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call a Convention for is not to revise or to write a new Constitution but only a part thereof. The people having thus voted to circumscribe the limits of their elected Convention delegates, in the particulars as provided for in the Act, bind these delegates within these limits. (Emphasis supplied). 223 S.W.2d, at 923.

An examination of the call portion of Chapter 49, Public Acts of 1949, at issue before the Court in Cummings, reveal that the parts of the Constitution proposed to be submitted for Convention consideration are described only by article and section number and the subject matter of the section.

The 1949 call for a Constitutional Convention was rejected by the voters. The 1953 Constitutional Convention was called by Chapter 130, Public Acts of 1951, and approved by the people at the election held on August, 7, 1952. Said call omitted three issues that were included in the 1949 call and designated the six issues submitted by article and section number and subject matter.

One of the six issues before the Convention was Article XI, Section 3. As amended by that Convention and ratified by the people, the Convention method of our Constitution reads as follows:

The Legislature shall have the right by law to submit to the people, at any general election, the question of calling a convention to alter, reform, or abolish this Constitution, or to alter, reform or abolish any specified part or parts of it; and when, upon such submission, a majority of all the voters voting upon the proposal submitted shall approve the proposal to call a convention, the delegates to such convention shall be chosen at the next general election and the convention shall assemble for the consideration of such proposals as shall have received a favorable vote in said election, in such mode and a manner as shall be prescribed. No change in, or amendment to, this Constitution proposed by such convention shall become effective, unless within the limitations of the call of the convention, and unless approved and ratified by a majority of the qualified voters voting separately on such change or amendment at an election to be held in such manner and on such date as may be fixed by the convention. No such convention shall be held oftener than once in six years.

The additions to the 1870 section (underlined above), dealing with the Convention method, provide explicit authorization for a limited constitutional convention. We have carefully examined the Journal of

the Constitutional Convention of 1953 and it is abun dantly clear that the purpose in adding the additional language that now appears in said paragraph, including the phrase "within the limitation of the call" was to confirm in the amending clause of the Constitution, the holding in Cummings v. Beeler, legalizing the political entity known as a limited constitutional convention, to make it mandatory that the work product of the Convention be submitted for ratification or rejection by the people, and to limit conventions to one in six years. The proponents of the amendment so stated, and the opponents of the amendment, expressed complete confidence in the efficacy of Cummings v. Beeler, supra, as firmly establishing the limited constitutional convention, and considered any amendment to the Convention method to be unnecessary. Journal of Proceedings of Tennessee Limited Constitutional Convention, 1953, pp. 239,763, 781-784.

The Constitution Revision Commission, the Supreme Court and, finally, the Limited Constitutional Convention of 1953, implicitly, if not explicitly, envisioned as the only limitation upon a constitutional convention the restriction of its deliberations to a particular section and the subject matter of that section of the Constitution; that a convention could be limited to a part of the Constitution, whereas, theretofore there was respectable opinion, including the Attorney General, that it could not be limited in any manner whatsoever.

We are convinced that it was never conceived that within the specified section and the subject matter thereof any further or additional restrictions would or could be placed upon a constitutional convention.

Accordingly, we hold that any restrictions in the call, exceeding a recitation of the subject matter of the existing section designated for consideration, are not binding upon the Convention, and the Convention is free to abolish, or to alter or amend the section to such extent and in such manner as it deems proper. If the Legislature, as the agent of the people, desires to submit to the people the question of calling a Constitutional Convention to consider new subject matter, not embraced in the Constitution, it, of course, may do so by an appropriate description of such subject matter, corresponding to the descriptive format used to describe the subject matter of existing Constitutional sections in the 1949, 1951, and 1962 calls. To the extent that the legislature includes affirmative proposals in the call, beyond the scope aforesaid, the excess is mere surplusage, in the nature of gratuitous advice, and even though approved by the people, is not binding on the Convention, nor does it invalidate the call or the subsequent action of the Convention.

It must be remembered that the Convention method, whether limited or unlimited, is subjected to two votes by the people, the ultimate repository of all power. The primary purpose of the call vote is to determine whether or not the people are willing to permit a convention to consider altering, amending or abolishing the whole Constitution, or specified parts thereof. An affirmative vote for a convention, for limited or unlimited purposes, is a grant by the people to a historic deliberative body to write constitutional, fundamental law as distinguished from statutory law. Imperfection in the call, such as affirmative proposals exceeding the limits heretofore defined, does not invalidate the amending process. The second vote ratifies or rejects the word for word end result of the Convention's deliberative effort. The final validating step by the people is the most significant action in the entire amending process.

The courts must indulge every reasonable presumption of law and fact in favor of the validity of a constitutional amendment, after it has been ratified by the people. . . .

Applying the foregoing principles to the instant case, we do not interpret the Question 3 call as prohibiting the definition of residential rental property containing two or more rental units, as commercial property.

Appendix A

(The call to be printed in full on each ballot or voting machine as provided in Chapter 421, Public Acts, 1968 [as amended]) "Question 3. Shall a convention be called to alter and reform Article II, Section 28 of the Constitution so as to require the classification of property into three classes for purposes of taxation, to wit:

Real Property

Intangible Personal Property
Tangible Personal Property

Provided that said Convention shall classify Real Property only into four (4) subclassifications, to wit:

(a) Public Utility Property, to be assessed at not less than 45 per cent or more than 55 per cent of its value, the exact percentage to be fixed by the convention.

(b) Industrial and Commercial Property, to be assessed at not less than 35 per cent or more than 45 per cent of its value, the exact percentage to be fixed by the convention;

(c) Residential Property, to be assessed at not less than 25 per cent or more than 35

per cent of its value, the exact percentage to
be fixed by the convention; and

(d) Farm Property, to be assessed at not
less than 20 per cent or more than 25 per cent
of its value, the exact percentage to be fixed
by the convention.

Exemption of Tangible Personal Property. Said convention shall further provide and establish an exemption, which shall cover a taxpayer's personal household goods and furnishings, wearing apparel and other such tangible property, the total of which exemption shall not be less than $5,000.00 or more than $7,500.00, as shall be determined by the Convention.

Exemption of Intangible Personal Property. The Convention shall further provide that money deposited in an individual's personal or family checking or savings account shall be exempt from taxes, in an amount to be determined by the convention.

No exemption other than those specified herein shall be authorized by the Convention in the case of either tangible personal property or intangible personal property. The ratio of assessment to value of property in each class or sub-class, as shall be established by the convention, shall be equal and uniform throughout the State, and each respective taxing authority shall apply the same tax rate to all property within its jurisdiction.

Said Constitutional Convention, if called, shall not be authorized to amend the Constitution so as to permit a personal income tax, except as already authorized under the present Constitution; and the said Convention, if called, may consider the further provisions of Article 2, Section 28, but no action taken shall be in conflict with the provisions hereof.

Opinion on Petition to Rehear

FONES, Chief Justice.

The petition to rehear asserts that we have usurped the power of the people to control a constitutional convention and have misread and overruled Illustration Design Group, Inc. v. McCanless, supra.

We fully recognize that it is the people and not the legislature who approve or reject the submission of constitutional subjects to the consideration of a limited constitutional convention. The legislature in proposing a convention, and in proposing the subjects for its consideration, is not exercising its legislative power to enact statutory law. It is acting as an agency of the people, performing the first step in the amending process by the convention method.

It should be remembered that there are two (2) methods by which our Constitution may be amended: the legislative method and the convention method. Article Eleven, Section Three, Constitution of Tennessee. When the legislative method is used, the proposed amendment is drafted in toto, by the legislature and after the legislative approval prescribed in paragraph one of Article Eleven, Section Three, the amendment is submitted to the people for approval or rejection. When the conviction [sic] method is used, historically, the convention has drafted and proposed amendments, upon those subjects included in the call. Paragraph two of Article Eleven, Section Three says that the delegates to such convention shall assemble for the consideration of such proposals as shall have received a favorable vote in the "call" election.

The convention method involves a vote of the people at three (3) separate elections covering a period of years and the expense of convening and maintaining delegates to a convention. It is sheer folly to pursue the convention method unless the purpose is to have the convention draft amendments, that a busy legislature does not have the time to consider. If the legislature has the time to draft constitutional amendments then it should use the legislative method provided in paragraph one, Article Eleven, Section Three. The only legitimate purpose in calling a constitutional convention is to obtain its work product, to wit, a thoroughly debated, maturely deliberated, proposed constitutional amendment to recommend to the people. The people then make the final judgment upon its merit.

In drafting the Question Three call, the legislature deviated from the consistent prior procedure of merely designating specific subjects to be considered by a convention. This has created a serious problem. This is the fourth lawsuit attacking the constitutionality of the Question Three amendment. The basic contention in each case has as its substance, the extensive draft by the legislature of the subject matter of the amendment. The constitutional amending process by the convention method is threatened with instability, and at the center of the storm is the single issue of how far the legislature may go, as an agency of the people, in drafting a subject or a proposal for consideration by a limited constitutional convention.

No one could successfully contend that in calling an unlimited constitutional convention the legislature could draft the whole or any part of a proposed constitution. There is no authority anywhere for such

a contention. The only distinction between an unlimited constitutional convention and a limited constitutional convention is that a limited constitutional convention can only consider a specified part or parts of the constitution while an unlimited constitutional convention may consider the whole of the Constitution, and alter, reform or abolish any part, or all of it. The first three and one half lines of paragraph two Article Eleven, Section Three so provide. Cummings v. Beeler, supra, in establishing the validity of the limited constitutional convention so held.

The assertions in the petition to rehear with respect to Illustration Design Group, Inc. v. McCanless, supra, reflect a misunderstanding of our opinion in the instant case.

In referring to the legislative function of proposing the subjects the people may want a limited constitutional convention to consider, that case uses phrases which do not appear in any of the authorities cited therein and have caused confusion to the bench and bar of this State. Instead of what we consider the appropriate language derived from Cummings v. Beeler, supra, to wit, that the proposed call should specify the part or parts of the Constitution or the subject, the case under discussion used the following phrases:

delineating the scope and power of such convention"

defining its scope and powers" (454 S.W.2d at 119)

define the scope and action of such convention"

but they have expressly limited the consideration and action of the convention to the proposals already approved by a vote of the people

(454 S.W.2d at 120)

We agree with the result reached in Illustration Design Group, Inc., supra. We disagree with the use of the foregoing phrases, but only insofar as said phrases are interpreted to mean that the legislature may go further than the specification of parts of the Constitution or subjects, to be considered by a limited constitutional convention, and undertake to draft a substantial portion of the amendment itself. The petition to rehear is denied.

Discussion Notes

1. Can a constitutional convention called by the legislature generally be limited in the subject matter it is authorized to address? White, "Amendment and Revision of State Constitutions," 1134-35, 1142; Strum, "The Procedure of State Constitutional Change" 583; R. K. Gooch, "The Recent Limited Constitutional Convention in Virginia," Virginia Law Review 31 (June 1945): 708.

2. A similar debate is, of course, currently raging at the federal level. See Note, "Limited Federal Constitutional Conventions: Implications of the State Experience," Harvard Journal on Legislation 11 (November 1973): 127.

3. Florida's unique Constitution Revision Commission, an appointed body with authority to place proposed constitutional changes directly on the ballot, is described in Steven J. Uhlfelder," The Machinery of Revision," Florida State University Law Review 6 (Summer 1978): 575. See also Walter H. Nunn, "The Commission Route to Constitutional Reform: The Arkansas Experience," Arkansas Law Review 22 (Summer 1968): 317.

4. With reference to state constitutional drafting, see Arnold B. Kanter and Wayne W. Whalen, "Thoughts on Constitutional Drafting," Harvard Journal on Legislation 9 (No. 1 1971): 31.

F. Access to the Ballot for State Constitutional Change

Meyer v. Grant

486 U.S. 414 (1988)

JUSTICE STEVENS delivered the opinion of the Court.

In Colorado the proponents of a new law, or an amendment to the State Constitution, may have their proposal placed on to the ballot at a general election if they can obtain enough signatures of qualified voters on an "initiative petition" within a six-month period. One section of the state law regulating the initiative process makes it a felony to pay petition circulators. The question in this case is whether that provision is unconstitutional. The Court of Appeals for the Tenth Circuit, sitting en banc, held that the statute abridged the appellees' right to engage in political speech and therefore violated the First and Fourteenth Amendments to the Federal Constitution. We agree.

I

Colorado is one of several States that permits its citizens to place propositions on the ballot through an initiative process. Colo. Const., Art. V, sec. 1; Colo. Rev. Stat. secs. 1-40-101 to 1-40-119 (1980 and Supp. 1987). Under Colorado law, proponents of an

1 Colorado Rev. Stat. sec. 1-40-110 (1980) provides:

Any person, corporation, or association of persons who directly or indirectly pays to or receives from or agrees to pay to or receive from any other person, corporation, or association of persons any money or other thing of value in consideration of or as an inducement to the circulation of an initiative or referendum petition or in consideration of or as an inducement to the signing of any such petition commits a class 5 felony and shall be punished as provided in section 18-1-105, C. R. S. (1973).

initiative measure must submit the measure to the State Legislative Council and the Legislative Drafting Office for review and comment. The draft is then submitted to a three-member title board, which prepares a title, submission clause, and summary. After approval of the title, submission clause, and summary, the proponents of the measure then have six months to obtain the necessary signatures, which must be in an amount equal to at least five percent of the total number of voters who cast votes for all candidates for the Office of Secretary of State at the last preceding general election. If the signature requirements are met, the petitions may be filed with the Secretary of State, and the measure will appear on the ballot at the next general election. Colo. Rev. Stat. secs. 1-40-101 to 1-40-105 (1980 and Supp. 1987).

State law requires that the persons who circulate the approved drafts of the petitions for signature be registered voters. Colo. Const., Art. V, sec. 1(6). Before the signed petitions are filed with the Secretary of State, the circulators must sign affidavits attesting that each signature is the signature of the person whose name it purports to be and that, to the best of their knowledge and belief, each person signing the petition is a registered voter. Colo. Rev. Stat. sec. 1-40-109 (Supp. 1987). The payment of petition circulators is punished as a felony. Colo. Rev. Stat. sec. 1-40-110 (1980), n. 1. supra.

Appellees are proponents of an amendment to the Colorado Constitution that would remove motor carriers from the jurisdiction of the Colorado Public Utilities Commission. In early 1984 they obtained approval of a title, submission clause, and summary for a measure proposing the amendment and began the process of obtaining the 46,737 signatures necessary to have the proposal appear on the November 1984 ballot. Based on their own experiences as petition circulators, as well as that of other unpaid circulators, appellees concluded that they would need the assistance of paid personnel to obtain the required num

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