road company sought to restrain the hearing of the case by a term of court held at that place. The law under which the convention assembled required that all its acts be submitted to the people. The constitution was submitted to the people for approval, but this ordinance was not a part of the constitution and was 'not submitted. The court said: "The ordinance in question pertains in no way to an amendment or revision of the constitution, and it was beyond the power of the convention to pass this ordinance, or it could not become binding or of legal force without having been submitted to and ratified by the people." The court in this case, however, did not argue that a convention must not exercise legislative power, but seemed to take the view that the ordinance was invalid because not submitted to the people as required by legislative act-that is, that the act of the legislature was absolutely binding upon the convention.

In the case of Frantz v. Autry 75 the court was called upon to consider the powers of a territorial convention acting under the authority of a congressional enabling act. The constitution as drafted for submission to the people divided Woods county into three counties; the election ordinance passed by the convention erected the three counties, appointed officers for them, and provided that they should serve as independent election districts, all of this before the people had sanctioned the separation of the county by adopting the constitution. An injunction was sought to prevent the new officers from serving and also to prevent the submission of that part of the constitution which provided for the division of Woods county. An injunction was granted by the lower court but was dissolved by the territorial supreme court. The supreme court took the ground that the convention had authority under the con75 18 Okla., 561, 631 (1907).

gressional act not only to frame a constitution and provide for its submission to the people, but also to provide for the establishment of a full state government; and considered the erection of the counties as incidental to the exercise of these powers. The erection of new districts for election purposes would seem to have been properly within the power of the convention, but it is not clear why the convention should need to exercise power to erect counties for governmental purposes, unless it were necessary to appoint county officers in order to have counties properly act as election districts. Chief Justice Burford, who concurred in the conclusions of the court expressed clearly the limitations upon the powers of this (territorial) convention: "The convention has no power to enact laws; it possesses no legislative powers except such as may be necessary to exercise in prescribing by ordinance the methods and procedure for obtaining the expression of the electors upon the ratification of the proposed constitution, and for the election of the officers provided for in the constitution." Justice Burwell, in dissenting, said that the constitution could only operate for the future, and was inoperative until after approval by the people; and that until then no new counties or officers could be created; his view was that the power exercised was not necessary to the convention's functions; and that while the convention might not be restrained, yet the courts must restrain the convention's officers from improper interference with the territorial officers before the constitution was adopted. The question is a close one, but it does seem that the convention went further than was necessary for the proper exercise of its functions.

It may be said to be fairly well established, then, that a convention may not supersede the regular executive, legislative, and judicial organs of a state; it properly acts only by means of the constitution which it frames or adopts,

and has only such powers as are necessary or incidental to the exercise of this function. Yet the constitutional convention is a legislative body, although with limited functions, and it is within the sole determination of the convention as to what provisions shall be inserted into a new constitution. A constitutional convention may not properly enact a law or ordinance abolishing the fellow-servant rule, but it may insert into the new constitution a provision accomplishing the same purpose. By the insertion into new constitutions of matters really not fundamental in character constitutional conventions have come to exercise great powers of legislation.76 Not only may a convention legislate by inserting provisions into a new constitution, but it may also do so by the submission to the people of separate clauses or ordinances to be voted upon either as a part of the constitution or separately from it-that is, it may exercise ordinance power" if the ordinances are submitted to the people with or at the same time as the proposed constitution."

78

But how as to such separate legislation in a state where the submission of a constitution to the people is not required? In State v. Neal and Grigsby v. Peak convention ordinances were upheld because the conventions were not required to submit any of their actions to the people, al

76"It seems plain that the really important law-making body at the present time is the convention." Dealey, Our State Constitutions, 9. See also Oberholtzer, Referendum in America, 76-98, and Jameson, 429-430. Bradford v. Shine, 13 Fla., 393, 411-415, is a case in which a convention's power in this respect was denied but under such conditions that this case can hardly be cited as a precedent here.

77 The West Virginia constitution of 1876 recognizes such power by providing that: “And all acts and ordinances of said convention shall be submitted to the voters of the state for ratification or rejection, and shall have no validity whatever until they are ratified."

78 For a discussion of the manner in which a convention may submit its work to the people see note on p. 258.

though they did submit the constitutions which they framed but not the ordinances which were before the courts. The Mississippi convention of 1890 and the South Carolina convention of 1895 did not submit either their constitutions or their ordinances to the people, and the constitutions in these cases stand upon the same basis as ordinances of a purely legislative character which the conventions may have enacted. Although it may be agreed that these conventions improperly exercised powers of a purely legislative character, sitll if the courts upheld constitutions promulgated by such conventions without popular approval, they would hardly dare annul legislative acts adopted by these bodies in the same manner; although they might interfere if a convention attempted to prolong its existence and exercise governmental powers after its constitutional functions had clearly ended." In states where conventions may promulgate their work without popular approval, although their invasion of the purely legislative field may be deprecated, there seems to be nothing to prevent such action except the self-restraint and common sense of the convention itself. The same forces which practically compel conventions to submit their work to the people, in most of the states where they are not required by constitutional provisions to do this, will also keep them pretty definitely within their proper sphere, even where the courts may decline to interfere.

79 There have been only a few cases where conventions have, in time of peace, sought to prolong their existence after their work had been completed. For a discussion of this subject see Jameson, 476–489.

CHAPTER IV

THE AMENdment of STATE CONSTITUTIONS

Reference has already been made to the fact that our states have developed two methods of altering their constitutions, the first, through constitutional conventions chosen for the purpose; the second, by means of giving power to the regular legislative bodies to propose or adopt amendments. We have said that the convention as an instrument for constitutional revision was first developed during the revolutionary period, and that constitutional conventions were provided for in the first constitutions of Pennsylvania, Vermont, Georgia, and Massachusetts, and in the New Hampshire constitution of 1784. Six of the revolutionary constitutions contained no provision for alteration in any manner. The five above referred to contained provision for alteration only by means of conventions. Three of the revolutionary constitutions, those of Maryland, Delaware, and South Carolina (1778), made provision for constitutional amendment by legislative action.

No one of the first state constitutions made provision for its alteration in more than one manner-those which considered the matter at all provided simply for one or the other methods here under consideration. But it soon became apparent that machinery would be needed both for the proposal of single amendments and for the revision of entire constitutions. Judge Jameson, speaking in 1887, said:

"Of the one hundred and nineteen constitutions framed