[§1. Three questions about convention acts.]

{97} Judge Jameson's book on constitutional conventions was written for the sole purpose of proving the supremacy of the legislature over the convention. He treated the question of the power of the legislature to amend the statute calling a convention as being merely a question of the right of the legislature to control the convention; whereas in reality it involves three questions: i.e., the power of the legislature, the source of the statute, and whether the legislature can amend an act passed by the people.

The first of these three questions, namely, whether the legislature can control the convention, will be considered in the next chapter. In that consideration we shall see that restrictions, which the legislature attempts to impose upon a convention, are probably not binding unless ratified by the people; precedents to the contrary being divisible into cases in which the electorate did the restricting, cases in which the restrictions were acceptable to the convention, and cases in which the restrictions were imposed by an outside sovereign. The instances, there discussed, of legislative interference by other means than the original convention act or amendments thereto do not concern us here.

The second of the three involved questions was considered in Chapter V. There we saw that the people enact the convention act where they have the initiative, or where the legislature submits the entire act to them for ratification; probably, where they vote to hold a convention under the act; and possibly, where they merely elect delegates under the act, or where they acquiesce in an act by not invoking the referendum against it. It is possible that even constitution provisions for the holding of a convention become popular enactments because the people act under them, either by voting for the convention, or even merely by voting for delegates.

{98} The present chapter will be devoted to the third question involved, namely, whether the legislature can amend an act of this sort, assuming it to have been passed by the people.

[§2. Legislature may only amend its own convention act.]

Where the facts show, or judicial decisions hold, that the convention act was passed by the legislature, the legislature clearly has the power to amend this act; unless we adopt the theory of the Pennsylvania Supreme Court, already discussed,1 to the effect that the mere participation by the people in the election of delegates under a convention act passed by the legislature alone amounts to a ratification and adoption of that act by the people, and makes it the act of the people rather than of the legislature. Under that theory, all convention acts would owe their force and validity to a popular vote, unless we can assume the case of a convention with delegates which are chosen by the legislature.2

This leads us to the main question to be considered in this chapter: namely, whether, if the people enacted the convention act, the legislature can amend it.

In order to present this sole question, without any diverting complications, we must assume: (1) that the people did originally pass the convention act in its entirety,3 and (2) that the matter which the legislature proposes now to add to it is matter within the scope of ordinary legislative powers.4 Let us therefore make these two assumptions, merely, however, for the purposes of this chapter.

A discussion of the main subject has usually been very much involved in a consideration of the other two, which we are here attempting to exclude. An attempt will be made, however, to select for the purposes of this chapter so much of the authorities as relates solely to the subject matter of this chapter.

The clearest statement on this subject is contained in the opinion rendered by the New York Supreme Court to the 69th New York Assembly in 1846. It is as follows:

{99} The next question is, "Whether this legislature has any power to alter or amend that law." As a general rule, the legislature can alter or annul any law which it has power to pass. A proper solution of the question proposed by the Assembly involves, therefore, an inquiry concerning the source from which the act of 1845 derives its obligation.

If the Act of the last session is not a law of the legislature, but a law made by the people themselves, the conclusion is obvious, that the legislature cannot annul it, nor make any substantial change in its provisions. If the legislature can alter the rule of representation, it can repeal the law altogether, and thus defeat a measure which has been willed by a higher power.5

Another expression of opinion to the same effect is as follows:

In ascertaining the powers of the Convention, we cannot look to the Act of February, 1901, passed after the Convention had been ordered by the People; and that the limitations imposed by that Act, which was never submitted to, nor ratified by the People, are of no binding force.6

The author knows of no decisions or court opinions contra. The recent opinion of the Supreme Court of Massachusetts, although it appears to support the author's proposition, is not in reality in point, for the ground on which it declares the particular convention act to be unamendable, is merely the unconstitutionality of the particular subject matter.7

Jameson has collected a number of decisions to the effect that the legislature may amend statutes which have been submitted to the people for a vote.8 This is undoubted law. But we should note: (1) that none of these decisions related to convention acts, and (2) that convention acts are not an exercise of ordinary legislative power.9 These two considerations should be sufficient to differentiate the cases cited by Jameson.

[§3. Under initiative and referendum.]

If Jameson had lived in the days of the initiative and referendum, he might well have added cases like the following:

{100} The Supreme Court of every state having an initiative and referendum constitutional provision similar to that of this state which has been called upon to determine the question has held that the Legislature has the power to repeal or amend the initiated law.10

But in these cases, the powers of the legislature to amend are always expressly based upon the theory that the people, in initiating legislation, are merely exercising the legislative function which for ordinary occasions they have delegated to the legislature. Ratione cessante, cessat ipsa lex. A convention act, not being within the legislative function,11 it is not so amendable. In fact, as the extralegislative power which the legislature has to frame a convention act exists only ex necessitate,12 it is probable that this power does not exist in States which have adopted the initiative and referendum. Thus neither the cases cited by Jameson, nor the more modern cases arising under the initiative and referendum are authority for the proposition that the legislature can amend a convention act.

The author has been unable to find any authorities which express an opinion that the legislature may amend a convention act, if originally enacted by the people; and it is possible that, in the cases in which legislatures have actually amended convention acts, they have proceeded upon the theory that such acts were not enacted by the people, rather than upon the theory that, although the people had enacted them, the legislature could amend them. Even when the legislature has passed the original convention act after the popular vote authorizing the convention, it is arguable that the people choose the legislature as their agent for the special extralegislative purpose of framing the convention act,13 and that when this purpose is fulfilled, the legislature becomes quoad hoc, functus officio. In plain English, the job being completed, the legislature has no further powers in that connection.

[§4. Cases in which legislatures have tried to amend convention acts.]

In the following described cases, convention acts have been amended by legislatures.

{101} New York Assembly of 1845 passed a statute for the holding of a convention in a certain detailed manner, if the people should so vote at the next election. The people so voted. The Assembly of 1846 then proceeded to amend the convention act, so as to change the system of apportionment of delegates. But before doing this, they asked the opinion of the Supreme Court of that State as to whether they had the power to do so.

The court replied that the convention act was the act of the people, and that therefore the legislature had no power to amend it. The court's language in this connection has been given earlier in this chapter.14 The legislature, however, disregarded the advice of the court and amended the act, and the delegates to the convention were elected under the act as amended.15

The validity of this action by the legislature was never questioned by the convention. But this is not to be wondered at; for had the delegates declared this action to be illegal, they would thereby have declared their own election illegal, and their own seats vacant, and would have thus rendered themselves incompetent to make the very decision which they were making. The only tenable decision which the delegates could make was to sustain the validity of the act under which they had obtained their seats.

A similar situation was pointed out by the United States Supreme Court when it held that the only possible tenable decision by a state court would be to uphold the legality of the constitution under which the judges themselves held their seats. The language of the court in this connection is as follows:

And if a State court should enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted had been put aside and displaced by an opposing government, it would cease to be a court, and be incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power.16

{102} Not only was this action by the New York Assembly never questioned by the convention; it was never questioned at all. Thus here we have a case of a legislature successfully overruling a court.

The Berlin controversy in Massachusetts furnishes another example of a legislature successfully amending a convention act.

In 1853 the legislature of Massachusetts, emboldened by the example of the New York Assembly, attempted to follow that example. After the ratification of the convention act of 1852 by the people, the legislature struck out the provision that the election of delegates should be by secret ballot. The election was held under the amended law, for the candidates had no other alternative except to withdraw from the contest. Nevertheless, great indignation was aroused by this action of the legislature.

One of the first and most bitterly debated questions, therefore, which arose in the convention of 1853 was whether the legislature had any right so to override the action of the people. A complete repudiation of this action, however, would as in the New York case, have had an embarrassing result; for if the legislative action was illegal and void, why then the election held under it was void, and the delegates so elected would not be entitled to their seats.

Similarly with the delegates to the Massachusetts convention of 1853. Accordingly they seated themselves, thereby ratifying the action of the legislature, and then proceeded to excoriate the legislature for its action.

The vacancy from the town of Berlin furnished the opportunity for criticizing the legislature. Henry Wilson, the "Natick Cobbler," who later became Vice President of the United States, had been elected from both Natick and Berlin, and had declined election from the latter. The question arose as to how to instruct the selectmen of Berlin to fill the vacancy. Ben Butler seized the opportunity and moved that the vacancy be filled in the manner provided by the original convention act, rather than in the manner provided by that act as amended by the legislature. Rufus Choate led the defense of the legislature, but he was overwhelmingly defeated. Thus the convention went on record as repudiating the idea that the {103} legislature can amend a convention act after its adoption by the people.17

These were both cases in which the people had voted for the convention, under the convention act.

We saw in an earlier chapter that there was some authority for the proposition that the people assume, ratify, and become responsible for a convention act, by merely participating in the election of delegates to the convention to be held under it.18 In one such case there has been an attempt at legislative amendment. This occurred in the bloody days in Kansas just prior to the Civil War. The Kansas legislature of 1855 took the sense of the electorate at the October election of 1856 on the advisability of holding a constitutional convention. The electorate approved. The legislature accordingly passed an act providing for the choice of delegates in June and for a convention in September, which was to have full discretion as to how to submit its constitution for ratification. So far in the proceedings, the slavery men had been in control, and they controlled the convention. The convention submitted two alternative constitutions to be voted on, December 21, 1857, but did not provide any method for the rejection of both.

The free-state legislature, which was elected in October of that year, met December 17 and voted to submit the whole question of the constitution on January 4. The form with the strongest slavery provisions carried in December, but both constitutions were rejected in January; only slavery men participating in the first election and only free-staters in the second.

Thus the question was presented to Congress as to the authority of the legislature to amend the convention act after the people had elected delegates under it and thereby ratified it. The national House decided that the legislature did have this power, but President Buchanan and the national Senate decided that it did not; so no decision was reached, and the matter was deadlocked.19

Virginia presents the most recent example of an attempt to amend a convention act. The legislature of 1900 submitted to the voters the question "Shall there be a convention to revise the constitution and amend the same?"20 The vote was {104} favorable. Accordingly in 1901 the legislature passed a statute prescribing the details for the convention.21 Now the people having voted that the convention should revise and amend the constitution, a provision in the second act requiring the convention merely to frame and submit was considered by many to be an attempt by the legislature to amend a vote of the people.22 Accordingly the convention refused to submit, and the constitution promulgated by the convention was accepted by the State officials and was sustained by the courts.23

So far as the author knows, these are the only cases where a legislature has attempted to amend a convention act, enacted by the people rather than by the legislature.

From all the foregoing we see that, although an ordinary bit of legislation enacted by the people is amendable by the legislature, nevertheless a convention act, not being ordinary legislation, is not so amendable. But it is possible for certain sorts of amendments to succeed, by reason that the nature of the amendment leaves to the convention and the people no choice but to acquiesce in the amendment or to give up the convention. Successful examples of this limited sort are not precedents for the general proposition that the legislature can make any sort of amendment.

1. See [Ch. V §10] p. 72, supra.

2. This was the case with respect to the first of the two Georgia conventions in 1788. Jameson, p. 135. Constitutional commissions may perhaps be regarded as such conventions. Dodd, pp. 262-265.

3. See Chapter V, supra.

4. This assumption is incorrect (see [Ch. V §4] pp. 62-65, supra), but must be postulated for the purposes of the present argument. If the argument fails (as it does) even with this assumption, a fortiori when this assumption is found to be incorrect.

5. 1 Journal, 69th N. Y. Assembly, pp. 919 and 920.

6. Braxton, VII "Va. Law Reg.," 100, 101-102.

7. 1917, Mass. Senate Doc., 512.

8. Jameson, pp. 398-401.

9. See [Ch. V §4, Ch. VI §3] pp. 62-65, 80-83, supra.

10. Richards v. Whisman (1915), 36 S. D. 260, 272.

11. See [Ch. V §4, Ch. VI §3] pp. 62-65, 80-83, supra.

12. See [Ch. IV §4] p. 47, supra.

13. See [Ch. V §10] pp. 73-74, supra.

14. See [Ch. VIII §3] p. 99, supra.

15. Jameson, p. 387.

16. Luther v. Borden (1849), 7 How. 1, 40. Compare the cases quoted, pp. 157-158, infra.

17. See Jameson, pp. 333-338.

18. See [Ch. V §10] p. 72, supra.

19. Jameson, pp. 534-536.

20. Va. Acts 1900, c. 778.

21. Va. Acts 1901, c. 243.

22. VII "Va. Law Reg.," pp. 100-106.

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

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