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I. WORK IN PREPARATION FOR THE CONSTITU
The delegates to a constitutional convention can not take the time to collect the information needed in their deliberations and if such information is collected the work must in the main be done in advance of the meeting of the convention. For this reason the practice has developed of planning in advance for the collection of desired information. Collections of constitutions were made available for the New York conventions of 1867 and 1894, and for the Michigan convention of 1907-08; and a digest of state constitutions was prepared for the Ohio convention of 1912. For the New Hampshire conventions which assembled in 1902 and 1918 manuals were prepared containing much useful information. In New York, careful preparations of materials were made in advance of the conventions of 1816, 1867, 1894 and 1915. For the Massachusetts constitutional convention of 1917-19 a series of publications was issued collecting information upon the more important subjects likely to be considered by the convention.
Some of the work done for conventions in other states will be of distinct use in Illinois, and some private publications will be useful. The publication in 1918 of Kettleborough's State Constitutions makes unnecessary the preparation for the Illinois convention of a collection of state constitutions.
The Index-Digest of State Constitutions, prepared for the New York constitutional convention of 1915 gives in alphabetical order a careful digest of the constitutional provisions of all of the states in 1915. A number of changes have been made since that time, but these can be covered by a manuscript supplement to the New York IndexDigest, and the preparation of such an index-digest for the constitutional convention of Illinois is thus rendered unnecessary.
Copies of Kettleborough's collection and of the New York IndexDigest will, through official action, be made available for all of the committees of the constitutional convention of this State.
In preparation for the constitutional convention to be assembled in Illinois in 1920, the Fifty-first General Assembly made appropriations for the compilation of data for the use of delegates. In the compilation of data it is contemplated that two types of publications shall be issued in advance of the assembling of the convention : (a) An annotated edition of the constitution of 1870 will be pre
pared. This publication will give for each clause of the constitution:
1 Charles Kettleborough, The State Constitutions. apolis, Ind., 1918.
B. F Bowen & Co., Indian
(1) A summary outlining the judicial construction of the
clause. (2) A note of veto messages based upon the clause, and (3) A note of Attorney General's opinions interpreting the
clause. With such a statement regarding each clause of the constitution it is thought that the delegates to the convention will be able to act with respect to proposed changes in the existing constitution without undue delay. (b) A series of small pamphlets is planned, each pamphlet
to deal with some one of the important problems likely to present itself to the constitutional convention. Pamphlets
will be issued upon the following subjects : (1) The procedure and problems of the constitutional con
vention. (2) The initiative, referendum and recall. (3) The amending article of the constitution. (4) State and local finance. (5) The short ballot. (6) Municipal home rule. (7) Eminent domain and excess condemnation. (8) The legislative department. (9) The executive department. (10) The judicial department, jury, grand jury and claims
against the state. (11) Local governments in Chicago and Cook County. (12) County and local government in Illinois. (13) Farm tenancy and rural credits. (14) Social and economic problems. (15) Bill of rights, education, militia, suffrage and elections,
preamble, boundaries, distribution of powers, schedule. The plan with respect to each of these pamphlets is to give as fully as possible the information upon the subject with respect to Illinois, and data regarding experiences of other states and countries. Each investigation will seek to present merely the facts, and to present them impartially. It is desired that the investigations should cover every question likely to come prominently before the convention
II. THE SCOPE OF A STATE CONSTITUTION.
The purpose of a state constitution is primarily that of embodying the more fundamental and permanent principles by which the state is to be governed. The constitution should not contain a large mass of detail. The Constitution of 1818 was a relatively brief document containing little detail, and because of this fact, would with relatively few changes still be a workable constitution were it now in force. The Constitution of 1848 contained a great deal of detail. For example, it fixed the salaries of state officers, with the highest salary that of governor at $1,500. This constitution also regulated in detail the judicial organization of the State. It was natural that the salaries so fixed should soon require change, and that a judicial organization adopted for the State in 1848 should have been outgrown when the State doubled in population, as it soon did. ·
A movement for this reason almost at once began for the revision of the Constitution, and the people in 1860 voted for the assembling of a constitutional convention. The Constitutional Conventions of 1862 and 1870 were made necessary by the unessential detail which was placed in the Constitution of 1848. The Convention of 1920 has largely become necessary because of the details which were placed in the Constitution of 1870.
The placing of details in a constitution is not only the means of preserving from change the matters to which such details relate, but is also the most effective means of preventing improvements as to that particular matter. Those desiring to put in a constitution details as to any particular matter should first convince theniselves that that matter is one incapable of further development. For what is done by placing the matter in the Constitution is primarily the setting up of two barriers against change. In order to obtain desired legislation which may be prevented by a provision in the Constitution, it becomes necessary, first to change the Constitution, and then to enact the legislation made possible by the constitutional change. Those desiring to place regulations as to a particular matter in the Constition, should balance in their minds their desire to obtain constitutional recognition for the matter as against the possible desirability of making changes as to such matter in the future.
A fair illustration of the manner in which difficulty may be made by placing a matter in the Constitution may be found in the Nebraska Constitution of 1876. In the convention which framed that Constitution some benevolent person desired to obtain a recognition of the principle of having a separate institution for youthful offenders. There was of course no objection to this principle and a provision
was inserted in the Constitution authorizing the legislature to establish a school or schools for the safe keeping, education, employment and reformation of all children under the age of 16 years. The legislature later desired to extend the age and sought to do so by legislation. The Supreme Court of the State, taking a view which would have been taken by the highest court of any state, held that the constitution limits the legislature to the establishment of schools for children under the age of 16 years. Had the Constitution contained nothing about the matter, the legislature would have been free to act when new needs presented themselves. (Scott v. Flowers, 61 Neb. 621, 1901.)
Legisiation in a constitution presents serious dangers, not only in that such legislation is likely to retard future development and to force constitutional change at frequent intervals, but also because detailed provisions are apt to lead to a good deal of litigation before their precise meaning is determined. The Massachusetts initiative and referendum provisions adopted in 1918 contain a great deal of detail and are likely to lead to a number of judicial decisions before their meaning is fully determined. Brief constitutional provisions will of course lead to judicial decisions, and carefully phrased provisions will oftentimes give rise to adjudication before their meaning is fully made clear, but detailed provisions add greatly to the difficulties and the dangers of judicial construction.
What has been said above may be emphasized by the statement that the rapid increase of judicial decisions holding state laws unconstitutional began with the increased detail in state constitutions. Not only this, but the rapid increase in judicial decisions of this character may be said to date from the development of the doctrine of implied limitations in state constitutions. That is, a state constitution seeks to deal with a subject, and from the constitutional provisions dealing with the subject, the court implies a denial of legislative authority to deal with other phases of the same subject. An illustration is presented in the Nebraska case referred to above. The Nebraska Constitution did not prohibit the legislature from establishing reform schools for children over the age of 16 years, but the Constitution dealt with
bject itself and prescribed a duty of the legislature with respect to the matter. Courts might in the beginning have taken the view with respect to such provisions that they did not limit the power of the legislature, but merely commanded the legislature to do one thing and left full power in the legislature to deal with the subject in all other respects. Such a judicial view might have accorded with the theory that state legislatures have all powers not denied to them by the Constitution, but the other view has been taken by the courts of this country since about 1840, and is the view which has been acted upon by the framers of a large number of state constitutions. This view is likely, therefore, to be adhered to, and a constitutional provision dealing with a subject is likely to continue to be construed as a definite limitation upon the legislature with respect to that subject.
In theory a state constitution is primarily a limitation upon legislative power and the legislature has all powers not denied to it by the constitution. The theory of judicial construction referred to in the preceding paragraph states in reality an exception to the notion that the constitution is always construed as if it were a mere limitation upon legislative power, but the theory of construction here discussed should be borne in mind in the framing of a new constitution.
It is not too much to say that a legislature will ordinarily be limited by a constitutional provision much more than the framers of that provision contemplated. This fact may be illustrated by an important decision of the Supreme Court of Illinois. No attorney general was provided for by the Constitution of 1848. The Constitution of 1870 provides for an attorney general with “such duties as may be prescribed by law”. In view of the fact that the office of attorney general was not a constitutional office in 1870 and of the fact that under the constitution he was to have "such duties as may be prescribed by law", the framers of the constitution of 1870 may well have thought that they clearly left the duties of the attorney general to be prescribed by the general as
ably. However, the Supreme Court of Illinois in the case of Fergus v. Russel, 270 I11., 304 (1915), took the view that the framers of the constitution intended by the phrase "such duties as may be prescribed by law” to confer upon the attorney general all of the duties which the English attorney general had at common law, and that therefore the phrase which apparently conferred a power upon the general assembly actually forbade the general assembly's interfering with any of the common law duties of an attorney general. The same view may be taken with reference to any institution which has existed at common law, or which has existed by previous statutes or by a previous constitution, unless care is taken to make it clear that a constitutional provision regarding such an institution is not intended to adopt into the constitution the provisions of the common law or the provisions of existing institutions.
Reference is made later to the difficulties occasioned by the fact that the framers of the Constitution of 1870 inserted the words “as heretofore enjoyed" into the constitutional guarantee of jury trial.
Another case should be referred to as indicating the dangers of elaborate details in a constitution. The framers of the proposed New York constitution of 1915 worked out in detail a scheme for the consolidation of state executive departments, and in this scheme used language which implied that each existing office or institution was to remain, but that all offices were to be classified into 17 groups. The proposed constitution was rejected and in connection with any plan for an effective executive re-organization this rejection was wise, because the details in the proposal would, without the intention of the framers, have saddled upon the State a complex executive organization with a preservation of existing offices and would not have worked a desired simplification which was sought by the framers of the proposal.
To some extent, however, the facts have justified the placing of detailed provisions in state constitutions. For example, an amendment was adopted to the New York Constitution in 1913 with respect to the authority of the legislature over compensation of injured employees. This amendment was directly made necessary by the narrow view of “due process of law” taken by the Court of Appeals of New