Without the express approval of the Executive, there are but two ways by which an Act of the Legislature can become a law: 1st. By receiving a two-thirds vote of both houses of the Legislature after it has been vetoed by the Governor. 2d. By a failure on the part of the Governor to return it to the house where it originated within five days after its reception by him whilst the Legislature is in session, or within 10 days after the adjournment of that body. In both of these cases the Act becomes a law without the signature or approval of the Executive. (Vide Constitution, Art. 4, Sec. 35.) These are the only cases, however, in which the approval of the Governor can be dispensed with. In all other cases, such approval is as essential to give it the sovereign authority of law as the passage by the Legislature itself. Birdsall v. Carrick, 3 Nev. 154, 156 (1867). S. 3 and S. 1710 create a contest between the long-established veto power of Nevada's Governor, and the authority of Congress under Art. V to ride roughshod over a State constitution.

A veto by the Governor raises two additional problems: What response is possible on the part of Congress or the Nevada legislature if the secretary of state fails to sign or send the vetoed application to Congress as Sec. 4 of both S. 3 and S. 1710 requires; and, is this situation resolvable under the respective Sec. 3(b) provisions which address the resolution of questions concerning state legislative procedure?

S. 3 and S. 1710 charge the secretary of state with the certification and the transmission of applications. Under Nevada law, a joint resolution that is vetoed by the governor and which fails to muster two-thirds of both houses of the State legislature is a nullity. Do S. 3 and S. 1710 compell the secretary of state to certify and transmit a joint resolution that is void under State law? If these bills do not so compell the secretary, and congressional authority based on Art. V to support such compulsion is dubious, then he has the power to kill applications by not sending or not certifying them within the 30-day period which Sec. 4 of S. 3 and S. 1710 enunciate. Not only does the secretary have the potential to kill applications that are void under State law, Nevada law may require that he burke such applications.

Neither S. 3 nor S. 1710 addresses the problem of harmonizing the functions of the State legislature under State law with the functions of the Executive under State law, and neither provides a mechanism for resolving inter-branch disputes. The bills only address questions of adoption and withdrawal of applications. Even assuming the ability of Congress to compell the Secretary of State to certify and transmit applications in spite of State law, these procedures bills do not indicate how to achieve this compulsion. Nor do they indicate whether a situation involving a recalcitrant secretary mitigates the effect of Sec. 4's thirty day transmission requirement with respect to the validity of applications. At the very least, S. 3 and S. 1710 create the possibility that a Secretary of State has the power to frustrate convention applications by deliberately or carelessly failing to transmit or certify them within the congressionally specified time period.

S. 3 and S. 1710 create another more subtle dilemma for state executive departments, and all those who must evaluate the states' convention applications. Assuming arguendo that the secretary can be compelled to certify and transmit convention applications that are void under Nevada law if these applications constitute valid convention applications under one of Congress' procedures acts, the manner in which the secretary, Congress and the Nevada legislature are to discover the configuration of a valid application remains to be established. Sec. 3(a) instructs the state legislatures to follow procedures for the enactment of statutes, with the caveat that actions of the States' Governors will not affect the validity of applications. To recapitulate, a Nevada statute can be passed under the three following circumstances: (one), with a simple majority in both houses of the legislature and with the signature of the Governor; (two), with a simple majority of both houses and with the tacit approval or acquiescence of the Governor; (three), with a two-thirds majority of both houses in the event of a veto from the governor.

In all three cases, the Governor has power to affect the course of legislation. If the Governor uses his veto power, the legislature is powerless to act without a two-thrids majority. There are only two circumstances in which the legislature can pass valid joint resolutions without the overt approval of the Governor: (one), when the Governor acquiesces in a resolution, a simple majority of both houses suffices to carry the legislation; (two), when the Governor vetos

a resolution, a two-thirds majority of both houses is necessary to carry the legislation.

The question remains: What type of majority is sufficient to produce a valid application in Nevada? Under the doctrine of S. 3. Sec. 3(b), Congress has power to dictate to the States the size of majority that would produce a valid application. Thus, S. 3 opens the door to complete or substantial congressional control of the application process in direct opposition to the Framers' intention to provide an extra-congressional route for the proposal of constitutional amendments. S. 1710's solution to this problem is superior to that of S. 3 in terms of constitutional probity, because S. 1710 does not blatantly usurp the Art. V power of state legislatures to apply for the calling of a convention. However, S. 1710 Sec. 3(a) has the distinct liability of providing a solution that is: problematic; poorly drafted; or, both of the above. Presumably, S. 1710 would allow the Nevada legislature to pass a joint resolution to determine the size and constitution of a valid majority for a convention application. However, this resolution is then subject to the Governor's veto power. On dubious constitutional grounds, S. 1701 excludes the Governor from the application adoption and withdrawal process, but, Sec. 3(b) does not prohibit the Governor from participating in the process of determining the validity of the adoption procedures.

S. 1710 prevents the Governor from successfully vetoing an application and thereby necessitating a two-thirds majority to secure passage, but the bill does not prohibit him from vetoing a joint resolution (or any other act of the legislature) which establishes the size of a valid majority for the passage of an application, or which resolves some other procedural matter. Sec. 3(b) allows the Governor to exercise a power more fundamental than the power Sec. 3(a) attempts to constrain. If Sec. 3(b) read: "Questions . . . are determinable by the State legislature, and that action shall be valid, without the assent of the Governor of the State," then the bill at least would possess internal consistency with respect to its treatment of state executive power. The bill does not so read.

Thus, S. 3 and S. 1710 offer no clear guidance to State legislatures in determining the nature of a valid majority for the adoption of convention applications. What they do provide is that State legislatures are to follow procedures that govern the enactment of statutes. In Nevada, some of these procedures are themselves a matter of statute. For example, Nevada is one of more than 30 States which has a statute or rule requiring that proposed legislation likely to affect the State's fiscal liability include a "fiscal note," or "fiscal impact statement" (See "The Fiscal Letter" National Conference of State Legislatures, Vol. 1, No. 4, June 1979). More specifically, Nevada Statute 218.272 provides: "Before any bill which makes an appropriation or changes any existing appropriation, fiscal liability or revenue which appears to be in excess of $2,000 is considered at a public hearing of any committee of the assembly or the senate, or before any vote is taken thereon by such committee, the legislative counsel shall obtain a fiscal note containing a reliable estimate of the anticipated change in appropriation authority, fiscal liability or state revenue under the bill, including, to the extent possible, a projection of such changes in future biennia." Nevada Statute 218.2754 requires that the summaries of all bills include a comment on the disposition of their respective fiscal notes.

Nevada's fiscal note statute can apply to joint resolutions (the form of Nevada's convention application) as well as to bills. According to Ron Sparks, Fiscal Analyst for the Department of Legislative Counsal, State of Nevada (as per conversations on January 24 and February 8, 1980), the fiscal note requirement can be interpreted as applying to all actions of the Nevada legislature which alter the State's fiscal liability to the extent of $2,000 or more. Although the fiscal note requirement has not been applied to joint resolutions, this is because joint resolutions normally do not generate substantial fiscal liabilities. The statute is not limited to appropriation bills or to bills which describe a particular liability or revenue. Anv action of the legislature that creates a potential $2,000 fiscal liability invokes the statute. No magic words are needed to trigger the statute into effect, nor is its application limited to legislative acts that affect only state or local appropriations. The fiscal note requirement applies to any legislation that affects the disposition of local, State or Federal funds.

Senate Joint Resolution No. 8 of the 60th Session of the Nevada legislature is an application to Congress for the calling of a constitutional convention to propose an amendment to the Constitution requiring that, in the absence of a national emergency, federal appropriations not exceed estimated revenues. The

degree to which the adoption of such an amenndment would affect the fiscal liabilities of Nevada is indeterminate, but the potential effects are of considerable magnitude. Any curtailment of the federal budget is certain to have effects on revenue-sharing and other types of Federal assistance to the States. Of course, the liability resulting from the adoption of a balanced budget amendment, or any other type of amendment affecting Federal spending, is contingent. However, contingent liabilities are within the scope of the fiscal note statute if they "appear" to be $2,000 or more.

Aside from the liability that results from the adoption of a balanced budget amendment, the states are certain to incur a substantial liability from the mere holding of a convention. Neither S. 3 nor S. 1710 makes any provision for expenses incurred at the State level in the selection, transportation and remuneration of convention delegates. S. 1710 places the entire cost of a convention on the States. It provides that "No Federal funds may be appropriated specifically for the purposes of payment of the expenses of the convention." If Nevada's application for a convention is successful, this State is certain to suffer a change in fiscal liability from the transportation and remuneration of a single convention delegate which exceeds $2,000.

A fiscal note to this effect is appropriate under the Nevada statute and it may be mandatory. No fiscal note was prepared with respect to Nevada's convention application. The cost of delegates and possibly the entire cost of a convention are expenses borne by the States regardless of the type of amendment to be proposed. In the case of an application for a convention to propose an amendment to impose fiscal restraint on the Federal Government, it is ironic indeed that the Nevada Legislature fails to comply solicitously with its own recently enacted statutory device for monitoring its own fiscal responsibility.

The failure of the Nevada Legislature to prepare a fiscal note for its convention application makes that action of questionable validity under Sec. 3 and Sec. 4 of both S. 3 and S. 1710. Sec. 3 requires a State to follow procedures that govern the enactment of statutes. The Nevada fiscal note requirement is one of those procedures. The legislature's failure to prepare a fiscal note is a possible violation of Nevada procedure, and therefore, a violation of Sec. 3. If the legislature must prepare a fiscal statement, and the copies of the joint resolution-convention application submitted to Congress do not include the appropriate notation mandated by Nevada Statute 218.2754, the application fails to comport with Sec. 4, which requires the submission of a copy of the exact text of the resolutionapplication. To comply with Nevada Statute 218.2754, the application must include one of the following statements: Fiscal Note: Yes; Fiscal Note: No; Fiscal Note: Effect less than $2,000. Whether or not a bill changes the state's liability more than $2,000, it must include one of the preceeding comments in order to demonstrate that the appropriate effort was made to accommodate the terms of the statute.

Not only may the Senate bills require the preparation of a fiscal note for the Nevada application (under Sec. 3), but they may also require that it contain the notation described in 218.2754. It is not enough for the legislature simply to prepare a fiscal note under Sec. 4 of the Senate bills, the application sent to Congress must state whether or not a fiscal note has been prepared.

The dilemmas that S. 3 and S. 1710 create for the Nevada legislature are largely the result of Sec. 3(a) and its problematic instruction for the states to follow procedures that govern the enactment of statutes and to ignore the Governor's veto power. As discussed above, Sec. 3 creates three major initial problems: what happens if the Governor vetoes an application?; what type of majority is needed to pass a valid convention application?; and, do all of the requirements that attend the passage of statutes, such as the fiscal note requirement, also apply to the passage of a convention application? These problems would be ameliorated if the States are free to adopt their own methods of application in accordance with state law and the XIVth Amendment.

The Nevada Constitution provides procedures both for amendment and for the calling of conventions to make State constitutional revisions. Either of these procedures would provide a better procedure for the Nevada Legislature to follow when considering application for a Federal constitutional convention than the procedures required by S. 3 and S. 1710. Article 16 section 1 sets out the procedure for amending the Nevada Constitution. A majority of the members of both houses during two successive legislatures must vote to propose an amendment.

Then, the amendment must receive the vote of a majority of the State's electors. In order to call a constitutional convention, two-thirds of both houses must vote to recommend the calling of a convention, and then, this recommendation must meet with the favor of a majority of the electors. A simple majority of the legislature has no power to call a state constitutional convention or to propose constitutional amendments.

Under the Supremacy Clause of Art. VI, the United States Constitution is of greater dignity than any state law, including state constitutions. It would be anomalous in the extreme if the procedures instituted for calling a constitutional convention to propose amendments to the Federal Constitution were more lax, wide-open and ambiguous than the procedures for calling a convention to propose changes in the constitution of the State of Nevada, or any other state. The flaw in such procedures becomes even more glaring in light of what a noted constitutional scholar has referred to as the way in which convention applications have been “whooped and hollered” through a good many state legislatures. The plain meaning of Art. V is not: "The Congress. . on the Application of a simple majority of the Legislatures of two thirds of the Several States, shall call a Convention. . . ." In the case of Nevada, if a simple majority of the legislature can make valid applications for a federal constitutional convention, passage of such an application would be easier than passage of a state parking regulation (see, e.g., Nevada Statute 484.399). The latter requires the assent of the Governor or a two-thirds majority of the legislature. At the recent Senate hearings on constitutional conventions conducted by the Subcommittee on the Constitution, Professor Charles Black stated, "It is the genius of American constitutional interpretation to read our Constitution in a sensible way. . . ."

It is hardly "sensible" to have a Federal mandate requiring that applications for constitutional conventions be easier to push through state legislatures than parking regulations.

If Congress does not have the constitutional authority to dictate procedures to the States for the adoption of con titutional convention appli ations, then Sec. 3 (a) lies beyond the ambit of congressional power. If Congress does have the authority to control the procedures for making applications, then Congress has the duty to come up with a better set of procedures than the problematic instructions which S. 3 and S. 1710 offer to the states.

Excerpt, Proposed Amendments to the Constitution of The United States 1789-1889, Herman V. Ames. (1896) Reprinted: 1970

CHAPTER VI.

PROCEDURE as to conSTITUTIONAL AMENDMENTS. 176. METHOD OF AMENDMENT.

The Constitution of the United States, in Article V, provides for its own amendment whenever two thirds of the Houses of Congress, or a convention called upon the application of twothirds of the State legislatures, shall propose amendments, which in either case shall be valid when ratified by the leg. islatures of or conventions in three-fourths of the several States, as Congress may direct.1

Thus it appears that amendments may be proposed in one of two ways-either by Congress or a convention called by Congress in response to the request of the necessary number of the State legislatures. Also discretionary power is given to Congress to choose one of the two methods of ratification permissible, namely, either by the legislatures of States or by conventions in the several States. The amount of discretion allowed in this clause plainly indicates the expectation of the framers of the Constitution, that the amending machinery would be frequently put into operation. It is therefore remarkable that only one of the methods of proposing amendments has been used, and that it has always been accompanied by one method of ratification.3

177. GENERAL CONVENTIONS.

In making provision for a Federal convention,' the framers of the Constitution doubtless had in mind the possibility of a future fundamental revision, and in addition wished to provide when necessary for a body having a direct mandate from the people to propose amendments. The fact that nearly two

1Of the two exceptions enumerated in the article one is obsolete; the other, in regard to equal representation of a State in the Senate, has as much force to-day as ever. 'See Hamilton's remarks in the Federal Convention, Elliot, v, 530.

With the exception of the proposed thirteenth amendment in 1861, which was ratified by a convention in Illinois in 1862. See post, par. 179.

The first provision agreed to for securing amendments provided only for a convention, on application of the legislatures of two-thirds of the States, August 6, 1787. Elliot, v. 381.

See advantages of a convention referred to by Nicholas in the Virginia convention, ibid., ш, 101-102.