The age-herald. [volume] (Birmingham, Ala.) 1897-1902, 1899-04-28


question be submitted to the people to be
voted upon, need not take the form OF a
law; It is sufficient It it be in the form OF
a joint resolution. Stale ex rel. Wineman
VS. Dahl, Secretary Of State, eS N. w Rep.
18) The court uses this language:
"Whether aught win come of an afi1rrna-
tive vote on this question is immaterial
1t is no concern of the secretary of state
whether 1t is wise or unwise to submit
to the people the proposition specified IN
the resolution. Whether it will lead to
practical results or be only idle form. The
sovereignty of the people, speaking through
their representatives, is the final judge
whether the sense of the people on grave
issue shall be taken at the polls"
In Koehler VS.. Hill. so Iowa 543, it is held
that the approval of the governor is un-
necessary to the validity of resolutions
submitting amendments to the constitution
and the provisions of that constitution In
reference to amendments is substantially
like that of Alabama. To the same effect
see in re Senate File No. 81 (Nebraska)
Al N. w. Rep ISL; State VS.. Mason 4S La.
Ann; Hatch VS.. Stoneman 66 Cal. 6S5.
1t may be considered as settled then, that
in proposing amendments to the constitu-
ton, the general assembly docs not act as
a law-making body and the governors APP
prevail to the resolution or bill proposing
the amendment is unnecessary. And what
has been said with reference to proposing
amendments must apply with added force
to the question of a constitutional conven-
ton. Section l OF Article II of the Con-
stitution provides that the general assem-
bly, may, whenever tWo-thirds of each
house shall deem 1t necessary, propose
amendments to this constitution, and sec
ton provides that no convention shall be
held for the purpose of altering or amend
ing the constitution, unless the question of
convention or no convention shall be first
submitted to a vote of all the electors, etc
1t thus appears that whilst in the case of
amendments, express power to propose Is
vested in the legislature and in the capaci-
ty above pointed out, there is no mention
made Of who is to submit the question of
convention or no convention. This duty de-
wolves on the Legislature in the absence of
other directions in the constitution. (Jame-
son on Consti. Con-, 121) The author in
discussing the propriety of the selection of
the legislature for this responsible duty,
points out that the judiciary is not
adapted to perform this function and says
with reference to the executive: Some
what similar objection exists to the execu-
| tive as a depository of the power in ques-
| ton. That department consists of single
| individual, noted often, rather for political
| tact than for wisdom craftsmanship"
| After discussing the question at some
| length, he adopts the conclusion above
| announced, that the legislature only can
| submit the question. Having submitted
| the question of convention or no conven-
| tion can the legislature recall it? With
| reference to amendments to the federal
| constitution, Mr. jameson in his work
above quoted says: when congress has
submitted amendments, at the time deemed
| by itself or its constituents to be desirable,
| to concede to that body the power of after
| wards recalling them would be to give to it
| thateof definitely rejecting said amend
ments. Since the recall would withdraw
| them from the consideration of the states,
| and thus render their adoption impossi-
| bile.
However this may be- it is enough to
| justify a negative answer to say that the
| federal constitution, from which alone con-
| gress derives its power to submit amend
| ments to the states, does not provide for
| recalling them upon any event or condition.
| and that the power to recall cannot be
| considered in that to submit, as necessary
| to its complete action. 1t, therefore,
not exist. (Section $50. This author also
gives in an appendix to his work tho
| "opinion of the judges of the supreme court
| of New York touching the validity of the
| act of the assembly passed April %, 1876,
| modifying the convention act of eMay Is,
! 1885, 1t there appears that by the con-
vention act the people were to decide upon
| convention or no convention and SUBJ
| sequently to that the legislature attempted
| to modify the convention act The court
was called upon to answer this question::
| whether this legislature has any power
to alter or amend that law and says: "A
| proper solution of the question proposed by
| the assembly involves an inquiry concern
| ing the source from which the act of 1S45
| derives it's obligations" 1t then proceeds
| to point out that while the constitution
| delegated power to the legislature to pro-
| pose amendments, it had no power to call
| convention, and that this can be done
| only by the people themselves. This con-
| dition is applicable to the legislature of
| Alabama, because the constitution not
<x,,Ix, 70 coll
| vention, but expressly prohibits the call
| ing of one until the question of conven-
! ton or no convention be submitted to and
voted on by the people and approved by a
| majority of those voting. The conclusion
| Of the judges in the New York case was
that the legislature could not alter or re-
peal the act in question.
Mr.. Jameson's opinion is that an act Is
| not placed beyond legislative repeal, though
| voted on by the people, as to such parts
| of it are within the general cognizance
| of the general assembly, when there il
nothing in the constitution requiring the
| subject matters comprised within those
| parts to be submitted to a vote OF the peo-
| ple." (Section 40S). But here 1t will be re-
membered that the constitution expressly
requires the "subject-matter' to be submit
/ ted to a vote of the people. If the legisla-
| ture can repeal the submission to the peo-
| pie now, may 1t not as well do so after the
| people have acted or after a convention has
| met and performed its work or at any time
| in fact short of the actual adoption by the
| people of new constitution? And may 1t
i not by such a proceeding defeat the ex-
| pressed will of the people calling con-
1 vention? OF course, acts of general leg
| islation are subjects of repeal and it may
| be that parts of an act are repealable when
| other acts are not, but the authorities
| above suggested on this question and the
| expression of court in "a Ala. above
| quoted point strongly in the direction that
| there is no power to recall the question.
| AS Senator Morgan suggests, the legisa-
| ture has exhausted its power
| Another question may be here suggested,
| and that is whether the governors call OF
| special session is constitutional, except
| SO far as the proposed passage OF pri-
| mary election law is concerned. 1t would
| seem to be reasonable construction of the
| constitutional provision authorizing the
| governor, by proclamation 9l extraordi-
| nary occasions" to convene the legislature,
| to hold that he can only call the legsa-
| ture to pass upon some matter of general
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