The record-union., 1893-10-14

"such approval may be made by concur
rent resolution" At the time when the
new charter of this city was framed and
submitted to the people and to the Legis-
lature for approval and ratification, no
question had been raised as to the valid
ity of the amendment TO the Constitution
of 1889, and hence the proceedings lead
ing up TO and including the final approval
of the charter by the Legislature were
taken in pursuance of that amendment.
1t may be that the proceedings Will be
eventually held to conform to either OF
said amendments, but that question IS
one which is open to serious doubt, and
upon which judicial minds may well en-
tertain differences of opinion.
A careful examination has led me to the
conclusion that the amendment of 1889
was never legally submitted to the peo-
pie for their ratification. The validity OF
that amendment depends upon the cor
rect construction of Section l of Article
XVIII. of the Constitution, which pro-
vides:
ANY amendment or amendments to
this Constitution may be proposed IN the
Senate or Assembly, and if two-thlrds OF
all the members elected to each OF the
two houses shall vote in favor thereon,
such proposed amendment or amend
ments shall be entered in their journals,
with the yeas and nays taken thereon,
and it shall be the duty of the Legislature
to submit such proposed amendment or
amendments to the people in such man
ner and at such time and after such pub
lication as may be deemed e1pedlent.
If the people shall approve and ratify
such amendment or amendments, or any
Of them, by a majority of the qualified
electors voting thereon, such amendment
or amendments shall become part OF
this Constitution"
The first step in the amendment of the
Constitution is q proposal made by two
thirds vote of all the members elected to
each of the two Houses and the entry of
said proposed amendments in their
journals, with the yeas and nays taken
thereon. The next step is the submission
Of said proposed amendment or amend
ments to the people. This latter must be
done by the Legislature, and the submis-
sion must be made in such manner, and
at such time and after such publication as
may be deemed expedient. The submis-
sion of an amendment, it would seem,
could not be made by any power other
than the Legislature itself. The power TO
submit such a proposal to the quallhed
electors of the State is essentially legisla-
tive, and it cannot be delegated by that
body to any other power, or to any eX-
ecutive or judicial officer of the Govern
ment. The peculiar language of this pro-
vision of the Constitution is such as that
there can be no doubt that it was intended
that the Legislature in which an amend
ment is proposed, shall provide for its
submission; for the provision, in addition
to imposing the duty of submission, also
provides that the proposed amendment
shall be submitted in such manner, and
at such time aud after such publication
oo NOV ha 5aar1an6 nYnpdinpt With eaPh
proposed amendment necessarily arises
question of expediency, dependent upon
the present necessities of the people and
the subject-matter involved. How could
the Legislature of 1888 determine, in ad-
vance, that it would be expedient to SUBJ
nit the amendment, under consideration,
in the manner prescribed by the general
election laws, at the time OF general
election, and after such publication, only,
as is prescribed by TIE general laws OF
the State?
The duty of submission, under this pro-
vision of the Constitution, must neceS-
sarily, in each instance, be accompanied
by the other more important duty of de-
termining the question of expediency in
the particular case, and of prescribing
rules and regulations in accordance there
with. If this be true, constitutional
amendments cannot be submitted simply
a .
the people have the right to expect that,
when a question of sufficient importance
justifies an attempt to amend the Consti-
tuition, and when such an attempt is
made, their representatives in the Legis-
lature will prescribe, at least, whether the
amendment may be safely submitted un-
der the general election laws of the State
or whether some other special method
shall be adopted. 1t would seem clear,
tlo, IF A VII al
XVIII, that the Legislature in which
the amendment is proposed must itself
perform the act of submitting the same
to the people, and must determine the
question OF expediency, as to manner,
time and publication. This view is
strengthened by the fact that the pro-
posal of the amendment, under the Con-
stitution, is not an Act of the Legislature
itself, but is the act of its individual
members. The amendment may be pro-
posed in the Senate or Assembly, and if
supported by two-thirds of all the MEM
bers elected to each house it becomes the
duty OF the Legislature, as a body, to
submit the same to the people of the
State. No Act of the Legislature is neces-
sary for the proposal, the only necessary
act being for its submission, and in the
Act of submission this question of ex-
pediency is required to be determined.
u L
the amendment of Section 8 of Article
XII, under which the new charter was
proposed, was voted upon and ratified by
the people at the general election held in
November, 1890; that the amendment was
not in any manner, advertised by the
Governor, as required by Section l of the
Act of March Z, 1888, providing, generally,
for the submission of constitutional
amendments, and that there was no law
In ba Loo lot nf hi iab
proposed said amendment, for the sub
mission of the same to the people. I'm
der these circumstances, L am OF the
opinion that said amendment was never
legally submitted to the people, and,
therefore, was never legally approved or
ratified. If this be true, it must follow
that in 1891, when the fifteen persons
were elected, as freeholders, to frame a
charter for this city, there was no law
authorizing the same, except the amend
ment of 1887.
The question, therefore, arises as to the
power of the Legislature, under the
amendment of 1887, TO approve charter
which had been ratified by the people, by
concurrent resolution. The history of
these amendments of the Constitution
demonstrates that there must have been
some doubt in the minds of the Judiciary
Committee of one or both of the houses
of the Legislature as 70 us power; other-
wise the amendment of 1889 would not
have added that ''such approval may be
made by concurrent resolution"
By Section l of Article ". of the State
Constitution the legislative power of the
State is vested in the Senate and Assem-
bly,. Those two bodies derive their general
power of legislation from the Constitu-
ton which creates them, and their pow
ers must be exercised in the manner pre-
scribed by that instrument. Under Sec
ton of Article XII, as amended in 1887,
the Legislature exercises this power OF
legislation; for it is by virtue of the ap-
proval of the Legislature that the charter,