5. The Function of a State Constitution. ventions" which are enormously influential, even controlling, in the actual process of government." But the political experience of the colonies-with charters and written orders from across the seas-made the enactment of similar charters natural and logical when sovereignty passed from king to people. Implicit in the constitutions, furthermore, was the idea of the social contract-between the people and the governments they set up. 8 It is not the intention of this book to depart from the customary American usage of the word "constitution" to denote simply a written instrument, nor to undertake the discussion of constitutional questions beyond those suggested by the formal texts of the states' organic law. In a statement of ordinary length it would obviously be impossible to trace through their many ramifications the purely evolutionary changes to which constitutions are subject. There remains to be carefully noted, however, a brief statement of what is the function of a state constitution. The early constitutions were founded upon the theory expressed in the following language of the instructions which the county of Mecklenburg, famous for the so-called Mecklenburg Declarations of Independence," gave to its delegates to the North Carolina constitutional convention of 1776, Political power is of two kinds, one principal and superior, the other derived and inferior. . . . The principal supreme power is possessed by the people at large, the derived and inferior power by the servants which they employ.1 The superior power, by means of the constitutional instruments, specified certain of its prerogatives which the governments might exercise and confided most of them to the legislatures, the governmental agencies most in favor with the people. "Name given by Dicey; see Ogg, F. A., Governments of Europe, p. 41, seq. "The term constitution was sometimes applied to the charters or written instruments binding particular colonies, but this term as usually employed both in England and America before the Revolution was understood to refer to the general and more permanent principles upon which government is based." Dodd, W. F., The Revision and Amendment of State Constitutions, p. 2. Dodd, op. cit., p. 3. The resolutions declaring the independence of Mecklenburg County are usually supposed to have been adopted in May. 1775, but their authenticity has been rendered doubtful, if not entirely disproven,-see Hoyt, Wm. H., The Mecklenburg Declaration of Independence (1907). Quoted by Dodd, op. cit. p. 14, (N. C. Colonial Records, X, 870a-f). 3 Judicial interpretation built up the theory, which has ever since persisted, that the legislatures of the states, which were originally sovereign bodies, unlike the United States, which was primarily a federation, are supreme in so far as they are not restrained by the constitutions. The state constitutions, therefore, as they exist today, are in the first place essentially limitations upon the otherwise plenary power of the legislature.* In the second place they are statements of the powers and functions which may or must be exercised by the governor and other officers created by the constitutions and charged with putting into operation the commands of the constitution or of legislative enactments." The people, the fountain of all power, have delegated their sovereignty to their state governing agencies, the nature and organization of which are set forth in the constitutions; they have placed certain restrictions both positive and negative upon the powers granted and have usually included in the constitutions some means for making effective their own power to resume that which they have delegated. "The reverse theory obtains, of course, for congress:-"The powers of the legislature [. e., Congress] are defined and limited."-Marshall, C. J., in Marbury v. Madison, 1 Cranch, 137 (1803). Said Judge Haywood in Montgomery Bell v. The Bank of Nashville, Peck's Tenn. Reports. 269 (1823),-"The first of these questions is this: Could the Legislature of Tennessee create a banking corporation? To which the answer is, that the Legislature of Tennessee, like the Legislatures of all other sovereign States, can do all things not prohibited by the Constitution of this State or of the United States, and, amongst other things, may establish a banking corporation, with a capacity to sue and be sued, and, of course, to institute and maintain this action.' See also, Concerning the limits of legislative power, including discussion of the validity of statutes alleged to contravene natural justice and common right, 8 Cyc, 776, seq., and 806, seq. Concerning the latter, especially the dictum of Story, J., in Wilkinson v. Leland, 2 Pet. (U. S.), 627 (657). "From the express limitations others may be implied. The subject of limitations on the power of the legislature is interestingly discussed by Prof. Ernst Freund in Proceedings of the Academy of Political Science, V., 98, seq. "The constitutional grant of powers to the governor is confined for the most part to those which are clearly expressed in the instrument.-Goodnow, Administrative Law of the United States, 94, seq., citing Er Parte Holmes, 12 Vt., 631; Field v. People, 3 Ill., 79; Fox v. McDonald, 101 Ala., 51; French v. State, 141 Ind., 618; also In re Fire, etc., Commissioners, 19 Colo., 482, 503. Strictly speaking provisions granting powers to or creating administrative officers are themselves limitations upon an all-powerful legislature. |