and acted upon as the only valid Constitution of the State by the Governor in swearing fealty to it and proclaiming it, as directed thereby; by the Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by the convention which assembled in the city of Richmond on the 12th day of June, 1901, as the Constitution of Virginia; by the individual oaths of its members to support it, and by its having been engaged for nearly a year in legislating under it and putting its provisions into operation; by the judiciary in taking the oath prescribed thereby to support it, and by enforcing its provisions; and by the people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as voters under it to the extent of thousands throughout the state, and by voting, under its provisions, at a general election for their representatives in the Congress of the United States. . . . The Constitution having been thus acknowledged and accepted by the officers administering the government and by the people of the State, and being, as a matter of fact, in force throughout the State, and there being no government in existence under the constitution of 1869 opposing or denying its validity, we have no difficulty in holding that the Constitution in question . . . is the only rightful, valid, and existing Constitution of this State, and that to it all the citizens of Virginia owe their obedience and loyal allegiance.'

9948

Another reason why courts would hesitate to pronounce invalid a constitution which was already in operation is that a court acting under such constitution would, in rendering a decision of this character, necessarily pronounce against its own competence as a court. A court organized under a

48 Taylor v. Commonwealth, 101 Va., 829. This case with approval in Weston v. Ryan, 70 Neb., 216, 217.

was cited

government, even though that government be revolutionary in character, has no greater validity than the government under which it acts, and would hardly destroy itself by hold. ing that government to be invalid. This view was first presented by a dictum of Chief Justice Taney in Luther v. Borden, and may be said to be a sound one: "And if a state court could enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted had been put aside and displaced by an opposing government, it would cease to be a court, and be incapable of pronouncing a judicial determination upon the question it undertook to try.

99 49

Although, then, a convention, in framing a complete constitution or a revised instrument, would seem, in theory, to be bound by existing constitutional restrictions upon the exercise of its power, as strictly as is the legislature in proposing constitutional amendments, yet there are difficulties in the way of enforcing this rule. If a constitition has been proposed for the approval of the people, a court would hardly enjoin its submission, although this might be done; if this were not done the only other opportunity for the court to act would be after a constitution had been approved and before it had gone into operation, for after it had become effective a court would hardly dare overturn the government organized under it when there were no opposing bodies claiming to be the lawful government-the question as to the validity of the constitution would have become a political question with which the court should properly refuse to meddle.50 On the whole it would seem that because

497 Howard, 1, 40. See also Brittle v. People, 2 Neb., 214, and the dictum in Koehler v. Hill, 60 Ia., 543, 608, 614.

50 For a similar attitude taken by the courts of Colorado and Nebraska with reference to amendments vitally affecting the organization of government see pp. 222-225.

7

of practical considerations courts must pursue a more liberal policy in passing upon the acts of a convention, especially after they have been approved by the people, than it has pursued in interpreting the constitutional restrictions placed upon the legislative power to propose amendments.

The discussion so far has related primarily to express constitutional restrictions upon or with reference to conventions. Implied restrictions upon conventions may be said to fall into two groups: (1) those implied from the constitution under which a convention is called; (2) those implied from the limited functions of conventions. These two classes of implied limitations coalesce and may be considered together. First, a constitution by providing for the calling of a convention to revise or frame the organic law of the state impliedly limits the functions of such a body to that one act and to the exercise of only such powers as are necessary or incident thereto. Second, in the absence of constitutional provisions regarding the convention, a convention if called acts under the constitution in existence, and by such constitution the exercise of executive, judicial, and regular legislative power are expressly conferred upon existing organs of government, which cannot properly be replaced until a new constitution framed by the convention is put into operation. Where the existing constitution provides that a certain power shall be exercised only by an organ of the existing government, as in provisions that money shall not be paid from the state treasury except under the authority of a legislative act," it is undoubted

51 For a discussion of cases in which conventions have sought to appropriate money see Jameson, 435-446. Carton v. Secretary of State, 151 Mich., 342. The Louisiana convention of 1898 authorized loans not only for the payment of its expenses but also for the mobilization of troops during the Spanish-American War, and its action was followed by legislative appropriations for these purposes. The constitu

that a convention assembled under such a constitution may not exercise the power; the case is almost equally strong against a convention's power to exercise authority which has been expressly conferred upon another body by the constitution under which the convention is acting. 52 Third, in addition to the limitations implied from the constitution itself, it may be said that a convention is ordinarily a body assembled for a limited and definite purpose, and cannot be presumed to have other powers than those necessary for the performance of its proper functions. 58

A number of cases have arisen in which conventions have exercised or have sought to exercise regular governmental power. The conventions of the early revolutionary period exercised such powers, but they were primarily provisional governments, and only incidentally constitutional conven

to

tions of Colorado and Montana specifically authorize the legislatures to provide for the expenses of conventions, and that of Kentucky provides that the legislature shall fix the compensation of delegates to a convention. In New York and Delaware a convention has power appoint such officers, employees and assistants as it may deem necessary, and fix their compensation, and to provide for the printing of its documents, journal and proceedings." There is a similar provision in the Michigan constitution.

52 With reference to an attempt by a convention to interfere with the existing state government Jameson very properly says: "That body cannot remove from office, or instruct those holding office, by any direct proceeding, as by a resolution or vote applying to particular cases. It is its business to frame a written constitution; at most, to enact one. It has no power, under such a commission, to discharge the public servants, except so far as their discharge might result from the performance of its acknowledged duties." Constitutional Conventions, 4th ed., 320-325.

53 If the above statements have any basis it would seem possible to hold that a convention is a body of limited power, without subordinating it to the legislature. Judge Jameson's theory that a convention must be either sovereign or subordinate to legislative control seems untenable. Jameson, 422-430.

54

tions, and are not relevant to the present discussion. The Louisiana convention of 1864 instructed the legislature to raise the salaries of school teachers. During the secession 55 and reconstruction periods in the Southern States conventions in some cases took over almost all powers of government, although the state legislatures were naturally the bodies which suffered most from encroachments by the conventions. In Missouri a convention was elected on February 18, 1861, to "consider the relations between the government of the United States and the government and people of the State of Missouri; and to adopt such measures for vindicating the sovereignty of the state, and the protection of its institutions, as shall appear to them to be demanded." No secession ordinance was to be valid until ratified by the qualified voters of the state. The convention proved to be strongly union in sentiment, while the organized state government was equally as strong in its sympathy with the South. The convention met in February, 1861, and adjourned to the following December, having first appointed a committee to call it before that date if its assembling should seem necessary; the convention met again in July; Governor Jackson had now left the state; the convention removed Jackson and appointed another governor in his place, declared the seats of the members of the general assembly vacant, and abrogated the laws which the assembly had passed for the defense of the state against the federal government. The provisional officers chosen by

54 Jameson, 320, note.

55 It is doubtful whether the Missouri and secession conventions may properly be called constitutional conventions in the sense in which that term is used here; they were called to consider the relations of their states to the federal government, and their actions in changing constitutions were but incidental to their primary object, which was not the framing or revision of constitutions.