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revision to a vote of the electorate. The usual practice is, however, for the people to vote (1) upon the question of calling the convention ;6 (2) for delegates to the convention, and (3) upon the adoption or rejection of the work of the convention.
Two states,' indeed, allow the legislature, of its own motion, to call a convention. But the people must be consulted everywhere else. Several constitutions provide in advance for a periodic submission to the voters of the question of holding a convention. Thus in New York, according to the constitution of 1894,
at the general election to be held in the year one thousand nine hundred and sixteen, and every twentieth year thereafter, and also at such times as the legislature may by law provide, the question, "Shall there be a convention to revise the constitution and amend the same?" shall be decided by the electors of the state; and in case a majority of the electors voting thereon shall decide in favor of a convention for such purpose, the electors of every senate district of the state, as then organized, shall elect three delegates at the next ensuing general election at which members of the assembly shall be chosen, and the electors of the state voting at the same election shall elect fifteen delgates-at-large. The delegates so elected sball convene at the capitol on the first Tuesday of April next ensuing after their election and shall continue their session until the business of such convention shall have been completed.
In addition to the periodic submission, the states requiring it, together with most of the others providing for conventions, permit the legislature to submit to the electorate at any times the question whether one shall be called. One of them, New
Miss. (1890); S. C. (1895) ; Del. (1897); La. (1898); Va. (1902). The Ky, convention of 1891, after having its work ratified by the people reconvened and adopted changes that were not submitted to the people. Except in the cases of Del. and Ky, the new constitutions disfranchised a large proportion of the negro voters and consequently the conventions feared to submit them to their votes. Instances have been known of submission to the electorate as defined by the instrument to be voted upon, as in Tenn. in 1835.
In accordance with an existing constitutional provision requiring it or authorizing the legislature to refer the matter to the people, or, in those states allowing the initiative, upon a popular petition.
Me., IV, Pt. III, 15; Ga., XIII, sec. I, 2. 8Two-thirds vote required. 'XIV, 2.
10. and Md. (XVI, 2, 3; XIV, 2) likewise have twenty-year intervals. Mich. (XVII, 4) provides for sixteen ; la. (X, 3) for ten, and N. H. (II, 28, 99) for seven-year intervals. Okla. (XXIV, 2) ordains that the question must be submitted at least once every twenty years and that a convention shall not be called except after a referendum to the electorate.
In all, 34 states.
Mexico, requires a vote of three-fourths of the members of each house, which, after the constitution has been in force twentyfive years shall be changed to two-thirds. Two-thirds of each house or of the members elected to each house is the vote required to submit the question in seventeen states: and threefifths in one, Nebraska. The others require simply a majority or a majority of all the members elected to each house. Kentucky, however, requires such a vote by two consecutive legislatures.
Provisions concerning notice of election, the time for holding the election, et cetera, are frequently found in the constitutions. A majority of those voting upon the question is generally sufficient to authorize the convention, but some states require a majority of those voting at the election.
Fourteen constitutions specify the votes necessary for the popular adoption of the convention's proposals—two-thirds of those voting on the subject in New Hampshire, a majority of those voting at the election in four states and a majority of those voting on the question in the others. Five states? provide that the constitution adopted by the convention must be ratified, but specify no required majority.
· Various provisions governing the qualifications, election and apportionment of delegates to the convention and the action of the convention when assembled are found in the constitutions. Alabama: contains the interesting and prudent stipulation that nothing in the present constitution shall be construed as restricting the jurisdiction and power of the convention to estab
*Const. of 1910 (XIX, 2).
*Cal., Colo., Del., Fla., Ida., Ill., Kan., Minn., Mont., Nev., N. C., O., S. C., S. D., Uta
Wyo. Del. does not require the governor's approval. €258.
Cal., Colo., Del., Fla., Ia., Mo., Mont., N. M., N. Y., O., Tenn., Va., W. Va., Wis. Ky.. ib., adding that the affirmative votes must equal one-fourth those cast at preceding general election. Several constitutions state the provision indefinitely.-Majority of votes cast (N. C.XIII, 1); "Majority of qualified voters of state present and voting at meetings" (N. H., II, 98); "Approved by the people" (Ariz., XXI, 2; Okla., XXIV, 2).
Ala., Ida., III., Kan., Md., Mich., Minn., Neb., Nev., S. C., S. D., Utah., Wash.,
'Colo., III., Mont., Utah.
Ariz., Cal., Md., Mich., Mo., Neb., N. Y., 0.. Okla.
lish such ordinances and do such things as it may deem proper for the purpose of alteration, revision or amendinent.*
The typical method of calling a convention, by a favorable vote of a majority of those voting for or against it on submission of the question by the legislature, if followed by a popular vote upon the work of the convention, appears in all respects a correct method of procedure. The theory of the convention is, of course, that it furnishes a deliberative representative body of citizens chosen by their fellows as the agents of the whole sovereign people to perform the most serious of all democratic governmental undertakings, the formation of organic law. It would seem to follow, as of course, that the work of these agents should be reviewed by the principals and be subject to rejection in part or as a whole if it is unsatisfactory."
TENNESSEE NOTE.—The first section of the Tennessee constitution asserts the "unalienable and indefeasible right of the people "to alter, reform, or abolish the government in such manner as they may think proper." For constitutional revision two different methods are prescribed, (1) by amendments submitted by the legislature and (2) by calling a convention to "alter, reform or abolish” the constitution. The former method requires the proposal of amendments by vote of a majority of the members of each house of the legislature, agreement of two-thirds of the members at the next session of the legislature and ratification at an election by a majority of the electors voting for representatives. The legislature may not propose amendments oftener than once in six years. A convention may be called by the people at any time on submission of the question by the legislature and approval by a majority of those voting upon the subject.
In 1915 the legislature submitted the question of calling a conven: tion and undertook to prescribe that the amendments passed by the proposed convention should be submitted separately to the voters for approval or rejection. The Ohio convention of 1912 followed the similar directions prescribed for it. There has been considerable discussion,
*Concerning the power of the legislature calling a convention to determine what it shall do and concerning the legal position of the convention, see Dodd, op. cit.. pp. 68, seq., and ch. 3; Jameson, op. cit. For an interesting discussion of The Constitutional Convention. Preliminary Work, Procedure and Submission of Conclusions, by Professor Dodd. see Proceedings of Academy of Political Science, V, 54 (Oct., 1914). See also Tenn. Note bereto.
For current account of amendments adopted, see the files of the American Political Science Rerieic or the Political Science Quarterly. An interesting analysis of the popular vote on constitutional and legislative proposals in the
1914, prepared by Mr. R. E. Cushman was published as a Supplement to The Veic Republic, Mar. 6, 1915 (II, 18, Pt. 2).
Public Acts of 1915, ch. 110, 111.
however, as to whether such restrictions would be binding upon a convention that did not choose to follow them."
The Tennessee constitution is silent upon the subject of the legislature's power so to bind a constitutional convention and no case has come before the supreme court for discussion. In a few states, however, failure on the part of conventions to obey the orders of the legislature has given the courts an opportunity to express themselves.
The cases most precisely in point arose in Pennsylvania. The constitution of 1838 contained no provision for calling a convention. In 1872, however, the legislature, after submitting to the people the question whether a convention was desired, passed an act for calling one and specified that tbe constitution framed should be voted upon at an election held in the same manner as general elections. The convention, however, provided special election machinery of its own and thereupon an injunction to prevent the holding of the election was granted. The court declared that the convention had no power except that conferred by the act of the legislature. The argument was largely based upon the fact that the constitution in force did not provide for a constitutional convention ; consequently the convention called under the plenary power of the legislature was in every way subject to the legislative will.20
On the other hand, the Michigan convention of 1908 fixed a date for the submission of its work to the people different from the date ordered by the legislature, and a mandamus was granted compelling the secretary of state to act upon the convention's order. The court was not agreed upon the reason for its action, but two of the judges declared that by necessary implication the legislature is prohibited from any control over the method of revising the constitution. The Minnesota court,” holding that the state printer was not entitled by virtue of his position to do the printing required by the convention, remarked that "even had the legislature intended and attempted to claim and exercise the act of providing a printer for the constitutional convention, it would have been an unauthorized and unwarrantable interference with the rights of that body. ... The fact that the convention assembled by authority of the legislature renders it in no respect inferior thereto." More in point is the Mississippi dictum that the legislature has no power to require a convention to submit its work to a vote of the people.
On this point, see Dodd, op. cit., ch. 3; Jameson, op. cit. Dodd criticises and seems to refute Jameson's contention that the legislature can bind the convention,
"Wells v. Bain, 75 Pa. St., 39; Wood's Appeal, ib., 59.
10 Voting for delegates to a convention after a legislative call containing restrictions is, it has been argued in the Pa, and other cases, popular ratification of the restrictions. Obviously, however, the voters are unable to express themselves upon both candidates for offices that are to be filled anyway, and questions of the candidates' action after election,
1Carton v. Secretary of State. 151 Mich., 337. 2Goodrich v. Moore, 2 Minn., 61 (1858).
38 poule v. Fredericks, 69 Miss., 898; see, also, Dickson v. State, 74 Miss., 227 ; Loomis v. Jackson, 6 W. Va., 613.
The Kentucky convention of 1890-91 and the Virginia convention of 1901-02 assembled as a result of legislative acts requiring that the changes proposed in the constitutions should be submitted to the people. Both conventions disobeyed the order, but no judicial action arose until after the new instruments had gone into effect. The courts then held that inasmuch as the state government was acting under them they could not question their validity. It is difficult to see how courts acting under a constitution could declare it invalid without invalidating their own decisions.
Without attempting to mention every case bearing upon the ques. tion of the legislature's power to bind a convention, it may be said that the paucity of judicial pronouncements makes hazardous any prediction as to how the court of a particular state would answer the question. The weight of judicial opinion, however, as well as the opinion of students of government, indicates that a Tennessee constitutional convention is independent of the legislature and may disregard its instructions.
After an amendment to the constitution has been ratified by the people the courts are slow to declare it invalid for technical irregularities. Thus in 1865 an unofficial convention, assembled for another purpose, submitted amendments to an electorate of its own choosing. Nevertheless, the court, after remarking that in order to understand the nature of the problem before it, note must be taken of the disturbed condition of the country at the time, held the amendments valid and a part of the constitution.
*Miller v. Johnson, 92 Ky., 589; Taylor v. Commonwealth, 101 Va., 829. Ridley v. Sherbrook, 43 Tenn., 569 (1866).