Page images

The former restriction prevents the legislature from authorizing the counties to pass laws relating to their own affairs. Thus the county court can pass no fence, stock and road laws, which, if the varying wishes of the people are to be carried out, must be different in different counties. The constitution authorizes county tax levies and the courts have held that the county courts may be authorized to make appropriations for the ordinary and extraordinary expenses of government, but beyond this the counties have no legislative powers.

Local legislation outside chartered cities would, indeed, be a thing unknown in Tennessee did not the courts wink at the palpable evasion of the constitutional prohibition of laws "granting 10 any individual or individuals, rights, privileges, immunitie, (immunities) or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law.” Induced by necessity, doubtless, the supreme court has held that any county may at some time be any size and that laws relating to counties of a specified number of inhabitants according to a given federal census or any subsequent federal census are such that any member of the community may be able to bring himself within them.

To a person accustomed to local self-government such as is exercised by the New England towns, the denial of local self-government in Tennessee seems not less ridiculous than thrusting upon the legislature the duty of making local enactments for each of the ninety-six counties of the state. In 1915 there were only four counties for which local laws were not passed."

2See Leeper v. State, 103 Tenn., 500.

3See Hunter v. Justices, 47 Tenn., 49; Shelby Co. v. Exposition Co., 96 Tenn., 653.

*See Woodward v. Brien, 82 Tenn., 520.

Indebtedness is acknowledged to Dean C. W. Turner of the University of Tennessee Law School for suggestions relating to this note. Concerning the county court, see Caldwell, J. W., Local Government in Tennessee, Proceedings of joint meeting of the Bar Association of Tennessee and the_Arkansas Bar Association, 1907, p. 173: Peale, W. F., The County Court in Tennessee, 23 Ten. nessee University Magazine, pp. 1 and 54.



Need for


308. Early Con.

FUNDAMENTAL law is no exception to the rule that all things N307 human change. Each succeeding generation has its own ideas Revision. as to what constitutes the fundamental in law,-an inevitable result as society finds its economic conditions and intellectual attainments altered with the passage of time, and a result that bears fruit in an ever-increasing number of amendments to the state constitutions. “I do not find a model in the world,” wrote William Penn, “that time, place, and some singular emergencies have not necessarily altered, nor is it easy to frame a civil gov. ernment that will serve all places alike.”

No fewer than six of those state constitutions adopted during the revolutionary period, however, were entirely without stitutions. provision for alteration in any manner. Their framers were revolutionists and perhaps ignored the possibility that future constitution-makers might prefer legal rather than revolutionary change. On the other hand, four of the original constitutionsand the New Hampshire constitution of 1784 included clauses authorizing the calling of constitutional conventions, and three others, adopted before the close of the war, provided for constitutional amendment by legislative action. During the first sixty years of development only two states followed the example of the federal constitution to the extent of providing both for the calling of a convention and the adopting of amendments, but at the present time in every state except New Hampshire there is specific authorization for amendment on the initiative of the state legislature and three-fourths of the states contain directions for calling conventions. In several of the states

1General References: Dodd, W. F., The Revision and Amendment of State Constitutions ; Jameson, J. A., Constitutional Conventions; Oberholtzer, E. P., The Referendum in America.

2 In the preface to his Frame of Government.
Ga., Mass., Pa., Vt.
*Del., Md., S. C. (1778). No ratification by people.
"Del. (1792) ; S. C. (1790).

All except Ark., Conn., Ind., La., Mass., Miss., N. J., N. D., Pa., R. I.,
Tex., Vt.

not providing for them conventions have nevertheless been held, but in Rhode Island the view is officially taken that this is not allowable.

Of the constitutions of the revolutionary period only those of Massachusetts (1780) and New Hampshire (1783) were formally submitted to the people for approval and not until the Connecticut constitution of 1818 was final decision upon amendments placed in their hands. But the principle that matters of fundamental law should receive the sanction of a popular vote of approval took root almost from the very beginning and with the triumphant democracy of the early nineteenth century became firmly established. It is now almost universally accepted in practice as well as in theory. Beginning with Oregon, in 1902, twelve states" have taken the further step of allowing the people, on petition of specified percentages of the voters, to initiate proposals for constitutional amendments and cause them to be submitted for approval or rejection at a popular election.

Notwithstanding the fact that historically revision by convention antedates amendment by legislative and, of course, by popular proposal, the latter two, as simpler methods, may appropriately be considered first.

The state constitutions show four distinct methods of legis309. Proposal of

lative proposal,—(1) The Delaware provision that an amendAmendments by the

ment may be adopted by two-thirds vote of all the members Legislature. elected to both houses of two succeeding legislatures, before the

election of the second of which it must be published in three
newspapers in each county; (2) Proposal by one legislature and
ratification by the electorate,-allowed in thirty-one states,
(3) the South Carolina: provision that an amendment may be
proposed by vote of two-thirds of the members elected to each
house of the legislature and, if approved by a majority of the

"See, supra, pp. 18-9. for the manner in which the Tenn. convention of 1870 was called in the absence of authorization by the existing constitution.

$14 R. I., 649. Advisory opinion of judges of highest court.

Ariz., IV', Pt. I, 1 (1); Ark., V, 1; Cal.. IV, 1: Colo.. V, 1; Mich., V, 1, XVII. 2: Mo., IV. 57: Neb.. III, 1; Nev., XIX, 3; X. D., XV, 202 (1914) : 0., II, 1a : Okla., V, 1; Ore., IV, 1.

XVI, 1.

2Ala., XVIII, 284; Ariz., XXI, 1 ; Ark., XIX, 22 ; Cal., XVIII, 1 ; Colo., XIX, 2; Fla., XVII, 1 ; Ga., XIII, sec. I, 1 ; Ida., XX, 1: Ill., XIV, 2; Kan., XIV, 1; Ky., 256 ; La., 325; Me., X, 2, (Amend. 1914); Md., XIV. 1; Mich., XVII, 1; Minn., XIV, 1; Miss.. XT, 273; Mo., XV, 2; Ment., XIX, 9; Neb., XV, 1; X, M., XIX, 1; N. C., XIII, 2; O., XVI. 1; Okla., XXIV, 1; Ore., XVII: S. 1).. XXIII, 1: Texas, XVII, 1; Utah, XXIII, 1; Wash., XXIII, 1 ; W. Va., XIV, 2; Wyo., XX, 1.

XVI, 1.

electors voting for or against it at the next general election for members of the lower house, may be adopted by a majority vote of each house of the legislature; and (4) proposal by two succeeding legislatures and ratification by the electorate,-allowed in fourteen states.

Provisions for securing a separate vote on each amendment when several are submitted to the electorate are found in some thirty-four constitutions. Kentucky, furthermore, ordains that each amendment shall relate to no more than one subject. Not more than two amendments may be submitted at the same time in Kentucky, nor more than three in Arkansas, Kansas and Montana;' amendments may not be proposed to more than one article at the same session in Illinois nor to more than six in Colorado.' Frequency of submission also is sometimes limited, notably in Tennessee, where the people may not be required to vote upon amendments at all oftener than once in six years.? Five states exempt bills proposing amendments from the veto power of the governor. As a matter of practice they are usually proposed by joint resolution and thus often avoid liability to veto.4

Of the thirty-one states allowing amendments to be proposed by one legislature, a vote of two-thirds of the members of each house is required by sixteen, a vote of three-fifths in seven and



4Conn., XI: Ind., XVI, 1 ; la.. X; Mass.. Amend. IX; Vev. XVI. 1; X. J., IX: N. Y., XIV, 1; N. D., XV, 202 ; Pa., XVIII, 1 ; R. I., XIII; Tenn., XI, 3; Vt., II, 68; Va., XV, 196; Wis., XII, 1.

be. g., Cal., XVIII, 1; ('olo., XIX, 2; Ind., XVI, 2; Ky., 256 ; Vt., II, 68. 6256. XIX, 22 : XIV, 1; XIX, 9. SXIV, 2-nor to the same article oftener than once in four years. PXIX, 2. XI, 3.

2See, also, N. J., IX; Pa., XVIII, 1 (not oftener than once in 5 years). Ind., XVI, 2.

3Ala.. XVIII, 287, V, 125 ; Ky., 256 ; Miss., IV, 60; Mo., V., 14; R. I., Amend. XV, 1.

*The legislative procedure in the passage of amending proposals is frequently detailed and many directions for giving notice of elections, for the qualification of electors, et cetera, are laid down in the constitutions.-. 9., N. Y., XIV, 1; Va., XV, 196. Much litigation has arisen because of alleged failures to obey these directions.—See Dodd, op. cit., ch. 4. For another review of constitutional amending clauses and judicial decisions, followed by criticism, see Garner, J. W., The Amendment of State Constitutions, American Political Science Review. I, 213 (1907).

'In twelve, two-thirds of those elected to each house: in two, two-thirds of all the members of the two houses, voting separately ; in one, two-thirds of both houses: in one, two-thirds of each house on each day for three days, Concerning judicial interpretation, see Dodd, op. cit., 142-3. e. 9.,-Green v. Weller, 32 Jiss., 650 (1856).

In six, three-fifths of members elected to each house; in one, three-fifths of each house.

a vote of a majority in eight." New Mexicos requires a vote of three-fourths of the members elected to each house to propose an amendment relating to certain sections concerning the elective franchise and education, and the affirmative votes of threefourths of the electors voting upon such an amendment to adopt it.

In twenty of the states an affirmative majority of those voting upon an amendment is sufficient to adopt it; in seven a majority of those voting in the election is required. North Carolina? says simply that there must be a “majority of votes cast,” and Idaho and Wyoming a majority "of the electors” must be favorable. Montana makes no specification upon the subject.*

Of the fourteen states requiring the approval of two legislatures before an amendment may be submitted to the people, one specifies that there must be in the former legislature a twothirds vote of the senate and a majority vote of the lower house, and in the second legislature a majority of each ; another that in each case there must be a majority of the senators and twothirds of the members of the lower house present and voting. A third state requires that there must be a majority vote of the lower house of the first and a two-thirds vote of each house of the second legislature; a fourth state requires a majority vote of the members elected to each house of the former and of twothirds of the members elected to each house of the latter legislature. The remaining ten states require in each instance the affirmative vote of a majority of the members elected to each house of the legislature. Three-fifths of the electors voting upon the submitted amendments is necessary for adoption in one state, an affirmative majority of those voting for members of the lower house of the general assembly in a second state, a majority of the electors present at the town meetings called for the

"A majority of the members elected to each house in six; same, voting separately, in one; majority of both houses in one.

$XIX, 1.
'VII, 1, 3; XII, 8, 10.
1Including N. M. in regard to other amendments.
2XIII, 2.
3XX, 1; XX, 1.
4See XIX, 9.

sIncluding Va., XV, 196—the legislature at two succeeding regular sessions ; N. Y., XIV, 1 ; legislature chosen at next general election of senators.

« PreviousContinue »