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these powers. Similarly in Sproule v. Fredericks," the Mississippi court said that the legislature would have no power to require a convention to submit its work to the people, but in this case the legislature had not made any effort so to restrict the convention, and the judicial expression here also was purely dictum.

From the above discussion it may be seen that where the question has been raised the conventions and courts have in but a few cases taken the view that constitutional conventions are absolutely bound by restrictions sought to be placed upon them by legislative acts. The restrictions placed upon conventions have certainly not in practice been recognized as of binding force, except in a few cases, and theoretically the convention in the performance of its proper functions should be independent of the regular legislative organs of the state. Legislative acts are usually necessary for the assembling of conventions, but this dependence of conventions upon legislatures has as yet caused few conflicts. The good sense of the people has ordinarily caused both legislatures and conventions to restrict themselves to their proper spheres. The general obedience of conventions to the legislative acts under which they were called has been due to the fact that legislative acts have usually required only those things which the convention would have done without legislative requirement; cases of conflict arise only when a legislature attempts to restrict a convention in such a manner as to interfere with its proper functions, and such cases have not been numerous. However, it would be better to have the assembling of conventions made independent of legis

33

32 69 Miss., 898 (1892). Dixon v. State, 74 Miss., 277.

33 Jameson, 369-377, reviews these cases, and says that only in three cases have conventions disobeyed legislative restrictions. To the cases of Illinois, 1862 and 1869, and Pennsylvania, 1873, should certainly be added those of Illinois, 1848, Alabama, 1901, and Virginia, 1902.

lative action, as in New York and Michigan. The possibility of conflict is avoided if the convention as an organ for constitutional revision is entirely freed from the control of the regular legislature.

Except in Pennsylvania, it would seem that a convention may, unless restricted by the existing state constitution, determine whether or not it will submit its work to the people and equally as to the manner of submission, and may regulate the details of its procedure, irrespective of legislative action in these matters.34 Submission of a constitution to the people may be and is the more proper policy, but it would seem to be a matter within the discretion of the convention itself, unless submission is required by the existing constitution.

As a rule, then, constitutional conventions are subject only to the following restrictions: (1) those contained in or implied from provisions in the existing state and federal constitutions, and (2) in the absence of constitutional provisions, those derived or implied from the limited functions of conventions. To these restrictions Jameson and others would add those imposed by legislative acts under which conventions are called, but such restrictions are certainly not yet recognized as of absolute binding force, except in Pennsylvania, and should not be so recognized if the convention is to be an instrument of great usefulness.

It is clear that existing constitutional provisions are bind

34 The constitutions of Oklahoma and Oregon by requiring that acts providing for a convention be submitted to the people, would seem impliedly to make the terms of such acts binding upon a convention when assembled. In states having the initiative and referendum, an act adopted by the people would perhaps in no case be disregarded by a convention assembled thereunder, even though legally the terms of the act might be disregarded. See Opinion of the Justices, 6 Cushing, 574 (1833), and State ex rel. Fortier v. Capdeville, 104 La., 561 (1901).

ing upon a convention. 35 A convention does not in any way supersede the existing constitutional organization and is bound by all restrictions either expressly or impliedly placed upon its actions by the constitution in force at the time. A new constitution does not become effective until promulgated by the convention, if this is permitted by the existing constitution, or until ratified by the people, if such action is required. In replacing the existing constitutional organization a convention properly acts only by the instrument of government which it frames or adopts. As an organ of the state and as a legislative body a convention is, of course, subject to the provisions of the federal constitution as to contracts, ex post facto laws, and to all other restrictions imposed upon the states by that instrument. 86

Reference is made in another part of this discussion to the attitude of the courts toward constitutional provisions regarding the amendment of state constitutions. 37 It has been shown that the courts as a rule construe such provisions liberally, but declare invalid amendments even after they have been approved by the people, with reference to which the constitutional requirements have not been substantially observed. If the courts took the same position with reference to a complete constitution, it is clear that

35 The constitution may of course, place definite limitations upon the power of a convention, or subordinate it to the legislature. By the Kentucky constitution of 1799 the legislature in passing an act taking the sense of the people upon the calling of a convention was required to specify "the alterations intended to be made," and the convention seemingly would have been bound by such specification.

36 See the state cases of McElvain v. Mudd, 44 Ala., 48; State v. Keith, 63 N. C., 140; Gibbes v. G. & C. R. R. Co., 13 S. C., 228; Hawkins v. Filkins, 24 Ark., 286; Penn v. Tollison, 26 Ark., 545; Berry v. Bellows, 30 Ark., 198; Bragg v. Tuffts, 49 Ark., 554. See also Cooley, Constitutional Limitations, 7th ed., p. 62.

37 See pp. 215-221.

they would hold a constitution invalid, even after its approval by the people, if the convention had not been assembled in accordance with the constitutional forms, or if when assembled the convention in framing a constitution had not complied with the constitutional requirements. To what extent and in what manner will the courts enforce constitutional restrictions upon the forming of new constitutions?

cases.

There is no judicial authority squarely upon this question, but a similar question has been discussed in the decisions which have related to the violation of legislative restrictions sought to be imposed upon conventions, and some light may be thrown upon the judicial attitude by a discussion of these In the case of Frantz v. Autry,88 it was contended that the convention of Oklahoma had exceeded the powers conferred upon it by the congressional enabling act, in erecting new counties and appointing officers for such counties. An injunction was sought to restrain the officers appointed by the convention from acting, and also to restrain the submission to the people of that part of the constitution which provided for the division of the county in question. The court upheld the action of the convention as within its power, and in its decision declared that the convention was a legislative body of the highest order and "that the courts will not interfere by injunction or otherwise with the exercise of legislative or political functions." The court said further: "To concede the power of the courts to enjoin and restrain the convention in the exercise of its powers in incorporating any legislative matter that it may deem appropriate therein, on the ground that it is unconstitutional and void, in advance of the submission of the same to the people for ratification or rejection, and prior to the time that it is approved by the President, would, it seems to 38 18 Okla., 561, 604, 605 (1907).

us, lead to interminable litigation, and the inevitable result would be to tie the hands of the convention and indefinitely postpone the submission of the constitution or any of its provisions, to a vote of the people. Fortunately, such is not the law. If the constitution, or any of its provisions, is repugnant to the constitution of the United States or any of the terms and conditions of the enabling act, these questions can be litigated and determined at the appropriate time. The moment the constitution is ratified by the people, and approved by the President of the United States, then every section, clause, and provision therein becomes subject to judicial cognizance."

This is simply a statement that the court would not interfere with the process of constitution-making, but would hold itself free to declare an act of the convention invalid, after it had been approved by the people, if it were in excess of the convention's power; similarly several state courts have declined to interfere with the submission of a proposed constitutional amendment to the people by the legislature, reserving the power, however, to declare the amendment invalid after popular approval if it were shown to have been improperly adopted. "A Constitutional Convention is a legislative body of the highest order. It proceeds by legislative methods. Its acts are legislative acts. Its acts are legislative acts. Its function is not to execute or interpret laws, but to make them. That the consent of the general body of electors may be necessary to give effect to the ordinances of the Convention, no more changes their legislative character, than the requirement of the Governor's consent changes the nature of the action of the Senate and Assembly." "9 The convention

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39 Revised Record New York Constitutional Convention, i, 245. (Report of Judiciary Committee.) A similar statement may be found in the report by a committee to the Michigan convention of 1908. Debates Michigan Constitutional Convention of 1908, ii, 1274-1276.