that a convention assembled under such a constitution may not exercise the power; the case is almost equally strong against a convention's power to exercise authority which has been expressly conferred upon another body by the constitution under which the convention is acting. 52 Third, in addition to the limitations implied from the constitution itself, it may be said that a convention is ordinarily a body assembled for a limited and definite purpose, and cannot be presumed to have other powers than those necessary for the performance of its proper functions."

A number of cases have arisen in which conventions have exercised or have sought to exercise regular governmental power. The conventions of the early revolutionary period exercised such powers, but they were primarily provisional governments, and only incidentally constitutional conven

tions of Colorado and Montana specifically authorize the legislatures to provide for the expenses of conventions, and that of Kentucky provides that the legislature shall fix the compensation of delegates to a convention. In New York and Delaware a convention has power “to appoint such officers, employees and assistants as it may deem necessary, and fix their compensation, and to provide for the printing of its documents, journal and proceedings." There is a similar provision in the Michigan constitution.

52 With reference to an attempt by a convention to interfere with the existing state government Jameson very properly says: "That body cannot remove from office, or instruct those holding office, by any direct proceeding, as by a resolution or vote applying to particular cases. It is its business to frame a written constitution; at most, to enact one. It has no power, under such a commission, to discharge the public servants, except so far as their discharge might result from the performance of its acknowledged duties." Constitutional Conventions, 4th ed., 320-325.

53 If the above statements have any basis it would seem possible to hold that a convention is a body of limited power, without subordinating it to the legislature. Judge Jameson's theory that a convention must be either sovereign or subordinate to legislative control seems untenable. Jameson, 422-430.

tions, and are not relevant to the present discussion. The Louisiana convention of 1864 instructed the legislature to raise the salaries of school teachers. During the secession 55 and reconstruction periods in the Southern States conventions in some cases took over almost all powers of government, although the state legislatures were naturally the bodies which suffered most from encroachments by the conventions. In Missouri a convention was elected on February 18, 1861, to "consider the relations between the government of the United States and the government and people of the State of Missouri; and to adopt such measures for vindicating the sovereignty of the state, and the protection of its institutions, as shall appear to them to be demanded." No secession ordinance was to be valid until ratified by the qualified voters of the state. The convention proved to be strongly union in sentiment, while the organized state government was equally as strong in its sympathy with the South. The convention met in February, 1861, and adjourned to the following December, having first appointed a committee to call it before that date if its assembling should seem necessary; the convention met again in July; Governor Jackson had now left the state; the convention removed Jackson and appointed another governor in his place, declared the seats of the members of the general assembly vacant, and abrogated the laws which the assembly had passed for the defense of the state against the federal government. The provisional officers chosen by

54 Jameson, 320, note.

55 It is doubtful whether the Missouri and secession conventions may properly be called constitutional conventions in the sense in which that term is used here; they were called to consider the relations of their states to the federal government, and their actions in changing constitutions were but incidental to their primary object, which was not the framing or revision of constitutions.

the convention continued in office until August, 1864. The convention itself acted as the legislative body of the State, exercising these exceptional powers until July, 1863.56

The Missouri convention exercised extraordinary powers from necessity, because of the disappearance of the state government. In the seceding states the conventions acted by the side of organized governments, but would seem to have had full power to act with reference to matters of federal relations, as well as to revise the constitutions so as to make them conformable to the new conditions in which the states found themselves. The conventions of Mississippi, Texas, and Georgia confined themselves rather closely to the purposes for which they were assembled; those of South Carolina, North Carolina, Alabama, Louisiana, Virginia, Arkansas," and Florida exercised regular legislative power in addition; the conventions of South Carolina, North Carolina, Arkansas, Virginia, and Florida each held several sessions, the South Carolina convention remaining in existence for nearly two years; the Alabama convention recognized the purely legislative character of much of its work, and provided that its ordinances should be subject to amendment and repeal by the general assembly.

The conventions held in the southern states in 1865-66, under proclamation of President Johnson, and those held in 1867-68, under congressional reconstruction acts,58 were vested with powers greater than ordinary constitutional conventions in states with organized governments, inasmuch as they were authorized not only to frame constitutions

56 Ordinances passed at the various sessions of the Missouri State Convention, 1861 and 1862 (St. Louis, 1862). Journal of the Missouri State Convention, June, 1863 (St. Louis, 1863).

57 See statement in Bragg v. Tuffts, 49 Ark., 554.

58 Richardson, Messages and Papers of the Presidents, vi, 312-314. United States Statutes at Large, xv, 2-4.

but also to take steps necessary for the erection of state governments." In Virginia, Arkansas, Louisiana, South Carolina, Florida, and Georgia, the conventions of this period seem to have confined themselves rather closely to their proper functions, but in North Carolina (1865-66, 1868), Alabama (1865, 1867-68), Mississippi (1865), and Texas (1868), they acted as regular legislative bodies and passed ordinances of a purely legislative character.

Attention should also be called to the fact that conventions called in territories under congressional enabling acts ordinarily possess wider powers than conventions called in organized states, inasmuch as they have not only to frame a constitution but also to provide for the organization of state governments. Territorial conventions possess only such powers as are conferred upon them by the congressional acts under which they assemble; their acts in excess of such power may however be ratified by subsequent action of congress.

60

59 But the Florida court in Bradford v. Shine, 13 Fla., 393, 411-415, took a different view regarding the convention of 1865 in that state. President Johnson's proclamation provided for a convention "for the purpose of altering or amending the constitution . . . and with authority to exercise within the limits of said state all the powers necessary and proper to enable such loyal people of the state of Florida to restore said state to its constitutional relations to the federal government..." The court said: "The functions of the convention were confined to the objects for which it was elected, the presentation of an amended constitution, having reference to the declaration of certain general principles and rules of government, and providing for the organization thereof by the election of the necessary officers. . ." It held invalid a clause of the constitution of 1865 the inclusion of which it thought not to be within the power of the convention.

60 Conventions assembling in territories without congressional authorization may in the same manner have their acts ratified by subsequent congressional action. For statements regarding powers of territorial conventions see Benner v. Porter, 9 How., 235, and McCornick v. Western Union Telegraph Co., 79 Fed., 449.

Several cases have occurred since 1860 in which conventions acting beside regularly organized governments in time of peace have exercised legislative power. The Missouri convention of 1865 passed several ordinances of a purely legislative character. o1 The same statement holds with reference to the Mississippi convention of 1890,62 the South Carolina convention of 1895, the Louisiana convention of 1898, and the Alabama convention of 1901. In the South Carolina convention a motion was made "that there shall be no session of the legislature this year, but that the convention shall do its work in its place.'

63

It has already been suggested that a court would find it difficult to declare a complete constitution invalid because of irregularities in the proceedings or action of a convention. What is the attitude of the courts in enforcing these implied restrictions upon the powers of a convention, in preventing encroachments by a convention, upon powers reserved to other governmental organs of the state? In the first place it should be said that a convention's action in these matters may be controlled by the courts much more easily than irregularities in the framing of a complete constitution. If a convention should attempt to remove an officer of the state government and to appoint another in his place, the court may properly restore the removed officer without in any way interfering with the convention's proper functions; if the convention passes an ordinance of a purely legislative character, the court in a case properly brought before it may declare the ordinance invalid and decline to enforce it. Improper acts committed by a convention in the

61 Jameson, 322-324.

02 Thorpe, Federal and State Constitutions, iv, 2129.

03 Ibid., iii, 1595; vi, 3345.

64 Amasa M. Eaton in American Law Review, xxxi, 198, 210.