A dictum of the Minnesota court in the case of Goodrich v. Moore 30 went much further than this. The president of the convention of 1857 had made a contract for the printing of the journal and proceedings of the convention, and this contract was subsequently ratified by the legislature, which appropriated money to pay for the printing; Goodrich, the state printer, claimed that he was entitled by virtue of his position to do the printing, and obtained an injunction to prevent Moore from proceeding with the work. The court dissolved the injunction, and said: "But even had the legislature intended and attempted to claim and exercise the act of providing a printer for the constitutional convention, it would have been an unauthorized and unwarrantable interference with the rights of that body. The admission of such a right in the legislature, would place the convention under its entire control, leaving it without authority even to appoint or elect its own officers, or adopt measures for the transaction of its legitimate business. It would have less power than a town meeting, and be incompetent to perform the objects for which it convened. It would be absurd to suppose a constitutional convention had only such limited authority. It is the highest legislative assembly recognized in law, invested with the right of enacting or framing the supreme law of the state. It must have plenary power for this, and over all of the incidents thereof. The fact that the convention assembled by authority of the legislature renders it in no respect inferior thereto, as it may well be questioned whether, had the legislature refused to make provision for calling a convention, the people in their sovelections to fill vacancies, unless such power is expressly conferred by legislative act. Constitutional Conventions, 331-340, 392-393. But he is of the opinion that a convention has at least the powers of an unofficial public meeting. Ibid., 455-472.

30 2 Minn., 61 (1858).

ereign capacity would not have had the right to have taken such measures for framing and adopting a constitution as to them seemed meet. At all events there can be no doubt but that, however called, the convention had full control of all its proceedings, and may provide in such manner as it sees fit to perpetuate its records either by printing or manuscript, or may refuse to do either." The court was unquestionably right in its statement regarding the power of a convention to control its own proceedings, independently of the legislature, but it is questionable whether the people in their sovereign capacity may properly assemble in convention, and it is also doubtful whether the printing of its proceedings for permanent record is an essential or incidental function of a constitutional convention.

31

As has been said, few cases have arisen in which courts have been called upon to pass on restrictions which legislatures have sought to impose upon conventions. In addition to the cases referred to above, several other cases have given rise to dicta upon the question. In Loomis v. Jackson 1 the decision was rendered by a special election court, which had no other function than that of deciding an election contest; in addition this court did not have before it any effort by the legislature to restrict a convention, so that its expression was purely dictum. The person rendering the decision of this court said: "I have had no difficulty in reaching the following conclusion upon the constitutional questions presented in this specification, viz: First, That a constitutional convention, lawfully convened, does not derive its powers from the legislature, but from the people. Second, That the powers of a constitutional convention are in the nature of sovereign powers. Third, That the legislature can neither limit or restrict them in the exercise of 316 W. Va., 613, 708 (1873).

32

these powers. Similarly in Sproule v. Fredericks,' the Mississippi court said that the legislature would have no power to require a convention to submit its work to the people, but in this case the legislature had not made any effort so to restrict the convention, and the judicial expression here also was purely dictum.

From the above discussion it may be seen that where the question has been raised the conventions and courts have in but a few cases taken the view that constitutional conventions are absolutely bound by restrictions sought to be placed upon them by legislative acts. The restrictions placed upon conventions have certainly not in practice been recognized as of binding force, except in a few cases, and theoretically the convention in the performance of its proper functions should be independent of the regular legislative organs of the state. Legislative acts are usually necessary for the assembling of conventions, but this dependence of conventions upon legislatures has as yet caused few conflicts. The good sense of the people has ordinarily caused both legislatures and conventions to restrict themselves to their proper spheres. The general obedience of conventions to the legislative acts under which they were called has been due to the fact that legislative acts have usually required only those things which the convention would have done without legislative requirement; cases of conflict arise only when a legislature attempts to restrict a convention in such a manner as to interfere with its proper functions, and such cases have not been numerous. However, it would be better to have the assembling of conventions made independent of legis

33

32 69 Miss., 898 (1892). Dixon v. State, 74 Miss., 277.

38 Jameson, 369-377, reviews these cases, and says that only in three cases have conventions disobeyed legislative restrictions. To the cases of Illinois, 1862 and 1869, and Pennsylvania, 1873, should certainly be added those of Illinois, 1848, Alabama, 1901, and Virginia, 1902.

lative action, as in New York and Michigan. The possibility of conflict is avoided if the convention as an organ for constitutional revision is entirely freed from the control of the regular legislature.

Except in Pennsylvania, it would seem that a convention may, unless restricted by the existing state constitution, determine whether or not it will submit its work to the people and equally as to the manner of submission, and may regulate the details of its procedure, irrespective of legislative action in these matters. 34 Submission of a constitution to the people may be and is the more proper policy, but it would seem to be a matter within the discretion of the convention itself, unless submission is required by the existing constitution.

As a rule, then, constitutional conventions are subject only to the following restrictions: (1) those contained in or implied from provisions in the existing state and federal constitutions, and (2) in the absence of constitutional provisions, those derived or implied from the limited functions of conventions. To these restrictions Jameson and others would add those imposed by legislative acts under which conventions are called, but such restrictions are certainly not yet recognized as of absolute binding force, except in Pennsylvania, and should not be so recognized if the convention is to be an instrument of great usefulness.

It is clear that existing constitutional provisions are bind

34 The constitutions of Oklahoma and Oregon by requiring that acts providing for a convention be submitted to the people, would seem impliedly to make the terms of such acts binding upon a convention when assembled. In states having the initiative and referendum, an act adopted by the people would perhaps in no case be disregarded by a convention assembled thereunder, even though legally the terms of the act might be disregarded. See Opinion of the Justices, 6 Cushing, 574 (1833), and State ex rel. Fortier v. Capdeville, 104 La., 561 (1901).

ing upon a convention, 35 A convention does not in any way supersede the existing constitutional organization and is bound by all restrictions either expressly or impliedly placed upon its actions by the constitution in force at the time. A new constitution does not become effective until promulgated by the convention, if this is permitted by the existing constitution, or until ratified by the people, if such action is required. In replacing the existing constitutional organization a convention properly acts only by the instrument of government which it frames or adopts. As an organ of the state and as a legislative body a convention is, of course, subject to the provisions of the federal constitution as to contracts, ex post facto laws, and to all other restrictions imposed upon the states by that instrument.

36

Reference is made in another part of this discussion to the attitude of the courts toward constitutional provisions regarding the amendment of state constitutions. 37 It has been shown that the courts as a rule construe such provisions liberally, but declare invalid amendments even after they have been approved by the people, with reference to which the constitutional requirements have not been substantially observed. If the courts took the same position with reference to a complete constitution, it is clear that

35 The constitution may of course, place definite limitations upon the power of a convention, or subordinate it to the legislature. By the Kentucky constitution of 1799 the legislature in passing an act taking the sense of the people upon the calling of a convention was required to specify "the alterations intended to be made," and the convention seemingly would have been bound by such specification.

36 See the state cases of McElvain v. Mudd, 44 Ala., 48; State v. Keith, 63 N. C., 140; Gibbes v. G. & C. R. R. Co., 13 S. C., 228; Hawkins v. Filkins, 24 Ark., 286; Penn v. Tollison, 26 Ark., 545; Berry v. Bellows, 30 Ark., 198; Bragg v. Tuffts, 49 Ark., 554. See also Cooley, Constitutional Limitations, 7th ed., p. 62.

37 See pp. 215-221.