Hampshire specific amendments may only be proposed by a convention. However, where only a few changes are desired the convention is an expensive and cumbersome instrument, which will not often be employed except in case of necessity. On the other hand several constitutions make no provision for a convention, and in Rhode Island the ab

changes are such as to make it undesirable that some should be approved and others rejected. The New Hampshire convention of 17911792 first divided its proposals into a number of subjects "which were submitted separately to the approval of the citizens. Unfortunately the list of these subjects was far from short, there being seventytwo of them. Upon the vote twenty-six were rejected, forty-six were adopted. Of the latter, several were in contradiction with those provisions of the old constitution which still remained in force because of the rejection of the former, and the convention was compelled to do what it had thought possible to avoid. It took up again the work so badly mutilated by the people, removed its inconsistencies, and was finally paid for its trouble by a popular vote which gave the constitution the required two-thirds majority." Borgeaud, 143, 144. The submission of a complete constitution is the more customary procedure followed by conventions. See Jameson, 4th ed., 531-533; Borgeaud, 155-160; Oberholtzer, 118-120. The third method has been frequently employed where it was thought proper that some measure should be submitted independently of the whole constitution, and was used by North Dakota, South Dakota, and Washington in 1889, and by Oklahoma in 1907. See Arie v. State, 100 Pac., 23 (Okla., 1909). The Illinois convention of 1870 submitted eight propositions to the people, besides the question as to whether they approved the proposed new constitution. The Michigan constitution of 1850 was so worded as to present “a question of grave doubt as to whether a constitutional convention called under it had a right to submit a complete instrument and also at the same time, separate amendments embodying distinct issues which, upon adoption by the people, may become a part of such instrument." The convention clause of the constitution of 1908 was on this account so worded as "to provide a method for submitting special questions each presenting vital issues about which there might be great conflict of opinion to a vote of the electors, separate and apart from the instrument embodying the usual subjects regulated in a state constitution." Pamphlet submitting constitution of 1908, p. 66. For a discussion of the ordinance power of conventions see pp. 104-117.

sence of such provision has been held to prevent the holding of a convention so that here the legislative process is the only one available for constitutional alteration.244

May not the legislative power of initiating amendments be used in such a manner as to propose a complete constitutional revision? This may be done where the legislature is not restricted as to the number or character of amendments

which it may propose," 245 but precedent is against the exercise of such power by a legislature, although in Rhode Island this is the only way of obtaining a complete constitutional revision. Two state legislatures have submitted to the people revised constitutions in the guise of amendments, but in both cases the legislative revisions were rejected. The Michigan legislature submitted a revised con

244 Where a constitution contains no provision for the legislative proposal of amendments it is well established that no such power exists. No effort has ever been made, so far as is known, upon the part of a legislature to submit a proposed amendment to the people unless such action was expressly authorized by constitutional provision, but the judicial attitude toward the amending process seems clearly to indicate that such action would not be given effect to by the courts. "The power to propose amendments . . . must be authorized by a special provision of the constitution. And when no such provision can be pointed out the power does not exist." Jameson, 4th ed., p. 622.

245 See pp. 132, 178 for a discussion of such restrictions. The procedure above referred to may not be employed in New Jersey where the legislature may only propose "any specific amendment or amendments." Nor would it seem that complete constitutions may be proposed by the legislatures of any of the states whose constitutions require that each proposed amendment shall be submitted so that it may be voted upon separately. For dicta that legislatures may not propose complete constitutions see Livermore v. Waite, 102 Cal., 118, and Carton v. Secretary of State, 151 Mich., 340. The statement in the California case is clearly right as a construction of the California constitutional provisions, but under the Michigan constitution of 1850 the case was not so clear, and as suggested above, a complete constitutional revision was submitted to the people of Michigan by the legislature in 1874.

stitution in 1874, and the Rhode Island legislature submitted the same instrument twice, in two successive years, 1898 and 1899.

99 247

246

Judge Jameson has said as to the legislative method of proposing amendments: "It ought to be confined, it is believed, to changes which are few, simple, independent, and of comparatively small importance. For a general revision of a Constitution, or even for single propositions involving radical changes as to the policy of which the popular mind has not been informed by prior discussion, the employment of this mode is impracticable, or of doubtful expediency." Judge Jameson's point is purely one as to expediency, and it is legally proper, it would seem, in the absence of specific constitutional restrictions, to propose to the people by the legislative process any constitutional alteration short of a complete revision, or even a complete revision. With reference to this latter point, it may be argued, however, that if a constitution specifically provides two methods of alteration, the language employed with reference to the proposal of amendments by the legislative method may, when read with that concerning the convention method, often be construed as an implied prohibition of complete constitutional revision by the legislative method. 248 Leaving aside the constitutional question, it would seem clearly preferable that when possible complete revisions or even alterations of a very thorough character

246 A revised constitution in the form of an amendment was submitted to and rejected by the people of Connecticut in 1907, but the revision so submitted was primarily a textual one, and is not precisely in point here though it may be cited as an example of the procedure referred to above. The Vermont constitutional commission in its report in 1910 submitted to the legislature a complete textual revision of the constitution, for its approval and submission to the people. 247 Jameson 4th ed., 562.

248 Jameson, 4th ed., 573-574.

should be made by conventions expressly chosen for that purpose. Legislatures will usually have their time taken up with other matters and be unable to devote sufficient time to this subject, and the election of a body for the one purpose concentrates public attention upon questions of a constitutional character. The convention will ordinarily be able to do better work than the legislature because its attention will be confined to the one task of framing a constitution. Moreover, it has as a rule been possible to obtain for membership in conventions a higher grade of men 240 than may usually be found in the ordinary legislative bodies, and this constitutes a practical reason of very great importance for not weakening the functions of conventions.

State legislatures have, in a number of cases, realized their defects as bodies to give careful consideration to proposed constitutional alterations of an important character, and have created independent commissions, to consider and propose drafts of constitutional changes for the legislative consideration. This plan was followed in New Jersey in 1852, 1854, 1873, 1881, and 1894; in New York in 187273, and 1890; in Michigan in 1873; in Maine in 1875; in Rhode Island in 1897 and in Vermont in 1908-1910. The commissions in Michigan and Rhode Island prepared complete constitutional revisions, which were approved by the respective legislatures, but rejected by the people in each state. Constitutional amendments were actually brought about through the recommendations of the New Jersey commission of 1876, the New York commission of 187273, and the Maine commission of 1875.2

250

249 Bryce, American Commonwealth, 3d ed., i, 475, 667-670. Oberholtzer, 97-98. Jameson, 4th ed., 561. Dealey, Our State Constitutions, p. 9.

250 In 1894 a joint committee of the two houses of the Louisiana legislature drafted a number of amendments, which were rejected by

It may be worth while to discuss a little more fully the New York constitutional commissions of 1872-73 and 1890, as illustrating the use of commissions to aid legislative action in the proposal of amendments. The New York commission of 1872-73 was authorized by legislative act and was composed of thirty-two members, four appointed from each judicial district by the governor with the consent of the senate, "for the purpose of proposing to the legislature, at its next session, amendments to the constitution." The next session of the legislature agreed to the proposals in substance, they were submitted to the people, and the greater part of them were approved. The commission of 1890 was brought about by a deadlock between the governor and legislature as to the calling of a constitutional convention which had been ordered by a vote of the people in 1886. The question of judicial reorganization was a pressing one, and an act was passed referring this question to a commission constituted in a manner very similar to that of 1872. The commission's report was not considered by the legislature, because of the calling of a convention by legislative act in 1892, but was used by the constitutional convention of 1894.251

Commissions of this character are, of course, mere ad

the people in 1896 (Senate Journal, 1894, p. 111); and in 1901 a joint committee of the Georgia house and senate was appointed to prepare amendments to the constitution of that state (Georgia laws, 1901, p. 756), but these were merely legislative committees and not commissions acting independently of the legislative bodies even in drafting proposals.

251 Lincoln, Constitutional History of New York, ii, 469-473, 683725. For discussions of the use of commissions see Jameson, pp. 570575. Oberholtzer, 93-94; Dealey, 17-18. See also N. J. Laws, 1852, p. 546; 1854, p. 544; 1873, p. 844; 1881, p. 187; 1894, p. 556; Report of the Commission to Revise the Constitution of Rhode Island (Providence, 1898); Report of Vermont Constitutional Commission (1910).