contained no provision regarding the submission of a constitution to a vote of the people; the legislative act, however, provided that before any constitution drafted by the convention should become operative, it should be submitted to the voters of the state and ratified by a majority thereof. The convention met in September, 1890, drafted a constitution and submitted it to the people in the following April, and the constitution was ratified by a popular vote. The convention reassembled in September, 1891, made numerous changes in the constitution, some of which were alleged to have been material, and promulgated the amended instrument. An effort was then made to enjoin the printing and preservation of the constitution, and to have it declared invalid. The court of appeals of the state declined to pass upon the power of the legislature to bind the convention, but held that the constitution must be recognized as valid inasmuch as the people and the political organs of government had acted under it as a valid instrument. 23

Similarly the legislature of Virginia, in calling the convention of 1901-02, required that it should submit its work to the people, although there was no such requirement in the Virginia constitution of 1869. The convention entirely disregarded the legislative requirement that its work should be submitted to the people, and promulgated the constitution of 1902 without submitting it to a popular vote.24 Taylor, who was tried without a jury under the constitution of 1902, and sentenced for a felony, contended that this con

23 Miller v. Johnson, 92 Ky., 589; 15 L. R. A., 524 (1892). So the Illinois convention of 1847, although required by legislative act to submit its work to the people did not submit one article of the constitution which it framed, but its action was never contested in the courts.

24 As to the reasons for such action see A. E. McKinley, Two New Southern Constitutions, Political Science Quarterly, xviii, 480.

stitution was invalid because not submitted to the people. Here also the court refused to consider the question as to whether the legislature might bind the convention, but said that the organs of the regular state government and the people had been acting under the constitution for nearly a year and that: "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. Thus we have the highest courts of the states of Kentucky and Virginia declining to hold constitutions invalid which had been framed in violation of statutory restrictions, and under the circumstances it is difficult to conceive how the courts could have done otherwise than sustain the constitutions in these cases.

99 25

Upon the larger question as to whether a constitution shall or shall not be submitted to the people, and as to the method of submission if it is submitted, although there is little authority either way, it would seem that the legislature cannot bind a convention; Wells v. Bain and Judge Jameson's work are the only authorities supporting to its full extent the theory of conventional subordination to the legislature. 20 Judge Jameson took the ground that the submission of a constitution is an act within the power of the or

25 Taylor v. Commonwealth, 101 Va., 829 (1903).

26 There are dicta to this effect based upon the theory that the people in voting for a convention confer upon the legislature authority to limit the powers of such convention. Ex parte Birmingham and Atlantic Railway Co., 145 Ala., 514.

dinary legislature," but it is difficult to look upon it otherwise than as a step in the framing of a constitution. To admit that after a convention has acted the legislature may submit its work in any way it thinks proper, or may defeat the proposed constitution by refusing to submit it at all (if the existing constitution requires such submission), is practically to destroy the value of the convention as an independent organ.

Even if we should assume that the legislature may limit. a convention as to the submission of a constitution, or as to methods of submission, it would yet seem clear that the legislature cannot deprive a convention of powers necessary for its conduct as a deliberative assembly. The convention would seem in any case, in the absence of constitutional requirements in the matter, to have power to establish its own rules of order and of procedure, elect its officers, pass upon the qualifications and election of its members, and to issue orders for elections to fill vacancies in its membership.29

27 Jameson, 417-421.

28 Revised Record New York Constitutional Convention of 1894, i, 244-270; Lincoln, Constitutional History of New York, iii, 666. A person claiming to have been elected a member of the New York convention of 1894 sought a writ of prohibition from the supreme court of that state to prevent the convention's determining his right to a seat therein, and claimed that whether or not he was entitled to the seat was a question for determination by the courts. The convention adopted a strong report, prepared by its judiciary committee, denying the power of the court, and the court discontinued proceedings in the case. Some constitutions, as for example, those of Delaware and New York, contain specific provisions regarding the power of conventions to determine their rules of proceedings, pass upon the qualifications of their members, choose their own officers, and to fill vacancies. In Colorado vacancies in a convention are filled by means of writs of election issued by the governor of the state, and in Kentucky power is specifically conferred upon the general assembly to provide for the hearing of contested elections and issuing writs of election in case of a tie.

29 Jameson denies that a convention has power to issue orders for

A dictum of the Minnesota court in the case of Goodrich v. Moore 30 went much further than this. The president of the convention of 1857 had made a contract for the printing of the journal and proceedings of the convention, and this contract was subsequently ratified by the legislature, which appropriated money to pay for the printing; Goodrich, the state printer, claimed that he was entitled by virtue of his position to do the printing, and obtained an injunction to prevent Moore from proceeding with the work. The court dissolved the injunction, and said: "But even had the legislature intended and attempted to claim and exercise the act of providing a printer for the constitutional convention, it would have been an unauthorized and unwarrantable interference with the rights of that body. The admission of such a right in the legislature, would place the convention under its entire control, leaving it without authority even to appoint or elect its own officers, or adopt measures for the transaction of its legitimate business. It would have less power than a town meeting, and be incompetent to perform the objects for which it convened. It would be absurd to suppose a constitutional convention had only such limited authority. It is the highest legislative assembly recognized in law, invested with the right of enacting or framing the supreme law of the state. It must have plenary power for this, and over all of the incidents thereof. The fact that the convention assembled by authority of the legislature renders it in no respect inferior thereto, as it may well be questioned whether, had the legislature refused to make provision for calling a convention, the people in their sovelections to fill vacancies, unless such power is expressly conferred by legislative act. Constitutional Conventions, 331-340, 392-393. But he is of the opinion that a convention has at least the powers of an unofficial public meeting. Ibid., 455-472.

30 2 Minn., 61 (1858).

ereign capacity would not have had the right to have taken such measures for framing and adopting a constitution as to them seemed meet. At all events there can be no doubt but that, however called, the convention had full control of all its proceedings, and may provide in such manner as it sees fit to perpetuate its records either by printing or manuscript, or may refuse to do either." The court was unquestionably right in its statement regarding the power of a convention to control its own proceedings, independently of the legislature, but it is questionable whether the people in their sovereign capacity may properly assemble in convention, and it is also doubtful whether the printing of its proceedings for permanent record is an essential or incidental function of a constitutional convention.

As has been said, few cases have arisen in which courts have been called upon to pass on restrictions which legislatures have sought to impose upon conventions. In addition to the cases referred to above, several other cases have given rise to dicta upon the question. In Loomis v. Jackson 31 the decision was rendered by a special election court, which had no other function than that of deciding an election contest; in addition this court did not have before it any effort by the legislature to restrict a convention, so that its expression was purely dictum. The person rendering the decision of this court said: "I have had no difficulty in reaching the following conclusion upon the constitutional questions presented in this specification, viz: First, That a constitutional convention, lawfully convened, does not derive its powers from the legislature, but from the people. Second, That the powers of a constitutional convention are in the nature of sovereign powers. Third, That the legislature can neither limit or restrict them in the exercise of 316 W. Va., 613, 708 (1873).