inequality for by article 1, section 26, it is declared that the preceding 25 sections are "excepted out of the general powers of government and shall forever remain inviolate." For these reasons it is clear to us that, in matters pertaining to the Constitution, consideration must be given not only to the design of the particular provision under discussion, but also to the time when a judicial investigation must be applied for, if it is not to be deemed too late for consideration. As has already been pointed out, this is essential in the instance being considered, in order that the real purpose shall be conserved, and not defeated by a too rigid adherence to relatively unimportant details. If objection is made before an amendment has been voted on by the people, it may well be held to be in time to challenge a noncompliance with any of the preliminaries to the submission. Upon a complaint then made, no error or fraud of a clerk could defeat the legislative right to have an amendment submitted to the people. If, for instance, the proposed amendment was duly adopted by two Legislatures, but was not entered on their journals, steps could be taken to have the journals corrected, and the amendment submitted. A new status has arisen, however, once the people have approved the proposed amendment. Discussion Notes 1. Was the provision at issue in this case held to be mandatory, or directory? 2. As a constitutional drafter, what amendment would you propose to resolve the ambiguity addressed in Armstrong v. King? 3. Should the use of "shall" rather than "may" be conclusive of the mandatory/directory issue? The famous Scopes case held that "shall" could be read as only directory. Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927). Contra, State ex rel. Fatzer v. Bd. of Regents, 167 Kan. 587, 207 P.2d 373 (1949). 4. Professor Frank P. Grad noted, with respect to the question of whether state constitutional provisions are mandatory or directory: Following Cooley, a number of cases have maintained that constitutional lan guage is always mandatory, unless ex- Frank P. Grad, The Drafting of State Constitutions: H. Interpretation of State Constitutions by State Attorneys General 1971 Report of the Attorney General, New Mexico. p. 152 Attorney General Opinion No. 71-102 August 26, 1971 Opinion of David L. Norvell, To: The Honorable Robert A. Mondragon Executive-Legislative Building Questions: 1. Does Article XII, Section 8, New Mexico Constitution require that the Legislature provide for the training of New Mexico teachers so that they may become proficient in both the English and Spanish languages? 2. If the answer to question No. 1 is in the affirmative, what has been done, should be done or could be done by the New Mexico legislature to comply with the constitutional mandate? 3. What was the intent of the founding fathers of our State in enacting Article XII, Section 8? Conclusions: 1. Yes. 2. See analysis. 3. See analysis. Analysis: Article XII, Section 8, New Mexico Constitution reads as follows: The legislature shall provide for the training of teachers in the normal schools or otherwise so that they may become profi cient in both the English and Spanish lan- The wording of Article XII, Section 8 clearly indicates that the Legislature is to provide for the training of New Mexico teachers so that they may become proficient in both the English and Spanish languages. Thus the answer to the first question is in the affirmative. Turning next to your third question, the exact intent of the founding fathers in enacting this Article is impossible to ascertain. Only the briefest outlines remain of what transpired during the drafting of the state Constitution. We must therefore determine the intent from the words themselves in this and related articles of the Constitution. In Article XII, Section 8 the language used is imperative: "shall provide." However, the imperativeness of the first clause is somewhat obscured by the use of the word "may" in the second line. We feel that the phrase "so that they may become proficient" can be read as "in order that they become proficient," thus eliminating the confusion of the word "may." Thus the clause is imperative: the Legislature is required to provide for training of teachers in order that they become proficient in both languages. The wording of the next phrase, "to qualify them to teach Spanish-speaking students," indicates that the framers felt that proficiency in both languages was essential for someone to be qualified to teach Spanish-speaking pupils. This leads us to the conclusion that the intent of the framers was that the Legislature provide trained teachers proficient in both English and Spanish. Thus, to comply with this provision, the Legislature would have to do more than es |