OPINION BY: SEEVERS; DAY

OPINION: SEEVERS, J.--At a special election held on the 27th day of June, 1882, the electors of the State, by a majority of about thirty thousand, ratified an amendment to the Constitution, which, it is claimed, had been previously agreed to by the Eighteenth and Nineteenth General Assemblies, prohibiting the manufacture and use of intoxicating liquors as a beverage, including ale, wine, and beer, as therein provided.

   The question is fairly presented in the record in this case, whether or not the amendment aforesaid has been constitutionally agreed to and adopted, and this is the question discussed by counsel, and the only question we are called on to determine. The validity of the amendment, and whether the same  now constitutes a part of the Constitution, depend upon the question whether the Eighteenth General Assembly agreed to the amendment which was ratified and adopted by the electors, and whether the amendment was agreed to by the Eighteenth General Assembly in the form and manner required by the Constitution.

   When the Constitution was adopted, it was wisely therein provided, or at least it must be so presumed, that "any amendment or amendments to this Constitution may be proposed in either house of the General Assembly; and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment shall be entered on their journals, with the yeas and nays taken thereon, and referred to the legislature to be chosen at the next general election, and shall be published as provided by law for three months previous to the time of making such choice; and if, in the General Assembly so next chosen as aforesaid, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the General Assembly to submit such proposed amendment to the people, in such manner and at such time as the General Assembly shall provide; and if the people shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members of the General Assembly, voting thereon, such amendment or amendments shall become a part of the Constitution of this State." Art. 10, § 1.

   This is the only way the Constitution can be amended or changed except by a convention called for that purpose.

   In compliance with the foregoing provision, there was introduced into the House of Representatives of the Eighteenth General Assembly a joint resolution, the material portion of which, for the purpose of this case, is as follows:

"Be it resolved by the General Assembly of the State of Iowa That the following amendment to the Constitution of the State of Iowa be, and the same is hereby, proposed, viz.:

"To add as section 26 to article 1 of said Constitution the following:

"SECTION 26. No person shall hereafter manufacture, sell, or keep with intent to sell, within this State, any alcoholic, distilled, brewed, fermented or vinous liquors,  except for medicinal and mechanical purposes."

 "No person shall manufacture for sale, or sell, or keep for sale, as a beverage, or to be used for such purpose, any intoxicating liquors whatever."

"Mr. Speaker: I am directed to inform your honorable body that the Senate has passed the House joint resolution proposing to amend the Constitution so as to prohibit the sale of intoxicating liquors within this State, with amendments, as noted in the resolution.

   "A. T. MCCARGAR, Secretary."

"Mr. Speaker: Your committee on constitutional amendments, to whom was referred the substitute passed by the Senate for the joint resolution passed by the House, proposing to amend the Constitution of the State of Iowa as follows:

"SECTION 26. No person shall hereafter manufacture, sell, or keep with intent to sell, within this State, any alcoholic, distilled, brewed, fermented or vinous liquors, except for medical and mechanical purposes--beg leave to report that they have had the same under consideration, and a majority of said committee have instructed me to report the same back to the House with the recommendation that the House do concur in the passage of said substitute.

   The House journal shows that the committee on enrolled bills reported to the House that they had examined the joint resolution, and that the same was correctly enrolled. Thereupon, such enrolled resolution was signed by the Speaker of the House and President of the Senate, and approved by the Governor. The joint resolution thus signed and approved was as follows: "No person shall manufacture for sale, or sell, or keep for sale, as a beverage, any intoxicating liquor whatever, including ale, wine and beer." This proposed amendment to the Constitution was agreed to by the Nineteenth General Assembly, and ratified by the electors at a special election, held on the 27th day of June, 1882. Counsel for the plaintiff insist that the joint resolution, at the time it was agreed to by the Senate, contained the words "or to be used." Their contention is that it then reads as follows: "No person shall manufacture for sale, or sell, or keep for sale as a beverage, or to be used, any intoxicating liquor whatever, including ale, wine and beer." The resolution claimed to have been agreed to by the Senate is materially different in substance from the one ratified by the electors. Counsel for the appellant do not claim this is not so as shown by the journals, but their contention is that the enrolled resolution, signed by the Speaker of the House and President of the Senate, and approved by the Governor, is a verity, and is conclusive evidence that the resolution as enrolled was agreed to by both houses of the Eighteenth General Assembly, or, if this is not so, that the preponderance of the evidence is in favor of the proposition that the resolution which was agreed to was correctly enrolled. The plaintiff contends that it is made clear and certain by an examination of the Senate journal that the words "or to be used" were in the resolution when it passed the Senate, and that the journal is the best evidence of such fact. This question, and all others in the case, have been elaborately and ably argued by counsel, both in print and orally at bar, and we proceed to  the consideration of the question just stated.

   I. In Cooley's Constitutional Limitations, 4th Ed., 164, it is said: "Each House keeps a journal of its proceedings, which is a public record, and of which courts are at liberty to take judicial notice. If it should appear from these journals that any act did not receive the requisite majority, or that in respect to it the legislature did not follow any requirement of the Constitution, or that in any other respect the act was not constitutionally adopted, the courts may act upon this evidence, and adjudge the statute void." In the opinion of the eminent author, the journals of the respective houses, in the absence of a statute so making them, are evidence of what the houses respectively did, and, upon such evidence, a statute, if not constitutionally passed, should be declared void by the courts. It logically follows that a proposed amendment to the Constitution should be declared void, if the same has not been constitutionally agreed to. It is not claimed that it is not just as essential, in a constitutional sense, that a proposed amendment to the Constitution should be agreed to by two General Assemblies, as that it should be ratified by the electors. Not only so, but each house of each General Assembly must agree to the same amendment, and it must be adopted by the electors. 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. If, then, both houses of the Eighteenth General Assembly did not agree to the resolution which was adopted and ratified by the electors at the special election held for that purpose, it is not a part of the Constitution, and cannot be so recognized.

   There is much dispute between counsel as to whether Judge Cooley is sustained by the weight of authority. That there is an apparent want of harmony on the important question under consideration in the adjudged cases, must be conceded. In view of the peculiar provisions of our Constitution and statutes, we do not deem it important to determine, with any degree of accuracy, upon which side of this controversy there is a preponderance of authority, or which, in the absence of constitutional provisions or statutes, is the better rule. Nor do we deem it important to determine whether the term, "proceedings of the General Assembly," as used by Cooley, embraces the contents of a bill or statute, or not; that is, whether such contents may be evidenced or established by the journal.

   A brief examination of some of the authorities may, however, be of advantage, when we come to consider the bearing of the provisions of the constitution and statutes of this State on the question under consideration. The leading and better reasoned of the cases which hold the enrolled bill is a verity, and that the journals cannot be considered in determining the question whether such bill was constitutionally passed by the General Assembly, or what the contents of the bill were, are--The People v. Devlin 33 N.Y. 269; Sherman v. Story, 30 Cal. 253; Pangborn v. Young, 32 N.J. L. 29; Pacific R. R. Co. v. The Governor, 23 Mo. 353; Evans, Auditor of State, v. Browne, 30 Ind. 514. These cases are based on substantially the same reasons which are stated in the New York case, as follows: The journals "are not made evidence by the Constitution; they are not made so by the statute; they were never made so at common law." In the New Jersey case, it is said: "They (the journals) are not required to be attested in any way whatever * *. There is required not a single guarantee to their accuracy or  truth; no one need vouch for them, and it is not  enjoined that they should be either approved, copied or recorded." In the Missouri case, it is said: "But there is no provision of law declaring how the journals shall be authenticated, or what shall be their effect." In addition to the foregoing, counsel for the appellant have cited--The State of Nevada v. Swift, 10 Nev. 176; Eld v. Gorham, 20 Conn. 8; Green v. Weller, 32 Miss. 650; Division of Howard County, 15 Kan. 194; Annapolis v. Harwood, 32 Md. 471; Clare v. The State, 5 Iowa 509; and Duncombe v. Prindle, 12 Iowa 1. All that was determined bearing on the question under consideration in the two last named cases was that, where there is a conflict between the printed act and the enrolled act filed in the office of the Secretary of State, the latter is the ultimate proof of the expression of the legislative will. Whether the journals were competent evidence, or their effect, was not considered in either case.

   On the other hand, omitting reference to the earlier New York, Missouri and Indiana cases, there may be cited, as sustaining the rule laid down by Cooley, the following:--Spangler v. Jacoby, 14 Ill. 297; The People v. Starne, 35 Ill. 121; Miller v. Martin, 70 Ill. 695; Burr v. Ross, 19 Ark. 250; The State v. Platt, 2 So. Car., N. S., 150; James v. Hutchinson, 43 Ala. 721; Moody v. State, 48 Ala. 115; Smithee v. Garth, 33 Ark. 17; Board of Supervisors v. Heenan, 2 Minn. 330; Southwark Bank v. Commonwealth, 26 Pa. 446. The opinion of the Justices, 35 N.H. 579. Also 52 N.H. 622; The People v. Mahaney, 13 Mich. 481; Berry v. R. R. Co., 41 Ind. 446; Osborn v. Staley, 5 W. Va. 85.

   As we have said, the appellant contends the enrolled joint resolution is a verity, and that we cannot look into the journals for the purpose of ascertaining whether or not it was ever agreed to by the respective bodies composing the Eighteenth General Assembly, and that the great weight of authority is in favor of this position. The citations made indicate, to say the least, that this is a debatable question. We pass it, and turn to our constitution and statutes for the purpose of determining to what extent the adjudged cases are applicable in this State. The Constitution provides that each house shall keep a journal of its proceedings and publish the same--Art. 3, Section 9. It is believed a similar provision in substance is contained in the constitution of every State.

   Every bill which shall have passed the General Assembly, before it becomes a law, shall be presented to the Governor. If he does not approve it, he shall return it to the house where it originated "which shall enter the same on their journal and proceed to consider it." Art. 3, Section 16. "No bill shall be passed unless by the assent of a majority of all the members elected to each branch of the General Assembly, and the question upon the final passage shall be taken immediately upon its last reading, and the yeas and nays entered upon the journal." Art. 3, Section 17.

   The foregoing provisions are substantially the same as the provisions of the constitution of Illinois, upon which the cases cited from that State, were based. This being so, those cases are clearly applicable to the case at bar, and therefore entitled, at least, to respectful consideration.

   The statute provides: "The secretary of the Senate and clerk of the House of Representatives shall transcribe the journals of their respective houses in books furnished for that purpose by the Secretary of State, and, after having certified to the correctness of the same, shall deliver them to the Secretary of State for preservation in his office." Miller's Code, p. 27, sec.  4. It is further provided by statute: "The proceedings of the legislature of this or any other state of the Union, or the United States, or of any foreign government, are proved by the journals of those bodies respectively, or of either branch thereof, and either by copies officially certified by the clerk of the house in which the proceeding was had, or by a copy purporting to have been printed by their order." Code, § 3717.

   Without doubt, the journals, under the foregoing statutes, are competent evidence to establish the proceedings of either or both houses of the General Assembly. The important, if not the only legitimate, business of the General Assembly is legislation; that is, the enactment of laws or statutes. The proceedings of the General Assembly, therefore, include the manner and form in which the laws are enacted. The journals, therefore, are competent evidence of such facts. If it becomes necessary, the design of the statute evidently is that the journals may be introduced and become competent evidence in the courts. The provision is, the proceedings are proved by the journals. For this purpose the journals are competent evidence in all courts and places, and for all purposes--for there is no exception.

   We, therefore, have not only the right, but it is our duty, to regard the journals as competent evidence of the proceedings of the General Assembly. To what extent they can be regarded as evidence, or what can be established thereby, will be hereafter considered.

   Statutes, before they become such, and when first introduced into either house of the General Assembly, are named "bills," and every bill which has passed both houses shall be signed by the Speaker of the House and President of the Senate, and, we will assume, approved by the Governor, before it becomes a law. Art. 3, sections 15, 16, of the Constitution.

   The statute provides: "The original acts of the General Assembly shall be deposited with and kept by the Secretary of State." Code, § 31. No provision is made in the Constitution or statute for the enrollment of a bill, act, or joint resolution, which has passed the General Assembly. There is an implication in Art. 3, Section 15, of the Constitution, that the bills which are introduced should be signed by the presiding officers of each house. But the legislative practice has always been to enroll a bill or joint resolution, and it is such that are always presented to the presiding officers of each house, signed by them, and filed and preserved in the office of the Secretary of State. This practice existed prior to the adoption of the present constitution, and no doubt was well known to the members of the constitutional convention. We, therefore, incline to think the enrolled bill is and should be regarded as the original act. But it is difficult to say enrollment is essential to the validity of a law or statute. If the enrollment was omitted, and the original bill, as introduced and passed by the General Assembly, was signed by the presiding officers of the two houses and approved by the Governor, we are not prepared to say it would not be a valid and constitutional law.

   The question whether a bill which has been duly enrolled and properly signed by the presiding officers, and approved by the Governor, and deposited in the office of the Secretary of State, can be impeached or declared void because the journals fail to show it was passed by either house of the General Assembly, or when the journals show affirmatively it never was passed, is not  before us. The first proposition can possibly be readily answered, but the latter cannot be as readily solved.

   Inasmuch as a bill, before it becomes a law, must be signed by the presiding officers of the two houses and by the Governor, as will be assumed, we may, for the purposes of this case, concede, when it has been enrolled and so signed, and deposited in the office of the Secretary of State, it is the ultimate and conclusive evidence of the contents of the bill which passed the General Assembly, and that it cannot be contradicted by the journals, because there is no constitutional provisions requiring that it shall be entered on the journals.

   The question before us is as to the validity of a constitutional amendment, and we think there is a material distinction between the rules which must obtain in such case, and when a statute is assailed as not having been constitutionally enacted. The Constitution provides for its own amendment, and the manner in which this may be done is prescribed with particularity, and yet the provisions are simple and readily  understood. An amendment may be "proposed in either house of the General Assembly, and if the same shall be agreed to by a majority of the members elected to each of the two houses, the proposed amendment shall be entered on the journals, with the yeas and nays taken thereon."

   Much has been said by counsel as to whether the provision as to entering the proposed amendment on the journals is mandatory or directory. We do not regard it as essential to determine this question, but we cannot forbear from quoting the following from Cooley on Constitutional Limitations: "In all that we have said upon this subject, we have assumed the constitutional provision to be mandatory * * *. The fact is this:--that whatever constitutional provision can be looked upon as directory merely, is very likely to be treated by the legislature as if it is devoid even of moral obligation, and to be, therefore, habitually disregarded. To say that a provision is directory, seems, with many persons, to be equivalent to saying that it is not law at all. That this ought not to be so, must be conceded; that it is not so, we have abundant reason and good authority for saying. If, therefore, a constitutional provision is to be enforced at all, it must be treated as mandatory, and if the legislature habitually disregard it, it seems to us that there is all the more urgent necessity that the courts should enforce it; and it also seems to us that there are few evils, which can be inflicted by a strict adherence to the law, so great as that which is done by the habitual disregard by any department of the government of a plain requirement of the instrument from which it derives its authority, and which ought, therefore, to be scrupulously observed and obeyed." Cooley's Constitutional Limitations, 2 Ed., 149.

   We deem it sufficient to say that, if there is any provision of the Constitution which should be regarded as mandatory, it is where the Constitution provides for its own amendment otherwise than by means of a convention called for that purpose. The powers of a convention are, of course, unlimited. The members thereof are the representatives of the people, called together for that purpose. The object of the provision cannot be doubted or misunderstood. It is to preserve in the manner indicated the identical amendment proposed, and in an authentic form, which, under the Constitution, is to come before the succeeding General Assembly. No better mode could have been adopted, when it is considered that, to be effective, the proposed amendment must be agreed to by the succeeding General Assembly. This  thought is much strengthened by the consideration that the proposed amendment is only required to be entered on the journals of the first General Assembly which acts thereon. This distinction, to our minds, is significant, and enhances the importance of the constitutional injunction--that the proposed amendment shall be entered on the journals of both houses of the General Assembly which first agrees thereto. It is immaterial, however, whether the Constitution provides the best method for the preservation and authenticity of the proposed amendment or not, for the constitutional mode must prevail, even if it be conceded some other would have been better. It may be suggested that to enter or entering on the journal does not necessarily mean spreading the same at length thereon. This will be conceded, but that it may so mean must also, we think, be conceded. See Webster's Dictionary. Various instances where the words "to enter" or "entered" occur in statutes and Constitution may, no doubt, be cited, where they do not mean spread at length. But this is not of much significance--for the object to be attained must be considered in determining the meaning of the word entered, as used in the Constitution. The evident intent of the Constitution is that the proposed amendment should be entered at length on the journal, or, at least, so entered as to leave no reasonable doubt as to its provisions. This must be so, or the entering of the yeas and nays can be as readily dispensed with as entering the resolution, and yet this is the constitutional mode of ascertaining whether a majority of the members elected to each house agreed to the amendment. Cooley's Constitutional Limitations, 2 Ed., 141.

   When the object intended to be accomplished is considered, we think there is no doubt that it is the design and intent of the Constitution that a proposed amendment thereto should be so entered on the journals that it can be known, by an examination of the journals, what it is that has been agreed to by each house of the General Assembly which first acts thereon, to the end that the succeeding General Assembly may certainly know what its predecessor did. It seems to us that a simple entering on the journal of the title or object of a proposed amendment does not accomplish the intent of the Constitution, and the thought that this must be so is much strengthened when regard is had to all the provisions of the Constitution. That instrument provides that upon the final passage of a bill the yeas and nays must be taken, and the same entered upon the journal. This necessitates the entering on the journal of the title or substance of the bill to be voted upon. This being so, if no more than this was intended in relation to a constitutional amendment, the provision as to entering it on the journal is unnecessary and meaningless. There is no provision requiring a bill to be entered on the journal, but the Constitution does require that a proposed amendment thereto "shall be entered" on the journals "with the yeas and nays." This must mean that the amendment shall be spread at length thereon, and the yeas and nays set out in the journal in full or at length. No distinction between the two can possibly be drawn. Amendments were proposed to the Constitution in the Eleventh General Assembly, some of which were agreed to, but all were spread at length on the journal. The amendments afterward ratified by the electors, striking out the word "white" where it occurred in the Constitution, were among the amendments proposed at that session. These amendments were spread at length upon the journals of both houses. Here we have a legislative construction of the Constitution which should not and cannot be ignored.

   It will be observed that the Constitution does not provide in what manner the amendment shall be proposed. Whether it shall be done by a bill or joint resolution seems to have been left to the discretion of the General  Assembly to determine. But, in whatever way proposed, when agreed to, it is provided that it shall be entered on the journal. Now suppose a member of either house had, while it was in session, orally proposed the amendment in question in the form it was agreed to by the electors, and it had been entered at length on the journal, and agreed to, and the amendment so entered had been correctly copied and properly transmitted to the other house, entered at length on its journal, and agreed to, and published as provided by the Constitution and law, and the subsequent general Assembly had agreed thereto as required by the Constitution, and the same had been submitted to the electors, as we done, could it be said it was not constitutionally adopted, because it was not enrolled, signed by the presiding officers of the two houses, and approved by the Governor? If it can be so said, why, or for what reason?

   Suppose the Governor had vetoed the joint resolution and returned it, with his objections, to the house in which it originated, and upon being put upon its passage it had failed to receive a two-thirds majority of one or both houses, as provided in Art. 3., section 16 of the Constitution, would this have been fatal to the amendment? No one will so contend. It was not essential, therefore, the Governor should have approved the joint resolution. The Constitution does not so require. There is no provision of the Constitution, nor is there a statute which, by implication, requires that a joint resolution proposing to amend the Constitution shall be signed by the presiding officers of the two houses. Such signing, therefore, is not essential, and may be dispensed with. There is no provision of the Constitution or statute which requires it shall be enrolled. But there is a constitutional injunction, to say the least, that it shall be entered on the journals. In a constitutional sense, the journals constitute and are the primary and best evidence, and the enrolling and signing, as above stated, at best, are only secondary evidence, which may, and can only be considered when the primary evidence has been lost or destroyed. The Senate substitute for the House resolution, when introduced, was entered at length upon the journal of the Senate. There was added to it the words, "including ale, wine and beer." These words are set out at length in the journal. The substitute, when introduced, contained the words "or to be used for such purpose." The words "for such purpose" were stricken out, as shown by the journal. Thereupon the substitute was agreed to, and the joint resolution, as thus amended, was agreed to by the Senate. The words "or to be used" were in the substitute when it was introduced. They were not, so far as the journal shows, stricken out by any action taken by the Senate. It necessarily follows that, so far as can be determined from any competent evidence, the words "or to be used" were in and formed a part of the substitute when it was passed, and of the joint resolution agreed to by the Senate.

   The Constitution seems to contemplate that the proposed amendment shall be entered on the journals with the yeas and nays. Literally, we apprehend, the proposition should be entered on the journal, and immediately followed by the yeas and nays. But the substantial requirement is that the proposed amendment shall be entered on the journal, and we think this was done in the Senate journal of the Eighteenth General Assembly, and that a substantial compliance with even the forms enjoined by the Constitution clearly appears. We have, then, before us, in the Senate journal, the constitutional evidence of the exact form of the resolution which was agreed to by the Senate. We cannot ignore it or give effect to other evidence, and say that something else that was done shows that the Senate journal does not state truly what the Senate did. Where a statute prescribes that a particular fact or act shall be proven or established in a  particular way, no other evidence can be regarded as sufficient. Baldozier v. Haynes, 57 Iowa 683, 11 N.W. 651. The journal of the House of the Eighteenth General Assembly fails to set out, or even show, the substance of the substitute or amendment of the House joint resolution which had been adopted by the Senate. Such journal only sets out the original resolution which had been introduced in the House, and shows simply that the House concurred in the Senate substitute, and, therefore, the House journal fails to show that it adopted the same resolution which was adopted by the Senate.

   II. It was suggested on the oral argument, by one of the counsel for the appellant, that the words "or to be used" were struck out of the substitute by common consent before it was adopted by the Senate, and it was further suggested on such argument that we can readily so ascertain, if we should consult the persons present at the time, including the members of the Senate, and that we should not only do so, but that such is our duty. This argument practically concedes the necessity of getting rid of the words aforesaid in some manner. As has been said, the Senate journal, by the provisions of the Constitution, is made the primary evidence of the contents of the resolution, as it passed the Senate. This journal is in existence, and, as has been said, was kept as required by the Constitution. Now we are asked to ignore this constitutional evidence, and receive parol evidence, or ascertain for ourselves by inquiry of those who are supposed to know, as to the existence of a fact which is contradictory to the journals kept, certified to, and preserved by sworn officers, as provided by law. To our minds this is a startling proposition. It ignores fundamental rules which have always existed. Parol evidence never can be introduced or considered when there is written evidence of any fact which can be produced. If the journals had been lost or destroyed, it is possible that we could and should resort to the next best evidence attainable. If there was any written evidence in existence, resort, we presume, would first be had to that. If there was none such, it may be parol evidence should be regarded as competent. But it is useless to speculate. The constitutional evidence is before us, and by that we are bound.

   In Kansas there is a statute requiring the Secretary of State to take charge of all enrolled laws, and in the Division of Howard County, 15 Kan. 194, it was said: "Now, as we have before intimated, the enrolled bills and the legislative journals being records provided for by the Constitution, imparting absolute verity, we cannot take judicial notice that they are untrue, nor can we even allow evidence to be introduced for the purpose of proving they are not true." In this case there was no conflict between the journals and enrolled law, and the court said, as both were records provided by the Constitution, both imparted absolute verity. So the journals in this State impart absolute verity, and, as no enrollment of a proposed constitutional amendment is required by the Constitution, it cannot impeach or contradict the journal.

   III. It was suggested in argument that the journals of both houses of the General Assembly are written and kept by clerks, and that this duty is carelessly performed, and, therefore, they cannot be relied on as accurate. The rules adopted by each house require that the journals of the proceedings of the preceding day shall be read in the presence of the members thereof on the morning of the succeeding day. It is said such reading is frequently dispensed with. This is believed to be true, but this can be done only with the consent of the House. The journal of the Senate of the Eighteenth General  Assembly, however, shows that it was read on the morning of the day after the proposed amendment was adopted by the Senate. Now if the words "or to be used" were stricken out by common consent, or otherwise, is it not exceedingly strange no member called attention to the fact that the journal failed to so show? Can or should it be presumed the members of the Senate failed to perform their duty? If the words aforesaid were stricken out by common consent, or by any action of the Senate, it is clear the journal should show it. Under the circumstances, and in accord with the universal rule, if necessary, should not the presumption be indulged that every officer or other person does that which by law he is enjoined to do? It is true, the journals are written and kept by clerks, but they are sworn officers, who perform their duties under the direction of the respective houses of which they are officers. The records and proceedings of all courts are kept by clerks under the direction of the court, and they impart absolute verity, in the absence of fraud. Why, therefore, should not the import of the journals be the same? Especially should this be so held, when the Constitution has so clearly defined that amendments to the Constitution must be entered on the journals of, not one house only, but both. The Constitution contemplates that the journal is kept under the direction and in accord with the directions of the two houses, by whom the constitutional amendment must be agreed to before it can be valid. Who is so likely to know what was done, or the exact phraseology of a proposed amendment, as the body by whom it was agreed to, and how could the amendment be better evidenced or authenticated than by entering or spreading the same on the journal?

   It is said that the enrolled joint resolution, which was signed by the presiding officers of the two houses, constitutes such evidence. But, as we have seen, such enrolling and signing is not required, but may be dispensed with at the pleasure of the two houses. It cannot be possible that such an enrolled bill or resolution can supersede or constitute more reliable evidence than the journals of the Senate of the Eighteenth General Assembly, which was kept in strict accord with the requirements of the Constitution. It is said the enrolled joint resolution constitutes better evidence of what the Senate did than the journal, because of the certainty which exists that it was enrolled precisely as it was agreed to. The joint resolution, as we have seen, was first agreed to by the House, sent to the Senate, and there a substitute was adopted, which was returned to the House and agreed to by it. It was not enrolled by the officers or clerks of the Senate under the supervision of a committee of that body. It was, no doubt, correctly enrolled as it passed the House. But whether it had passed the Senate in the same form, depends on the question whether the Secretary of the Senate reported to the House the same resolution which had passed the Senate. Here there is great liability to mistake. Besides this, the enrolling is the act of a clerk, under the supervision of a committee, composed of, we believe, two members of the House or Senate. This clerk and committee might make a mistake in enrolling the resolution. They are as liable to do so as the secretary of the Senate in keeping the journal under the direction and supervision of the whole body of senators. The argument, then, that the enrolled resolution is better evidence of what the Senate did than the journal, because more likely to be accurate, falls to the ground.

   For fear we may be misunderstood, we will repeat that, when a bill or joint resolution is required to be signed by the presiding officers and the Governor, and it is so signed, it will be conceded that such bill or resolution constitutes the ultimate and conclusive evidence of the contents thereof.
 
   IV. The Constitution provides that "the powers of the government of Iowa shall be divided into three separate departments--the legislative, the executive, and the judicial; and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed and permitted." When the Nineteenth General Assembly came to consider the question as to whether or not it would agree to the constitutional amendment proposed in the Eighteenth General Assembly, it did so in the following manner and form, omitting immaterial portions thereof:

"Joint resolution agreeing to an amendment of the Constitution of the State of Iowa prohibiting the manufacture and sale of intoxicating liquors as a beverage within this State.

"WHEREAS, The Eighteenth General Assembly of the State of Iowa did in due form, by a majority of the members elected to each of the two houses, agree to a proposed amendment to the Constitution of this State, to add as section 26, to article 1 of said Constitution, the following:

"SECTION 26. No person shall manufacture for sale, or sell, or keep for sale, as a beverage, any intoxicating liquors whatever, including ale, wine and beer."

   Now it is insisted by counsel that the courts and all persons are bound by the determination of a fact by the Nineteenth General Assembly, which occurred or did not occur in the Eighteenth General Assembly. The argument goes further, and it is insisted the courts are concluded and estopped from ascertaining the truth, and that the parties to this action and all persons are so concluded and estopped, no matter what the truth may be.

   In support of this proposition Shawhan v. Loffer, 24 Iowa 217; Cooper v. Sunderland, 3 Iowa 114; Boker v. Chapline, 12 Iowa 204; Bonsall v. Isett, 14 Iowa 309; Morrow v. Weed, 4 Iowa 77; Ballinger v. Tarbell, 16 Iowa 491; Purseley v. Hayes, 22 Iowa 11; and Lyon v. Vanatta, 35 Iowa 521, are cited. In these cases, or the most of them, there was a defective service of notice of the action or proceeding. While this was so, the court proceeded and granted the relief asked. It was held, in a collateral proceeding attacking the judgment of the court, that it was erroneous only, and not void. An erroneous judgment can only be corrected in a direct proceeding by appeal or other appropriate remedy provided by law. If the court rendering the judgment is one of general jurisdiction the presumption is always indulged, where nothing appears to the contrary, that such court had jurisdiction. Every court of that character has, of necessity, the power to inquire and determine as to its own jurisdiction, and if it commits an error in this respect the judgment is not void, but erroneous merely. But if it affirmatively appears of record that such a court did not have jurisdiction over the subject-matter, or of the person against whom the judgment is rendered, such judgment would be absolutely void, and could not be enforced. Boker v. Chapline before cited.

     Conceding, then, that the determination of the Nineteenth General Assembly as to what was done by the Eighteenth is similar to the determination of a court in relation to its own jurisdiction, we then have a case where jurisdiction has been asserted by the assumption of a fact which the record of the Eighteenth General Assembly affirmatively shows did not exist; that is, the journal of the Senate of the Eighteenth General Assembly shows that body did not pass the joint resolution the Nineteenth General Assembly determined it did. As this fact affirmatively appears of record, the determination of the Nineteenth General Assembly is not binding on anyone, and is absolutely void. It was held in Duncombe v. Prindle, 12 Iowa 1, that the recital in an act of the General Assembly was not conclusive as to private parties affected thereby, and, in that case, the recited fact was found to be otherwise than it had been determined to be by the General Assembly. This, it seems to us, must be so, or a person might be deprived of his property and rights by the finding or recital of a fact by the General Assembly. For the argument is that such determination is conclusive, amounts to a verity, and cannot be impeached, however false it may be. To thus deprive a person of his property or of a substantial right, without trial by jury, or the opportunity to prove the truth, would be clearly unconstitutional, and an usurpation by the legislative department of the government of the powers expressly conferred upon the judiciary. It is further insisted that, under the Constitution, the Nineteenth General Assembly had the jurisdiction and power to submit the amendment to the electors, provided it had been agreed to by the Eighteenth, and that, therefore, it was the province of the Nineteenth General Assembly to inquire what the Eighteenth did, and for this purpose, and to this extent, it was invested by the Constitution with judicial powers. In support of this proposition, counsel cite and rely on Brittian v. Kinnard, 1 Brad. & Bing. 432; Betts v. Bagley, 29 Mass. 572, 12 Pick. 572; Martin v. Mott, 25 U.S. 19, 12 Wheat. 19; Vanderhayden v. Young, 11 Johns. 150; Birdsall v. Phillips, 17 Wend. 464; Ex Parte Watkins, 28 U.S. 193, 3 Peters 193; The People v. City of Rochester, 21 Barb. 656; and Ryan v. Varga, 37 Iowa 78. The last case cited well illustrates the rule contended for, and the other cases cited are based upon the same rule, which is undisputed. The statute provided where a petition signed by one-third of the resident tax-payers of a township, "asking the question of aiding in the construction of any railroad to be submitted to the voters thereof, it shall be the duty of the trustees * * * to immediately give notice of a special election," for the purpose of determining such question. Before the trustees could order the election, they must determine the petition had been signed by the requisite number of tax-payers, and to this extent they were invested with judicial powers. Now, in Ryan v. Varga it was held, under this statute, where the trustees had given the requisite notice, and the election had been held, tax voted and duly levied, and it was sought to enjoin the collection on the ground that one-third of the tax-payers had not signed the petition, that the decision of this question by the trustees was conclusive. At the same time it was said such question could be re-examined and again "decided by the courts only upon an appeal, writ of error, certiorari, or other method provided for a direct review of the decision made by the trustees." The proceeding in which this ruling was made was collateral in character, and not direct.

   It cannot be questioned the decision of the trustees could have been reviewed on certiorari, and their decision reversed if the fact was the petition had not been signed by the requisite number of resident tax-payers. The plaintiff in the cited case, then, had a remedy which he failed to adopt. But it cannot be successfully maintained in the case at bar that either party to this action,  or any other person, could, by certiorari or otherwise, have brought before the courts for review acts of the legislative department of the government.

   It is clear, we think, the Nineteenth General Assembly could not have been enjoined by the courts, or in any manner prevented from passing the joint resolution, with the recital therein, just as it did. A law may be declared unconstitutional by the judiciary, but its passage by the General Assembly cannot be prevented. The Des Moines Gas Co. v. The City of Des Moines, 44 Iowa 505.

   There was no way known to the law, except the manner adopted in this case, by which the question as to the validity of the constitutional amendment could be tested in the courts. The logical result of the argument of counsel for the appellant is, that it is for the General Assembly to say whether an amendment to the Constitution has been constitutionally adopted, and that their determination is conclusive and binding upon all persons. Therefore, it follows, the Nineteenth General Assembly could have determined the Eighteenth General Assembly had agreed to an amendment which had never passed that body, and then agree thereto, and submit it to the people, and, if the same was ratified by the electors, that it would be valid. If this be so, the provision of the Constitution requiring it to be agreed to by two General Assemblies must be ignored, and certainly this will not be claimed.

   Each General Assembly is independent and supreme as the law-making power, within the limits prescribed by the Constitution. The last General Assembly which convenes may undo all that its predecessors have done. But it cannot, so to speak, put words into the mouth of any of its predecessors.

   V. The Constitution provides, that "all political power is inherent in the people." Art. 1, § 2. While this is so, the Constitution is a limitation on such power. The power of the people can only be exercised through the executive, legislative and judicial departments of the government, unless a change of the Constitution through a convention constitutes an exception to the general rule. The power which is inherent in the people must be expressed and exercised in a lawful manner. We are aware of the rule, which universally obtains, that a statute should not be declared unconstitutional unless it clearly appears to be so. It follows, this rule should be applied to amendments of the Constitution. Mindful of this rule, and feeling its full force, it is possibly to be regretted that we have felt forced to declare that the amendment in question, which was ratified by so large a majority of the electors, has not been constitutionally adopted. But we cannot ignore another rule, which also universally obtains, which is that it is not only the province, but the duty of the judiciary, to fearlessly declare a statute or amendment to the Constitution to be unconstitutional, when such is clearly the case. We would be derelict to duty if we did not do so. As the Constitution is a limitation on the power of the people, this proposed amendment is of that character. As we have held it is not a part of the Constitution, it is, perhaps, a subject of congratulation that the General Assembly can, by the enactment of a law, effectuate the object intended to be accomplished thereby.

   The result is, the judgment of the District Court must be

   AFFIRMED.
 
                       ON RE-HEARING.

   DAY, CH. J.--A petition for re-hearing was presented in this cause, and the whole case has been re-argued by eminent counsel with much ability and research. In view of the great interest which has attached to this question, and of its public importance, we deem it not only proper, but necessary, to examine with considerable fullness the leading points relied upon as necessitating a conclusion different from the one reached in the foregoing opinion.

   I. It is asserted in the petition for re-hearing that "the judicial department of the state has no jurisdiction over political questions, and cannot review the action of the Nineteenth General Assembly, and of the people, in the matter of the adoption or amendment of the constitution of the state." This position practically amounts to this: that the provisions of the constitution for its own amendment are simply directory, and may be disregarded with impunity; for it is idle to say that these requirements of the constitution must be observed, if the departments charged with their observance are the sole judges as to whether or not they have been complied with. This proposition was advanced for the first time upon the petition for re-hearing, and, if correct, it is of course an end of the controversy. Upon this branch of the case counsel cite Luther v. Borden, 48 U.S. 1, 7 HOW 1, 12 L. Ed. 581. As this case has principally been relied upon by the advocates of the theory now under consideration, and has been given great prominence in the discussions which have taken place, we desire to present its facts with a degree of fullness which, under ordinary circumstances, would perhaps be considered unnecessary, to the end that the degree of its applicability to the present case may be fully understood.

   In 1841, the state of Rhode Island was acting under the form of government established by the charter of Charles II, in 1663. In this form of government no mode of proceeding was pointed out by which amendments could be made. It authorized the legislature to prescribe the qualification of voters, and in the exercise of this power the right of suffrage was confined to freeholders. In 1841, meetings were held and associations were formed by those who were in favor of a more extended right of suffrage, which finally resulted in the election of a convention to form a new constitution, to be submitted to the people for their adoption or rejection. The persons chosen came together and framed a constitution by which the rights of suffrage was extended to every male citizen of twenty-one years of age who had resided in the state for one year. Upon a return of the votes, the convention declared that the constitution was adopted and ratified by a majority of the people of the state, and was the paramount law and constitution of Rhode Island. The charter government did not admit the validity of the proceedings, nor acquiesce in them. On the contrary, in January, 1842, when this new constitution was communicated to the governor and by him laid before the legislature, it passed resolutions declaring all acts done for the purpose of imposing that constitution upon the state, to be an assumption of the powers of government, in violation of the rights of the existing government and of the people at large, and that it would maintain its authority and defend the legal and constitutional rights of the people. Thomas W. Dorr, who had been elected governor under the new constitution, prepared to assert the authority of that government by force, and many citizens assembled in arms to support him. The charter government thereupon passed an act declaring the state under martial law, and at the same time  proceeded to call out the militia to repel the threatened attack, and to subdue those who were engaged in it. The plaintiff, Luther, was engaged in supporting the new government, and, in order to arrest him, his house was broken and entered by the defendants, who were enrolled in the military force of the old government, and in arms to support its authority. The government under the new constitution had but a short and ignoble existence. In May, 1842, Dorr made an unsuccessful attempt, at the head of a military force, to get possession of the state arsenal at Providence, which was repulsed. In June following, an assemblage of some hundreds of armed men, under his command at Chipatchet, dispersed, upon the approach of the troops of the old government, and no further effort was made to establish the new government. In January, 1842, the charter government took measures to call a convention to revise the existing form of government, and a new constitution was formed, which was ratified by the people, and went into operation in May, 1843, at which time the old government formally surrendered all its powers. Under this government Dorr was tried for treason, and in June, 1844, was sentenced to imprisonment for life. In October, 1842, Luther brought an action in the Circuit Court of the United States, against Borden and others, to recover damages for the breaking and entering of his house in June, 1842. The defendants justified, alleging that there was an insurrection to overthrow the government, that martial law was declared,  that plaintiff was aiding and abetting the insurrection, that defendants were enrolled in the militia force of the state and were ordered to arrest the plaintiff. The plaintiff relied upon the fact that the Dorr government, to which he adhered, was the legal government of the state, and, as the new constitution had never been recognized by any department of the old government, he offered to prove at the trial, by the production of the original ballots, and the original registers of the persons voting, and by the testimony of the persons voting, and by the constitution itself, and by the census of the United States for the year 1840, that the Dorr constitution was ratified by a large majority of the male people of the state, of the age of twenty-one and upwards, and also by a majority of those who were entitled to vote for general officers under the then existing laws of the state. The Circuit Court rejected the evidence, and instructed the jury that the charter government, and laws under which the defendants acted, were, at the time the trespass was alleged to have been committed, in full force and effect, and constituted a justification of the acts of the defendants. The correctness of this ruling involved the only question which was taken to the Supreme Court of the United States for review. The Supreme Court held that the evidence was properly rejected. Of the correctness of that decision no one can entertain the shadow of a doubt. But the differences between that case and this are so many and so evident, as to deprive it of all force as an authority in the present controversy. In that case an entire change in the form of government was undertaken; in this, simply an amendment, in no manner affecting the judicial authority of those acting under the existing government, is sought to be incorporated into the existing constitution. In that case the charter provided no means for its amendment; in this, the mode of an amendment is specifically provided. In that case the authority of the court was invoked for the admission of oral evidence to overthrow the existing government and establish a new one in its place; in this, that authority is invoked simply to preserve the existing constitution intact.

   It is evident, from an examination of the entire case of Luther v. Borden, that the question which the court was considering pertained to the power of the federal courts to determine between rival constitutions in the  states. The power is not denied to the state courts, unless one of the constitutions involved in the controversy be the one under which the court is organized. This is fully apparent from the whole opinion. Referring to the trial of Thomas W. Dorr for treason, in the Supreme Court of Rhode Island, the court say: "It is worthy of remark, however, when we are referring to the authority of state decisions, that the trial of Thomas W. Dorr took place after the constitution of 1843 went into operation. The judges who decided that case, held their authority under that constitution; and it is admitted on all hands that it was adopted by the people of the state, and is the lawful and established government. It is the decision, therefore, of a state court, whose judicial authority to decide upon the constitution and laws of Rhode Island is not questioned by either party to this controversy, although the government under which it acted was framed and adopted under the sanction and laws of the charter government. The point, then, raised here has already been decided by the courts of Rhode Island. The question relates altogether to the constitution and laws of that state; and the well settled rule in this court is, that the courts of the United States adopt and follow the decisions of the state courts in questions which concern merely the constitution and laws of the state. Upon what ground could the Circuit Court of the United States, which tried this case, have departed from this rule, and disregarded and overruled the decisions of the courts of Rhode Island." It seems from the foregoing quotation, which is really the fact, that the courts of Rhode Island had determined the question involved in Luther v. Borden, and that the courts of the United States were bound by and followed that adjudication.

   The language of the court which, it is claimed, asserts the doctrine that the question of a change of constitutions is a political one, with which courts have nothing to do, was clearly employed with reference to the peculiar facts of the case. This is apparent from the following language of the opinion, which is found upon pages 39, 40. "Indeed, we do not see how the question could be tried and judicially decided in the state court. Judicial power presupposes an established government, capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them. The acceptance of the judicial office is a recognition of the authority of the government from which it is derived, and if the authority of that government is annulled and overthrown, the power of its courts and other officers is annulled with it, 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 the authority of the government under which it is exercising judicial power." That this reasoning is eminently sound no one can doubt. 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. It is apparent that the reasoning employed in that case can have no application whatever to an amendment to a constitution, which does not affect the form of government, or the judicial powers of existing courts. The case of Luther v. Borden gives no countenance whatever to the doctrine that the sovereignty of the people extends rightfully to the overturning of constitutions and the adoption of new ones, without regard to the forms of existing provisions. It is true that right, under our form of government, exists, but  it is a revolutionary and not a constitutional right. When that right is invoked, a question arises which is above the constitution, and above the courts, and which contending factions can alone determine by appeal to the dernier resort. In such a case as that, might makes right. That there are questions of such a character as to admit of no adjustment but through an appeal to arms, we freely admit. This arises out of the imperfections of human government. A government which could provide for the peaceful adjustment of all questions would be more than human. But surely no sagacious statesman or wise jurist will seek, by a narrow construction of judicial power, to extend the questions which are beyond the domain of the courts, and capable of solution only by an appeal to arms. Happily for the permanency and security of our institutions, the present case, as we believe, involves no such question.

   It has been said that changes in the constitution may be introduced in disregard of its provisions; that, if the majority of the people desire a change, the majority must be respected, no matter how the change may be affected, and that the change, if revolution, is peaceful revolution. But the revolution is peaceful only upon the assumption that the party opposed surrenders its opposition and voluntarily acquiesces. If it objects to the change, then a question arises which can be determined only in one of two methods, by the arbitrament of the courts, or by the arbitrament of the sword.

   Disguise the question as we will, theorize about it as we may, this is the fact with which we are at last brought face to face, and wisdom dictates that its dreadful possibilities should be apprehended and appreciated. We fear that the advocates of this new doctrine, in a zeal to accomplish an end which a majority of the people desire, have looked at but one phase of the question, and have not fully considered the terrible consequences which would almost certainly follow a recognition of the doctrine for which they contend. It may be that the incorporation of this amendment in the constitution, even if the constitution has to be broken to accomplish it, would not, of itself, produce any serious results. But if it should be done by sanctioning the doctrine contended for, a precedent would be set which would plague the state for all future time. A Banquo's ghost would arise at our incantation which would not down at our bidding. The contest between the rival governments in the state of Rhode Island raised a question which was above the power of the existing courts; and it is a matter of history that it was not determined until the adherents of the Dorr Constitution fled at the point of the bayonet. We have read history to little purpose, if we refuse to learn from its examples or profit by its teachings. The public dangers which threatened the republic from the rival claims for the presidency, so graphically and so beautifully described by appellant's attorney, were averted only through a commission created by Congress, entrusted with judicial powers, which judicially determined the questions involved, and to whose decisions the people yielded voluntary obedience. That judicial decision averted the horrors of a civil war. The political department of the government, to which so much reference has been made in this case, stood appalled and impotent in the face of the great danger, and yet we are asked to abdicate our functions, to deny our jurisdiction, and to leave the question of an amendment to the constitution, unless voluntarily acquiesced in, to be determined by a resort to arms. We ought to ponder long before we adopt a doctrine so fraught with danger to republican institutions. All the danger lies in the line of the argument of appellant's attorneys. The courts can never overturn our institutions or subvert our  liberties. They command neither the purse nor the sword of the state. But a people which is educated to disrespect the decisions and disregard the adjudications of the courts, is prepared for anarchy, with all its attendant evils and dreadful consequences. We may, perhaps, be excused, if in the interest of social order and public security, and the permanency of republican institutions, we enter a most earnest protest against the heresies which have been advanced in this case.

   The appellant further cites and relies upon Williams v. Suffolk Insurance Company, 38 U.S. 415, 13 Peters 415. The only point determined in this is, that where the President, in a message to Congress, and in correspondence carried on with the government of Buenos Ayres, denied the jurisdiction of that country over the Falkland Islands, the courts must take the facts to be so.

   The determining of the territorial jurisdiction of a foreign country, from the very nature of the subject, cannot reside in the courts of this country, but must be entrusted to the treaty making power, which rests in the President by and with the advice and consent of the senate. When, therefore, the President, in his official communications, has denied the jurisdiction of a foreign country over specified territory, it may well be conceded that it would not be within the jurisdiction of the courts to determine the fact to be otherwise. We are, however, unable to see that this case has any bearing upon the question now under consideration.

   The case of United States v. Baker et al., 5 Blatchf. 6, 24 F. Cas. 962, is also cited and relied upon by appellant. This is a nisi prius case. The defendants were indicted for piracy, and were tried in 1861. They were acting as privateers under a commission  from Jefferson Davis, President of the Confederate States, which they claimed was, at least, a government de facto, and entitled to the rights and privileges that belong to a sovereign and independent nation. NELSON, J., upon this branch of the case, charged the jury as follows: "The court do not deem it pertinent or material to enter into this wide field of inquiry. This branch of the defense involves considerations that do not belong to the courts of the country. It involves the determination of great public and political questions, which belong to the departments of our government that have charge of our foreign relations--the legislative and executive departments. When those questions are decided by those departments, the courts follow the decisions, and, until those departments have recognized the existence of the new government, the courts of the nation cannot. Until this recognition of the new government, the courts are obliged to regard the ancient state of things as remaining unchanged." This case falls under the same principle as the preceding case.

   The case of White v. Hart, 80 U.S. 646, 13 Wall. 646, 20 L. Ed. 685, which is the only remaining case cited by the appellant upon this branch of the case, originated as follows: In January, 1866, the plaintiff instituted a suit in the Supreme Court of Chattooga county, Georgia, upon a promissory note. The defendant pleaded in abatement that the consideration of the note was a slave, and that, by the present constitution of the state of Georgia, the court is prohibited to take and exercise jurisdiction or render judgment thereon. To this plea the plaintiff demurred. The court overruled the demurrer, and gave judgment for the defendants, thus enforcing the constitutional provision. The plaintiff excepted, and removed the case to the Supreme Court of the state, where the judgment was affirmed, and the plaintiff thereupon prosecuted a writ of error  in the Supreme Court of the United States. The constitution of Georgia of 1868 contains the following clause:

   "Provided, that no court or officer shall have, nor shall the General Assembly give, jurisdiction to try, or give judgment on, or enforce any debt, the consideration of which was a slave or the hire thereof." The plaintiff insisted that this provision was in conflict with the constitution of the United States, in that it impaired the obligation of contracts. The defendant sought to maintain the judgment in his favor, upon the ground, amongst others, that the constitution of Georgia was adopted under the dictation and coercion of Congress, and is the act of Congress rather than of the state, and that, though a state cannot pass a law impairing the validity of contracts, Congress can, and that for this reason the inhibition in the constitution of the United States has no effect in this case. In passing upon this question the court says: "Congress authorized the state to frame a new constitution, and she elected to proceed within the scope of the authority conferred. The result was submitted to Congress as a voluntary and valid offering, and was so received, and so recognized in the subsequent action of that body. The state is estopped to assail it upon such an assumption. Upon the same ground she might deny the validity of her ratification of the constitutional amendments. The action of Congress upon the subject cannot be inquired into. The case is clearly one in which the judicial is bound to follow the action of the political department of the government, and is concluded by it."

   This case is a very peculiar one, from the fact that the defendant did not claim that the constitution was not in force on account of its being adopted under coercion, but he claimed the benefit of its provisions because it was adopted under coercion. We most heartily approve the decision of the court in this case. The court might even have gone further, if the question had been in the case, and decided that, if a question had been raised in the courts of Georgia as to the validity of the constitution, on the ground that its adoption had been coerced by Congress, the courts of that state could not entertain jurisdiction of the question. But even such a decision as that would not have been at all in conflict with our right to entertain jurisdiction in this case. These are all the authorities relied upon by appellant upon this branch of the case. We think it is apparent that they do not, even by implication, sustain the doctrine contended for, that the judicial department of the state cannot review the action of the General Assembly in the matter of the amendment of the constitution of the state. Counsel have drawn an appalling picture of the wreck in which our political institutions would be involved, if the courts should conclude to decide that the constitution of 1857, under which they are organized, had not been properly adopted. The courts of this state possess no such power, and they could not assume such a jurisdiction. The reason why a court could not enter upon the determination as to the validity of a constitution under which it is itself organized, is forcibly set forth in the case of Luther v. Borden, supra, upon which appellant relies. 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. We are at a loss to know why appellant's counsel ignore and disregard it.

   Appellant's counsel cite and rely upon section 2, article 1, of the constitution of the state. This section is a portion of the bill of rights,  and is as follows: "All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good may require." Abstractly considered, there can be no doubt of the correctness of the propositions embraced in this section. These principles are older than constitutions, and older than governments. The people did not derive the rights referred to from the constitution, and, in their nature, they are such that the people cannot surrender them. The people would have retained them if they had not been specifically recognized in the constitution. But let us consider how these rights are to be exercised in an organized government. The people of this state have adopted a constitution which specifically designates the modes for its own amendment. But this section declares the people have the right at all times to alter or reform the government, whenever the public good may require it. If the people unanimously agree respecting an alteration in the government, there could be no trouble, for there would be no one to object. Suppose, however, a part of the people conclude that the public good requires an alteration or reformation in the government, and they set about the adoption of a new constitution, in a manner not authorized in the old one. Suppose, also, as would most likely prove to be the case, that a part of the people are content with the existing government, and will not consent to the change, and that the governor, who, under the constitution, is the "commander in chief of the militia, the army and navy of the state," determines to maintain the existing government by force. It is evident that the people who think the public good requires a change, can establish these changes only by superior force. If they are powerful enough to succeed, well. They will have altered or reformed the government. But if they are not powerful enough to succeed, their attempt to overthrow the government is treason, and they are liable to punishment as traitors. They have the right to alter their government, in a manner not recognized in the constitution, only when they can maintain that right by superior force. It follows, then, after all, that the much boasted right claimed under this action, is simply the right to alter the government in the manner prescribed in the existing constitution, or the right of revolution, which is a right to be exercised, not under the constitution, but in disregard and independently of it.

   For a very valuable case upon this subject, see Wells v. Bain, 75 Pa. 39. In commenting upon a reservation in the bill of rights, the same as that contained in our own constitution, the court says: "The words 'in such manner as they may think proper,' in the declaration of rights, embrace but three known recognized modes by which the whole people, the state, can give their consent to an alteration of an existing lawful form of government, viz: 1. The mode provided in the existing constitution. 2. A law, as the instrumental process of raising the body for revision, and conveying to it the powers of the people. 3. A revolution." In the progress of the opinion the court employ the following language, which is most applicable to the question now under consideration: "In considering this question of delegated power, some are apt to forget that the people are already under a constitution, and an existing frame of government instituted by themselves, which stand as barriers to the exercise of the original powers of the people, unless in an authorized form. " It is well that the powers of the people and their relations to organized society should be understood. No heresy has ever been taught in this country so fraught with evil, as the doctrine that the people have a constitutional right to disregard the constitution, and that they can set themselves above the instrumentalities appointed by the constitution for the administration of law.  It tends directly to the encouragement of revolution and anarchy. It is incumbent upon all who influence and mould public opinion to repudiate and discountenance so dangerous a doctrine, before it bears fruits destructive of republican institutions. It will be well if the people come to understand the difference between natural and constitutional freedom, before license becomes destructive of liberty.

   The authority opposed to the view advanced by appellant's counsel is most satisfactory and conclusive, and, so far as we have been able to discover, is without conflict. Not only must a constitution be amended in the manner prescribed in the existing constitution, but it is competent for the courts, when the amendment does not relate to their own powers or functions, to inquire whether, in the adoption of the amendment, the provisions of the existing constitution have been observed.

   That eminent jurist and law writer, Justice COOLEY, in his work upon Constitutional Limitations, page 598, says: "although by their constitutions the people have delegated the exercise of sovereign powers to the several departments, they have not thereby divested themselves of the sovereignty. The government which they create they retain in their own hands a power to control, so far as they have thought needful, and the three departments are responsible to and subject to be ordered, directed, changed, or abolished by them. But this control and direction must be exercised in the legitimate mode previously-agreed upon. The voice of the people can only be of legal force when expressed in the times and under the conditions which they themselves have prescribed and pointed out by the constitution; and if any attempt should be made by any portion of the people, however large, to interfere with the regular working of the agencies of government, at any other time, or in any other mode, than as allowed by existing law, either constitutional or statutory, it would be revolutionary in character, and must be resisted and repressed by the officers who for the time being represent legitimate government." The author cites Gibson v. Mason, 5 Nev. 283, in which Chief Justice LEWIS employs the following language: "The maxim which lies at the foundation of our government is that all political power originates with the people. But since the organization of government, it cannot be claimed that either the legislative, executive, or judicial powers, either wholly or in part, can be exercised by them. By the institution of government the people surrender the exercise of all these sovereign functions of government to agents chosen by themselves, who, at least theoretically, represent the supreme will of their constituents."

   On page 30, Judge COOLEY further says: "In the original states, and all others subsequently admitted to the Union, the power to amend or revise their constitutions resides in the great body of the people as an organized body politic, who, being vested with ultimate sovereignty, and the source of all state authority, have power to control and alter the law which they have made at their will. But the people in the legal sense must be understood to be those who, by the existing constitution, are clothed with political rights, and who, while that instrument remains, will be the sole organs through which the will of the body politic can be expressed. But the will of the people to this end can only be expressed in the legitimate modes by which such a body politic can act, and which must either be prescribed by the constitution whose revision or amendment is sought, or by an act of the legislative department of the state, which alone would be authorized to speak for the people upon this subject, and to point out a mode for the expression  of their will, in the absence of any provision for amendment or revision contained in the constitution itself." The learned author cites in support of this doctrine of the text, Opinions of the Judges, 60 Mass. 573, 6 Cush. 573; Collier v. Frierson, 24 Ala. 100; State v. McBride, 4 Mo. 303. In Opinions of the Judges, 60 Mass. 573, 6 Cush. 573, the facts are as follows: In 1833 the House of Representatives of Massachusetts submitted to the Supreme Court of that state, the following questions:

   First. Whether if the legislature should submit to the people to vote upon the expediency of having a convention of delegates of the people for the purpose of revising or altering the constitution of the commonwealth in any specified parts of the same, and a majority of the people voting thereon should decide in favor thereof, could such convention, holden in pursuance thereof, act upon, and propose to the people, amendments in other parts of the constitution not so specified?

   Second. Can any specific and particular amendments to the constitution be made in any other manner than that prescribed in the ninth article of the amendments adopted in 1820? The justices of the Supreme Court responded to these questions substantially as follows: "First. Considering that the constitution has vested no authority in the legislature, in its ordinary action, to provide by law for submitting to the people the expediency of calling a convention of delegates, for the purpose of revising or altering the constitution of the commonwealth, it is difficult to give an opinion upon the question, what would be the power of such a convention, if called. If, however, the people should, by the terms of their vote, decide to call a convention of delegates to consider the expediency of altering the constitution in some particular part thereof, we are of opinion that such delegates would derive their whole authority and commission from such votes, and, upon the general principles governing the delegation of power and authority; they would have no right, under such vote, to act upon and propose amendments in other parts of the constitution not so specified."

   Second. "That under and pursuant to the existing constitution, there is no authority given, by any reasonable construction or necessary implication, by which any specific and particular amendment or amendments of the constitution can be made in any other manner than that prescribed in the ninth article of the amendments, adopted in 1820. Considering that previous to 1820 no mode was provided by the constitution for its own amendment, that no other power for that purpose than in the mode alluded to is anywhere given in the constitution, by implication or otherwise, and that the mode thereby provided appears manifestly to have been carefully considered, and the power of altering the constitution thereby conferred to have been cautiously restrained and guarded, we think a strong implication arises against the existence of any other power, under the constitution, for the same purposes."

   This opinion was signed by all the justices of the Supreme Court of Massachusetts, consisting of Chief Justice SHAW, and justices PUTNUM, WILDE, and MORTON, judicial luminaries as illustrious as ever adorned the bench of this or any other country.

   In Collier v. Frierson, 24 Ala. 100, it appears that the legislature had proposed eight different amendments to be submitted to the people at the same time. The people had approved them, and all the requisite proceedings to make them a part of the constitution had been had, except that in the subsequent legislature the resolution for their ratification had by mistake omitted to recite one of them. On the question whether this one had been adopted, the court say: "The constitution can be amended in but two ways; either by the people who originally framed it, or in the mode prescribed in the instrument itself. If the last mode is pursued, the amendments must be proposed by two-thirds of each house of the General Assembly; they must be published in print at least three months before the next general election for representatives; it must appear from the returns made to the secretary of state that a majority of those voting for representatives have voted in favor of the proposed amendments, and they must be ratified by two-thirds of each house of the next General Assembly after such election, voting by yeas and nays, the proposed amendments having been read at each session three times on three several days in each house. 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 observed, and the omission of any one is fatal to the amendment. We scarcely deem any argument necessary to enforce this proposition. The constitution is the supreme and paramount law. The mode by which amendments are to be made under it is clearly defined. It has been said that certain acts are to be done, certain requisites are to be observed, before a change can be effected. But to what purpose are those acts required or those requisitions enjoined, if the legislature, or any department of the government, can dispense with them? To do so would be to violate the instrument which they are sworn to support; and every principle of public law and sound constitutional policy requires the courts to pronounce against any amendment which is not shown to have been made in accordance with the rules prescribed by the fundamental law." In this case counsel distinctly made the point that, "when the legislature has declared an act done, which it alone has the power to do, it does not become the judiciary to gainsay it." The court repudiated this doctrine and asserted its jurisdiction in the following terse and unambiguous language: "Every principle of public law and sound constitutional policy requires the courts to pronounce against every amendment which is shown not to have been made in accordance with the rules prescribed by the fundamental law."

   The case of State v. McBride, 4 Mo. 303, involved a question as to the proper adoption of an amendment to the constitution of the state of Missouri. The counsel on behalf of the state, contended almost in the language of appellant's counsel in this case, "that this amendment having been passed and promulgated by the Eighth General Assembly, as a part of the constitution, this court is bound to receive and give it the effect of a constitutional provision; it being an act done by the General Assembly, not in their capacity of ordinary legislation, but the exercise of sovereign authority in a conventional capacity." The language of the court in passing upon this position of counsel is so applicable to, and so entirely decisive of, the question now under consideration, that we quote in full. The court says: "The constitution of this state requires that each officer, whether civil or military, shall, before entering on the duties of his office, take an oath or affirmation to support the constitution of the United States and of this state, and to demean himself faithfully in office. In pursuance of the duty imposed by this oath, it has become quite a common business of the courts to examine the acts of the legislative body, to see whether any of them infringe the constitution, and to declare that such acts, or parts of acts, as are repugnant to the constitution, are not the law of the land, and are, therefore, of no force. No educated man  at this day denies this right to the courts. On the contrary, it is considered a base abandonment of duty for a judge to hesitate, when it becomes his duty to examine the acts of the more powerful branches of the government. If, then, the constitution be the supreme law of the land, it becomes the duty of the judge to look into and understand well this first law of the land. The General Assembly, acting itself under a power granted by the convention, can only change the constitution in the manner presented to it. Is, then, this court, each member of which is sworn to support the constitution, that first law of the land, to be told that they are not to inquire what that constitution is? We are told that this is a matter which the people have confided to two successive General Assemblies, and that their declaration of what is done is to be to us evidence that the thing is done, they being sworn, as well as ourselves, to support the constitution. Yet we look into the acts of each General Assembly, and if we find any of its acts violating the constitution, we declare such acts null and void. The General Assembly, or two General Assemblies in succession, are but public servants, and it is disrespectful to them to say that their acts will not bear inspection. If, then, they will bear inspection, and if, as we believe, they have left behind them evidence of what they have done, why need we, whose duty it is to observe the constitution as the supreme law of the land, hesitate respectfully to approach and examine those proofs, and see if indeed the constitution of 1820 has been changed, or if by neglecting to pursue the course pointed out by the 12th section of the constitution, they have failed to give to their acts the validity of constitutional acts. To tell us that the people have reserved to themselves the sole right of looking into the matter, is to tell us that we are sworn to support a constitution which we are not permitted to know." Those two cases contain the calm adjudications of respectable courts, in times when there was no popular excitement, and upon constitutional amendments not arousing popular interest. They are, therefore, entitled to the highest consideration, as they were entirely uninfluenced by popular clamor.

   It is not at all material that in State v. McBride, supra, the court finally concluded that the amendment under consideration had been properly adopted. The court had to determine its power to decide, before it could decide in favor of the amendment. As was well said by one of appellant's attorneys upon the argument: "the power to decide, involves the power to decide either way." In The State v. Swift, 69 Ind. 505, the jurisdiction of the court was exercised, and an amendment to the constitution of the state of Indiana was held not to have been properly adopted. In the opinion the court say: "The people of a state may form an original constitution, or abrogate an old one and form a new one, at any time, without any political restriction except the constitution of the United States; but if they undertake to add an amendment, by the authority of legislation, to a constitution already in existence, they can do it only by the method pointed out by the constitution to which the amendment is to be added. The power to amend a constitution by legislative action does not confer the power to break it, any more than it confers the power to legislate on any other subject contrary to its prohibitions."

   In Westinghausen v. The People, 44 Mich. 265, 6 N.W. 641, the Supreme Court of Michigan entertained jurisdiction of a question as to the adoption of an amendment to the constitution of that state. The Prohibitory Amendment Cases, 24 Kan. 700, in so far as they assume jurisdiction over the question involved, are in harmony with all the cases upon the subject. In State v. Timme, 54 Wis. 318, 11 N.W. 785, the Supreme Court of Wisconsin assumed jurisdiction  of a question involving the validity of an amendment to the constitution of that state. The same thing was done in Trustees University of North Carolina v. McIver, 72 N.C. 76.

   It is true that in the last five cases the question of jurisdiction was not raised by counsel. But the courts could not have entered upon an examination of the cases without first determining in favor of their jurisdiction. If they entertained doubts respecting their jurisdiction, it was the duty of the courts to raise the question themselves. We have then seven states, Alabama, Missouri, Kansas, Michigan, North Carolina, Wisconsin and Indiana, in which the jurisdiction of the courts over the adoption of an amendment to a constitution has been recognized and asserted. In no decision, either state or federal, has this jurisdiction been denied. We may securely rest our jurisdiction upon the authority of these cases. He would be a bold jurist, indeed, who would ride rough-shod over such an unbroken current of judicial authority, so fortified in principle, sustained by reason, and so necessary to the peaceful administration of the government.

   II. It is next insisted that the Nineteenth General Assembly had jurisdiction of the subject embraced in the joint resolution of the Eighteenth General Assembly, proposing the amendment to the constitution drawn in controversy in this case, including the regularity of its passage, and its judgment thereon is conclusive and cannot be reviewed. This point was insisted upon in the original argument. It is now renewed, and is reinforced by a citation of some additional authorities. This argument in effect admits that there were defects and omissions in the submission of the question, but contends that, notwithstanding such omissions and defects, the action of the Nineteenth General Assembly estops all investigations, and that its recital, no matter how false, cuts off all inquiry as to its truth. As this point is relied upon with much confidence, we propose, even at the risk of tediousness, to state as briefly as we can the points decided in all of the cases relied upon in the re-argument.

   In Gaines v. Thompson, 74 U.S. 347, 7 Wall. 347, 19 L. Ed. 62, it was held that the act of the Secretary of the Interior, and Commissioner of the Land Office, in canceling an entry for land, is not a ministerial duty, but is a matter resting in the judgment and discretion of these officers, as representing the executive department, and that the United States courts will not interfere by injunction or mandamus to restrain it. At the same time it was conceded that there were numerous cases in which the Supreme Court of the United States had sustained the courts of justice, after the title had passed from the United States, and the matter had ceased to be under the control of the executive department, in decreeing the equitable title to belong to the person against whom the department had decided. The case of Litchfield v. Register and Receiver, 76 U.S. 575, 9 Wall. 575, 19 L. Ed. 681, simply re-affirms the doctrine of Gaines v. Thompson, and applies it to the register and receiver. The cases of Johnson v. Towsley, 80 U.S. 72, 13 Wall. 72, 20 L. Ed. 485, and Secretary v. McGarrahan, 76 U.S. 298, 9 Wall. 298, 19 L. Ed. 579, are to the same effect as the two preceding cases. The case of French v. Fyan, 93 U.S. 169, 23 L. Ed. 812, simply decides that a patent of lands, as swamp lands, cannot be impeached in an action at law, by showing that the land which it conveys was not in fact swamp and overflowed land. In Town of Coloma v. Eaves , 92 U.S. 484, the following point was determined, as correctly stated in the syllabus: "Where, by legislative enactment, authority has been given to a municipality or to its officers to subscribe for the stock of a railroad  company, and to issue municipal bonds in payment, but only on some precedent condition, such as a popular vote favoring the subscription, and where it may be gathered from the enactment that the officers of the municipality were invested with power to decide whether that condition has been complied with, their recital that it has been, made in the bonds issued by them, and held by a bona fide purchaser, is conclusive of the fact, and binding upon the municipality, for the recital is itself a decision of the fact by the appointed tribunal.

   The case of Virginia v. West Virginia, 78 U.S. 39, 11 Wall. 39, 20 L. Ed. 67, involves the validity of the proceedings by which the counties of Jefferson and Berkley and others became a part of the state of West Virginia. The case is a long one. The point decided, bearing upon this case, is as follows: "The statutes of the Virginia legislature having authorized the Governor of that state to certify the result of the voting on that proposition (to transfer said counties) to the state of West Virginia, if in his opinion the vote was favorable, and he having certified the fact that it was so, under the seal of the state to the Governor of West Virginia, and the latter state having accepted and exercised jurisdiction over these counties for several years, the state of Virginia is bound by her acts in the premises." In the opinion in the case the fact was emphasized that the legislature had vested the Governor with large control as to the time of taking the vote, and made his opinion of the result the condition of final action, and rested, of its own accord, the whole question on his judgment, and in his hands.

   In Miners' Bank of Dubuque v. The United States, Morris (Iowa) 482, where a bank charter contained a provision "That if said corporation shall fail to go into operation, or shall abuse or misuse their privileges under their charter, it shall be in the power of the legislative assembly of this territory at any time to annul, vacate and make void this charter," it was held that the legislature reserved to themselves the right of repeal upon certain contingencies, and of determining when the contingencies had happened. In the same case, 1 G. Greene, 533, the question again came before the court and was determined the same way.

   In Carpenter v. Montgomery, 7 Blackf. 415, under a constitution providing that statutes are not to be in force until published in print, unless in cases of emergency, it was held that "of the existence of the emergency the legislature must necessarily be the judges; and when they deem it to exist, they have the right to declare a statute in force from and after its passage."

   In Barrett v. Brooks, 21 Iowa 144, where an act of Congress granted swamp lands to the state, and required that the proceeds of the sale of the lands should be applied to the purpose of reclaiming the same "as far as necessary," it was held that the General Assembly had the right, under the act of Congress, to determine whether or not it was necessary to drain the lands, and how far it was necessary to appropriate the proceeds of the sales of the land to that purpose. The same doctrine was recognized in American Emigrant Company v. Adams Co., 100 U.S. 61, 25 L. Ed. 563.

   In Martin v. Mott, 25 U.S. 19, 12 Wheat. 19, 6 L. Ed. 537, it was held that the authority to decide whether the exigencies contemplated in the constitution of the United States, and the act of Congress of 1795, in which the President has authority to call forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions, have arisen, is exclusively  vested in the President, and his decision is conclusive upon all other persons. This decision was grounded upon the nature of the power, and the necessity of prompt and unhesitating obedience to commands of a military nature. It is evident that upon no other construction could the President perform his duty of suppressing insurrections and repelling invasions, for he could never keep together an army if every soldier could call in question his power to call him into the service. In Varderhuyden v. Young, 11 Johns. 150, the same question came before the Supreme Court of the state of New York, and was decided the same way.

   In Commissioners of Knox County v. Aspinwall, 21 Howard 539, it was held that where the statute of a state provides that the board of commissioners of a county should have power to subscribe for railroad stock, and issue bonds therefor, in case a majority of the voters of the county should so determine after a certain notice should be given of the time and place of election, and the board subscribed for the stock and issued the bonds, purporting to act in compliance with the statute, it is too late to call in question collaterally the existence or regularity of the notices, in a suit by the innocent holders of the coupons attached to the bonds. In Ryan v. Varga, 37 Iowa 78, it was held that, after township trustees have passed upon the sufficiency of a petition presented to them, calling for an election to decide the question of levying a tax in aid of the construction of a railroad, and the election has been ordered, and the tax voted and levied, the determination of the township trustees cannot be assailed collaterally, but like any other judicial determination, remains conclusive until reversed or set aside by writ of error, certiorari, or other direct proceeding provided by law. These are all the cases cited in the arguments on rehearing upon this branch of the case. It is evident that most of them bear but very remotely upon the question under consideration. In our opinion, the question involved in the case at bar does not fall within the principle involved in any of these cases, and is not determined by them.

   It is true, the Nineteenth General Assembly was authorized to submit to the people for their adoption, only a proposition which had already been proposed and agreed to by the Eighteenth General Assembly. The fact that the Eighteenth General Assembly had agreed to the same proposition that the Nineteenth General Assembly was about to submit, was a condition precedent to the right of the Nineteenth General Assembly to take any action in the premises. If the Nineteenth General Assembly acted within the scope of its constitutional authority, it necessarily had to be of opinion that the Eighteenth General Assembly had agreed to the same resolution which it was about to submit to the people. This opinion would amount to a conclusion, primarily, that the Eighteenth General Assembly had so acted, and this conclusion, until reviewed and examined in some legal manner, would be absolute. Further, if the law has provided no means for the examination of this determination, it would be absolute and binding upon all parties, as the appellant claims. The appellant assumes that no mode of examination has been provided by the law, and that, therefore, the determination of the Nineteenth General Assembly is conclusive. Upon the contrary, we maintain that a mode of examination has been provided, and that, therefore, the action of the Nineteenth General Assembly is not conclusive. The Nineteenth General Assembly recited in substance that the Eighteenth General Assembly adopted and duly entered upon its journals the same resolution which the Nineteenth General Assembly was about to submit to the people. The argument of appellant impliedly concedes that this recital might, upon examination, be found to be untrue, and hence it is insisted that  the recital is conclusive, and that we cannot inquire into the truth. If this recital is untrue, for what reason are the courts estopped from declaring it untrue?

   The district courts of this state, are courts of general jurisdiction. There is no presumption that anything is beyond their jurisdiction. We have already established in the first division of this opinion, that the jurisdiction of the courts extends to the setting aside of a constitutional amendment, if it has not been adopted in the manner provided in the existing constitution. Indeed the argument of the appellant upon this branch of the case impliedly admits this general jurisdiction of the courts, for the appellant, upon this branch of the case, in effect relies upon an estoppel. But there would be neither necessity nor propriety in relying upon the finding of the Nineteenth General Assembly, as an estoppel, if the jurisdiction of the court did not extend to the subject of the adoption of an amendment at all. The jurisdiction of the court, to inquire whether an amendment has been properly adopted, being then established, and in effect conceded by the argument, what warrant is there for cutting it short just as it enters upon an examination as to the truth of this recital. The appellant says this recital is conclusive, and, therefore, the courts cannot inquire into it. But a recital of this kind is conclusive only when no mode of examination is provided. The appellant says no mode of examination has been provided, and upon the appellant is the burden of proof to establish that fact. The district courts being courts of general jurisdiction, it is incumbent upon the appellant, who denies that this jurisdiction extends to inquiry into the truth of this recital, to establish that fact. The presumption is that the jurisdiction extends to all questions, until the contrary is shown. The party who relies upon an exception must establish its existence. The appellant must give a better reason for the absence of this jurisdiction than that the recital is conclusive, for, when that reason is assigned, the question recurs, why is the recital conclusive. There is no provision of constitution or statute making it conclusive. There is nothing in the policy of our institutions or in the nature of the subject making it conclusive. Then why should it be considered conclusive? Why should the Nineteenth General Assembly by the recital of a fact, which, at least for the purposes of the argument on this branch of the case, must be conceded to be untrue, estop the courts from declaring it false? As we understand the argument of the appellant's counsel, they claim that the recital is conclusive because the jurisdiction of the court does not extend to the making of any inquiry into it. But whether the jurisdiction of the court extends to the making of inquiry into the recital, is the very question in dispute. The argument, therefore, as it seems to us, begs the whole question, except in so far as it is based upon the authorities above referred to, which, in our opinion, are not pertinent to the question. Further, it is claimed that the finding of the Nineteenth General Assembly that the Eighteenth General Assembly had adopted the same proposition that the Nineteenth General Assembly was about to submit to the people, was the determination of a matter within its jurisdiction, and that it cannot be collaterally impeached. It is insisted that the same rules are applicable to the action of the Nineteenth General Assembly as to a court acting within its jurisdiction. We propose to examine the grounds of this position. We will, for the sake of the argument, concede that the same rule applies to the Nineteenth General Assembly as to a court. The Nineteenth General Assembly, then, had no jurisdiction to submit to the people, any proposition which had not previously been adopted by the Eighteenth General Assembly. The fact that the proposition had been adopted by the Eighteenth General Assembly was necessary, in order that any  jurisdiction over it could be possessed by the Nineteenth General Assembly. The Nineteenth General Assembly could not acquire jurisdiction by a false recital that the fact existed. The existence of the fact itself was necessary, before jurisdiction could attach. The case of the People v. Cassels, 5 Hill 168, is, upon this branch of the case, directly in point. This case was certiorari to the judge of Chenango county courts, to review his action in discharging upon habeas corpus the defendant, Cassels, from a commitment by a magistrate for contempt. In the branch of the case pertinent to this inquiry, the court say: "The prisoner had an undoubted right to show that the committing magistrate acted without authority; and this is so, notwithstanding the commitment recites the existence of the necessary facts to give jurisdiction. No court or officer can acquire jurisdiction by the mere assertion of it, or by falsely alleging the existence of facts on which jurisdiction depends." See also Griffith v. Frazier, 12 U.S. 9, 8 Cranch 9, 3 L. Ed. 471.

   But there is another view of this case which is to our minds conclusive. The constitution required the Eighteenth General Assembly to keep a journal of its proceedings, and to enter thereon the proposed amendment. An entry was made upon the journal of the senate of the Eighteenth General Assembly, which shows that the proposed amendment, when it passed the senate of the Eighteenth General Assembly, contained the words "or to be used." The Nineteenth General Assembly recited that the Eighteenth General Assembly proposed and agreed to, and duly entered upon its journals, a proposition which did not contain the words "or to be used." In other words, the Nineteenth General Assembly recited as a fact essential to its jurisdiction, a matter which the journal of the Eighteenth General Assembly, which is the constitutional and statutory record of its proceedings, shows to be untrue. It is a familiar doctrine that, where the record of a court shows affirmatively the non-existence of the facts upon which a court bases its jurisdiction, the recital that the facts exist is a nullity, no jurisdiction attaches, the proceedings are void, and may be collaterally impeached. The authority upon this point is abundant. In Kitsmiller v. Kitchen, 24 Iowa 163, a decree was collaterally drawn in question, which was rendered upon a notice which failed to inform the defendant as to the place where, and time when, he must appear and defend the action. The court say: "We are clear that the service of such a notice did not confer jurisdiction upon the court over the person of the party served. The judgment was, therefore, void, and could not be relied upon as res adjudicata, since it did not affect the rights of the parties."

   In Coit v. Haven, 30 Conn. 190, the following language is employed: "We do not, understand that, upon the authorities at home or abroad, there is any contrariety of opinion that a domestic judgment, rendered by a court of general jurisdiction, where no want of jurisdiction is apparent on the record, cannot be collaterally attacked. If it be a foreign judgment, or the judgment of a court of limited jurisdiction, or the want of jurisdiction is apparent on the record, it can be collaterally attacked, for then the jurisdiction is not presumed, or the presumption is repelled by the record itself, and the judgment is an absolute nullity if the want of jurisdiction in fact exists." To the same effect, see, also, Hahn v. Kelly, 34 Cal. 391; Penobscot Railroad Co. v. Weeks, 52 Me. 456; Parish v. Parish, 32 Ga. 653; Mercier v. Chace, 91 Mass. 242, 9 Allen 242.

   The journal of the Eighteenth General Assembly constitutes the record of that body, and it shows that the fact, the existence of which was essential to the  jurisdiction of the Nineteenth General Assembly to submit the proposition upon which the people voted, did not exist. It follows from the doctrine of the foregoing authorities, that the finding by the Nineteenth General Assembly that such facts did exist is a nullity, and that it may be impeached collaterally.

   There is a further reason why the finding of the Nineteenth General Assembly should not have the force for which the appellant contends. The constitution makes three steps necessary for the adoption of an amendment, viz: the proposal of an amendment in one General Assembly, and its entry upon the journals; the agreement thereto by the next General Assembly, and its submission to the people; and the approval and ratification thereof by the people. These steps are distinct, independent and essential. No one of them can be dispensed with. It is necessary that the proposition shall be concurred in by two successive General Assemblies. If, however, one General Assembly can cut off all inquiry into the action of its predecessor, by a mere recital of what it has done, it follows that an amendment may be incorporated into the constitution, which has never received the sanction of more than one General Assembly. Such a construction might lead to a clear violation of the constitution. We cannot give it our sanction. In our opinion, the action of the Nineteenth General Assembly is not conclusive as to what the Eighteenth General Assembly proposed.

   III. The resolution adopted by the senate of the Eighteenth General Assembly, as shown by its journal, reads as follows: "No person shall manufacture for sale, or sell, or keep for sale, as a beverage, or to be used, any intoxicating liquor whatever, including ale, wine and beer. " The resolution as enrolled in the Eighteenth General Assembly, adopted by the Nineteenth General Assembly, and ratified by the people, reads as follows: "No person shall manufacture for sale, or sell, or keep for sale, as a beverage, any intoxicating liquor whatever, including ale, wine and beer." The difference between these two resolution is that the four words "or to be used" are in the resolution as entered upon the journal, but are not in the resolution as enrolled. It has always been conceded in the arguments in this case that the difference between the two resolutions is a substantial and material one. It is claimed, however, that the entry upon the journal is a mistake, and that the enrolled resolution expresses the legislative intent. If we should concede that the difference between the journal entry and the enrolled resolution resulted from mistake, we would still have to inquire which expresses the legislative will. The appellant says the enrolled resolution, clearly. At the same time, appellant's attorneys have not at all times been consistent with themselves as to the manner in which the four words, "or to be used," were made to disappear from the resolution. Upon the original oral argument, it was stated that after the amendment, striking out the words "for such purpose," had been adopted, the senate, by common consent and without any motion, agreed to drop out the words, "or to be used," and that the clerk failed to make any record of that action. Subsequently it has been stated that the amendment proposed in the senate was to strike out the words, "or to be used for such purpose," and that the clerks, by mistake, recorded only the latter portion of it, "for such purpose." These conflicting statements, however honestly made, show the danger and the impracticability of going outside of the record, and accepting parol proof of what was done in the senate of the Eighteenth General Assembly. It has further been insisted that the journal contains internal evidence of a mistake: that it cannot be conceived that any senator would move to strike out the words "for such purpose," and leave the words "or to be used." We propose to give some consideration to this position. It is a matter pertaining to the public  history of the amendment that those favoring it were divided into two classes, those who wished to prohibit the manufacture and sale of intoxicating liquors for all purposes, and those who simply wished to prohibit the manufacture and sale of intoxicating liquors to be used as a beverage. It will be remembered that it was claimed that the resolution, as enrolled and as submitted by the Nineteenth General Assembly, was ambiguous, and that it was uncertain whether it would be construed to prohibit absolutely the manufacture of intoxicating liquors for all purposes, or simply to prohibit the manufacture of intoxicating liquors for sale as a beverage. It will not be forgotten that an effort was made to procure from the Nineteenth General Assembly an interpretation of the resolution, and that a resolution expressing the understanding of the Nineteenth General Assembly did actually pass the senate of that assembly. It is further a matter of public history that the press of the state, and the public speakers who advocated the amendment, differed as to its meaning, and that an effort was made in the State Bar Association, before the election, to have that association place a construction upon it. In fact, the advocates of the amendment were very greatly embarra