sion, the territorial legislature passed an act submitting to the people the question of calling a constitutional convention, providing for the election of delegates, and, in case the proposal was adopted, that they should meet at the capital 66 to prepare and frame a constitution for the state of Nebraska, to be submitted to the electors of this territory, for adoption and approval by them. And unless it shall be so submitted, adopted and approved, at an election to be appointed by the constitutional convention, it shall not, for any purpose whatever, be deemed or held to be the act of the people of Nebraska."1 It will be seen that the requirement of popular ratification here is much more explicit than in the ordinary constituent act. The proposal, however, was rejected by the voters.2 In 1866 the legislature 3 framed a constitution which was submitted to the people and ratified by the narrow majority of one hundred,^ and in 1871 a convention met and framed an instrument which was rejected.5 The present constitution was framed and adopted in 1875 by an overwhelming majority, and it insured the permanence of popular ratification by requiring it for all future constitutional changes." G. Other States The constitutional history of the other states formed from the Louisiana Purchase has not been eventful. Minnesota has never 1 Laws of the Territory of Nebraska, 1859 (Nebraska City, 1860), 45, 46. 2 The vote was 2372 to 2094 against the convention. "History of Nebraska" (Chicago, 1882), 120. 3 A convention had met in Omaha on July 4, 1864, pursuant to an enabling act passed by Congress, but owing to depressed business conditions no instrument was framed, and the convention adjourned sine die. See Judge Maxwell's opinion in State v. Boyd, 31 Neb. 746, 747. "History of Nebraska," 128. Judge Crounse in Brittle v. People, 2 Neb. 211, says that this instrument was originally drafted in a lawyer's office by a few selfappointed individuals." "One was drawn up by a caucus of unofficial citizens, and became the first constitution of Nebraska." - Pavey, "Modern State Constitutions," Magazine of American History, XXIII, 153. 'The contest was close and the majority only 641. The provision for taxing church property was generally thought to have brought about the result. "History of Nebraska," 144, 145. • The vote was 30,202 to 5474. "History of Nebraska,” 150. displaced its original constitution, framed in 1857 by two separate conventions, representing the different political parties, but which agreed upon the same instrument and submitted it to the people.1 Its amendment system is one of the most advanced, requiring only a majority vote of one legislature for submission, though specifying two-thirds for recommending to the electors the calling of a convention.2 The three states formed from the northwest portion of the Louisiana Purchase and admitted under the enabling act of February 22, 1889, submitted their constitutions pursuant to the requirements of that act. There seems, however, to be little uniformity in their system of amendment. Thus, North Dakota adheres to the Pennsylvania plan of submission by a majority vote of two successive legislatures,* while South Dakota, which enjoys the distinction of being the first to adopt the initiative and referendum,5 has reproduced the Minnesota system for the submission of amendments, except that "a majority of the electors voting thereon" is sufficient." Montana incorporates the clause common to several of the states, requiring the work of future conventions to be submitted." 8 This, likewise, appears in the Wyoming constitution, framed and ratified in 1889, in advance of the enabling act and accepted by Congress in 1890. That instrument also provides for the submission of amendments and proposals for a convention by a two-thirds vote of a single legislature and their adoption by a majority of the voters. Washington,1o admitted under the omnibus act of 1889, and Idaho" in advance of admission, in the same year sent their constitutions to the people and expressly required the submission of all future constitutional changes. The new constitution of Oklahoma, adopted by an overwhelming majority on September 17, 1907, pursuant to the provisions of the enabling act, which, however, required the approval of the President as well as of the people of both constituent territories, provides for 1 McVey, "The Government of Minnesota" (New York, 1901), 18 et seq. 2 Art. XIV; Poore, II, 1040. 3 U.S. Stats. at Large, XXVI, Ch. 180, Sec. 8. • Art. XV, sec. 202; North Dakota Revised Codes, 1905, lxxiv. Post, Chap. XXIX. 7 Art. XIX, sec. 8. • Id. Art. XXIII; South Dakota Laws, 1890, xlvi. 8 Art. XX; Wyoming Session Laws, 1890-1891, 69. 10 Washington Constitution, Art. XXIII, sec. 8. 11 Idaho Constitution, Art. XX, sec. 4. revision by popular vote, and also, and this for the first time in an original constitution, applies the initiative principle to constitutional amendments, so that the people are no longer required to await the action of the legislature nor confined to the clumsy expedient of informal petition, but may demand the submission of amendments as a matter of right.' 1 Oklahoma Constitution, Art. V. CHAPTER XVIII POPULAR RATIFICATION IN THE STATES OF THE MEXICAN CESSION A. Texas IN Texas, as in Florida, popular ratification as a part of its public law is older than the state. The convention of delegates which, in 1836, formally declared independence of Mexico, likewise framed a constitution for the "Republic of Texas." But this was not, like the act of separation, left to depend on the mere will of the convention. It was submitted to the people and ratified by them at an election held the same year. On March 1, 1845, Congress passed a resolution for annexing Texas, and one of its conditions was that a constitution should be transmitted to the President, "with proper evidence of its adoption by the people of said Republic of Texas." " A convention assembled on July 4 of the same year and framed a constitution for the new state which contained the following provision: "Immediately after the adjournment of this Convention, the President of the Republic shall issue his proclamation, directing the Chief Justices of the several counties of this Republic, and the several chief justices and their associates are hereby required, to cause polls to be opened in their respective counties, at the established precincts, on the second Monday in October next, for the purpose of taking the sense of the people of Texas in regard to the adoption or rejection of this Constitution; and the votes of all persons entitled to vote under the existing laws of this constitution shall be received. Each voter shall express his opinion by declaring by a viva-voce vote for the constitution accepted,' or 'the constitution rejected,' or some words clearly expressing the intention of the voter." The instrument thus submitted was adopted by an overwhelming majority.5 1 See its text in Sayles' Texas Statutes (St. Louis, 1888), IV, 154 et seq. Id. 217, 218; Texas Constitution, 1845, Art. XIII, sec. 5; Poore, II, 1781. 5 Jameson, "Constitutional Conventions," 654. The vote was 4174 in favor, and 312 against. 4 In February, 1861, the legislature passed a resolution requiring the ordinance of secession to be submitted,' which was done," the result being favorable to adoption, though the vote was but little more than half that cast at the presidential election of the preceding autumn.3 The secession constitution of the same year was also submitted to the electors and the same course was followed with regard to the instruments of 1866, 1868, and 1875.5 The convention of 1868, indeed, attempted to put into force a separate ordinance without submission, but this was declared inoperative by the Supreme Court.R And so deeply rooted has become the practice of popular ratification in Texas, that this is one of the states where legislation by constitutional amendment is frequently attempted,' and the statutory referendum frequently employed. B. California The constitutional beginnings of California antedate the formal organization of the state government and are probably to be found in those popular but unofficial organizations which took the place of regular government when the state was first settled by Americans. Just as in Iowa, where the principal source of wealth and species of property was land, the land associations blazed the path for organized political society, so in California, where the leading industry was mining, the miners' associations and miners' codes performed a similar office. As a recent writer on this subject observes: "That army of State-builders who poured out their mighty toil upon the placer mines of the Far West . . . had no sooner pitched their tents beneath the Sierra snow peaks, than they called meetings of 'all the freemen of the camp,' created mining 'districts,' elected officers, clothed them with sufficient authority, and ordained laws under which peace was secured and prosperity reigned for years." 1 Tenney, "Military and Naval History of the Rebellion," 33. Sayles, Texas Statutes (St. Louis, 1888), IV, 257, 258. 3 Tenney, "Military and Naval History of the Rebellion," 34. Jameson, "Constitutional Conventions," 654. 6 Quinlan v. R. Co., 89 Tex. 356; 34 S.W. Rep. 744. " Id. "Oberholtzer, "The Referendum in America" (New York, 1900), 166, 168. See post, Chap. XXIX. 9 Shinn, "Land Laws of Mining Districts," Johns Hopkins University Studies, II, 554. The author further says (556):— "A volume of two thousand pages would hardly be sufficient to contain the complete laws of all the Mining Districts of the Far West. These laws in their complete |