from the ordinary legislative bodies. According to what is now the more usual procedure in the adoption of constitutions, there are three popular votes connected with the matter: (1) The vote of the people authorizing a convention. (2) The election by the people of delegates to the convention. (3) The submission to the people for approval of the constitution framed by the convention.

Some of the states dispense with the first vote and others with the third. Mississippi in 1890 dispensed both with the first and the third, and in this case the only participation which the people had in framing their new constitution was that of voting for delegates to a constitutional convention. In electing delegates simply the people could hardly express very clearly their views on constitutional questions and under the Mississippi plan they really had no greater share in constitution-making than in legislation, except that delegates to a convention, chosen as they were for only one purpose, would be more amenable to popular sentiment. Yet it might easily be possible under the Mississippi plan for a constitution to be adopted in opposition to the wishes of a majority of the people-this, in fact, was the purpose in Mississippi. The Mississippi plan seems perfectly legal, where the constitution existing at the time requires neither a vote upon the question of holding a convention nor a submission of the constitution to the people; but from the standpoint of effectiveness in expressing the public will such a plan is extremely defective.

CHAPTER III

THE LEGAL POSITION OF THE CONSTITUTIONAL

CONVENTION 1

A constitutional convention is a body called together for a limited purpose-that of framing and submitting to the people or of framing and adopting a new constitution, or of revising and amending an old constitution. The convention has become in our constitutional system a regular organ for the expression of state will with reference to the state's fundamental law. It is in no sense a revolutionary or extra-constitutional body and does not supersede in any way the organs of the existing state government. The existing state government continues in full operation until superseded by a new government organized under the constitution framed or adopted by the convention.2

Bearing in mind the limited functions of a constitutional convention, we must inquire here as to what are the relations of the convention to the organs of the regular state government, and especially as to the relations between the

1 Judge Jameson's discussion of this subject is perhaps the most important. For other discussions see A. Caperton Braxton, Powers of Conventions, Virginia Law Register, vii, 79 (June, 1901); Revised Record, New York Constitutional Convention of 1894, vol. i, pp. 244266; Debates Michigan Constitutional Convention of 1908, ii, 12741276; Debates Virginia Constitutional Convention of 1901-2,, i, 3-17, 29-88, ii, 3104-3139, 3154-3259; arguments of counsel in the case of Wells v. Bain, Philadelphia Press, Dec. 3, 4, 5, 1873.

2 Judge Jameson expresses a somewhat similar view. Constitutional Conventions, 4th ed., 315-317. Upon the question as to when a new constitution goes into effect see p. 204, note.

convention and the regular legislative body of the state. We have already referred to the fact that in all of the states except New York and Michigan legislative acts are necessary for the calling of constitutional conventions. Can the legislature, in the exercise of this power, place limitations upon a convention, requiring it not to consider certain subjects, or that it insert certain provisions in the new constitution, or that it submit its work for the approval of the people, when such submission is not required by the existing constitution?

Judge J. A. Jameson in his work on Constitutional Conventions took the position that a convention is absolutely bound by restrictions placed upon it in the legislative act by which it is called. Judge Jameson took this view because he thought it necessary that a convention be completely subordinate to the existing government, but even he hesitated to push this doctrine to its extreme limits; for example, he thought that a convention might disregard a legislative requirement that its work be not submitted to the people, and also took the position that the legislative limitations upon a convention "must be in harmony with the principles of the convention system, or, rather, not inconsistent with the exercise by the convention, to some extent, of its essential and characteristic functions." This amounts to a statement that the convention is not absolutely subordinate to the regular state legislature, and is in direct contradiction to Jameson's fundamental thesis.*

Under a number of the present state constitutions it may be definitely said that a legislature may not bind a conven

3 However, in states which have adopted the initiative and referendum, laws for this purpose may be enacted by the people without action by the legislatures.

4 Jameson, 362-365, 494-495.

tion in any way. In New York and Michigan conventions assemble without any legislative action, when authorized by a vote of the people; in these states, constitutional provisions were adopted for the express purpose of making conventions entirely independent of legislative control and any effort by the legislature to control the convention's action would clearly be a violation of the constitution. The same statement holds with reference to the Missouri constitution, by the terms of which the only step to be taken by the legislature is that submitting to the people the question as to whether a convention shall be held. And the same is probably true with reference to constitutions which impose upon the legislature the one specific duty of providing for the election of delegates after the people have decided that a convention shall be held. Inasmuch as both bodies are legislative in character, a specific power conferred upon the regular legislature may perhaps be said by implication to exclude any other control over the convention by the regular legislative body. The Alabama constitution of 1901 expressly confers full power upon a convention to act in the drafting of a new constitution.

But in many cases there are no constitutional provisions expressly or impliedly restraining legislative interference with conventions. What principles should control in states whose constitutions simply empower the assembling of conventions under a legislative act, or where the constitutions contain no provision with reference to conventions? In some cases the view has been taken that the people, by voting for delegates under a legislative act or by acting thereunder, themselves adopt the restrictions placed upon the conven

For an argument to this effect see Debates Michigan Constitutional Convention of 1908, ii, 1274-1276. See also a suggestion in Miller v. Johnson, 92 Ky., 589. This view was adopted by Chief Justice Grant in Carton v. Secretary of State, 151 Mich., 337, 339-343.

tion by such an act, and that the restrictions sought to be placed upon the convention by the legislature thus become restrictions imposed by the people, but in most cases this would clearly not be true." The popular action in connection with a convention may be had in several ways. The question of calling a convention may, in certain states, be determined by the legislature without consulting the people, and an election may be called for the purpose of electing delegates to such convention; it is clear, of course, that the people in voting for delegates to a convention have no way of expressing either approval or disapproval of the terms of the act under which the convention is called; here clearly there is no popular adoption of restrictions sought to be imposed upon a convention by legislative act. In Oregon and Oklahoma there must be submitted to the people the act under which it is proposed to call a convention, but here, while the people have a greater control, it may be necessary for them to pass upon two questions in one, to determine not only whether they want a convention but also whether they want one under the terms proposed by the legislature; even here the act calling a convention cannot be said

Wells v. Bain, 75 Pa. St., 39; Wood's Appeal, 75 Pa. St., 59; State ex rel. Fortier v. Capdeville, 104 La., 561, 568-69; Ex parte Birmingham and Atlantic Railway Co., 145 Ala., 514; State v. Favre, 51 La. Ann., 434; State ex rel. McCready v. Hunt, 2 Hill (S. C.) Law, 1, 222-223, 240-243, 270, 271, 273, 275; Opinion of the Justices, 6 Cushing (Mass.), 574

A similar practice has been followed in some other cases, as in Louisiana in 1896. The Supreme Court of Massachusetts in 1833 took the ground that an act so approved would be binding upon a convention, which would therefore have to observe the restrictions contained in the act. Opinion of the Justices, 6 Cushing, 574 (1833). The judges of the supreme court of New York took the view in 1846 that an act so approved by the people was not subject to subsequent legislative alteration, but a contrary view was taken by the New York legislature. Jameson, 382-387, 663-666. Upon this point see A. Caperton Braxton