the convention continued in office until August, 1864. The convention itself acted as the legislative body of the State, exercising these exceptional powers until July, 1863.5

56

The Missouri convention exercised extraordinary powers from necessity, because of the disappearance of the state government. In the seceding states the conventions acted by the side of organized governments, but would seem to have had full power to act with reference to matters of federal relations, as well as to revise the constitutions so as to make them conformable to the new conditions in which the states found themselves. The conventions of Mississippi, Texas, and Georgia confined themselves rather closely to the purposes for which they were assembled; those of South Carolina, North Carolina, Alabama, Louisiana, Virginia, Arkansas," and Florida exercised regular legislative power in addition; the conventions of South Carolina, North Carolina, Arkansas, Virginia, and Florida each held several sessions, the South Carolina convention remaining in existence for nearly two years; the Alabama convention recognized the purely legislative character of much of its work, and provided that its ordinances should be subject to amendment and repeal by the general assembly.

The conventions held in the southern states in 1865-66, under proclamation of President Johnson, and those held in 1867-68, under congressional reconstruction acts,58 were vested with powers greater than ordinary constitutional conventions in states with organized governments, inasmuch as they were authorized not only to frame constitutions

56 Ordinances passed at the various sessions of the Missouri State Convention, 1861 and 1862 (St. Louis, 1862). Journal of the Missouri State Convention, June, 1863 (St. Louis, 1863).

57 See statement in Bragg v. Tuffts, 49 Ark., 554.

58 Richardson, Messages and Papers of the Presidents, vi, 312-314. United States Statutes at Large, xv, 2-4.

but also to take steps necessary for the erection of state governments." In Virginia, Arkansas, Louisiana, South Carolina, Florida, and Georgia, the conventions of this period seem to have confined themselves rather closely to their proper functions, but in North Carolina (1865-66, 1868), Alabama (1865, 1867-68), Mississippi (1865), and Texas (1868), they acted as regular legislative bodies and passed ordinances of a purely legislative character.

Attention should also be called to the fact that conventions called in territories under congressional enabling acts ordinarily possess wider powers than conventions called in organized states, inasmuch as they have not only to frame a constitution but also to provide for the organization of state governments. Territorial conventions possess only such powers as are conferred upon them by the congressional acts under which they assemble; their acts in excess of such power may however be ratified by subsequent action of con

59 But the Florida court in Bradford v. Shine, 13 Fla., 393, 411-415, took a different view regarding the convention of 1865 in that state. President Johnson's proclamation provided for a convention "for the purpose of altering or amending the constitution . . . and with authority to exercise within the limits of said state all the powers necessary and proper to enable such loyal people of the state of Florida to restore said state to its constitutional relations to the federal government...· The court said: "The functions of the convention were confined to the objects for which it was elected, the presentation of an amended constitution, having reference to the declaration of certain general principles and rules of government, and providing for the organization thereof by the election of the necessary officers... It held invalid a clause of the constitution of 1865 the inclusion of which it thought not to be within the power of the convention.

60 Conventions assembling in territories without congressional authorization may in the same manner have their acts ratified by subsequent congressional action. For statements regarding powers of territorial conventions see Benner v. Porter, 9 How., 235, and McCornick v. Western Union Telegraph Co., 79 Fed., 449.

Several cases have occurred since 1860 in which conventions acting beside regularly organized governments in time of peace have exercised legislative power. The Missouri convention of 1865 passed several ordinances of a purely legislative character. $1 The same statement holds with reference to the Mississippi convention of 1890,62 the South Carolina convention of 1895, the Louisiana convention of 1898, and the Alabama convention of 1901. In the South Carolina convention a motion was made "that there shall be no session of the legislature this year, but that the convention shall do its work in its place.'

63

"64

It has already been suggested that a court would find it difficult to declare a complete constitution invalid because of irregularities in the proceedings or action of a convention. What is the attitude of the courts in enforcing these implied restrictions upon the powers of a convention, in preventing encroachments by a convention, upon powers reserved to other governmental organs of the state? In the first place it should be said that a convention's action in these matters may be controlled by the courts much more easily than irregularities in the framing of a complete constitution. If a convention should attempt to remove an officer of the state government and to appoint another in his place, the court may properly restore the removed officer without in any way interfering with the convention's proper functions; if the convention passes an ordinance of a purely legislative character, the court in a case properly brought before it may declare the ordinance invalid and decline to enforce it. Improper acts committed by a convention in the

61 Jameson, 322-324.

02 Thorpe, Federal and State Constitutions, iv, 2129.

•з Ibid., iii, 1595; vi, 3345.

* Amasa M. Eaton in American Law Review, xxxi, 198, 210.

framing of a constitution may be acts done in the exercise of a power within the competence of the convention, and are difficult to correct, because of the close interrelation of the irregular acts with those which may be regular and proper. When it encroaches upon the existing government, a convention acts in excess of power and its action may be controlled without interference with the functions which properly belong to it.

In State v. Neal,65 the supreme court of Missouri squarely upheld the power of the convention of 1865 to adopt ordinances of a legislative character. Neal had been indicted for perjury in violating an oath taken under the provisions of an ordinance of the convention. The court in sustaining the ordinance, said: "The convention might (if it had deemed proper to do so) have declared the constitution framed by it in full force and effect without making provision for its submission to the voters of the State. As the representatives of the people, clothed with an authority as ample as that, certainly its power to prescribe the means by which it was thought best to ascertain the sense of the qualified voters of the State upon that instrument cannot be seriously questioned." Even though the question of submitting the constitution were within the discretion of the convention it would seem that if this question were decided in the affirmative the constitution should have been submitted to all voters qualified under the existing constitution and that under the principles here laid down, a disfranchising ordinance was beyond the power of the convention. The court, however, took the view that the passage of the ordinance was within the power of the convention as a part of its authority with reference to a revision of the constitution.

65 $42 Mo., 119 (1868).

Several cases came before the courts of Alabama involving ordinances passed by the conventions of 1865 and 18671868. In the cases arising with reference to the ordinances of 1865, the courts enforced such ordinances without questioning their validity, and when the question of validity was raised said that this convention was vested with all powers necessary to restore the state to its proper federal relations and in reality acted and possessed power to act as a provisional legislature." The Alabama court at first took the same view with reference to the ordinances of the convention of 1867-68,67 but later took a somewhat different position. In Plowman v. Thornton 8 there was brought into question the election ordinance of the convention, by which the terms of officers under the new government were so regulated that they should hold until their successors were appointed. The court held the ordinance to be properly within the power of a body convened not only "for the formation of a constitution" but also for "the organization and establishment of a state government," but said: “We assent fully to the proposition that the power of the convention was special and limited, and that it had not legislative power. But within this special and limited power was embraced the power of adopting an ordinance putting in operation the governmental agencies."

The case of Quinlan v. Houston & Texas Central Railway Company 9 involved the validity of a Texas ordinance of 1868 providing for the levy of a tax on certain counties

66 Scheible v. Bacho, 41 Ala., 423; Kirtland v. Molton, 41 Ala., 548; Tarleton v. Bank, 41 Ala., 722; Powell v. Boon, 43 Ala., 459; Washington v. Washington, 69 Ala., 281.

67 McElvain v. Mudd, 44 Ala., 48; Ex parte Hall, 47 Ala., 675; Crump v. Battles, 49 Ala., 223.

68 52 Ala., 559 (1875).

69 89 Tex., 356, 376-377 (1896).