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tion of one of its articles, and was not intended to alter or amend it; and the other was to reduce and limit the number of the Senators and Members of Assembly. The last was the single alteration proposed ; and perhaps, even with respect to that point, it would have been more advisable that the previous sense of the people should have been taken. But there is no analogy between this single and cautious case and the measure recommended by the present bill, which is not confined to any specific object of alteration or revisal, but submits the whole constitutional charter with all its powers and provisions, however venerable they may have become by time and valuable by experience, to unlimited revisal. The Council have no evidence before them, nor does any legitimate and authentic evidence exist, that the people of this State think it either wise or expedient that the entire Constitution should be revised and probed, and perhaps disturbed to its foundation.
The Council, therefore, think it the most wise and safe course, and most accordant with the performance of the great trust committed to the representative powers under the Constitution, that the question of a general revision of it should be submitted to the people in the first instance, to determine whether a Convention ought to be convened.
The declared sense of the American people throughout the United States on this very point cannot but be received with great respect and reverence; and it appears to be the almost universal will expressed in their constitutional charters that Conventions to alter the Constitution shall not be called at the instance of the legislature without the previous sanction of the people by whom those Constitutions were
ere ordained. The Constitution of Massachusetts was established in 1780, and contains the earliest provision on this subject. It provided that, in the year 1795, the sense of the people should be taken on the necessity or expediency of revising the Constitution ; and that if two-thirds of the votes of the people were in favor of such revision and amendment, the legislature should provide for calling a Convention. The Convention now sitting in that State was called in consequence of a previous submission of such a question to the people. The Constitution of South Carolina was ordained in 1790 ; and in that it is declared that no Convention shall be called unless by the concurrence of two-thirds of both branches of the legislature. And the Constitution of Georgia, established in 1798, contains the same provision; thus showing, that though the people be not previously consulted on the question, yet a more than ordinary caution and check upon such a measure was indispensable. The Constitution of Delaware, of 1792, declares very emphatically that no Convention shall be called but by the authority of the people, and that their sense shall be taken by a vote for or against a Convention; and that if a majority of all the citizens shall have voted for a Convention, the legislature shall make provision for calling one. The same constitutional provision, that no Convention shall be called to alter or amend the Constitution, until the sense of the people by vote shall have been previously taken, whether, in their opinion, there was a necessity or expediency for a revision of the Constitution, has been successfully adopted, by the Constitution of New Hampshire, in 1792; by the Constitution of Tennessee, in 1796 ; by the Constitution of Kentucky, in 1799; by the Constitution of Louisiana, in 1812; by the Constitution of Indiana, in 1816; by the Constitution of Mississippi, in 1817; and by the Constitution of Ilinois, in 1818.
It would, as the Council apprehend, be impossible to produce higher and more respectable authority in favor of such a provision, and of its value and safety.
2. Because the bill contemplates an amended Constitution, to be submitted to the people to be adopted or rejected, in toto, without prescribing any mode by which a discrimination may be made between such provisions as shall be deemed salutary and such as shall be disapproved by the judgments of the people. If the people are competent to pass upon the entire amendments, of which there can be no doubt, they are equally competent to adopt such of them as they approve, and to reject such as they disapprove; and this undoubted right of the people is the more important if the Convention is to be called in the first instance without a previous consultation of the pure and original source of all legitimate authority. And it is worthy of consideration, and gives additional force to the expediency and fitness of a previous reference to the people, that time will be thereby given for more mature deliberation upon questions arising upon the Constitution, which are always momentous in their nature and calculated to affect not the present generation alone but their distant posterity, and when the legislature may probably have it in their power to avail themselves of a more just and accurate apportionment of the representation in the Convention among the several Counties in this State.
Ordered, That the Secretary deliver the bill, together with a copy of the objections aforesaid to the Honorable Assembly.
J. V. N. YATES,
OPINION OF THE JUSTICES OF THE SUPREME JUDICIAL COURT, CONCERN
ING THE ALTERING OR REVISING OF THE CONSTITUTION IN ANY SPECIFIC PART THEREOF.
[Taken from 6 Cushing's Reports, 573.]
The justices of the Supreme Judicial Court have taken into consideration the two questions submitted to them (by the House of Representatives), and upon which the honorable House has requested their opinion, of the following tenor, namely:
First. Whether, if the legislature should submit to the people to vote upon the expediency of having a Convention of delegates of the people, for the purpose of revising or altering the Constitution of the Commonwealth in any specified parts of the same; and a majority of the people voting thereon, should decide in favor thereof, could such Convention, holden in pursuance thereof, act upon and propose to the people amendments in other parts of the Constitution not so specified ?
Second. Can any specific and particular amendment or amendments to the Constitution be made in any other manner than that prescribed in the ninth article of the amendments adopted in 1820 ?
And thereupon have the honor to submit the following opinion :
The court do not understand that it was the intention of the House of Representatives to request their opinion upon the natural right of the people, in cases of great emergency, or upon the obvious failure of their existing Constitution to accomplish the objects for which it was designed, to provide for the amendment or alteration of their fundamental laws; nor what would be the effect of any change or alteration of their Constitution, made under such circumstances and sanctioned by the assent of the people. Such a view of the subject would involve the general question of natural rights, and the inherent and fundamental principles upon which civil society is founded, rather than any question upon the nature, construction, or operation of the existing Constitution of the Commonwealth, and the laws made under it. We presume, therefore, that the opinion requested applies to the existing Constitution and laws of the Commonwealth, and the rights and powers derived from and under them. Considering the questions in this light, we are of opinion, taking the second question first, that, under and pursuant to the existing Constitution, there is no authority given by any reasonable construction or necessary implication, by which any specific and particular amendment or amendments of the Constitution can be made, in any other manner than that prescribed in the ninth article of the amendments adopted in 1820. Considering that, previous to 1820, no mode was provided by the Constitution for its own amendment, that no other power for that purpose, than in the mode alluded to, is anywhere given in the Constitution, by implication or otherwise, and that the mode thereby provided appears manifestly to have been carefully considered, and the power of altering the Constitution thereby conferred to have been cautiously restrained and guarded, we think a strong implication arises against the existence of any other power, under the Constitution, for the same purposes.
Upon the first question, considering that the Constitution has vested no authority in the legislature, in its ordinary action to provide by law for submitting to the people the expediency of calling a Convention of delegates for the purpose of revising or altering the Constitution of the Commonwealth, it is difficult to give an opinion upon the question what would be the power of such a Convention, if called. If, however, the people should, by the terms of their vote, decide to call a Convention of delegates to consider the expediency of altering the Constitution in some particular part thereof, we are of opinion that such delegates would derive their whole authority and commission from such vote; and upon the general principles governing the delegation of power and authority, they would have no right, under such vote, to act upon and propose amendments in other parts of the Constitution not so specified.
MARCUS MORTON. January 24, 1833.
OPINION OF THE JUDGES OF THE SUPREME COURT OF NEW YORK, TOUCH
ING THE VALIDITY OF THE ACT OF ASSEMBLY PASSED APRIL 22, 1846, MODIFYING THE CONVENTION ACT OF MAY 13, 1845.1
STATE OF NEW YORK,
IN ASSEMBLY, April 10, 1846. Resolved, That the bill relating to the apportionment of delegates to the Convention be referred to the justices of the Supreme Court, with a respectful message from the Speaker of this House, requesting them to communicate forthwith to this House whether, in their opinion, the delegates to be chosen to the Convention under the law of the last session, be according to the apportionment of the present members of the legislature, and whether this legislature have any power to alter or amend that law. By order of the Assembly.
A. G. CHATFIELD, Speaker pro tem. The justices of the Supreme Court have received the foregoing resolution, with the bill therein mentioned, and have considered the questions on which their opinion is asked by the Assembly.
The first question touches the construction of the Convention Act of 1845 ; and the point to be considered is, whether the number of delegates to be chosen under the Act in the several counties, is to be regulated by the apportionment of members of Assembly, which was made in 1836, or by the apportionment which has been made at the present session of the legislature.
By the Constitution, the apportionment of members of Assembly which was made in the spring of 1836 took effect for the purpose of electing the members in the fall of that year; but it did not take effect for any other purpose until the 1st day of January, 1837; and it was to remain unaltered for ten years. In other words, the representation of each county in the Assembly, from the commencement of the political and calendar year 1837 to the commencement of the political and calendar year 1847, was to remain the same.
By the Convention Act, the people were to decide upon a “Convention " or “no Convention,” at the fall election of 1845. If they decided for a Convention, the delegates were to be chosen in April, 1846 ; they were to assemble in June following; and the amendments to the Constitution on which the Convention might agree were to be submitted to the people for adoption or rejection, at the fall election of the same year. Every thing in relation to the Convention was to be both begun and concluded, while the apportionment of members of Assembly made in 1836 remained in force and governed the representation from the several counties.
The seventh section of the Convention Act provides that “ the number of delegates to be chosen to such Convention shall be the same as the number of members of Assembly from the respective cities and counties in this State." We are of opinion that this means the number of members from the respective counties, under the apportionment which was in force when the Act of 1845 was passed, and which will be in force until after the delegates have been chosen and their labors have been terminated. Although a new apportionment of members of Assembly has already been made, it cannot take effect for any purpose until the fall of the present year. If an election for members of Assembly in any county for the present year were now to be ordered, and it should be held at the same time that the delegates to the Convention are to be chosen, the apportionment of 1836, and not that of the present session, would govern. The legislature would have no power to make a different rule.
1 This opinion I do not find reported in any of the New York Law Reports, probably for the reason stated in the text, ($ 393, ante,) that there was no constitutional provision authorizing such a reference to the Supreme Court, and the opinion was therefore deemed extra-judicial. As given here, it is taken from Deb. Mass. Cono. 1853, Vol. I. p. 138.
It would have been highly proper, as a just and equitable distribution of the delegates among the several counties, and the legislature of 1845 might have so provided, that the new census and apportionment which were then in prospect, should regulate the representation in the Convention. But we think that has not been done.
It will be seen, on referring to the Assembly documents of 1845, No. 211, that the select committee to whom the Convention bill was referred gave a brief exposition of its provisions, in which they said that " each county is entitled to the same representation it now has in the Assembly.” And so far as this question is concerned, the bill was passed in the same words in which it was reported to the House by the committee. It is difficult, therefore, to suppose that the legislature, in passing the bill, intended any other rule of representation than that which had been suggested to the committee. As their attention was plainly called to the subject, it can hardly be doubted that they would have changed the language of the seventh section if the bill was passed with any reference to the new census which was about to be taken, or to the apportionment which might be made under that census.
This goes to confirm the construction which we think must be given to the Act, when looking at nothing but the Statute Book.
The next question is, “ Whether this legislature has any power to alter or amend that law.” As a general rule, the legislature can alter or annul any law which it has power to pass. A proper solution of the question proposed by the Assembly involves, therefore, an inquiry concerning the source from which the Act of 1845 derives its obligation.
The legislature is not supreme. It is only one of the instruments of that absolute sovereignty which resides in the whole body of the people. Like other departments of the government, it acts under a delegation of powers, and cannot rightfully go beyond the limits which have been assigned to it. This delegation of powers has been made by a fundamental law which no one department of the government nor all the departments united have authority to change. That can only be done by the people themselves. A power has been given to the legislature to propose amendments to the Constitution, which, when approved and ratified by the people, become a part of the fundamental law. But no power has been delegated to the legislature to call a Convention to revise the Constitution. That is a measure which must come from, and be the act of, the people themselves. Neither the calling of a Convention nor the Convention itself is a proceeding under the Constitution. It is above and beyond the Constitution. Instead of acting under the forms and within the limits pro