[§1. Five ways legislature may interfere with convention.]

{105} THE question of legislative control of the convention was the main consideration which induced Judge Jameson to write his book.

Dodd says:

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.1

Under Judge Jameson's theory a constitutional convention called by a vote of the people may be restricted by simple legislative act so that it may not revise or propose the revision of any part of the existing constitution which the legislature may forbid it to touch. The convention is made subordinate to an organ of the existing government. Judge Jameson proceeded on the assumption that a constitutional convention must possess sovereign power — that is, all of the power of the state — or that it must be strictly subordinate to the regular legislature. He could conceive of no middle ground between these extremes. In attempting to demolish the theory that the convention is sovereign, he went to the other extreme and really made the legislature the supreme body with respect to the alteration of state constitutions, for under his view a convention may be restrained by a legislature as to what shall be placed in the constitution, and no alteration can be made without legislative consent.2

Legislative interference with a convention may take place in any of five ways, namely (1) by inserting restrictions in the original convention act; (2) by amending that act; (3) by inaction; (4) by withholding support; or (5) by governmental {106} recognition. These five methods will first be analyzed and then discussed in order. The question of the power of the legislature to control the convention by means of the original convention act depends largely on the question of whether the legislature passes that act at all, which has already been considered in Chapter V. If it be found that the voters enacted any given convention act, the question will then take the form: Can the electorate control the convention? The question in this form will be considered in Chapter X.

The power of the legislature to control the convention by means of an amendment to the original convention act depends largely upon whether the legislature has any right to amend the act. This was considered in the preceding chapter. The questions of legislative inaction and of legislative recognition of a new constitution require no analysis.

[§2. By original act or amendment thereto.]

Let us, then, first consider the general power of the legislature to control the convention by means either of the original act or of an amendment (otherwise lawful) thereto. Jameson built up his book around the doctrine of legislative supremacy, because he could not conceive of conventions and legislatures being coordinate. The antithesis of the doctrine of legislative supremacy is the doctrine of convention sovereignty, which will be discussed in a later chapter.3 The reverse of the theory that the legislature has power to control the convention is the theory that the convention has extraordinary power to enact ordinary legislation. This is a phase of the doctrine of convention sovereignty. The question of whether the legislature has power to require oaths by the convention delegates and submission of the new constitution to the people will be discussed in the chapters on those subjects.4

Has the legislature the power to restrict the convention in advance? Under a number of the present State constitutions, it may be definitely said that a legislature cannot bind a convention in any way. In New York and Michigan, conventions, when authorized by a vote of the people, assemble without any legislative action; for in these States constitutional provisions have been adopted for the express purpose of making conventions entirely independent of legislative control; and there any effort by the legislature to control the convention's {107} action would clearly be a violation of the constitution.5 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 of submitting to the people the question as to whether a convention shall be held.6 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.7

By necessary implication, the legislature is prohibited from any control over the method of revising the Constitution. The convention is an independent and sovereign body whose sole power and duty are to prepare and submit to the people a revision of the Constitution, or a new Constitution to take the place of the old one. It is elected by the people, answerable to the people, and its work must be submitted to the people through their electors for approval or disapproval.8

The Alabama constitution of 1901 expressly confers full power upon a convention to act in the drafting of a new constitution, thereby excluding the possibility of legislative interference.9

The process of amendment of State constitutions in the legislative manner is absolutely under the control of the State legislatures, except in the States which have adopted the popular initiative. Under this procedure no action may be taken except upon the initiative of the legislature, this method of altering constitutions thus being absolutely subject to legislative control.

The calling of constitutional conventions is also to a large extent subject to legislative control, but the convention method of altering constitutions is considerably more independent of the regular legislature, unless Judge Jameson's theory be adopted. The convention loses a large part of its usefulness as an organ of the State if it be treated as strictly subject to control by the legislature.10

{108} This view was well expressed by the Judiciary Committee of the New York convention of 1894:

It is of the greatest importance that a body chosen by the people of this State to revise the organic law of the State, should be as free from interference from the several departments of government as the legislative, executive and judiciary are, from interference by each other. Unless this were so, the will of the people might easily be nullified by the existing judiciary or legislature.11

Thus the weight of authority, at least with respect to conventions authorized by the constitution, is that the legislature cannot, or at least ought not to be permitted to, restrict the convention in advance.

[§3. Cases in which the legislature did succeed in restricting the convention.]

Let us, however, discuss a few actual cases in which the legislature did succeed in restricting the convention. One common method of attempted restriction has been for the legislature to provide that no delegate should be permitted to take his seat in the convention until he should have taken an oath to proceed in a certain manner. This course was pursued with respect to the North Carolina conventions of 1835 and 1875, the Georgia convention of 1833, the Illinois conventions of 1862 and 1869, and the Louisiana convention of 1898. The last-named convention expressly recognized the restrictions as binding upon it.12

The Georgia convention also took the oath required. The North Carolina conventions objected to the oath, but nevertheless took it and observed the restrictions.13 The two Illinois conventions took the oath in a very modified form. Several of these cases lose their value as precedents in this connection, however; for the convention act was submitted to and approved by the people, and hence the restrictions may be said to have been placed on the convention by the people and not by the legislature.14

Dodd says:

It would seem that these conventions might, had they thought proper, have declined to take the oaths, and have organized and {109} proceeded to act without doing so, just as was done by the Illinois convention of 1862.15

In the first of the two Pennsylvania cases arising out of the convention of 1872, the Supreme Court issued an injunction restraining the convention from submitting its constitution to a popular vote in a manner different from that prescribed by the legislature.16

The Pennsylvania constitution of 1838 contained no provision with reference to the calling of a convention, but the legislature of 1872 provided for the assembling of a convention, after having first submitted to the people the question as to whether or not a convention was desired. The act of 1872, under which the convention assembled, provided that the constitution which it framed should be voted upon at an election held in the same manner as general elections. ... The convention disregarded the legislative act by providing machinery of its own for the submission of the constitution in Philadelphia, and appointed election commissioners for this special purpose. . . . An injunction was granted restraining the commissioners appointed by the convention from holding the election in Philadelphia. The court ... declared that the submission of the constitution in a manner different from that provided by law was clearly illegal. The court said that the convention had no power except that conferred by legislative act, and that any violation of such act or any action in excess thereof would be restrained.

If the calling of a convention is thus assumed to be an exercise of regular legislative power, may it not be plausibly argued that the convention, when called, is absolutely subject to the conditions of the legislative act? This is, to a large extent, the argument of Wells v. Bain.17

But this decision loses weight in this connection from the fact that the court expressly held the convention act to be the creature of the people and not of the legislature.

Jameson bases his theory of legislative supremacy largely upon the Pennsylvania decision just discussed. But in doing so he fails to notice that a later case in the same volume of Pennsylvania {110} reports holds squarely that the legislature cannot limit the convention, but that the people can and did in this instance.

Thus the first Pennsylvania case, interpreted in the light of the second, is clearly no authority at all for the doctrine of legislative supremacy. The exact language of the second Pennsylvania decision is as follows:

It is simply evasive to affirm that the legislature cannot limit the right of the people to alter or reform their government. Certainly it cannot. ... When the people act through a law, the act is theirs, and the fact that they used the legislature as their instrument to confer their powers makes them the superiors, and not the legislature.18

And compare the following:

The restrictions sought to be placed upon conventions by legislative acts have not in practice been recognized as of binding force, except in a few cases.19

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 these powers.20

Although there is some authority to the effect that the people, in voting to permit the legislature to call a convention, thereby constitute the legislators their agents to restrict the convention,21 yet Dodd is strongly of the opinion that, on the contrary, the popular vote should be interpreted as calling for an unrestricted convention.22

Jameson cites a large number of minor instances in which conventions adhered to the terms of the convention act,23 but in at least half of these the act had been submitted to the people, and in the rest these restrictions were apparently satisfactory to the convention, as it accepted them without protest.

{111} The instances of successful restraint of territorial conventions by Congress, cited by him,24 are not in point, for Congress is an outside sovereign, not at all comparable to the legislature of the territory itself.

[§4. Cases in which the legislature failed in restricting the convention.]

Thus there is a marked scarcity of instances in which the legislature has succeeded in restricting the convention. In the following instances the legislature failed to impose these restrictions successfully.

The second Pennsylvania case turned, among other things, on the point that the convention act had imposed the restriction that the convention should not alter the Bill of Rights. The convention altered the Bill of Rights, and this was held not to invalidate the new constitution.25 If we follow Jameson in treating this as a legislative restriction, we have here an example of a successful disregard of a restriction, and of the judicial sustaining of this disregard. The convention itself treated this as a legislative restriction, and altered the Bill of Rights, not because they thought it needed altering, but solely as a slap at the legislature.26 Treated, however, as a popular restriction, this decision will be discussed in the next chapter.

We have already seen that the Illinois conventions of 1862 and 1869 successfully disregarded the legislative requirements of an oath by the delegates.27

The Georgia convention of 1789, called for the sole purpose of accepting or rejecting a constitution which had been prepared by the convention of 1788, proposed certain alterations, which were laid before a third convention.28

The New York convention of 1867 sat beyond the time fixed by the legislature for the submission of its work to the people, and submitted its work at a later date.29 The Alabama convention of 1901 increased the pay of its delegates above the amount limited by the legislature.30

The statute calling the Michigan convention of 1908 provided that the constitution should be submitted to the people in April. The convention ordered its submission in November. The Secretary of State doubted the power of the convention {112} to fix a date other than that set by the legislature and refused to comply with the order of the convention; whereupon the officers of the convention obtained a mandamus from the Supreme Court and compelled submission at the date set by the convention.31 The reasons for the mandamus were varied, but two of the court, including the Chief Justice, said:

By necessary implication, the legislature is prohibited from any control over the method of revising the constitution. The convention is an independent and sovereign body. ... It is elected by the people, answerable to the people, and its work must be submitted to the people through their electors for approval or disapproval. ... The convention was the proper body to determine at what election it should be submitted unless that is fixed in the present constitution. ... I find no language in the constitution from which any implication can arise that this power was vested in the legislature.32

Even Judge Hooker in his dissenting opinion in that case said, "The convention has a sphere in which the legislature cannot intrude, a discretion that it cannot control."33

The Kentucky convention of 1890-1891 made in the constitution some changes which they did not submit to the people, although required to do so by the legislative act.34 The Virginia convention of 1901-1902 promulgated its entire constitution without a popular vote, although required by the convention act to submit the constitution to the people.35 In both of these cases, the changes were recognized by the existing government and acquiesced in by the people; and the courts refused to interfere.36 Similarly the Illinois convention of 1847 omitted to submit one of its amendments.37

The Alabama legislature, in its act providing for the convention of 1901, forbade the convention to do certain things and required that it incorporate certain provisions into the new constitution. The legislative restrictions were not {113} observed in full, and an effort was made to prevent future legislative interference with conventions by inserting into the constitution of 1901 the provision that "Nothing herein contained shall be construed as restricting the jurisdiction and power of the convention, when duly assembled in pursuance of this section, to establish such ordinances and to do and perform such things as to the convention may seem necessary or proper for the purpose of altering, revising or amending the existing constitution."38

The insertion of this provision was clearly intended as a rebuke to the legislature.

Dodd sums up the matter of legislative restrictions in the following words:

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. ... 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; eases 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. ... 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.39

Both the legislature and the convention are chosen by the people, and when it is remembered that abler men are usually chosen to conventions than to legislatures, it is perhaps clear that conventions are apt to be equally as competent to exercise the limited powers committed to them as are legislatures to instruct the conventions as to what they shall or shall not do. The convention is less apt to abuse its power in the drafting of a {114} constitution, than is the legislature in placing limitations upon the convention, if the legislature were assumed to have such power.40

[§5. Constitutional conventions are subject only to two restrictions.]

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.41

Even Jameson hesitated to push his doctrine of legislative supremacy to its extreme limits.42 For example, he took the position that legislative interference with a convention is subject to the limitation, that its requirements 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 function.43

Thus Jameson in effect promulgates the doctrine of reasonable restrictions; that is, he believes that the validity of legislative restrictions depends upon whether or not they interfere with the natural prerogatives of a convention. This knocks the very bottom out of the theory of legislative supremacy.

The right of the legislature to impose reasonable restrictions upon a convention is very similar to the right of the legislature to impose such restrictions upon the judiciary: i. e., the legislature may prescribe reasonable means and methods for the administration of justice, but has no power to deprive the courts of any of their inherent functions.

But even this is open to doubt. The power to restrict the judiciary is based upon the fact that court legislation is indispensable, and must emanate from the legislative body. But the convention is a legislative body of a higher order than the legislature,44 and can legislate for itself.45 Ratione cessante, cessat ipsa lex.

{115} From all the foregoing we see that the legislature probably has no power to restrict either an authorized or a popular convention; whenever it has succeeded, this has been due more to force of circumstances than to legal rights. Even the power to impose reasonable restrictions is doubtful.

[§6. Interference with the convention during its pendency.]

So much for the question as to whether the legislature can bind a convention in advance. Let us next consider whether the legislature can interfere with the convention method during its pendency.

Dodd says:

Judge Jameson pushed his theory to its logical conclusion and held that a convention, even after elected and assembled, might be dissolved by legislative act, or that the legislature might prevent the submission of its work to the people.46

On this point Jameson himself says:

If the provisions made by a convention for submitting its work to the people are deemed to be inexpedient, whether made with or without authority of law, the proper law-making authority of the state may repeal or alter them at pleasure.47

But it is interesting to note that Jameson amplifies this thought by saying that the question has never arisen in practice, and by justifying his proposition only in case of treason by the convention.48

Hon. Joel Parker, however, went even further than Jameson, saying:

I say it was legally competent for the legislature, at the time they modified that law, to have repealed it totally, so far as it stood a law upon the statute book, to have put an end to all further action under it. It might have been done legally. I do not say that a revolution might not have occurred in consequence of such a proceeding; that is another thing. I am aware. Sir, that such a disregard of the will of the people might justify a resort to force; but that is another thing. As a law upon the statute book, having the force and vigor of a law upon the statute book, and no more, the legislature have the same power over it which they have over any other law, and they might have repealed it if they had seen fit to do so. Why did they not do it? Because they ought not to; {116} because it was not proper, under the circumstances, that they should exercise that power, and they exercised their power in a way that they did not think proper. I maintain further, Sir, that I am willing to place myself upon the issue, that this Convention sits here today under that as a statute law and nothing more; and the legislature being still in session here, may constitutionally and legally put an end to the existence of this Convention as a body assembled under the Constitution and under law, before that session closes. (Sensation.)49

The only reported instance of an attempt by the legislature to interfere with a pending convention was when the free-state legislature of Kansas, during the bloody days just prior to its admission to the Union, attempted to change the date set by a convention for the submission of its constitution to the people. The pro-slavery men voted at one election and the free-state men at the other, with two different results. Congress on one hand disagreed with President Buchanan and the Senate on the other as to which result was valid, and so the constitution adopted at the date originally set by the convention failed of national recognition.

The New York Supreme Court, however, pooh-poohs the idea that the legislature has the power to nullify the work of the convention:

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.50

Dodd's foregoing reference to Jameson is seen by the context to be disapproving. And all the authorities to the effect that the legislature cannot amend the convention act, are a fortiori authorities for the proposition that it cannot repeal it.

Thus the weight of authority is that the legislature may not restrict a convention or nullify its work, but that the people may. This power of the people will be discussed in the next chapter.

[§7. By inaction or withholding support.]

There is, however, one way in which the legislature can very effectively interfere with amendment by convention. We have already seen the dependence of the people upon legislative {117} means for expressing their will.51 Without the assistance of either constitutional provisions or legislation, the people cannot pass on the question of calling a convention. Without such assistance, a convention cannot be elected and held. Thus in those States in which the constitution does not provide all the necessary details for holding a convention, the legislature can successfully block the popular will by mere inaction. We have already seen how in 1886 in New York, the popular vote to hold a convention was thwarted by the legislature, so that this convention was not held until 1894.52

Similarly in New Hampshire. Although the vote taken under act of July 4, 1860, showed a majority in favor of calling a convention, the Senate and House of Representatives at the June session, 1861, failed to agree upon a bill for that purpose. Again the vote under act of August 19, 1864, showed a majority of the voters in favor of calling a convention; but the legislature of the June session, 1865, by joint resolution decided to take no action in the matter.53

The courts have recognized this power of the legislature to prevent the holding of a convention. Thus the Supreme Court of Pennsylvania says of the vote of the people in favor of calling a convention:

It was not even a mandate, further than the moral force contained in an expressed desire of the people. It is very evident, had the matter dropped there, and the legislature had made no call, no convention and no terms would ever have existed. Not a line, nor a word, nor a syllable in this act expresses an intent of the people to make the call themselves, or on what terms it shall be made, or what powers should be conferred.54

Similarly there are many ways in which the legislature, although keeping within its proper functions and powers, can greatly hamper the work of a convention. Holcombe in his recent book has clearly pointed out the distinction between legal and illegal attempts at interference. He says:

The convention should be free to disregard any special limitations which the legislature may seek to impose subsequently to the {118} vote by the people sanctioning the call of the convention, but it should not be free to disregard the general law of the state, whether expressed in the constitution or in the acts of the legislature. A convention, for example, may disregard a legislative act, not submitted to the people for their approval, which seeks to limit the duration of the deliberations of the convention, but it may not disregard a legislative act providing that appropriations for the support of the convention shall lapse after a limited period. In other words, the executive or judiciary of the state would not be justified in turning a convention out of doors after the period set by the legislature for the termination of its deliberations had expired, but they would be justified in withholding further funds. The convention might continue in session, but it would have to look to the people for indemnification for any further expenses that might be incurred.55

Thus we see that although the legislature cannot directly interfere with a convention, it can do so indirectly by inaction, or by withholding governmental support. In event the latter is attempted, however, the convention probably has full incidental powers to support itself, for it can pledge the faith of the State to pay for its legitimate expenses.56

[§8. By failure to recognize or acquiesce and ratify.]

There is one further way in which the legislature can interfere with a convention. It can determine the validity or invalidity of the new constitution, if that be a political question. Thus Braxton says that any act of the existing government in recognition of irregular constitutional changes should be regarded as acquiescence and ratification by the people.57

And we have already seen that when the Federal executive interferes to recognize or suppress a State government, the State executive participates to some extent in this action by requesting it.58 Similarly the State legislature may participate; in fact, the Federal Constitution provides that intervention to restore order shall be done only at the request of the legislature of the State if that legislature be in session.59

Thus, from all the foregoing discussion, we see that, although the legislature apparently has no power to restrict a convention {119} in advance, or to nullify its results by abolishing it or by preventing the submission of its work to the people, yet the legislature does have power in many cases to prevent the holding of a convention. And in event of a dispute as to the validity of a new constitution, the legislature may possibly be in a position to determine this question by the political act of either recognizing or refusing to recognize the change, or by calling on the Federal government for support or suppression.

The legal standing of a convention may also depend upon recognition or nonrecognition by the Federal legislature.60 In the case of a territorial convention, this power is absolute.61

On legislative control in general see also the first three pages of the next chapter.

1. Dodd, p. 73.

2. Dodd, pp. 77-79.

3. Chapter XI, infra.

4. Chapters XIV and XVI, infra.

5. Dodd, p. 55.

6. Dodd, pp. 55-56.

7. Dodd, p. 74.

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

9. Dodd, p. 74.

10. Dodd, p. 79.

11. Report of Judiciary Committee, headed by Elihu Root, and unanimously adopted by the convention. Rev. Record, N. Y. Conv. 1894, Vol. I, p. 250.

12. Dodd, p. 81.

13. Dodd, p. 81.

14. Jameson, p. 284.

15. Dodd, p. 81, n. 15. The matter of oaths will be more fully discussed in a later chapter. See pp. 187-190, infra.

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

17. Dodd, pp. 83-84 and n. 21.

18. Wood's Appeal (1874), 75 Pa. 59, 71-72.

19. I "Cyc. American Government," 430.

20. Loomis v. Jackson (1873), 6 W. Va. 613, 708.

21. Dodd, p. 87, n. 26.

22. Dodd, p. 76. Cf. Braxton, VII "Va. Law Reg.," 100-106.

23. Jameson, pp. 369-375.

24. Jameson, pp. 367-368.

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

26. Deb. Pa. Conv. 1872, Vol. VIII, pp. 54, 57, 63.

27. Jameson, p. 284.

28. Jameson, pp. 135-136.

29. Dodd, p. 82.

30. Dodd, p. 82.

31. Dodd, pp. 84-85.

32. Carton v. Secy. of State (1908), 151 Mich. 337, 340-343.

33. Carton v. Secy. of State (1908), 151 Mich. 337.

34. Dodd, pp. 85-86.

35. Dodd, p. 86.

36. Miller v. Johnson (1892), 92 Ky. 589; Taylor v. Commonwealth (1903), 101 Va. 829.

37. Dodd, p. 86, n. 23.

38. Dodd, p. 82.

39. Dodd, pp. 91-92.

40. Dodd, p. 80, n. 13.

41. Dodd, p. 92.

42. Dodd, p. 73.

43. Jameson, p. 364.

44. See [Ch. VII §1] p. 90, supra.

45. See [Ch. XI §11] pp. 146, 147, infra.

46. Dodd, p. 79.

47. Jameson, p. 421.

48. Jameson, p. 421, n. 2.

49. Deb. Mass. Conv. 1853, Vol. I, p. 155.

50. Journal, 69th N. Y. Assembly, p. 920.

51. See [Ch. V §13] pp. 76-77, supra.

52. See [Ch. V §13] p. 76, supra.

53. Colby, 1912 Manual of N. H. Const., pp. 209-211.

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

55. Holcombe, State Government, pp. 127-128.

56. See [Ch. XIV §5, 7] pp. 173, 177, infra.

57. VII "Va. Law Reg.," 79, 97.

58. See [Ch. VII §4] p. 95, supra.

59. U. S. Const., Art. IV, § 4.

60. Cf. Pac. States Tel. Co. v. Oregon (1912), 223 U. S. 118.

61. U. S. Const., Art. IV, § 3.

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