tion in any way. In New York and Michigan conventions assemble without any legislative action, when authorized by a vote of the people; in these states, constitutional provisions were adopted for the express purpose of making conventions entirely independent of legislative control and any effort by the legislature to control the convention's action would clearly be a violation of the constitution. The same statement holds with reference to the Missouri constitution, by the terms of which the only step to be taken by the legislature is that submitting to the people the question as to whether a convention shall be held. And the same is probably true with reference to constitutions which impose upon the legislature the one specific duty of providing for the election of delegates after the people have decided that a convention shall be held. Inasmuch as both bodies are legislative in character, a specific power conferred upon the regular legislature may perhaps be said by implication to exclude any other control over the convention by the regular legislative body." The Alabama constitution of 1901 expressly confers full power upon a convention to act in the drafting of a new constitution.

But in many cases there are no constitutional provisions expressly or impliedly restraining legislative interference with conventions. What principles should control in states whose constitutions simply empower the assembling of conventions under a legislative act, or where the constitutions contain no provision with reference to conventions? In some cases the view has been taken that the people, by voting for delegates under a legislative act or by acting thereunder, themselves adopt the restrictions placed upon the conven

5 For an argument to this effect see Debates Michigan Constitutional Convention of 1908, ii, 1274-1276. See also a suggestion in Miller v. Johnson, 92 Ky., 589. This view was adopted by Chief Justice Grant in Carton v. Secretary of State, 151 Mich., 337, 339-343.

tion by such an act, and that the restrictions sought to be placed upon the convention by the legislature thus become restrictions imposed by the people, but in most cases this would clearly not be true. The popular action in connection with a convention may be had in several ways. The question of calling a convention may, in certain states, be determined by the legislature without consulting the people, and an election may be called for the purpose of electing delegates to such convention; it is clear, of course, that the people in voting for delegates to a convention have no way of expressing either approval or disapproval of the terms of the act under which the convention is called; here clearly there is no popular adoption of restrictions sought to be imposed upon a convention by legislative act. In Oregon and Oklahoma there must be submitted to the people the act under which it is proposed to call a convention, but here, while the people have a greater control, it may be necessary for them to pass upon two questions in one, to determine not only whether they want a convention but also whether they want one under the terms proposed by the legislature; even here the act calling a convention cannot be said

• Wells v. Bain, 75 Pa. St., 39; Wood's Appeal, 75 Pa. St., 59; State ex rel. Fortier v. Capdeville, 104 La., 561, 568-69; Ex parte Birmingham and Atlantic Railway Co., 145 Ala., 514; State v. Favre, 51 La. Ann., 434; State ex rel. McCready v. Hunt, 2 Hill (S. C.) Law, 1, 222-223, 240-243, 270, 271, 273, 275; Opinion of the Justices, 6 Cushing (Mass.), 574

7 A similar practice has been followed in some other cases, as in Louisiana in 1896. The Supreme Court of Massachusetts in 1833 took the ground that an act so approved would be binding upon a convention, which would therefore have to observe the restrictions contained in the act. Opinion of the Justices, 6 Cushing, 574 (1833). The judges of the supreme court of New York took the view in 1846 that an act so approved by the people was not subject to subsequent legislative alteration, but a contrary view was taken by the New York legislature. Jameson, 382-387, 663-666. Upon this point see A. Caperton Braxton

to be an act of the people. Popular participation to a still greater extent may be obtained by the separate submission of the two questions, (a) whether a convention is desired, and (b) then, if a convention is desired, whether the people approve the act under which the legislature proposes to call the convention; and here there may be said to be a popular approval of the legislative act.

But the more usual practice is for the question of calling a convention to be submitted to the people, and if they approve, for the legislature to enact a law under which the convention is elected and assembled. Now it cannot be said that the people, by their preliminary vote determining whether or not a convention shall be called, delegate to the legislature power to impose restrictions upon such convention; they simply vote for or against a convention, and there would be a strong presumption that in voting for a convention, they meant to vote for one with full power to propose or adopt a revision of the state constitution. This was the case in the Pennsylvania decision cited above: the question of holding a convention was submitted to the people and decided in the affirmative; the subsequent legislative act calling the convention sought to impose certain restric

in Virginia Law Register, vii, 100-106. Mr. Braxton takes the view that a convention is bound by a legislative act which has been approved by the people upon a popular vote, but not by other legislative acts. The Alabama legislature by its act of December 11, 1900, submitted to the people the question of holding a convention and provided that if the popular vote should be favorable a convention should be held under the terms of this act; delegates to the proposed convention were voted for at the same election. The people did not vote upon the act itself but may in theory be said to have voted for a convention with knowledge of the terms of the act. But it is clear that in fact the question as to the holding of a convention was the only one passed upon by the people, and that the legislative act itself cannot be said to have received popular approval. Alabama acts, 1900-01, p. 224.

8 This act was not submitted to the people.

tions upon the convention, and the court then said that these restrictions were imposed by the people; the facts found by the court did not conform to the real facts of the case.

The presumption in favor of a convention's having full power to act in the framing of a new constitution would, of course, not apply where no constitutional revision had been in contemplation either by the legislature or by the people, but where a convention had been called by legislative act to determine a particular question of public policy, or to interpret a clause of the existing constitution, as in New York in 1801, in South Carolina in 1832-33, and in Mississippi in 1850-51.'

Under Judge Jameson's theory a constitutional convention called by a vote of the people may be restricted by simple legislative act so that it may not revise or propose the revision of any part of the existing constitution which the legislature may forbid it to touch. The convention is made subordinate to an organ of the existing government. Judge Jameson proceeded on the assumption that a constitutional convention must possess sovereign power 10—that

It is in view of the specific purpose of the South Carolina convention of 1832-33 that we must interpret the language of the judges in State ex rel. McCready v. Hunt, 2 Hill (S. C.) Law, 1. The language of Judge O'Neall (pp. 222-223), for example, was proper with reference to the facts of the case, and need not be construed as laying down the principle that a constitutional convention is subordinate to the regular legislature: "It is true that the Legislature cannot limit the Convention; but if the people elect them for the purpose of doing a specific act or duty pointed out by the act of the legislature, the act would define their powers. For the people elect in reference to that and nothing else." See also ibid., 240-243, 270, 271, 273, 275. But see Bradford v. Shine, 13 Fla., 393, 411-415.

10 Judge Jameson's work may be said to have been written to disprove the theory that a convention has sovereign power, and under these conditions the theory assumed in his mind a much more important position than it ever attained in fact. The theory of conventional sovereignty was advanced by speakers before several conventions, be

is, all of the power of the state—or that it must be strictly subordinate to the regular legislature. He could conceive of no middle ground between these extremes. In attempting to demolish the theory that the convention is sovereign, he went to the other extreme and really made the legislature the supreme body with respect to the alteration of state constitutions, for under his view a convention may be restrained by a legislature as to what shall be placed in the constitution, and no alteration can be made without legisginning with that of New York in 1821, but no convention seems ever to have attempted to act upon the theory or even to have endorsed it. The report made to the Illinois convention of 1862 and the resolutions adopted by the Pennsylvania convention of 1873 went little if any further than to assert the convention's independence of the legislative and other organs of the existing state government. Jameson, 303-309, 410. The theory was advanced by several members of the Virginia constitutional convention of 1901-02, but denied by others. Debates of the Virginia Constitutional Convention of 1901-02, i, 63, 77, 83; ii, 3132. Dr. J. L. M. Curry in an address before the Louisiana convention of 1898 also stated the theory of conventional sovereignty. Amasa M. Eaton in Harvard Law Review, xiii, 284. It has attained the dignity of being embodied in dicta by the highest courts of several states. McMullen v. Hodge, 5 Tex. 34, 73 (1849): “So in case of a peaceful change of government by the people assembled in convention for the purpose of forming a constitution. . . It would be in the power of such convention to take away or destroy individual rights, but such an intention would never be presumed. . . Sproule v. Fredericks, 69 Miss., 898, 904 (1892): “We have spoken of the constitutional convention as a sovereign body, and that characterization perfectly defines the correct view, in our opinion, of the real nature of that august assembly. It is the highest legislative body known to freemen in a representative government. It is supreme in its sphere. It wields the powers of sovereignty, specially delegated to it for the purpose and occasion by the whole electoral body, for the good of the whole commonwealth. The sole limitation upon its power is, that no change in the form of government shall be done or attempted. The spirit of republicanism must breathe through every part of the framework, but the particular fashioning of the parts of this frame-work is confined to the wisdom, the faithfulness and the patriotism of the great convocation representing the people in their sovereignty."