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called it together; that, finally, the people, by the vote ratifying the Act of May 7, 1852, willed two things: first, that there should be a Convention; second, that it should be called by the legislature, sitting as a legislature, as part of the established government; and that the elections of its members should be conducted exactly as that legislature should prescribe in the exercise of its ordinary unfettered discretion conclusions that flow directly from the fact that the people had responded favorably to the proposal of a Convention; they rested there, thus leaving it, by irresistible implication, to the legislature to carry out their will in its own way, and that then two successive leg. islatures assumed to make the needful regulations for electing the Convention accordingly, and the people assembled, pursuant to custom, and under those regulations cast their votes and retired.1

404. To these arguments I shall add one or two observations, calculated, as I think, to place the subject under consideration in a still clearer light. The principal point made by the judges of the New York Supreme Court, before referred to, and by the advocates of the sealed envelope in Massachusetts, citing the decision of those judges as their main authority, was, that the Acts passed by the legislatures of those States respectively, and adopted by the people, derived their sole efficacy from the popular vote, and were therefore incapable of a subsequent repeal or modification by the same or another legislature. Whether this was so or not depends mainly upon the terms of those Acts, ascertaining the extent to which the people were required to pass upon them. Those Acts consisted of two parts: first, of one or more sections submitting to the people a single question, Whether or not they deemed it expedient to call a Convention and, secondly, of sections prescribing the time, mode, and conditions of the election at which the question was to be answered; and, in case of an affirmative answer, providing for the election of the delegates, and the assembling, organi

1 See speeches of Messrs. Choate, Parker, Morton, and others, in Deb. MassConv. 1853, Vol. I. pp. 73, 83, 116, 117, 144. In this debate Judge Parker contended, that not only could a legislature modify the Act calling a Convention, under the circumstances detailed in the text, but that it could wholly repeal the Act, even after the Convention had commenced its session, thus putting an end to its existence. Id. p. 155.

zation, and conduct of the Convention. The same is true of all the Acts calling Conventions which have come to my knowledge, except the few which contained no provision for a preliminary vote of the people on the question of Convention or no Convention. Thus the terms of the Massachusetts Act of May 7, 1852, are as follows:

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The first section is, in substance, that "the legal voters of the State, at the November election, 1852, shall give in their votes, by ballot on this question,' Is it expedient that delegates should be chosen to meet in Convention for the purpose of revising or altering the Constitution of government of this Commonwealth?" " The last clause contains absolutely every thing that was submitted to the people. The Act then proceeds as follows: The Governor and Council shall count the votes, and on the first Wednesday in January, 1853, shall make known the result; and if a majority of the votes are in favor of a Convention, it shall be taken to be the will of the people that a Convention should meet accordingly; and the Governor shall call upon the people to elect delegates to meet in Convention, &c. The second, third, fourth, and fifth sections are in the same imperative terms: "the inhabitants shall elect one or more delegates"; every person entitled to vote for representatives, &c., shall have a right to vote;""the same officers shall preside at such elections," &c.; the votes for said delegates "shall be received, sorted, and counted, &c., in the same manner as is now provided," &c; "all laws now in force shall apply and be in full force;" "the persons so elected shall meet in Convention," at a time and place specified; "they shall be judges of the returns and elections of their own members; they shall proceed, as soon as may be, to organize themselves in Convention;" "and such alterations or amendments, when made and adopted by the Convention, shall be submitted to the people," &c.; "and, if ratified by the people, in the manner directed by said Convention, the Constitution shall be deemed and taken to be altered and amended accordingly;"" and if not so ratified, the present Constitution shall be and remain the Constitution of government of this Commonwealth."

The New York Act was substantially identical with the one just described, differing from it only in the unimportant particular, that, at the preliminary election, the inspectors of election

were required to prepare ballots, on which should be written, "Convention," and "No Convention," and all citizens were "allowed" to cast one or the other of them, as they should deem best. Should the result of the election be a vote in favor of a Convention, the remaining twelve sections of the Act, consisting of imperative provisions, similar to those above quoted, were to take effect.

§ 405. Now, although it is true that, in these Acts, the imperative provisions were most of them pivoted upon the contingency of an affirmative answer to the question of "Convention. or no Convention," and that, in case a negative answer should be given, they would lose their entire force as laws, yet it is also true that, so far as those Acts were ever to have force as laws, they were to derive it from the legislature. They were couched in the language of laws, of commands, addressed by a superior, able to enforce them, to inferiors; they differed from other laws merely in being made conditional, as to their taking effect, upon the happening of a future event, the affirmative vote of the people upon a single question. If the event did not happen, the laws would remain inoperative; if it did happen, they would at once go into effect.

Now, what degree of efficacy is to be attributed to such conditional Acts, and what the source from which that efficacy is derived, are legal questions, upon which, fortunately, there is no lack of authority. Our State legislatures have, within the last twenty years, in many cases, passed Acts relating to the sale of intoxicating liquors, to schools, railroads, &c., and required, before they should take effect, that they should be submitted to the people. If approved by the people, they should be enforced, and if not, they should not. By our Constitutions, the power of passing laws having been exclusively committed to our General Assemblies, the objection has been raised, in these cases, that the Acts were unconstitutional, as attempting to transfer to the people the right to make laws. The courts, however, have, in many of the cases, sustained the action of the legislature, on the ground that the laws were perfect and complete as such, when passed by that body, but were made contingent, as to their taking effect, upon the happening of a future event- the approving vote of the people.1 When, on the other hand, by

1 Barto v. Himrod, 4 Seld. R. 483; with which compare The People v. Collins, 3 Mich. R. 343.

the terms of the Acts, the fiat which is to make them laws is to be spoken by the people, they have been holden to be unconstitutional.

The analogy between these cases and those of the Convention Acts of New York and Massachusetts, is, in my judgment, complete. These Acts were in terms imperative, per verba de presenti, and but for the contingency provided for of a popular vote, they would have gone into immediate effect. With that provision, however, they stood thus: If the people should, at the election provided for, vote that a Convention was inexpedient, none would be held; and of course those provisions requiring an election of delegates to form one, would not go into effect; otherwise they would.

§ 406. Again: When a Convention Act is submitted to the people, it is clear that it is the mere question of the expediency of a Convention that is passed upon. The people have no power of deliberation, or of suggesting amendments, but merely of pronouncing upon single propositions, yea or nay. An affirmative vote declares it to be expedient, a negative to be inexpedient, to call a Convention - a declaration which has neither the form nor the effect of a law. The language of a law is "fiat" - let it be done; that of such an Act of the people is "videtur it seems good, "desiderandum est"—it is desirable—a mere expression of opinion, not the uttering of a command. The contrary, however, is true of those parts of such Acts which relate to the details necessary to give practical effect to a Convention Act. There is no expression of opinion, but the uttering of positive commands to the officers of the government, voters, &c., contingent, as to their taking effect, upon the opinion expressed by the electoral body.

§ 407. That the construction contended for is the proper one to give to such Acts, is inferable from the adjudication of the Supreme Court of Illinois upon cases that have arisen in that State. By the existing Constitution of the State, that of 1847, no Act of the General Assembly authorizing corporations or associations with banking powers could go into effect or in any manner be in force, unless the same should be submitted to the people at the general election succeeding the passage of the same, and be approved by a majority of all the votes cast at such election for and against such law.1

1 Ill. Const. of 1847, Art. X. § 60.

In 1851, a General Banking Law was passed by the General Assembly and submitted to the people, agreeably to the constitutional provision, and ratified by them. To that part of this law prescribing the mode in which taxes should be assessed against the corporations thereby created, and the amount of their taxable property be ascertained, an amendment was made by the General Assembly in 1857, but the amendment was not submitted to the people. Against the validity of this amendment the objection was raised by one of the banks affected by it, that it was void, because it had not been ratified by the people as required by the Constitution; that the General Assembly had no power to repeal or modify any clause of the General Banking Law which had been submitted to and adopted by the people, without the same solemnities that attended its original passage. In substance, it will be observed, this objection was precisely the same as that taken to the New York and Massachusetts Acts referred to, namely, that, in ratify. ing the General Banking Law, the people had ratified every clause of it alike, and so placed all parts of it equally beyond the reach of a legislative repeal. The case coming before the Supreme Court, it was held by that body, that the vote of the people did not render the clause in question irrepealable by the General Assembly. The Court, speaking of the effect of the vote of the people, say:

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"That vote gave to this clause no additional sanction. The subject of taxation and the revenue are, by the Constitution, placed in the hands of the legislature alone. Upon this subject they have complete jurisdiction to legislate independently of the popular vote, and such vote in approval of laws which might take effect without it, could not place the law beyond or above the jurisdiction of the General Assembly." 1

§ 408. In this case the clause in question was held not to have been made irrepealable by the popular vote upon the law of which it formed a part, because it related to a subject-matter properly cognizable by the General Assembly under its general powers granted by the Constitution. And it was so held, although the Court expressly admitted that the clause sought to

1 Bank of the Republic v. County of Hamilton, 21 Ill. R. 53; afterwards confirmed by the same Court in Reaper's Bank v. Willard, 24 Ill. R. 433.

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