Prayer for Prohibition. Writ Denied. opinion of the Supreme Court of that state, in Koehler & Lange v. Hill, 60 Iowa, 543, 14 N. W. 738, 15 N. W. 609, in which it was held that the prohibition amendment adopted in 1882 was invalid because it had not been entered in full upon the journals of the Iowa legislature said: "Here we have a legislative construction of the Constitution which should not and cannot be ignored." By parity of reasoning we may well arrive at the conclusion from the fact that no proposed amendment had ever been entered in full upon the journals of the Utah Legislature that: "Here we have a legislative construction of the Constitution which should not and cannot be ignored." The only purpose of entering a proposed amendment upon the journals is to keep a record that will be sufficiently certain to identify the proposition to be submitted to the people, and that the identical amendment proposed shall be the one voted upon by the electors. In the instant case it is conceded that the proposed amendment was submitted to the people and adopted by an overwhelming majority of the electors voting thereon. In our opinion it would do violence to both the spirit and letter of the law to hold that the formal entry on the legislative journals is subject to some technical criticism, and that therefore the amendment should be declared void and invalid and the expressed will of the people thwarted. In the opinion in the "Prohibitory Amendment Cases," 24 Kan. 499, Mr. Justice Brewer, who thereafter served with distinction as a member of the Supreme Court of the United States, brushed aside all sophistry and all technicalities, and discussed the question under consideration in these clear and forceful words: "Is a proposition to amend the Constitution in the nature of a criminal proceeding, in which the opponents of change stand as defendants in a criminal action, entitled to avail themselves of any technical error or mere verbal mistake; or it is rather a civil proceeding, in which those omissions and errors which work no wrong to substantial rights are to be disregarded? Unhesitatingly, we affirm the latter. * "Again, in constitutional changes the popular voice is the paramount act. While to guard against undue haste and temporary Lee v. Price et al., 54 Utah 474. excitement, to prevent unnecessary and frequent appeals to constitutional amendments, the assent of two-thirds of the Legislature is prescribed as a condition precedent, yet, after all, that which determines constitutional changes is the popular will. This is a government by the people, and, whenever the clear voice of the people is heard, Legislatures and courts must obey. True, a popular vote without previous legislative sanction must be disregarded. There is no certainty that all who could would take part in such a vote, or that they who did, all realize that it was a final action. It lacks the sanction of law, is a disregard of constitutional methods and limitations, and should be taken as a request for a change, rather than as a change itself. But, notwithstanding this, legislative action is simply a determination to submit the question to popular decision. It is in no sense final. No number of Legislatures, and no amount of legislative action, can change the fundamental law. This was made by the people, who alone can change it. The action of the Legislature in respect to constitutional changes is something like the action of a committee of the Legislature in respect to the legislative disposition of a bill. It presents, it recommends, but it does not decide. And who ever thought of declaring a law invalid by reason of any irregularities in the proceedings of the committee which first passed upon it? It is the legislative action which is considered in determining whether the law has been constitutionally passed; and it is the popular action which is principally to be considered in determining whether a constitutional amendment has been adopted." Other cases supporting the doctrine adopted by Kansas are: Oakland Pav. Co. v. Tompkins, 72 Cal. 5, 12 Pac. 801, 1 Am. St. Rep. 17; Thomason v. Ashworth, 73 Cal. 73, 14 Pac. 615; People v. Strother, 67 Cal. 624, 8 Pac. 383; West v. State, 50 Fla. 154, 39 South. 412; Worman v. Hagan, 78 Md. 152, 27 Atl. 616, 21 L. R. A. 716; In re Senate File 31, 25 Neb. 864, 41 N. W. 981; Gottstein v. Lister, 88 Wash. 462, 153 Pac. 595, Ann. Cas. 1917D, 1008; Cudihee v. Phelps, 76 Wash. 314, 136 Pac. 367. Both because of our conception of what should be the law and for the reason that we are supported by the weight of authority we conclude that it is not necessary to enter in full a proposed constitutional amendment upon the journals of the Legislature; that the amendment in question was properly adopted and is valid, and that the bonds offered for sale by the city of Price are not invalidated because of any reason as Appeal from Second District. signed in plaintiff's complaint. It follows that the demurrer interposed by defendants should be sustained, that the writ of prohibition prayed for by plaintiff should be denied, and that the plaintiff's complaint should be dismissed. Such is the order. IDAHO WHOLESALE GROCERY CO. v. ROBINSON. No. 3337. Decided June 9, 1919. On Application for Rehearing July 8, 1919. (182 Pac. 357.) 1. 2. 3. 4. OF PLEADING COMPLAINT INSUFFICIENCY-DELAY IN RAISING OBJEC- On Application for Rehearing. PLEADING REPLY EFFECT. Under Comp. Laws 1917, section 6590, relating to replies, a reply filed in an action to quiet title which was in the nature of a confession and avoidance, cannot be disregarded, and plaintiff may be denied relief, where the pleadings, including the reply show that he has no cause of action, though the complaint itself stated a cause of action. (Page 490.) Idaho Wholesale Groc. Co. v. Robinson, 54 Utah 481. Appeal from District Court, Davis County, Second District; A. E. Pratt, Judge. Action by the Idaho Wholesale Grocery Company against James H. Robinson. From judgment for defendant, plaintiff appeals. AFFRMED. Skeen & Skeen of Salt Lake City, for appellant. Stewart, Stewart & Alexander of Salt Lake City, for respondent. THURMAN, J. This is an action to quiet title to lot 3, block 9, plat A, Farmington town-site survey, in Davis county, Utah. The complaint alleges ownership in the plaintiff, and that defendant without right claims some interest in the property. Defendant, answering, denies that plaintiff owns the property, and alleges ownership in himself by deed from one Mary Millard Robinson, owner of the property, made and executed April 10, 1916, since which time-defendant alleges he has been the owner and holder of the property, has paid the taxes thereon, and is entitled to the use, occupancy, and possession of the same. Defendant prays that his title be quieted and for general relief. In reply to this answer plaintiff admits the execution of the deed, but alleges that at the time of its execution and delivery the said Mary Millard Robinson was indebted to plaintiff in a sum in excess of $2,500; that said deed was without adequate consideration, and was made to defraud her creditors, especially the plaintiff; that said deed was therefore fraudulent and void. The trial court found the issues in favor of the defendant, and entered judgment quieting his title. Plaintiff appeals, and assigns as error certain findings of the court and the exclusion of evidence. Appeal from Second District. There is but little dispute as to the facts. The evidence strongly tends to show that some thirty years before the trial. one L. C. Robinson, brother of defendant, became indebted to the defendant in the sum of $450 for money borrowed; that some small payments were afterwards made thereon; that in 1906 they computed the amount due to be about $1,000, for which the said L. C. Robinson executed his promissory note bearing interest at the rate of eight per cent. per annum; that about four years before the trial said L. C. Robinson married Mary Millard, the person who afterwards executed the deed heretofore referred to; that said L. C. Robinson and his said wife, Mary Millard Robinson, on one or more occasions assured the defendant that they would take care of the indebtedness to him, and if necessary would convey to him the premises in question, which was the separate property of Mrs. Robinson; that in January, 1916, the said L. C. Robinson was indebted to plaintiff in the sum of $2,329.21 in payment of which he and his wife executed to plaintiff their promissory note; that at all the times mentioned in the proceedings L. C. Robinson and wife lived in the state of Idaho; that on the 10th day of April, 1916, his wife, Mrs. Robinson, with the knowledge and consent of her husband came to Farmington, and as partial payment of the debt owing by her husband to the defendant executed the deed heretofore referred to; that the consideration for the deed was the sum of $1,500, which was claimed to be a reasonable price for the property; that defendant indorsed on the note in writing the sum of $1,390 and canceled a book account for an additional indebtedness of $110, making a total credit on the indebtedness in the sum of $1,500; that the deed was recorded on the day of its execution, and thereafter, on the 14th day of April, 1916, the plaintiff commenced an action against L. C. Robinson and his wife on the promissory note executed by them to the plaintiff in the January next preceding, and by attachment process attached the premises in controversy and other property, assuming that the conveyance to the defendant was fraudulent and void; that in said action judgment was rendered against the defendant, L. C. Robinson, and his wife for the amount of |