stitution is of no greater validity than another. It is true, for example, that the bill of rights guarantees the right of trial by jury, but "all that is necessary to be said as to the right of trial by jury is that the constitution simply preserves it in cases where it existed previous to its adoption. Courts martial existed long before the adoption of the constitution, and their existence is impliedly recognized in our own and the constitutions of most of the states."219 The system of courts martial is an incident of the military system and therefore the right of trial by jury, which is not recognized in military law, cannot exist even in times of peace in the court-martial proceedings of the state militia.

The legislature in carrying out its very broad powers with reference to the militia has affirmed the extreme position taken by military authorities in regard to the exemption of the military from liability, either criminal or civil, if the military act was pursuant to orders in the performance of military duties. The statutes provide that:

The commanding officer of any militia force engaged in the suppression of an insurrection, the dispersion of a mob, or the enforcement of the laws shall exercise his discretion as to the propriety of firing upon or otherwise attacking any mob or other unlawful assembly; and, if he exercise his honest judgment thereon, he shall not be liable in either a civil or a criminal action for any act done while on such duty. But no officer, under any pretense, or in compliance with any order, shall direct or permit his men, or any of them, to fire blank cartridges upon any mob or unlawful assemblage, under penalty of dishonorable dismissal from the service. No officer or enlisted man shall be held liable, in either a civil or a criminal action, for any act done under lawful orders and in the performance of his duty.220

Whenever the people of Minnesota come to feel that this statutory provision gives the military authorities too much freedom, they can bring about a change by bringing their influence to bear upon the legislature. No amendment of the constitution will be needed.

13. ARTICLE 13-IMPEACHMENT AND REMOVAL FROM OFFICE. This article, like that which provides for the militia, stands in its original form. No proposal to amend it has ever been submitted by the legislature to the voters.

Section 2 authorizes the legislature to "provide for the removal of inferior officers from office, for malfeasance or nonfeasance in the performance of their duties." The power to remove for malfeasance or nonfeasance is judicial or quasi-judicial in its nature. 221 It does not follow, however, "that the

219 Ibid.

220 Gen. Stat. 1913, sec. 2379. See also 3 Minn. Law Review, 105-21, "Civil Authority versus Military;" O'Shee v. Stafford, 122 La. 444; 47 So. 764; 16 Ann. Cases 1163; (1908).

221 State ex rel. Hart v. City of Duluth, 53 Minn. 238; 55 N. W. 118; 39 Am. St. Rep. 595; (1893); Hagerty v. Shedd, 75 N. H. 393, (1909).

power shall be conferred only on the courts. Indeed, the very purpose of this provision was to provide a more summary and less cumbersome method of removing inferior officers than by impeachment or by indictment, according to the course of the common law, for malfeasance or mis feasance in office. If, then the power of removal vested in the governor by the legislature be judicial, we have here the constitutional authority for it."222 Indeed, it is not unreasonable to assume that, under this section, the legislature might confer upon other officers than the governor a very wide power of removal of inferior officers.

The duties which have, in fact, been imposed upon the governor by the legislature pursuant to section 2 are ministerial, and such as could have been imposed upon some other officer. Consequently the exercise of such duties is subject to control by the judiciary.223

The growth and

14. ARTICLE 14-AMENDMENTS TO THE CONSTITUTION. interpretation of this article is fully discussed in another place.224

15. ARTICLE 15-MISCELLANEOUS SUBJECTS. The legislature has had no occasion to submit any amendment to any of the five sections which make up this article. However, it has twice proposed additional sections, both of which were defeated.

In 1868 the legislature proposed to add a new section to this article requiring a referendum to the voters before any part of the 500,000 acres of internal improvement lands could be disposed of for any purpose except that of establishing a permanent internal improvement fund.225 The proposal was made shortly after the discovery of the statute of 1841 under which Minnesota could claim this amount of land, and the object of the amendment was to prevent the dissipation of these lands in the payment of the claims of the railroad bond holders. This proposed amendment, which was defeated, should be read in connection with section 32(b) of article 4 adopted in 1872.226 The prohibition amendment proposed in 1917 and voted upon in 1918 was also to have constituted a section of this article in case of adoption. This amendment provided that:

The manufacture, sale, barter, gift, disposition, or the furnishing, or transportation, or keeping or having in possession for sale, barter, gift, disposition, or the furnishing, or transportation of intoxicating liquor of any kind, in any quantity whatever, except for sacramental, mechanical, scientific, or medicinal purposes, shall be forever prohibited 222 State ex rel. Clapp v. Peterson, 50 Minn. 239; 52 N. W. 655; (1892).

223 State ex rel. Kinsella v. Eberhart, 116 Minn. 313; 133 N. W. 857; (1911); but see the earlier case of State ex rel. Thompson v. Whitcomb, 28 Minn. 50; 8 N. W. 902; (1881).

224 See pp. 144-55.

225 Sess. Laws 1868, ch. 108.

226 See pp. 167-68.

within this state from and after the first day of July 1920, and this amendment shall be self executing. The legislature shall enact laws for the enforcement of this section and shall provide suitable penalties for the violation thereof."

As has been pointed out in another connection, there was a very heavy vote upon this question and the amendment fell just a little short of adoption.228 The vote in favor of the amendment exceeded the vote against the amendment by over fifteen thousand. The legislature considered this to be a sufficient mandate from the people to ratify the federal prohibition amendment, and it did so in the 1919 session.229 At the time of this ratification Minnesota was about to become "dry" under the provisions of the act of Congress of November 21, 1918, commonly known as "the war time prohibition act."230 In the same session of the legislature was enacted the law to carry out the purpose of the defeated state amendment as well as of the federal prohibition amendment,231 but it was on the condition that:

If prior to January 16, 1920, the sale of intoxicating liquors shall cease to be unlawful under any such act of congress or any such proclamation, then in such case all laws or parts of laws of this state, ordinances and charter provisions suspended during such period, shall again become operative and be in force and shall so continue until January 16, 1920, and provided further, that in case the said article 18 to the constitution of the United States shall at any time become void by final decision of the supreme court of the United States, or be repealed by amendment to the constitution of the United States, then this act shall become and be suspended and inoperative, and all laws and parts of laws, ordinances and charter provisions inconsistent herewith and hereby suspended, shall again become operative and be in full force and effect."

232

16. ARTICLE 16-TRUNK HIGHWAY SYSTEM. It has been pointed out elsewhere that the road and bridge fund provision of the constitution, which is contained in section 16 of article 9, proved quite inadequate to give Minnesota a state-wide system of good roads under exclusive state control, and that the 1919 legislature proposed a new amendment creating a trunk highway system which was approved by the vote of the electorate of 1920.233 This is the first and only case in which a new article has been added to the constitution. Furthermore, because it contains the description in considerable detail of the seventy trunk highways which constitute the system, this single amendment adds more to the length of the constitution than all the other amendments from 1858 to 1920 combined.284 The unusual nature of the amendment, coupled with the surprisingly well-financed and skilfully-managed campaign

of publicity in its favor, make this one of the most interesting cases of constitutional amendment in the history of the state.235

The effect of the trunk highways article can best be understood if it is first pointed out that it adds something to the constitution without expressly repealing any other definite portion of that instrument. The state is still forbidden to engage in works of internal improvement generally; the trunk highway system presents merely a new exception to the general prohibition.236 The road and bridge fund provision in article 9 is equally unimpaired by the new amendment; these two provisions are not antagonistic but supplementary.237

The following may be considered the essential modification in our constitutional system effectuated by the new amendment:

1. For the first time in the history of Minnesota a group of highways, constituting a complete network of thoroughfares throughout the state, may be considered to be state highways in a real sense. In the past the primary obligation to maintain even the so-called "state roads" has been upon the counties, and of all other highways upon the counties, towns, and municipalities. The state as such merely gave aid in the construction and repair of the highways, and it was unable to enforce the highest standards of efficiency in road work. This situation is now entirely changed, for by this new article there is "created and established a trunk highway system, which shall be located, constructed, reconstructed, improved and forever maintained as public highways by the state of Minnesota."

2. Two funds are created, one the trunk highway fund, which shall be used to finance the building and upkeep of the trunk highways, and the other the trunk highway sinking fund, the moneys in which shall be used to retire the trunk highway bonds.

3. The legislature is expressly authorized to tax motor vehicles "on a more onerous basis than other personal property," but such special tax, if levied, must be in lieu of other taxes on motor vehicles except municipal wheelage taxes and the proceeds must be paid into the trunk highway funds. The legislature could undoubtedly have increased the existing automobile taxes very materially without this amendment, but it was estopped from using the moneys obtained for good roads work.

235 The publicity campaign on behalf of this amendment deserves special mention. The amendment received liberal support from commercial, labor, and professional organizations throughout the state. Newspapers everywhere gave freely of their space to explain the amendment and there were in addition many full-page advertisements. A great quantity of pamphlet material was circulated, there were numerous billboard advertisements, and a staff of speakers representing state and local highway associations was ever ready to expound the merits of the new plan. On the day before the election hundreds of factory whistles in the larger cities were blown to remind voters of their duty to help to "get Minnesota out of the mud." There were, of course, some scattered opponents of the amendment, but its friends far outmatched them both in numbers and influence. At the end it came to be a mere question of how large the favorable majority of votes could be made.

236 Minn. Const., art. 9, sec. 5.

287 Ibid., art. 9, sec. 16.

4. The legislature is further authorized to issue state bonds for trunk highway purposes in amounts not exceeding $10,000,000 per year with the proviso that not over $75,000,000 in such bonds shall be outstanding at any one time. These bonds may not be for a longer term than twenty years, may not be sold at less than par and accrued interest, and shall not bear interest at a greater rate than five per cent per annum. This portion of the amendment recalls the power given to the legislature by the amendment of 1858 to issue state bonds to aid in the construction of railroads.

5. From the point of view of constitutional law section 5 of this article is as interesting as any other portion of it. This section provides for the repeal of inconsistent provisions of the constitution "so far, but only so far, as the same prohibit or limit the power of the legislature to enact laws authorizing or permitting the doing of the things hereinbefore authorized." This method of repealing provisions of the constitution is, to say the least, somewhat unusual, and it will be interesting to learn how the section will be construed.

17. SCHEDULE. The schedule of the constitution consists of provisions which are almost entirely temporary in their nature and effect. The object of the schedule is to provide an easy means of transition from one form of government to another, that is, in the case of Minnesota, from a territorial stage to statehood. The schedule is very seldom cited in judicial decisions at the present time and is mainly of historical interest. It has, of course, never been amended.