throughout the whole state as it did in the 654 districts the votes from which were recounted, the tax amendment would have been proved defeated, and the road amendment carried. Not only that, but assuming even that the returns from the 2,016 precincts not recounted were entirely correct, and adding to them the corrected returns from the 654 recounted, the tax amendment would still be defeated and the road amendment adopted. Assuming this to be a sufficient proof, the district judge declared that the tax amendment had been defeated and the road amendment carried, and he entered judgments accordingly.30 At this point there should have been an appeal by the state to the supreme court from both decisions. Such appeals were entered by the attorney general, but the one relating to the road amendment was later dismissed by him.31 31 This left the decision of the district court final in this case, and the road amendment was declared by the secretary of state to be a part of the constitution. The other appeal was prosecuted to judgment.32 The supreme court refused to accept the theory of average error and insisted that the contestant had not proved his point. The decision of the district court as to the tax amendment was, therefore, reversed, and the tax amendment was also declared carried.

6. THE INCREASING LENGTH OF THE CONSTITUTION. It is a matter of familiar observation that the tendency is for state constitutions to grow longer. This process of lengthening is usually accelerated when a state draws up a new constitution, but it goes steadily on, also, as legislative amendments are added, one after another, to the original document. Minnesota is no exception to the rule. Only one amendment has really had the effect of shortening the constitution, the tax amendment of 1906.33 Article 4 has been increased by the addition of nearly four pages of new material; articles 1, 7, 8, and 9 have all been lengthened. The trunk highways amendment of 1920, embodying the so-called "Babcock plan," adds approximately twelve pages to the constitution.34

On principle, most men will admit the wisdom of having a shorter statement of the basic law of the government. When it comes down to cases, however, every man wants his own particular hobby written at length into the constitution; he is sure that he knows just how to write it, and he wants it to be written down in full. He is very often mistaken, and sometimes finds it out too late. In any case, the length of modern state constitutions is due very

30 McConaughy v. Secretary of State, supra.

Leg. Man. 1909, p. 46, insert.

82 McConaughy v. Secretary of State, supra.

33 See pp. 237-40.

21 See pp. 252-65.

largely to the fact that legislatures and constitutional conventions and the people who ratify their proposals are less interested in the theoretical and practical merits of having short constitutions than they are in the very practical value of having things written down in full in black and white. When and where constitutions are easy to amend there is no great objection to having them long. Where, as in Minnesota today, it is very difficult to change them, there is an unquestionable advantage in having the constitution a document which deals solely with fundamentals rather than one which has been so filled with detail as to hamper the government in its daily operation. Fundamentals should, perhaps, be written down in tables of bronze; but fundamentals are usually capable of brief statement like the ten commandments and the federal bill of rights. Who will venture to say that he can foresee in detail the needs of the government of this state at a period fifty years hence? Yet the constitution of Minnesota with its many detailed provisions, is now over sixty years old.

CHAPTER IX

THE AMENDMENTS TO THE CONSTITUTION

In the following pages no attempt is made at an exhaustive discussion of the judicial interpretation of the constitution. The chief aim of the chapter is to summarize the growth of the constitution article by article, showing the number of amendments proposed and adopted, together with some of the reasons why they were proposed and any peculiar circumstances surrounding their adoption. In passing, something will be said by way of illustration of the growth of the constitution through judicial interpretation, but it is intended that these partial digressions shall be suggestive rather than exhaustive.

I. ARTICLE I-BILL OF RIGHTS. been proposed and five have been adopted. As early as 1868 an attempt was made to abolish the requirement of an indictment or presentment of a grand jury as a condition precedent to a trial for felony. The peculiar form in which the question was presented to the voters probably had much to do with the defeat of the amendment. The present section 7 does eliminate the grand jury requirement; it was not adopted until 1904. The only other amendment which has been defeated was that proposed in 1915 which purported to authorize the taking of private property under eminent domain proceedings in order to construct private drainage ditches.*

Seven amendments to this article have

The first amendment to this article came in 1888. The original section 12 prohibited imprisonment for debt, making exception only in cases of persons who were guilty of fraud in contracting such debt. Under this section. it was held that the failure to pay a hotel bill may be accompanied by such facts connected with the departure of the guest as to constitute a crime, not because of the debt incurred, but by reason of the fraud. The section further exempted from seizure or sale for the payment of any debt a reasonable amount of property to be determined by law. The exemption was determined by the legislature by defining a homestead as a certain area of property rather than by limiting it as to value, and making the homestead exempt from seizure. Under the original section even a mechanic's lien could not be enforced as against such homestead. An amendment was, therefore, proposed

1 Sess. Laws 1868, ch. 107.

Instead of voting for or against the amendment, the voter was required to vote "for grand jury" or "against grand jury."

3 Sess. Laws 1903, ch. 269.

Ibid., 1915, ch. 384.

State v. Benson, 28 Minn. 424; 10 N. W. 471, (1881). See also State v. Harris, 134 Minn. 35; 158 N. W. 829, (1916).

Cogel v. Mickow, 11 Minn. 475 (Gil. 354), (1866); Meyer v. Berlandi, 39 Minn. 438; 40 N. W. 513; 1 L. R. A. 777; 12 Am. St. Rep. 663, (1888).

and readily adopted which provided that such exemption from seizure or sale should not apply as against those who had performed labor or service or who had furnished materials toward the improvement of the property."

The next successful amendment came in 1890 and applied to section 4, relating to jury trial. It was current opinion that the unanimous verdict of a jury was required under this section and that the legislature had no power to change to a different jury system. This was altered by the proviso added in 1890 which authorized the legislature to provide that a five-sixths verdict after not less than six hours deliberation shall be a sufficient verdict in any civil action. The additional clause does not, of course, apply to criminal cases. It is of interest to note that although this amendment was proposed by the legislature in 1889 and adopted in 1890, the necessary statute making the fivesixths verdict possible was not passed until 1913, and that it requires not six but twelve hours deliberation before such verdict may be valid.

In 1896 came the amendment to section 13 with reference to the destroying and damaging of private property for public use. The original section provided merely that "private property shall not be taken for public use without just compensation therefor first paid or secured." Under this section it was held by the supreme court of the state that damages to property resulting from a change in the grade of a city street did not constitute a "taking" of the property for public use. The amendment inserting the words "destroyed or damaged" after the word "taken" made such damages recoverable.10

The abolition of the grand-jury requirement in section 7 in 1904 has already been mentioned.11

The last amendment to the bill of rights was adopted in 1906. The supreme court had decided that a farmer could not sell even the products of his own farm or garden in violation of a city ordinance requiring a license.12 The legislature promptly proposed the amendment which became section 18 of this article to the effect that "Any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor." The remarkable vote on this amendment is of interest as indicating what can be done when a simple issue arousing the public is presented to the electorate. The amendment received a vote of 190,897 yeas as against 34,094 noes, out of a total vote of 284,366. Not only farmers who wished to sell but also city dwellers who wished to buy, united in passing the new section. In Hennepin county the vote was more than five to one for the amendment; in Ramsey nearly four to one. It may be observed that milk

Sess. Laws 1887, ch. 2.

Ibid., 1913, ch. 63; Gen. Stat. 1913, sec. 7805.

• Henderson v. City of Minneapolis, 32 Minn. 319; 20 N. W. 322, (1884).

10 Dickerman v. City of Duluth, 88 Minn. 288; 92 N. W. 1119, (1903).

11 See p. 156.

12 State v. Jensen, 93 Minn. 88; 100 N. W. 644, (1904).

is a "product of the farm" under this section in the opinion of the attorney general.13

While it is not essential to a discussion of the growth of this article to speak of decisions which interpret sections that have not been amended, it will serve to illustrate the results of judicial interpretation to give a brief summary of some leading decisions upon three important and much misunderstood questions, namely, freedom of speech, jury trial, and due process of law.

The Minnesota constitution clearly indicates the fact that freedom of speech and of the press does not mean absolute, uncontrolled license. Unlike the first amendment to the federal constitution, which does not expressly refer to the common law limitations upon freedom of speech, the state constitution provides that the freedom of the people to "speak, write, and publish their sentiments on all subjects" is limited by the very necessary and well established common law rule that they shall be "responsible for the abuse of such right."14 Even the truth may not be published if such publication serves no justifiable end and endangers the public morals or safety. The legislature passed a statute forbidding the publication of the details of any execution.15 A newspaper published a truthful and fair statement of the facts concerning the hanging of a criminal. The newspaper was held guilty of violation of the statute. "If the nature of the case is such as to make it improper that the proceedings should be spread before the public because of their immoral tendency, or the blasphemous or indecent character of the evidence exhibited, the publication, although full and complete, will be a public offence, punishable accordingly.”16

9917

No bill of rights can properly be used as a shield to protect the person. who endangers the public safety or the existence of the state. In the words of Story, the constitutional guarantee of a liberty, such as liberty of the press, cannot be construed to deprive the state of "the primary duty of self-preserWe have had some striking illustrations of this fact in the past few years. The state legislature defines that which is criminal. Sabotage, "meaning malicious damage or injury to the property of an employer by an employe" has been made a crime by statute, and "any person who by word of mouth or writing, advocates or teaches the duty, necessity or propriety of crime, sabotage," etc., has been declared by law to be "guilty of a felony" and punishable accordingly.18 This statute has been upheld and enforced by the courts.19 Another law illustrating a limitation properly placed upon freedom of speech and press is that passed in 1917 to prevent interference

18 Op. of Atty. Gen., 1918, no. 396, p. 272.

14 U. S. Const., amend. 1; Minn. Const., art. 1, sec. 3.

15 Sess. Laws 1889, ch. 20.

16 State v. Pioneer Press Co., 100 Minn. 173; 110 N. W. 867; 9 L. R. A. (n. s.) 480, (1907). 17 Story, Comm. on the Const. of the U. S., secs. 1874, 1878, 1880-82.

18 Sess. Laws 1917, ch. 215.

19 State v. Moilen, 140 Minn. 113; 167 N. W. 345, (1918); State v. Holm, 139 Minn. 267; 166 N. W. 181, (1918).