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after the people have voted that a convention shall be held; the constitution itself contains full provisions regarding the apportionment and election of delegates, and writs for an election are required to be issued by the governor after a favorable vote of the people.

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In all of the states except those mentioned above 5* the assembling of conventions is to a large extent dependent upon legislative action, even after the people have voted that a convention shall be held. Either (1) the legislature authorizes the election of a convention without a popular vote approving such action, or (2) a vote of the people is taken upon or independently of legislative authorization, and after such vote a legislative act must be passed providing for the convention. 55 Legislative bodies will not ordi

54 Together with those having the initiative and referendum.

55 An interesting point is that as to whether legislative acts, providing for a popular vote upon the question of calling a convention or making provision for the meeting of a convention, require the approval of the governor. The Alabama constitution specifically provides: "No act or resolution of the legislature . . . calling a convention for the purpose of altering or amending the constitution of this state, shall be submitted for the approval of the governor, but shall be valid without his approval," and the Delaware constitution contains a similar provision. In the other states there is no express provision upon this matter, but the language usually indicates whether the governor's approval is or is not required. The California constitution, for example, provides that the question of holding a convention shall be submitted to the people "whenever two-thirds of the members elected to each branch of the legislature shall deem it necessary to revise this constitution,” but if the people approve of a convention, "the legislature shall, at its next session, provide by law for calling the same;" the governor's veto does not apply to the legislative vote submitting the question to the people, but would, it seems, apply to the law under which it is proposed to call the convention. The same may be said as to the constitutions of Colorado, Florida, Idaho, Illinois, Minnesota, Nebraska, Nevada, North Carolina, Ohio, South Carolina, South Dakota, Utah, Washington, Wyoming. In fact most of the provisions for a popular vote upon the question are for

narily ignore the expressed will of the people, so that the dependence of the constitutional convention upon the legislature has produced little inconvenience, yet logically the plan adopted by New York, Michigan, and Missouri seems the better one, for it makes the superior legislative bodythe convention-independent of the inferior body-the regular legislature.

Although no other state constitutions go as far as those of New York, Michigan, and Missouri, yet only ten states leave the matter entirely in the hands of the legislature;5° several either restrict the legislative discretion as to the number of delegates or themselves fix the number;57 others regulate the number of delegates, their apportionment, and the method of their election;58 while the constitutions of Delaware, Illinois, and Montana contain even more detailed provisions controlling the election and conduct of conventions The Oregon and Oklahoma constitutions contain no specific restrictions upon legislative action in this matter; but require that a law providing for a convention be approved by the people on a referendum vote.

As has been suggested, the legislatures have in a number such a vote after action by the two houses without the governor's approval. See a dictum in Carton v. Secretary of State, 151 Mich., 341. Yet in Nebraska where the submission of this question to a popular vote seems to be clearly a matter within the power of the two houses, independently of the governor, a joint resolution of 1903 upon this subject was vetoed by the governor after the adjournment of the legislature, and no further action was taken. Nebraska Laws, 1903, pp. 744-745. For a discussion of the executive veto upon the proposal of constitutional amendments, see p. 148.

56 Alabama, Iowa, Georgia, Kansas, Maine, North Carolina, Tennessee, Virginia, West Virginia, Wisconsin.

57 Idaho, Nevada, South Carolina, Utah, Washington, Wyoming. 58 California, Colorado, Florida, Kentucky, Maryland, Minnesota, Nebraska, New Hampshire, Ohio, South Dakota. The Florida constitution does not regulate the method of election.

of states discretion to determine how delegates shall be elected to constitutional conventions. The qualifications for the exercise of the right to vote are usually fixed by existing constitutions, and are thus ordinarily not matters for legislative determination;59 but where there are no such constitutional regulations of this matter, it lies within the discretion of the legislature. Where legislatures have the determination, they have usually as a matter of course fixed the same qualifications as those required for other elections. In certain cases, however, even where the voting qualifications have been fixed by constitutional provisions, legislatures have specified different qualifications for voters who should take part in electing delegates to constitutional conventions. 60

59 Green v. Shumway, 39 N. Y., 418 (1868).

60 Jameson, Constitutional Conventions, 4th ed., 260-269, 510-524Lobingier, The People's Law, 220-222, 241, 243, 247, 271. The statements made above with reference to qualifications of those voting for delegates to a convention apply also with reference to the voting on a proposed constitution. In most of the cases in which constitutional provisions regarding the suffrage have not been observed, there has actually been a widening of the suffrage, as in New York (1821), Rhode Island (1842), New Jersey (1844), Maryland (1867), and Tennessee (1870), with reference to the vote for delegates to a convention, and in Illinois (1870), Virginia (1830), Tennessee (1834), New Jersey (1844), and Maryland (1867), with reference to the popular vote upon a proposed constitution. The Missouri convention of 1865 in submitting its proposed constitution to the people of that state restricted the right to vote to those who should take an oath that they had always been loyal to the United States Government, and this restriction was upheld upon the ground that the convention had power to put the constitution into operation without popular approval, and so might, if it submitted the instrument, determine to whom it should be submitted. State v. Neal, 42 Mo., 119. The same action was taken by the Maryland convention of 1864. See Miles v. Bradford, 22 Md., 170. But here, as also in Virginia (1830), New York (1821), and New Jersey (1844), the constitution did not require submission, while in Maryland (1867) submission was specifically required, and the suffrage qualifications were specified in

It may be worth while to refer briefly to the calling of conventions for the purpose of framing constitutions for states seeking admission into the union. In the more regular procedure for the admission of territories to statehood, Congress passes an enabling act providing for a convention, such enabling act regulating in detail the election of delegates and the conduct of business by the convention. Territorial legislatures may, of course, call conventions or a convention may be called by a territorial governor,1 but a constitution drafted by such a convention has no effect unless it is approved by Congress, and the territory is admitted as a state under it.62 Properly, constitutions of proposed new states should be drafted by conventions assembled under the authority either of Congress or of the existing territorial governments. In one case, at least, however, a convention has proceeded without the authorization either of Congress or of the territorial government, but its acts subsequently obtained validity by virtue of congressional ratification. 63 The Southern reconstruction conventions held under the authority of the congressional acts of 1867 may for all practical purposes be classed with territorial conventions held under congressional enabling acts.

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the constitution. Where the existing constitution requires a vote upon the question of holding a convention or upon a proposed constitution, and itself also fixes the suffrage qualifications for state elections, neither legislature nor convention has the legal right to prescribe other qualifications. See Green v. Shumway, 39 N. Y., 418, 426 (1868).

61 As in California in 1849.

622 Opinions of the Attorney-General, 726. The constitution of a proposed state need not necessarily be framed by a convention. The constitution of 1866, under which the state of Nebraska was admitted to the union, was drafted by the territorial legislature and then approved by a vote of the people.

63 See the Michigan case referred to below, p. 61.

** Neither Congress nor a territorial legislature, in providing for a

In several cases the question has arisen as to whether the people of a state, acting independently and without any authority under the existing government, may call a convention and form a new constitution. This question presented itself particularly in Rhode Island in 1841 and 1842. The state was still governed under the charter of 1663, and the suffrage qualifications as fixed by the legislature were extremely undemocratic. Efforts to obtain relief through the legislature had failed. Those in favor of a more extended suffrage formed associations, and arranged for the meeting of a convention to frame a new constitution. The convention was not authorized in any manner by the existing government. The convention met and framed a constitution which was submitted to the people for adoption, and was adopted by a majority of those voting upon it, such majority appearing also to be a majority of the male citizens of the state. An attempt was made to organize government under the new constitution, armed conflict ensued with the charter government, and the movement collapsed upon the announcement by the president of the United States that he would support the charter government.65 Many of the reforms deconvention, is under the necessity of submitting to the people the question whether a convention is desired. Congress has occasionally submitted to the people of a territory the question as to whether they wished statehood under certain conditions, as in 1906 when the question of joint statehood was submitted to the people of Arizona and New Mexico. In several cases territorial legislatures have submitted the question whether conventions should be assembled and constitutions framed preparatory to seeking admission as states. This was done in Wisconsin several times between 1841 and 1847; in Iowa in 1840, 1842, and 1844; and in Nebraska in 1859. Lobingier, The People's Law, 263-267, 275-277, 282.

65 Luther v. Borden, 7 How., I. A full account of this affair may be found in Mowry's The Dorr War or the Constitutional Struggle in Rhode Island. (Providence, 1901). See also Jameson, 218-226. For a dictum that the people of a state may adopt a constitution, in

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