ChanRobles Virtual law Library






Click Here for full text of:chanroblesvirtuallawlibrary



"(a) An examination of the decisions shows that the courts have almost uniformly exercised the authority to determine the validity of the proposal, submission, or ratification of constitutional amendments. It has been judicially determined whether a proposed amendment received the constitutional majority of votes [Dayton v. St. Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. 432, 96 S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251; State v. Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6 L.R.A. 422; Tecumseh National Bank V. Saunders, 51 Neb. 801, 71 N.W. 779; Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton (C.C.) 134 Fed. 423]; whether a proposed amendment is a single amendment, within the constitutional requirement that every amendment must be separately submitted [State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert v. Chicago, etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54 Wis. 318, 11 N.W. 785; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Lobaugh v. Cook, 127 Iowa, 181, 102 N.W. 1121; People v. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; State v. Board, 34 Mont. 426, 87 Pac. 450; State v. Winnett (Neb.) 110 N.W. 1113, 10 L.R.A. (N.S.) 149]; whether the failure to enter the resolution of submission upon the legislative journals invalidates the amendment [Koehler v. Hill, 60 Iowa, 543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; West v. State, 50 Fla. 154, 39 South. 412; Durfee v. Harper, 22 Mont. 354, 56 Pac. 56; State v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am. St. Rep. 895); whether the description of the amendment and the form of the ballot are sufficient (Russell v. Croy, 164 M 69, 63 S.W. 849; State v. Winnett ( Neb.) 110 N.W. 1113, L.R.A. (N.S.)149; Murphy Chair Co. v. Attorney General [Mich.] 112 N.W. 127]; whether the method of submission sufficient [Lovett v. Ferguson,, 10 S.D. 44, 71 N.W. 765; Russell v. Croy, 164 Mo. 69, 63 S.W. 849]; whether the publication of the amendment, or of a notice relative to it, is sufficient [Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63 S.W. 849]; whether the submission may be well by resolution as by a legislative act approved by the executive [Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R. 568; Warfield vi Vandiver, 101 Md. 78, 60 Atl. 538; Edward Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L.R.A. 815; Hays v. Hays, 5 Idaho, 154, 47 Pac. 732; State v. Dahl, 6 N.D. 81, 6 N.W. 418, 34 L.R.A. 97]; at what election the amendment be submitted [People v. Curry, 130 Cal. 82, 62 Pac. 516].cralaw:red

In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court said: "It is contended that the determination of the question whether an amendment to the Constitution has been carried involves the exercise of political, and not judicial, power. If this be so, it follows that the promulgation of any purported amendment by the executive or any executive department is final, and that the action cannot be questioned by the judiciary; but, with reference to the conditions precedent to submitting a proposed amendment to a vote of the people, it has been repeatedly held, by courts of the highest respectability, that it is within the power of the judiciary to inquire into the question, even in a collateral proceeding. It is to be noted that under Section 1 of Article 20 of the Constitution of the state, no amendment can become a part of the Constitution until ratified by a vote of the people. One prerequisite is equally as essential as the other. The amendment must first receive the requisite majority in the Legislature, and afterwards be adopted by the requisite vote.  It is the fact of a majority vote which makes the amendment a part of the Constitution."

"In considering the cases it is necessary to note whether in the particular case the court was called upon to determine between rival governments, or whether the Legislature, or some board or official, had legally performed the duty imposed by the Constitution or statutes. In re State v. McBride, 4 Mo. 303, 29 Am. Dec. 636, it was held that the General Assembly, under the power granted by the Constitution, could change the Constitution only in the manner prescribed by it, and that it was the duty of the court to determine whether all prerequisites had been complied with. In Collier v. Frierson, 24 Ala. 100, it was held that a Constitution can be changes only by the people in convention or in a mode described by the Constitution itself, and that if the latter mode is adopted every requisite of the Constitution must be observed. 'It has been said," says the court, "that certain acts are to be done, certain requisitions are to be observed, before a change can be effected; but to what purpose are these acts required, or these requisitions enjoined, if the Legislature or any other 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 court to pronounce against every amendment which is shown not to have been made in accordance with the rules prescribed by the fundamental law.'

"In State v. Swift, 69 Ind. 505, it was said that: '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 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.' So, in State v. Timme, 54 Wis. 318, 11 N.W. 785, it was held that no amendments can be made to the Constitution of the state without compliance with the provisions thereof, both in the passage of such amendment by the Legislature and the manner of submitting it to the people. The courts have not all agreed as to the strictness of compliance which should be required.cralaw:red

"In the Prohibition and Amendment Case, 24 Kan. 700, the Court determined judicially whether an amendment to the Constitution had been legally adopted. After approving the statement quoted from Collier v. Frierson, supra, that 'we entertain no doubt that, to change the Constitution in an other mode than by a convention, every requisite which is demanded by the instrument itself must be observed, and the omission of any one is fatal to the amendment,' the Court held that, 'as substance of right is grander and more potent than methods of form,' there had been substantial compliance with the constitutional requirement that a proposed amendment to the Constitution must be entered at length on the legislative journal. It appears that the joint resolution making submission simply provided that a proposition should be submitted to the electors at the general election of 1880. It did not declare that the machinery of the general election law should control, or that any particular officers or board would receive, count, or canvass the votes cast. But the existing election machinery was adequate, and the votes were received, counted, and canvassed, and the result declared as fully as though it had been in terms so ordered. These methods had been followed in the adoption of previous amendments, and was held that, conceding the irregularity of the proceedings the Legislature and the doubtful scope of the provisions for the election, yet in view of the very uncertainty of such provision, the past legislative history of similar propositions, the universal prior acquiescence in the same forms of procedure and the popular and unchallenged acceptance of the legal pendency before the people of the question of the amendment for decision, and in view of the duty cast upon the court taking judicial knowledge of anything affecting the existence and validity of any law or portion of the Constitution, it must be adjudged that the proposed amendment became part of the Constitution. The effect was to hold that a provision of the Constitution requiring the proposed amendment to be entered in full on the journals was directory, and not mandatory. This liberal view was approved in State v. Winnett [Neb.] 110 N. 1113, 10 L.R.A. [N.S.] 149, and People v. Sours, 31 Colo. 369, Pac. 167, 102 Am. St. Rep. 34. But it has not been universally accepted.cralaw:red

"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in commenting upon the Kansas case said: 'The reasoning by which the learned court reached the conclusion it did is not based on any sound legal principles, but contrary to them. Neither the argument nor the conclusion can command our assent or approval. The argument is illogical, and based on premises which are without any sound foundation, and rests merely on assumption.' See, also, the well-considered case of Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222. All these cases concede the jurisdiction of the Court to determine whether, in submitting a proposed amendment to the people, the Legislature legally observed the constitutional provisions as to the manner of procedure. In Livermore v. Waite, 102 Cal. 113, 36 Pac. 424, 25 L.R.A. 312, the Court, at the instance of a citizen and a taxpayer, restrained the Secretary of State from taking steps to submit to the people a proposed amendment to the Constitution agreed to by the Legislature on the ground that the Legislature had not acted in conformity with the Constitution and that the proposed amendment was of such a character that it could not properly become a part of the Constitution. The Supreme Court of Colorado, in People v. Sours, supra, refused to exercise this authority.cralaw:red

"The entire question received elaborate consideration in Koehler v. Hill, 60 Iowa, 543, 14 N.W. 738, 15 N.W. 609. The amendment, which concededly had been adopted by the people, had not, before its submission, been entered in full upon the legislative journals, as required by the Constitution, and it was held that this was a material variance in both form and substance from the constitutional requirements, and that the amendment did not, therefore, become a part of the Constitution. As to the claim that the question was political, and not judicial, it was said that, while it is not competent for courts to inquire into the validity of the Constitution and the form of government under which they themselves exist, and from which they derive their powers, yet, where the existing Constitution prescribes a method for its own amendment, an amendment thereto, to be valid, must be adopted in strict conformity to that method; and it is the duty of the courts in a proper case, when an amendment does not relate to their own power or functions, to inquire whether, in the adoption of the amendment, the provisions of the existing Constitution have been observed, and, if not, to declare the amendment invalid and of no force. This case was followed in State v. Brookhart, 113 Iowa, 250, 84 N.W. 1064.cralaw:red

"In University v. McIver, 72 N.C. 76, the question whether a proposed amendment to the Constitution had been legally adopted was treated as a judicial question. By the Constitution, a proposed amendment was required to be approved by Legislatures before its submission to the people. In this instance a bill was passed which contained 17 amendments. The next Legislature rejected 9 and adopted 8 of the amendments, and submitted them to the people. The majority of the people voted for their adoption; but it was contended that the Constitution contemplated and required that the same bill and the same amendments, without change, should be approved by both Legislatures, and that it did not follow because the second Legislature adopted separately 8 out of 17 amendments adopted by the first Legislature, it would have adopted the 17, or any of them, if they had been voted upon the second time in the form adopted by the first body. The substance of the contention was that there had not been a concurrence of the two Legislatures on the same amendments, according to the letter and spirit of the Constitution. The court held that the power of the Legislature in submitting amendments could not be distinguished from the powers of convention, and that, as the people had spoken and ratified the amendments, they became a part of the Constitution.cralaw:red

"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that prior to 1876, a proposed amendment to the Constitution could not be submitted to the people at any other time than in a general election; but, as the amendment under consideration had been submitted after the Constitution had  been changed, it had been legally submitted and adopted.cralaw:red

"In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether an amendment to the Constitution had been legally submitted and adopted by the people was held to be judicial, and not political, in its nature. The amendment under consideration changed the Constitution by providing for an elective, instead of an appointive, judiciary. It was contented that the amendments had been improperly submitted and adopted by a majority of the qualified voters voting at election, as required by the Constitution. The law did direct how the result of the election should be determined. The Legislature by joint resolution recited that the election had been duly held throughout the state, and, as it appeared from the returns made to the Secretary of State, that 21,169 votes were cast in favor of, and 8,643 votes against, the amendment, it resolved 'that said amendment be, and hereby is, inserted into the Constitution of the state of Mississippi as a part of the Constitution.' In fact, the amendment was not submitted in the manner prescribed by the Constitution, and it did not receive a majority of all the qualified voters voting at the election. It was argued that the rules prescribed by the Constitution "are all for the guidance of the Legislature, and from the very nature of the thing the Legislature must be the exclusive judge of all questions to be measured or determined by these rules. Whether the question be political, and certainly a legislative one, or judicial, to be determined by the courts, this section of rules, not only of procedure, but of final judgment as well, confides to the separate magistracy of the legislative department full power to hear, consider, and adjudge that question. The Legislature puts the question to the qualified electors. The qualified electors answer back to the Legislature. "If it shall appear" to the Legislature that its question has been answered in the affirmative, the amendment is inserted and made a part of the Constitution. The Governor and the courts have no authority to speak at any stage of the proceedings between the sovereign and the Legislature, and when the matter is thus concluded it is closed, and the judiciary is as powerless to interfere as the executive.' But it was held that the question whether the proposition submitted to the voters constituted one, or more than one, amendment, whether the submission was according to the requirements of the Constitution, and whether the proposition was in fact adopted, were all judicial, and not political, questions. 'We do not,' said Chief Justice Whitfield, 'seek a jurisdiction not imposed upon us by the Constitution. We could not, if we would, escape the exercise of that jurisdiction which the Constitution has imposed upon us. In the particular instance in which we are now acting, our duty to know what the Constitution of the state is, and in accordance with our oaths to support and maintain it in its integrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, but one which, like all others, must be discharged."

"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251, it was held that it was the duty of the judicial department of the government to determine whether the legislative department or its officers had observed the constitutional injunctions in attempting to amend the Constitution, and to annul their acts if they had not done so. The case is an interesting and well-considered one. The Constitution provided the manner in which proposed amendments should be submitted to the people, but did not provide a method for canvassing the votes. The Legislature having agreed to certain proposed amendments, passed an act for submitting the same to the people. This statute provided for the transmission to the Secretary of State of certificate showing the result of the voting throughout the state, and made it the duty of the Governor at the designated time summon four or more Senators, who, with the Governor, should constitute a board of state canvassers to canvass and estimate the votes for and against each amendment. This board was to determine and declare which of the proposed amendments had been adopted and to deliver a statement of the results to the Secretary of State, and "any proposed amendment, which by said certificate and determination of the board of canvassers shall appear to have received in its favor the majority of all the votes cast in the state for and against said proposed amendment, shall from the time of filing such certificate be and become an amendment to and a part of the Constitution of the state; and it shall be the duty of the Governor of the state forthwith, after such a determination, to issue a proclamation declaring which of the said proposed amendments have been adopted by the people." This board was required to file a statement of the result of the election, and the Governor to issue his proclamation declaring that the amendment had been adopted and become a part of the Constitution. At the instance of a taxpayer the Supreme Court allowed a writ of certiorari to remove into the court for review the statement of the results of the election made by the canvassing board, in order that it might be judicially determined whether on the facts shown in that statement the board had legally determined that the proposed amendment had been adopted. The Supreme Court decided that the concurrence of the board of state canvassers and the executive department of the government in their respective official functions placed the subject-matter beyond the cognizance of the judicial department of the state. The Court of Appeals, after a full review of the authorities, reversed this decision, and held that the questions were of a judicial nature, and properly determinable by the court on their merits. Mr. Justice Dixon, after stating the facts, said: 'It thus becomes manifest that there was present in the Supreme Court, and is now pending in this court, every element tending to maintain jurisdiction over the subject-matter, unless it be true, as insisted, that the judicial department of the government has not the right to consider whether the legislative department and its agencies have observed constitutional injunctions in attempting to amend the Constitution, and to annul their acts in case that they have not done so. That such a proposition is not true seems to be indicated by the whole history of jurisprudence in this country.' The court, after considering the case on the merits, held that the proper conclusion had been drawn therefrom, and that the amendment in question was legally submitted and adopted.cralaw:red

"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, presented the identical question which we have under consideration. In reference to the contention that the Constitution intended to delegate to the Speaker of the House of Representatives the power to determine whether an amendment had been adopted, and that the question was political, and not judicial, the court observed: "The argument has often been made in similar cases to the courts, and it is found in many dissenting opinions; but, with probably a few exceptions, it is not found in any prevailing opinion."

"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that the constitutional requirement of publication of a proposed constitutional provision for three months prior to the election at which it is to be submitted to the people is mandatory and that noncompliance therewith renders the adoption of an amendment of no effect."

Defining Further the Role of Barangays
[Citizens Assemblies]

WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31, 1972, the Barangays (Citizens Assemblies) have petitioned the Office of the President to submit to them for resolution important national issues;

WHEREAS, one of the questions persistently mentioned refers to the ratification of the Constitution proposed by the 1971 Constitutional Convention;

WHEREAS, on the basis of the said petitions, it is evident that the people believe that the submission of the proposed Constitution to the Citizens Assemblies or Barangays should be taken as a plebiscite in itself in view of the fact that freedom of debate has always been limited to the leadership in political, economic and social fields, and that it is now necessary to bring this down to the level of the people themselves through the Barangays or Citizens Assemblies;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby order that important national issues shall from time to time be referred to the Barangays (Citizens Assemblies) for resolution in accordance with Presidential Decree No. 86-A dated January 5, 1973 and that the initial referendum shall include the matter of ratification of the Constitution proposed by the 1971 Constitutional Convention.cralaw:red

The Secretary of the Department of Local Government and Community Development shall insure the implementation of this Order.

Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred and seventy-three.


By the President:


Executive Secretary

Click Here for full text of:chanroblesvirtuallawlibrary

 Back to Top   -   Back to Main Index   -   Back to Table of Contents -1973 SC Decisions   -   Back to Home

ChanRobles Legal Resources:

ChanRobles On-Line Bar Review

ChanRobles Internet Bar Review :

ChanRobles MCLE On-line

ChanRobles Lawnet Inc. - ChanRobles MCLE On-line :