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. 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

76

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.

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

by that number of conventions nine have contained no provision for their amendment or revision; twenty-nine have contained provision for their amendment or revision through the agency of conventions only; thirty-five through the agency of the general assemblies only; and forty-six for their amendment through the agency of either conventions or the general assemblies . . . . . These two modes . . . have kept pretty equal pace throughout the whole range of our constitutional history, some constitutions adopting the one mode and some the other; but for the first sixty years only four authorizing both modes, that of the United States of 1787, that of South Carolina, 1790, and those of Delaware of 1792 and 1831. During the period beginning in 1835 and ending in 1885, however, ten constitutions have provided for amendment by convention only, twenty-two in the legislative mode only, and forty-one in both modes, showing a growing conviction that the legislative mode has advantages which make its more general adoption seem desirable, and yet that it alone is not adequate to the exigencies of the times, but needs to have coupled with it a provision for a convention when the people should deem it necessary or expedient to make a general revision of the constitution." 1

Of the seventeen constitutions adopted since 1887,2 all but one (that of North Dakota) contain provision for alteration both by legislative proposal and by constitu

1 Jameson, Constitutional Conventions, 4th ed., 550-551. See also Charles S. Bradley's Methods of changing the Constitutions of the States, especially that of Rhode Island (Boston, 1885), appendix, pp. 78-82. Of constitutions adopted since the Revolution those of Pennsylvania, 1790, and Virginia, 1830, 1851, 1864, contained no provision for alteration or amendment.

2 Idaho, Montana, North Dakota, South Dakota, Washington, Wyoming, Mississippi, Kentucky, New York, South Carolina, Utah, Delaware, Louisiana, Alabama, Virginia, Oklahoma, Michigan.

tional convention; the Oregon constitution of 1857 contained no specific provision for revision by convention, but such a provision was inserted into it by amendment of 1906. In all of the states except New Hampshire specific provision is now made for the amendment of state constitutions upon the initiative of the legislature. As already suggested in an earlier chapter, the convention system has been adopted almost as extensively, and although twelve of the state constitutions now in force make no specific provision for conventions, yet in a number of these states conventions have been held, and Rhode Island is the only one of them in which the view is officially declared against the holding of a convention. It may therefore be said that New Hampshire is the only state in which amendments may not be proposed by the legislature, and that Rhode Island is perhaps the only exception to the rule that conventions may be held for the revision of state constitutions. The amendment of constitutions by conventions really antedated the general use of the method of partial amendment through legislative action, although the two methods were introduced at the same time-the convention was more extensively used at first, but its cumbersomeness for small changes soon caused the states which employed it to adopt in addition or as a substitute the method of initiating proposed amendments in the legislature.

3

The method of constitutional amendment through the regular legislative organs of the state had its origin in the South. The constitutions of Maryland (1776), Delaware (1776), and South Carolina (1778) made provision for partial amendment through legislative action. Delaware provided that certain parts of its constitution should not

3 The New York convention of 1801, for example, was called primarily for the purpose of determining the interpretation of one clause of the constitution of 1777.