lish such ordinances and do such things as it may deem proper for the purpose of alteration, revision or amendment.* The typical method of calling a convention, by a favorable vote of a majority of those voting for or against it on submission of the question by the legislature, if followed by a popular vote upon the work of the convention, appears in all respects a correct method of procedure. The theory of the convention is, of course, that it furnishes a deliberative representative body of citizens chosen by their fellows as the agents of the whole sovereign people to perform the most serious of all democratic governmental undertakings, the formation of organic law. It would seem to follow, as of course, that the work of these agents should be reviewed by the principals and be subject to rejection in part or as a whole if it is unsatisfactory." TENNESSEE NOTE.-The first section of the Tennessee constitution asserts the "unalienable and indefeasible right" of the people "to alter, reform, or abolish the government in such manner as they may think proper." For constitutional revision two different methods are prescribed, (1) by amendments submitted by the legislature and (2) by calling a convention to "alter, reform or abolish" the constitution. The former method requires the proposal of amendments by vote of a majority of the members of each house of the legislature, agreement of two-thirds of the members at the next session of the legislature and ratification at an election by a majority of the electors voting for representatives. The legislature may not propose amendments oftener than once in six years. A convention may be called by the people at any time on submission of the question by the legislature and approval by a majority of those voting upon the subject. In 1915 the legislature submitted the question of calling a conven. tion and undertook to prescribe that the amendments passed by the proposed convention should be submitted separately to the voters for approval or rejection. The Ohio convention of 1912 followed the similar directions prescribed for it. There has been considerable discussion, *Concerning the power of the legislature calling a convention to determine what it shall do and concerning the legal position of the convention, see Dodd, op. cit., pp. 68, seq., and ch. 3; Jameson, op. cit. For an interesting discussion of The Constitutional Convention, Preliminary Work, Procedure and Submission of Conclusions, by Professor Dodd. see Proceedings of Academy of Political Science, V, 54 (Oct., 1914). See also Tenn. Note hereto. "For current account of amendments adopted, see the files of the American Political Science Review or the Political Science Quarterly. An interesting analysis of the popular vote on constitutional and legislative proposals in the general election of 1914, prepared by Mr. R. E. Cushman was published as a Supplement to The New Republic. Mar. 6, 1915 (II, 18, Pt. 2). ΟΧΙ, 3. Public Acts of 1915, ch. 110, 111. however, as to whether such restrictions would be binding upon a convention that did not choose to follow them. The Tennessee constitution is silent upon the subject of the legisla ture's power so to bind a constitutional convention and no case has come before the supreme court for discussion. In a few states, however, failure on the part of conventions to obey the orders of the legislature has given the courts an opportunity to express themselves. The cases most precisely in point arose in Pennsylvania. The constitution of 1838 contained no provision for calling a convention. In 1872, however, the legislature, after submitting to the people the question whether a convention was desired, passed an act for calling one and specified that the constitution framed should be voted upon at an election held in the same manner as general elections. The convention, however, provided special election machinery of its own and thereupon an injunction to prevent the holding of the election was granted. The court declared that the convention had no power except that conferred by the act of the legislature. The argument was largely based upon the fact that the constitution in force did not provide for a constitutional convention; consequently the convention called under the plenary power of the legislature was in every way subject to the legislative will.10 On the other hand, the Michigan convention of 1908 fixed a date for the submission of its work to the people different from the date ordered by the legislature, and a mandamus was granted compelling the secretary of state to act upon the convention's order. The court was not agreed upon the reason for its action, but two of the judges declared that by necessary implication the legislature is prohibited from any control over the method of revising the constitution. The Minnesota court, holding that the state printer was not entitled by virtue of his position to do the printing required by the convention, remarked that "even had the legislature intended and attempted to claim and exercise the act of providing a printer for the constitutional convention, it would have been an unauthorized and unwarrantable interference with the rights of that body. . . . The fact that the convention assembled by authority of the legislature renders it in no respect inferior thereto." More in point is the Mississippi dictum3 that the legislature has no power to require a convention to submit its work to a vote of the people. On this point. see Dodd, op. cit.. ch. 3; Jameson, op. cit. Dodd criticises and seems to refute Jameson's contention that the legislature can bind the convention. Wells v. Bain, 75 Pa. St., 39; Wood's Appeal, ib., 59. 10 Voting for delegates to a convention after a legislative call containing restrictions is, it has been argued in the Pa. and other cases, popular ratification of the restrictions. Obviously, however, the voters are unable to express themselves upon both candidates for offices that are to be filled anyway, and questions of the candidates' action after election. Carton v. Secretary of State, 151 Mich., 337. "Goodrich v. Moore, 2 Minn., 61 (1858). Spoule v. Fredericks, 69 Miss., 898; see, also, Dickson v. State, 74 Miss., 227; Loomis v. Jackson, 6 W. Va., 613. The Kentucky convention of 1890-91 and the Virginia convention of 1901-02 assembled as a result of legislative acts requiring that the changes proposed in the constitutions should be submitted to the people. Both conventions disobeyed the order, but no judicial action arose until after the new instruments had gone into effect. The courts then held that inasmuch as the state government was acting under them they could not question their validity. It is difficult to see how courts acting under a constitution could declare it invalid without invalidating their own decisions. Without attempting to mention every case bearing upon the question of the legislature's power to bind a convention, it may be said that the paucity of judicial pronouncements makes hazardous any prediction as to how the court of a particular state would answer the question. The weight of judicial opinion, however, as well as the opinion of students of government, indicates that a Tennessee constitutional convention is independent of the legislature and may disregard its instructions. After an amendment to the constitution has been ratified by the people the courts are slow to declare it invalid for technical irregularities. Thus in 1865 an unofficial convention, assembled for another purpose, submitted amendments to an electorate of its own choosing. Nevertheless, the court, after remarking that in order to understand the nature of the problem before it, note must be taken of the disturbed condition of the country at the time, held the amendments valid and a part of the constitution." Miller v. Johnson, 92 Ky., 589; Taylor v. Commonwealth, 101 Va., 829. Ridley v. Sherbrook, 43 Tenn., 569 (1866). |