ments as may have been made to the same, such law shall be spread upon their respective journals. If the next general assembly shall, in like manner, concur in such law it shall provide for having a poll opened in each voting precinct" to take the sense of the people upon the question of calling a convention. Suppose that after a constitution had been adopted and put into operation under this provision, it were shown in a case properly before the court that some one of the steps required for calling a convention (for example, the entering of the law upon the journals) had not been complied with. Under similar conditions, perhaps, an amendment would be declared invalid, but if a complete constitution had already been put into operation it would be a very hardy court which would decide that the constitution was invalid because of an irregularity in the calling of a convention by which it had been framed. 45

Cases somewhat similar to that suggested above have arisen both in Kentucky and Virigina, except that the requirements which had been violated in these cases were imposed by laws and not by constitutions. In each case the requirements related to the submission of the constitution

45 An actual case similar to that mentioned above is that of the Delaware convention of 1852-53. Here the question of holding a convention was submitted to the people, and the convention was held although the question did not receive the affirmative vote of "a majority of all the citizens in the State, having a right to vote for representatives," as required by the constitution. If the constitution proposed by this convention had been adopted, the question of its validity might have been raised on the ground that the convention had been improperly called. So too the Maryland constitution of 1776 and the Georgia constitution of 1798 provided that constitutional changes should be made only by legislative action, but conventions were held in both states, and the acts of such conventions might have been attacked as invalid because in violation of constitutional provisions. But the questions here raised are purely theoretical, for the courts would at these earlier dates have almost surely considered these matters as political ones and have declined to pass upon them at all.

to the people, and in each the court declined to consider the question upon its merits. In Kentucky the legislature of 1890 required that the work of the convention of 1890-91 be submitted to the people; after submission to and approval by the people the convention further revised and amended the constitution. Had the Kentucky court gone into the merits of the case and held the convention strictly bound by the legislative act requiring submission, it would have had to enforce the constitution as voted upon by the people; if the convention acted illegally in revising the constitution after popular approval, it would have been easy in this case to separate out the illegal action and declare it invalid. But the court elected to treat the question as one affecting the validity of the constitution as a whole" and said: “It is a matter of current history that both the executive and legislative branches of the government have recognized its validity as a constitution, and are now daily doing so. Is this question, therefore, one of a judicial character? Does its determination fall within the organic power of the court?" The court further said that the people had acted under the constitution, “the political power of the government has in many ways recognized it, and under such circumstances it is our duty to treat and regard it as a valid constitution and now the organic law of our Commonwealth." In the case which came before it the Virginia court said: The constitution of 1902 was ordained and proclaimed by a convention duly called by a direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work of that convention has been recognized, accepted, 46 Miller v. Johnson, 92 Ky., 589.

66

47 The court did consider the question of separating out the parts claimed to be invalid from those recognized as binding, but declined to enter upon such an undertaking, because of its view that the point referred to above was decisive.

and acted upon as the only valid Constitution of the State by the Governor in swearing fealty to it and proclaiming it, as directed thereby; by the Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by the convention which assembled in the city of Richmond on the 12th day of June, 1901, as the Constitution of Virginia; by the individual oaths of its members to support it, and by its having been engaged for nearly a year in legislating under it and putting its provisions into operation; by the judiciary in taking the oath prescribed thereby to support it, and by enforcing its provisions; and by the people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as voters under it to the extent of thousands throughout the state, and by voting, under its provisions, at a general election for their representatives in the Congress of the United States. The Constitution having been thus acknowledged and accepted by the officers administering the government and by the people of the State, and being, as a matter of fact, in force throughout the State, and there being no government in existence under the constitution of 1869 opposing or denying its validity, we have no difficulty in holding that the Constitution in question . . . is the only rightful, valid, and existing Constitution of this State, and that to it all the citizens of Virginia owe their obedience and loyal allegiance.

9948

Another reason why courts would hesitate to pronounce invalid a constitution which was already in operation is that a court acting under such constitution would, in rendering a decision of this character, necessarily pronounce against its own competence as a court. A court organized under a

18 Taylor v. Commonwealth, 101 Va., 829. This case was cited with approval in Weston v. Ryan, 70 Neb., 216, 217.

government, even though that government be revolutionary in character, has no greater validity than the government under which it acts, and would hardly destroy itself by hold. ing that government to be invalid. This view was first presented by a dictum of Chief Justice Taney in Luther v. Borden, and may be said to be a sound one: “And if a state court could enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted had been put aside and displaced by an opposing government, it would cease to be a court, and be incapable of pronouncing a judicial determination upon the question it undertook to try." "

49

Although, then, a convention, in framing a complete constitution or a revised instrument, would seem, in theory, to be bound by existing constitutional restrictions upon the exercise of its power, as strictly as is the legislature in proposing constitutional amendments, yet there are difficulties in the way of enforcing this rule. If a constitition has been proposed for the approval of the people, a court would hardly enjoin its submission, although this might be done; if this were not done the only other opportunity for the court to act would be after a constitution had been approved and before it had gone into operation, for after it had become effective a court would hardly dare overturn the government organized under it when there were no opposing bodies claiming to be the lawful government—the question as to the validity of the constitution would have become a political question with which the court should properly refuse to meddle.50 On the whole it would seem that because

497 Howard, 1, 40. See also Brittle v. People, 2 Neb., 214, and the dictum in Koehler v. Hill, 60 Ia., 543, 608, 614.

50 For a similar attitude taken by the courts of Colorado and Nebraska with reference to amendments vitally affecting the organization of government see pp. 222-225.

of practical considerations courts must pursue a more liberal policy in passing upon the acts of a convention, especially after they have been approved by the people, than it has pursued in interpreting the constitutional restrictions placed upon the legislative power to propose amendments.

The discussion so far has related primarily to express constitutional restrictions upon or with reference to conventions. Implied restrictions upon conventions may be said to fall into two groups: (1) those implied from the constitution under which a convention is called; (2) those implied from the limited functions of conventions. These two classes of implied limitations coalesce and may be considered together. First, a constitution by providing for the calling of a convention to revise or frame the organic law of the state impliedly limits the functions of such a body to that one act and to the exercise of only such powers as are necessary or incident thereto. Second, in the absence of constitutional provisions regarding the convention, a convention if called acts under the constitution in existence, and by such constitution the exercise of executive, judicial, and regular legislative power are expressly conferred upon existing organs of government, which cannot properly be replaced until a new constitution framed by the convention is put into operation. Where the existing constitution provides that a certain power shall be exercised only by an organ of the existing government, as in provisions that money shall not be paid from the state treasury except under the authority of a legislative act, it is undoubted

51

51 For a discussion of cases in which conventions have sought to appropriate money see Jameson, 435-446. Carton v. Secretary of State, 151 Mich., 342. The Louisiana convention of 1898 authorized loans not only for the payment of its expenses but also for the mobilization of troops during the Spanish-American War, and its action was followed by legislative appropriations for these purposes. The constitu