CHAPTER XI

EXTRAORDINARY POWERS CLAIMED

[1. Conventions may have absolute sovereignty in times of war or revolution.]

{128} MANY conventions have claimed the right to exercise powers far beyond the mere framing of constitutions or constitutional amendments. It was to combat these claims of convention sovereignty that Jameson wrote his book in 1867 and that Braxton published his Virginia Law Register article in 1901.1

Jameson met the claim of convention sovereignty with the equally untenable claim of legislative sovereignty. Braxton met it with the much more tenable theory that the convention, like any other governmental body, possessed only such powers as were expressly or impliedly delegated to it; but even he was guided by a zeal much like Jameson's2 and admits that he has proceeded on theory rather than on law and precedent.3

The conventions of the Revolutionary War were governed by no law but the law of extreme necessity. In order to maintain order and carry the war to a successful completion, it was necessary that they should exercise governmental power as well as merely frame constitutions. A conflict between legislature and convention would have been most unfortunate and disastrous. Thus in some States the legislatures framed the constitutions, and in others the conventions did the legislating, so that it is hard to classify these bodies as either conventions or legislatures.4 We have seen that the independent constitutional convention originated only in those States and at such times as were free from military invasion and danger from an aggressive Tory element.

The Pennsylvania Supreme Court says, with respect to the doctrine of convention sovereignty,

Such a doctrine, however suited to revolutionary times, when new governments must be formed, as best the people can, is wholly {129} unfitted when applied to a state of peace and to an existing government, instituted by the people themselves and guarded by a well matured bill of rights.5

See also the following:

The authorities generally except ordinances, and even Constitutions, enacted in time of war, or upon the heels thereof, from the more rigid rule as applicable to those adopted in time of peace and tranquility.6

No argument for the implied power of absolute sovereignty in a convention can be drawn from revolutionary times, when necessity begets a new government. Governments thus accepted and ratified by silent submission afford no precedents for the power of a convention in a time of profound tranquility, and for a people living under self-established, safe institutions.7

When the first American conventions were held, the authority of England had been thrown off and no definite form of government established in its place. Under such circumstances, those Conventions were doubtless justified in assuming and exercising the most absolute sovereignty, not only in providing a new Constitution and political system, but in exercising, themselves, dictatorial powers, until they were ready to launch their new governments. But how can a convention, elected and assembled according to law, with all the functions of existing government in full operation, excuse the attempt to assume the unlimited powers of a Revolutionary convention?8

[2. Secession, reconstruction and territorial conventions are poor precedents.]

Neither are the secession and reconstruction conventions of the Civil War period very valuable as precedents, owing to the extreme emergency of the situation. Dodd says:

It is doubtful whether the Missouri and secession conventions may properly be called constitutional conventions in the sense in which that term is used here; they were called to consider the relations of their states to the federal government, and their actions in changing constitutions were but incidental to their primary object, which was not the framing or revision of constitutions.9

The conventions held in the southern states in 1865-66, under proclamation of President Johnson, and those held in 1867-68, {130} under congressional reconstruction acts, were vested with powers greater than ordinary constitutional conventions in states with organized governments, inasmuch as they were authorized not only to frame constitutions but also to take steps necessary for the erection of state governments.10

Attention should also be called to the fact that conventions called in territories under congressional enabling acts ordinarily possess wider powers than conventions called in organized states, inasmuch as they have not only to frame a constitution but also to provide for the organization of state governments.11

The Cyclopedia of American Government sums this up as follows:

Actually, conventions assembled during the early revolutionary period, and in Missouri and the southern states during the Civil War, exercised wider powers than those just referred to as proper powers of constitutional conventions. But it has already been suggested that the conventions of the early revolutionary period were primarily provisional governments and only incidentally constitutional conventions. In Missouri, from 1861 to 1863, and in the southern states during the same period conditions were exceptional and to a certain extent justified conventions in acting outside of what was their more proper field. The reconstruction conventions in the southern states, in 1865-66, and 1867-68, although called not only to frame constitutions but also to reestablish state governments, did, actually, in a number of cases, go outside of their proper sphere and act as if they were bodies possessing all the capacities of the regular legislatures.12

Yet even reconstruction conventions have been held to be subject to the same inherent restrictions as ordinary conventions. This is true of the attitude of the Florida Supreme Court toward the convention of 1865 in that State. The court held invalid a clause in the constitution adopted by that convention because it thought the clause not within the convention's powers. The convention had been called "for the purpose of altering or amending the constitution ... and with authority to exercise within the limits of said state all the powers necessary and proper to enable such loyal people of the state of Florida {131} to restore said state to its constitutional relations to the federal government."13 The court said:

The functions of the convention were confined to the objects for which it was elected, the presentation of an amended constitution, having reference to the declaration of certain general principles and rules of government, and providing for the organization thereof by the election of the necessary officers.14

Thus, if one of these conventions is to be cited as a precedent in opposition to convention sovereignty, the rest of them might just as well be cited in support of this doctrine; the objection being merely to the weight, rather than to the admissibility of the evidence.

[3. Convention sovereignty according to members.]

The doctrine of convention sovereignty has been often propounded, particularly by members of conventions. The following statements of this doctrine may prove instructive:

In the New York convention of 1821 a Mr. Livingstone (it does not appear whether Peter R. or Alexander) said:

We have been told by the honorable gentleman from Albany (Mr. Van Vechten) that we were not sent here to deprive any portion of the community of their vested rights. Sir, the people are here themselves. They are present by their delegates. No restriction limits our proceedings. What are these vested rights? Sir, we are standing upon the foundations of society. The elements of government are scattered around us. All rights are buried; and from the shoots that spring from their grave we are to weave a bower that shall overshadow and protect our liberties.15

The Hon. George M. Dallas, in a letter published in "The Pennsylvanian" of September 5, 1836, said:

A Convention is the provided machinery of peaceful revolution. It is the civilized substitute for intestine war. ... When ours shall assemble, it will possess, within the territory of Pennsylvania, every attribute of absolute sovereignty, except such as may have been yielded and are embodied in the Constitution of the United States. What may it not do? It may reorganize our entire system of social existence, terminating and proscribing what is deemed injurious, and establishing what is preferred. It might restore the institution of slavery among us; it might make our penal code as {132} bloody as that of Draco; it might withdraw the charters of the cities; it might supersede a standing judiciary by a scheme of occasional arbitration and umpirage; it might prohibit particular professions or trades; it might permanently suspend the privilege of the writ of habeas corpus, and take from us ... the trial by jury. These are fearful matters, of which intelligent and virtuous freemen can never be guilty, and I mention them merely as illustrations of the inherent and almost boundless power of a Convention.16

So, in the Illinois convention of 1847, Onslow Peters said:

He had and would continue to vote against any and every proposition which would recognize any restriction of the powers of this Convention. We are... the sovereignty of the State. We are what the people of the State would be, if they were congregated here in one mass meeting. We are what Louis XIV said he was, 'We are the State.' We can trample the Constitution under our feet as waste paper, and no one can call us to account save the people.17

The Committee on Printing of the Illinois convention of 1862 said, in one of their reports:

When the people, therefore, have elected delegates, ... and they have assembled and organized, then a peaceable revolution of the State government, so far as the same may be effected by amendments of the Constitution, has been entered upon, limited only by the Federal Constitution. All power incident to the great object of the Convention belongs to it. It is a virtual assemblage of the people of the State, sovereign within its boundaries, as to all matters connected with the happiness, prosperity and freedom of the citizens, and supreme in the exercise of all power necessary to the establishment of a free constitutional government, except as restrained by the Constitution of the United States.18

In a speech in the same body, General Singleton said:

Sir, that this Convention of the people is sovereign, possessed of sovereign power, is as true as any proposition can be. If the State is sovereign the Convention is sovereign. If this Convention here does not represent the power of the people, where can you find its representative? If sovereign power does not reside in this body, there is no such thing as sovereignty.19

The Pennsylvania convention of 1873 replied to the decision of the Supreme Court in Wells v. Bain, which appeared to the {133} convention to be an assertion of legislative supremacy, by passing a resolution in which they declared that the convention, subject to the Constitution of the United States, is answerable only to the people from whom it derives its power.20

It may be because of this resolution that the Supreme Court of Pennsylvania in the later case of Wood's Appeal shifted its ground from an assertion of legislative supremacy to an assertion of popular supremacy.21

Benjamin F. Butler asserted in the Massachusetts convention of 1853:

We are told that we assume the power, and that we are merely the agents and attorneys, of the people. Sir, we are the delegates of the people, chosen to act in their stead. We have the same power and the same right, within the scope of the business assigned to us, that they would have, were they all convened in this hall.22

Dodd points out that the doctrine of convention sovereignty has attained the dignity of being embodied in dicta by the highest courts of several States.23 Thus the Supreme Court of Texas has said:

So in case of a peaceful change of government by the people assembled in convention for the purpose of forming a constitution. ... It would be in the power of such convention to take away or destroy individual rights, but such an intention would never be presumed.24

So also the Supreme Court of Mississippi:

We have spoken of the constitutional convention as a sovereign body, and that characterization perfectly defines the correct view, in our opinion, of the real nature of that august assembly. It is the highest legislative body known to freemen in a representative government. It is supreme in its sphere. It wields the powers of sovereignty, specially delegated to it for the purpose and occasion by the whole electoral body, for the good of the whole commonwealth. The sole limitation upon its power is, that no change in the form of government shall be done or attempted. The spirit of {134} republicanism must breathe through every part of the frame-work, but the particular fashioning of the parts of this frame-work is confined to the wisdom, the faithfulness and the patriotism of the great convocation representing the people in their sovereignty.25

And the Supreme Court of Michigan:

The convention is an independent and sovereign body.26

Jameson sums up the history of this doctrine as follows:

The records of our conventions reveal no trace of it earlier than the New York convention of 1821, from which an extract has been given. In 1829 it again made its appearance in the Virginia convention but obscurely and hesitatingly. ... The next appearance was in the letter of Mr. Dallas, from which an extract has been given above, and in the convention held in Pennsylvania in the following year, — the latter the fruit of the seed sown by that gentleman. ... Ten years afterwards, this theory was enunciated, in the terms we have seen above, by Mr. Peters, in the Illinois Convention of 1847. In 1849, it made its appearance in the Kentucky Convention, and four years later, in that of Massachusetts, under the patronage of Messrs. Hallett and Butler. In 1860-1861, it produced its legitimate fruits in the so-called secession of the eleven slaveholding States from the Union, a movement matured and consummated by its aid; and finally, in 1862, its echo was heard in the free State of Illinois, some members of whose Convention unwisely seized upon a time of national peril to endorse a disorganizing dogma, in the general adoption of which at the South that peril had originated.27

Jameson also lays the spontaneous conventions of Maryland in 1837, and Rhode Island in 1841 to this dogma, as he calls it.28 It is probable, however, that he is unduly exercised. Dodd says in this connection:

Judge Jameson's work may be said to have been written to disprove the theory that a convention has sovereign power, and under these conditions the theory assumed in his mind a much more important position than it ever attained in fact. The theory of conventional sovereignty was advanced by speakers before several conventions, beginning with that of New York in 1821, but no {135} convention seems ever to have attempted to act upon the theory or even to have endorsed it. The report made to the Illinois convention of 1862 and the resolutions adopted by the Pennsylvania convention of 1873 went little if any further than to assert the convention's independence of the legislative and other organs of the existing state government.29

The full quotation from Gen. Butler, even as given by Jameson shows that Butler was not advocating convention sovereignty, for Butler said, " In my judgment, we have every incidental power necessary to do the business of the people."30 Incidental and emergency powers, and independence of the legislature are all that has ever been seriously claimed in the line of convention sovereignty; but Braxton and Jameson construct men of straw out of the oratorical utterances of convention members, and then proceed valiantly to knock these straw-men down.

[4. Arguments against convention sovereignty.]

Nevertheless, lest some one might seriously raise the claim of convention sovereignty, beyond mere incidental powers and freedom from legislative control, it may be well to select the following line of argument in opposition:

We are told they were elected by the people. This, however, is not enough. For what purpose were they elected by the people? To represent their sovereignty. But was it to represent their sovereignty to every purpose, or was it for some specific purpose? To this no other answer can be given than the act of the legislature under which the convention was assembled. Certainly, the people may, if they will, elect delegates for a particular purpose, without conferring on them all their authority. To deny this, would be to detract from the power of the people, and to impose on them a most inconvenient and dangerous disability.31

No doubt there might be a convention unlimited in its powers, and representing all the authority of the people. But when they are about to confer this high authority, certainly they ought to be aware that they are doing so.32

If, by a mere determination of the people to call a convention, whether it be by a vote or otherwise, the entire sovereignty of the people passes ipso facto into a body of deputies or attorneys, so {136} that these deputies can without ratification, alter a government and abolish its bill of rights at pleasure, and impose at will a new government upon the people without restraint upon the governing power, no true liberty remains. Then the servants sit above their masters by the merest imputation, and a people's welfare must always rest upon the transient circumstances of the hour, which produce the convention and the accidental character of the majority which controls it.33

The present inquiry is not how much power may be conferred by law, but what power was conferred on this convention?34

In the appointment of delegates to that convention, the people acted upon the faith that they were to be charged with those duties and no others, and the assumption of any other powers than those necessary to the attainment of the objects in view, would have been a violation of the trust reposed in them, and an usurpation of the rights of the people.35

It will not do to assert that the whole original power of the people was conferred by the election. ... The law was the warrant of their election, and expressed the very terms chosen and adopted by the people, under which they delegated their power to these agents. The delegates possess no inherent power, and when convened by the law at the time and place fixed in it, sit and act under it, as their letter of attorney from the people themselves, and can know and discover the will of the people only so far as they can discern it through this the only warrant they have ever received to act for the people. If they claim through any other source, they must be able to point to it.36

Can it be supposed that the good people of this State thought that in the appointment of delegates to that convention, they were conferring on them the authority to transfer their allegiance to the grand Turk, or the Emperor of Russia, or to indulge in any other caprice they might think proper?37

Did the people by this act, without an expressed intent, and by mere inference, intend to abdicate all their own power, their rights, their interests, and their duty to each other in favor of a body of mere agents, and to confer upon them, by a blank warrant, the absolute power to dictate their institutions, and to determine {137} finally upon all their most cherished interests? If the argument be admitted for an instant that because nothing was said in this law on the subject of delegation, therefore, greater powers were conferred than were granted in the subsequent Act of 1872, then all power belonging to the people passed, and they did grant by it the enormous power stated. Then, by a covert intent, hidden in the folds of this act, the people delegated power to repeal all laws, abolish all institutions, and drive from place the legislature, the governor, the judges, and every officer of the Commonwealth, without submitting the work of the delegates to the ratification of the people.38

In considering this question of delegated power some are apt to forget that the people are already under a constitution and an existing frame of government instituted by themselves, which stand as barriers to the exercise of the original powers of the people, unless in an authorized form.39

[5. Existing government continues until new constitution adopted.]

The regular Government continues in full force, de jure as well as de facto, uninterrupted and unaffected, even in theory, by the existing Constitutional Convention, until a new Constitution is actually and legally adopted.

A Constitutional Convention is not the People, with sovereign and unlimited powers, but a mere Committee of the People, with only such limited powers as the People may expressly bestow upon them, the granting of which powers will be strictly construed against the Convention.40

Three and a half or four millions of people cannot assemble themselves together in their primary capacity — they can act only through constituted agencies. No one is entitled to represent them unless he can show their warrant — how and when he was constituted their agent.41

Upon the common-place principle that the authority of the agent is limited by the powers conferred on him by the principal, the powers of the delegates were limited to the objects designated by the act under which the convention was called.42

Beyond a general purpose of revising the constitution, the authority of the delegates is not set forth. They are not endowed with {138} the entire sovereignty of the state. Their agency, like every branch of the public service, is marked on all sides by fixed bounds.43

Let us examine in detail the few instances in which conventions have assumed to interfere with the other branches of the government. This interference is, of course, illegal if we hold to the theory that the convention is a fourth branch of the government, and that the four branches of government are shut up in separate compartments.44

[6. Interference by conventions with the executive department.]

First let us consider attempts by conventions to interfere with the executive department. Jameson says:

That body cannot remove from office, or instruct those holding office, by any direct proceeding, as by resolution or vote applying to particular cases. It is its business to frame a written Constitution; at most, to enact one. It has no power, under such a commission, to discharge the public servants, except so far as their discharge might result from the performance of its acknowledged duty.45

Jameson divides convention interference with the executive into three questions as follows:

1. Can a Convention appoint officers to fill vacancies in the various governmental departments?

2. Can it eject from office persons holding positions in the government by regular election or appointment?

3. Can it direct such officers in the discharge of their duties?46

The Missouri convention of 1865, called by the legislature, but elected by the people, prepared various amendments which were submitted to the people and adopted; and in addition it adopted and put into operation, without submission to the people, an ordinance abolishing slavery in the State, and an ordinance vacating certain judicial and executive offices and authorizing the Governor to fill the vacancies. The convention had only been authorized to amend the constitution.47 It is clear that the convention itself did not regard these acts as an amendment of the constitution, for it submitted all the true amendments to the people.

The convention of 1861 in the same State had removed {139} various executive and legislative officers and had repealed certain acts of the legislature. It also had passed considerable legislation for the government of the State.48 Jameson comments as follows:

All these acts were clearly usurpations of authority properly belonging to other departments of the State government. That that government was in treasonable hands might justify the Convention, on moral grounds, in seizing, by revolutionary force, powers not its own, but could not alter the legal character of its acts. In 1865, the same necessity perhaps existed, and, if so, mighty justify acts clearly of the same general character, legally considered, as those of its predecessor of 1861. But, as I have said, upon this question I pass no opinion. If the acts characterized as revolutionary were strictly necessary, it was not the first time in history that a party, having morally and politically the better case, had legally the worst of the argument.49

These Missouri cases are the only examples of attempted usurpation of executive powers cited by Jameson, up to 1887. No further examples are cited by Braxton up to 1901, or by Dodd up to 1910, and the author knows of none since then. Like the conventions of the Revolutionary War, these conventions possessed the justification of extreme necessity and hence are really not precedents.

The conflicts with the judiciary, except as aforesaid, have all been cases of interference by, rather than interference with, the courts.

[7. Interference by conventions with the legislative department.]

Jameson introduces the subject of interference with the legislature by the following summing up of what has gone before.

With the Executive and Judiciary of a State, a Convention has, in the ordinary and normal operation of its government, no direct relations. Neither of these departments has any thing to do with calling it together, except in perhaps rare cases, in which some specific and extraordinary duty has been prescribed to it by the legislature; and neither of them, while a Convention is in session, has any occasion to come in contact with it. The only cases in which either of those departments could be brought into direct relations with that body, would be where the latter should attempt to direct it in the discharge of its constitutional duties, — a case which has already been considered, — or in which one of the {140} former should attempt to revolve outside its proper orbit, and thus bring about collisions with the latter. Inasmuch, however, as neither of the three could with any show of right do any act which should result in such a collision, except when acting in assumed conformity to some law, giving to usurpation an apparent legality, no questions could arise between them as to their respective powers, which would not resolve themselves into questions as to the relative powers of Conventions and legislatures, the only law-making bodies, save the electors, which have been already considered, known to our Constitutions. I shall therefore spend no time in considering the relations of those two departments to Conventions, but pass to those which the latter bear to legislatures, and the powers resulting therefrom, which belong to each of those bodies.50

Dodd's collection of examples of legislation by conventions51 is rather misleading, as he frequently refers to ordinances which are clearly within the constitutional powers of the convention, as being ordinances of a legislative character. It is necessary to analyze each of the bits of alleged legislation passed by conventions, in order to determine whether it be of a strict legislative nature, or merely incidental to the proper duties of the convention.

[8. Instances of pure legislation.]

Instances of pure legislation have been as follows. The South Carolina convention of 1895 established a new county, paid interest on the public debt, put the counties on a cash basis, and passed three statutes validating the subscriptions for stock in several railroads.52 In fact, this convention got so carried away with the idea of legislating, that one of the members moved "that there shall be no session of the legislature this year, but the convention shall do its work in its place."53

The Mississippi convention of 1890 enacted a general election law, established a commission to collect information for the next legislature on a certain subject, created the office of land commissioner, validated the titles to certain land which had been homesteaded, issued bonds to construct levees, and exempted factories from taxation.54

{141} The Louisiana convention of 1898 authorized the mobilization of state troops.55

We have already referred to the action of the Missouri convention of 1865 in removing certain of the State officers and providing for the filling of vacancies. This convention also adopted and put into operation, without submission to the people, an ordinance abolishing slavery in Missouri.56

The Supreme Court of Alabama sustained the power of the convention of 1865 to act as a provisional legislature.57 This Supreme Court at first took the same view with reference to the convention of 1867-1868, but later held that this convention did not have legislative power.58

The South Carolina convention of 1868 annulled certain earlier legislative acts under which contract rights had been acquired.59 The Supreme Court of South Carolina declared this ordinance void as imparing the obligation of contracts, but delivered the following dictum:

It is not easy to define the powers which a convention of people may rightfully exercise. It has been doubted whether any act of mere legislation in a state having a constitution can be passed by a convention called for a particular and different purpose. The body is not constituted with two houses, and in other respects lacks the organization necessary for ordinary legislation. The convention of 1868 was not called for a purpose fairly embracing the subject of this ordinance, which was never submitted to the people.60

The Alabama, convention of 1901 provided by ordinance that a term of court should be held at Pell City.61 The Supreme Court held this ordinance void because not submitted to the people.62

The territorial convention of Oklahoma provided in its constitution for dividing Woods County into three counties. It also passed an ordinance to carry this provision into effect and tried to enforce the ordinance before the adoption of the {142} constitution by the people.63 The Supreme Court of the territory held:

The convention has no power to enact laws; it possesses no legislative powers except such as may be necessary to exercise in prescribing by ordinance the methods and procedure for obtaining the expression of the electors upon the ratification of the proposed constitution, and for the election of the officers provided for in the constitution.64

But the court found that this particular ordinance was within the implied powers of the convention. Compare:

The passage of an ordinance, then, to raise revenue was an assumption of power by the convention, that was never ratified by the people of the state.65

[9. Including or referring to legislation in the constitution.]

Some conventions seek to validate their purely legislative ordinances by including in the constitution which they prepare, a provision to the effect that all ordinances passed by the convention shall have the same force as though included in the constitution. This was the case in the South Carolina convention of 1895, which passed a large number of purely legislative ordinances, as well as several ordinances relating to the duties of the convention.66

The Mississippi constitution of 1890 declared void all laws repugnant to the ordinances of the convention, thus giving these ordinances validity.67

The Louisiana constitution of 1898 expressly ratified the ordinances providing tor loans for the mobilization of troops and for the expenses of the convention.68

Of course, a simple procedure for a convention which wishes to legislate would be actually to include the legislation in the constitution. That has frequently been done with unquestioned success; in fact many of our State constitutions to-day consist for the most part of legislative details which ought to have been left to the ordinary legislature.

{143} For example:

The constitution of Oklahoma contains eleven pages of legislation relating to the subject of corporations alone, besides much more ordinary legislative matter relating to homesteads and exemptions, banks and banking, insurance, the employment of children, and education. It forbids plural marriages, fixes the maximum rate of interest, abolishes the so-called fellow-servant doctrine and regulates the use of the contributory-negligence and assumption-of-risk doctrines as defenses in certain suits for damages, establishes the eight-hour day on public works and in coal mines, and determines the test for the purity of kerosene oil. The convention also provided for the separate submission to the electorate of a proposal to prohibit the sale of intoxicating liquors. The acts of the Oklahoma convention of 1907 are merely the most striking evidence of the growing tendency throughout the states, especially in the South and West, to transform the constitutional convention into an ordinary legislative body.69

Such provisions are so numerous that they need no mention. Dodd says:

The constitutional convention is a legislative body, although with limited functions, and it is within the sole determination of the convention as to what provisions shall be inserted into a new constitution. A constitutional convention may not properly enact a law or ordinance abolishing the fellow-servant rule, but it may insert into the new constitution a provision accomplishing the same purpose. By the insertion into new constitutions of matters really not fundamental in character constitutional conventions have come to exercise great powers of legislation.70

The Supreme Court of Texas said with regard to an ordinance of the territorial convention of 1868:

It is true that the question of the propriety of incorporating any specific provision into the fundamental law was for the sole determination of the convention. But we are of opinion that when a convention is called to frame a constitution which is to be submitted to a popular vote for adoption, it cannot pass ordinances and give them validity without submitting them to the people for ratification as a part of the constitution. ... The ordinance of the convention in question, which divided the state {144} into congressional districts, and that which provided for a submission of the proposed constitution to a vote of the people, are appended to the constitution as framed and the whole are signed by the president and members as one instrument.71

But this subterfuge of including legislation in the constitution has not always gone unchallenged. Thus the Supreme Court of Florida struck out of the constitution of 1865 a purely legislative provision, repealing the statute of limitations.72 That constitution, however; had been promulgated without being submitted to the people for ratification.73

[10. Conventions may submit legislation to approval by the people.]

Conventions which wish to legislate, however, do not always find it necessary to include or refer to their legislation in their constitution. Dodd says:

Not only may a convention legislate by inserting provisions into a new constitution, but it may also do so by the submission to the people of separate clauses or ordinances to be voted upon either as a part of the constitution or separately from it — that is, it may exercise ordinance power if the ordinances are submitted to the people with or at the same time as the proposed constitution.74

Most of the court decisions which have declared the convention ordinances to be invalid have proceeded, not on the ground that the convention had no power to frame these ordinances, but rather on the ground that they ought to have been submitted to the people for approval. See the following quotations:

The ordinance now under consideration was not submitted to a vote, though two others, which were added, incorporated into and signed as a part of the constitution, were so submitted. Since the convention could not finally legislate, and since a vote of the people was necessary to make its action effective, we conclude that the ordinance in question was invalid, and not effective for any purpose.75

It is not easy to define the powers which a convention of the people may rightfully exercise. It has been doubted whether any act of mere legislation in a state having a constitution can be {145} passed by a convention called for a particular and different purpose. The body is not constituted with two houses, and in other respects lacks the organization necessary for ordinary legislation. The convention of 1868 was not called for a purpose fairly embracing the subject of this ordinance, which was never submitted to the people.76

The ordinance in question pertains in no way to an amendment or revision of the constitution, and it was beyond the power of the convention to pass this ordinance, or it could not become binding or of legal force without having been submitted to and ratified by the people.77

It is contended that, if the adoption of the ordinance was beyond the authority of the convention, it is nevertheless valid and binding, because the constitution was submitted to and was ratified by the people. The authorities are almost uniform that the ratification of an unauthorized act by the people (and the people are the principal in this instance) renders the act valid and binding.78

The Supreme Court of Texas, however, has doubted the validity of ordinances submitted to the people separately from the constitution,79 but this case would seem to have gone on the question of separate submission of constitutional provisions, rather than on the question of the legislative power of the convention.

[11. When popular approval of legislation not required.]

But what is the status of such separate legislation in cases where the submission of the constitution to the people is not required, either by the existing constitution or by a convention act ratified and adopted by the people. In such cases it is quite probable that the convention may successfully promulgate ordinances of a purely legislative character. The Supreme Court of Texas has said:

The convention which passed the ordinance which was held valid in Grigsby v. Peak was called by virtue of the proclamation of President Johnson. This proclamation did not require any part of the work of the convention to be submitted to the vote of {146} the people, and in our opinion therefore had the power to pass ordinances without submitting them for adoption to a popular vote.80

Dodd says:

In states where conventions may promulgate their work without popular approval, although their invasion of the purely legislative field may be deprecated, there seems to be nothing to prevent such action except the self-restraint and common sense of the convention itself. The same forces which practically compel conventions to submit their work to the people, in most of the states where they are not required by constitutional provisions to do this, will also keep them pretty definitely within their proper sphere, even where the courts may decline to interfere.81

But, as has already been pointed out, most of the ordinances of so-called legislative character turn out on inspection to be properly incidental to the work of the convention. Among instances of incidental legislation have been the following.

The Missouri convention of 1865 passed an ordinance providing for the method of submitting the new constitution to the voters. The Supreme Court of that State, in a prosecution for violating the oath required of each voter under that ordinance, held that the enactment of the ordinance was within the necessary incidental powers of a convention, and a fortiori since this convention was not required to submit its work to the people. The court said:

The convention might (if it had deemed proper to do so) have declared the constitution framed by it in full force and effect without making provision for its submission to the voters of the State.

As the representatives of the people, clothed with an authority as ample as that, certainly its power to prescribe the means by which it was thought best to ascertain the sense of the qualified voters of the State upon that instrument cannot be seriously questioned.82

Whenever the convention act or the constitution omit to prescribe the detailed manner of submission or of the internal government of the convention, the conventions themselves have {147} always covered the matter by ordinances or rules, and such ordinances or rules have rarely been questioned. Conventions also frequently pass acts to put the new constitution into effect. Most of the ordinances of the South Carolina convention of 1895, the Mississippi convention of 1890, the Louisiana convention of 1898, and the Missouri convention of 1865, cited by Dodd as "ordinances of a purely legislative character"83 turn out upon examination to be really incidental to the powers of the convention.

Thus we see that conventions, unless expressly called for some further purpose, are bound to the framing of a constitution and the passage of necessary rules and ordinances incidental thereto. They have no power to legislate or to interfere with members of the other two branches of government.

The powers of legislation permitted to a convention are apparently limited to preliminary, temporary, and provisional measures.84

[12. Performance by conventions of functions assigned to legislature.]

A related question to the legislative powers of a convention is the question of its power to perform the functions assigned to the State legislature. Whatever may be said in theory in opposition to this assumption of power,85 the fact remains that it has been actually exercised.

The Illinois convention of 1862 divided the State into congressional districts, under United States Constitution, Article I, Section IV, which assigns that duty to the State legislatures.86 This has also been uniformly done by conventions in territories seeking admission to the Union, and has been done by some reconstruction conventions.87 Such redistrictings, including the Illinois case, have uniformly been accepted by Congress.

The same Illinois convention of 1862 ratified the pro-slavery amendment to the Federal Constitution, under United States Constitution, Article V, which assigns that duty to the State legislatures.88 The validity of this action, however, was never determined, as not enough other States ever ratified this amendment.

Can conventions increase their own powers? This question is sometimes stated in the form: has a convention the power to amend the convention act which calls it into being? This is {148}really the converse of the question of the powers of the legislature and the people to restrict the convention. Any violation of valid restrictions may of course be ratified by the acceptance of the constitution or a ratifying ordinance by the people.

[13. Complete interference with other branches more likely to succeed than partial.]

Complete interference with the various branches of the government may perhaps be more successful than partial interference. If the old government is completely overthrown, there will be left no one in authority who can question the rights of the convention. Allusion has been made several times in this book to the statement by the Supreme Court of the United States that a court has no power to hold invalid the constitution under which it sits.89

The Rhode Island Supreme Court, to whom the Federal Court was referring in that quotation, went further and intimated that if the question had been before a court established by the rival government, that court would have had to decide exactly the opposite from this court.90

And as has already been intimated, the executive officers having charge of money matters under the new government (or under the old government, if they were in sympathy with the new) could effectually put the new government into power by means of this control.91

Thus it appears that if a convention decides to exceed its proper functions and attempt to exercise convention sovereignty, it had better be as sovereign as possible. Extremes of moderation and immoderation are thus seen to meet, in success.


1. VII "Va. Law Reg.," 79.

2. Dodd, p. vi.

3. VII "Va. Law Reg.," 79, 97, n. 2.

4. See [Ch. I 2] p. 3, supra.

5. Wood's Appeal (1874), 75 Pa. 59, 70.

6. Ex parte Birmingham Ry. (1905), 145 Ala. 514, 532.

7. Ellingham v. Dye (1912), 178 Ind. 336, 379.

8. Braxton, VII "Va. Law Reg.," 79, 83.

9. Dodd, p. 105, n. 55.

10. Dodd, pp. 106-107.

11. Dodd, p. 107.

12. I "Cyc. American Government," 430-431.

13. Dodd, p. 107, n. 59.

14. Bradford v. Shine (1871), 13 Fla. 393, 412-413.

15. Jameson, p. 303.

16. Jameson, pp. 303-304.

17. Jameson, p. 304.

18. Jameson, p. 304.

19. Jameson, p. 304.

20. Jameson, p. 410.

21. See [Ch. IX 3] pp. 109-110, supra.

22. Deb Mass. Conv. 1853, Vol. I, p. 78. And cf. Deb. Ky. Conv. 1849, p. 863; Deb. Ala. Conv. 1861, p. 114; Deb. Va. Conv. 1901, Vol. I, pp. 63, 77, 83; Vol. II, p. 3132; Amasa M. Eaton in XIII "Harv. Law Rev.," 284.

23. Dodd, p. 78, n. 10.

24. McMullen v. Hodge (1849), 5 Tex. 34, 73.

25. Sproule v. Fredericks (1892), 69 Miss. 898, 904.

26. Carton v. Secy. of State (1908), 151 Mich. 337, 340-341.

27. Jameson, pp. 307-308.

28. Jameson, p. 309.

29. Dodd, pp. 77-78, n. 10.

30. Deb. Mass. Conv. 1853, Vol. I, p. 78; Jameson, p. 334.

31. McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 270-271.

32. McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 271-272.

33. Wood's Appeal (1874), 75 Pa. 59, 70.

34. Wells v. Bain (1872), 75 Pa. 39, 50.

35. McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 242.

36. Wells v. Bain (1872), 75 Pa. 39, 48.

37. McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 242.

38. Wells v. Bain (1872), 75 Pa. 39, 50-51.

39. Wells v. Bain (1872), 75 Pa. 39, 53.

40. Braxton, VII "Va. Law Reg.," 79, 96.

41. Wells v. Bain (1872), 75 Pa. 39, 53.

42. McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 242.

43. Opinion of Justices (1889), 76 N. H. 612, 617.

44. See [Ch. VII 1] pp. 89-91, supra.

45. Jameson, p. 321.

46. Jameson, p. 320.

47. Jameson, pp. 322-324.

48. Jameson, p. 325.

49. Jameson, p. 325.

50. Jameson, pp. 355-356.

51. Dodd, p. 108.

52. Thorpe, Vol. VI, pp. 3345-3354.

53. Amasa M. Eaton in XXXI "Am. Law Rev.," 198, 210.

54. IV Thorpe, 2129-2137.

55. Thorpe, Vol. III, p. 1596.

56. Jameson, p. 322.

57. Cases cited in Dodd, p. 110, n. 66.

58. Plowman v. Thornton (1875), 52 Ala. 559, 569.

59. Dodd, p. 112.

60. Gibbes v. Railroad (1879), 13 S. C. 228, 242.

61. Dodd, pp. 113-114.

62. Ex parte Birmingham Ry. (1905), 145 Ala. 514, 519.

63. Dodd, pp. 114-115.

64. Franz v. Autry (1907), 18 Okla. 561, 631.

65. Bragg v. Tufts (1887), 49 Ark. 554, 561.

66. Art. XVII, 11.

67. 275.

68. Art. 326.

69. Holcombe, State Government, p. 126.

70. Dodd, p. 116. Cf. Schertz v. Bank (1892), 47 Ill. App 124, 133.

71. Quinlan v. Houston Ry. Co. (1896), 89 Tex. 356, 376.

72. Bradford v. Shine (1871), 13 Fla. 393, 411-415.

73. Thorpe, Vol. II, p. 685, n. a.

74. Dodd, p. 116.

75. Quinlan v. Houston Ry. Co. (1896), 89 Tex. 356, 377.

76. Gibbes v. Railroad (1879), 13 S. C. 228, 242.

77. Ex parte Birmingham Ry. (1905), 145 Ala. 514, 516.

78. Ex parte Birmingham Ry. (1905), 145 Ala. 514, 528; and cf. same case, p. 530.

79. Quinlan v. Houston Ry. Co. (1896), 89 Tex. 356, 376; quoted pp. 143-144, supra.

80. Quinlan v. Houston Ry. Co. (1896), 89 Tex. 376, 377; Grigsby v. Peak (1882), 57 Tex. 142.

81. Dodd, p. 117.

82. State v. Neal (1868), 42 Mo. 119, 123.

83. Dodd, p. 108.

84. 6 R. C. L., 18, pp. 27-28.

85. Jameson, pp. 448-452.

86. Jameson, pp. 446-447.

87. Jameson, p. 449.

88. Jameson, p. 450.

89. See [Ch. VIII 4] pp. 101 and 102, supra; and [Ch. XII 4] 158, infra.

90. "Trial of Dorr," p. 38. Quoted on [Ch. XII 4] p. 157, infra.

91. See [Ch. VII 3] p. 93, supra.


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