The Montgomery advertiser., 1901-07-21


 that think it is due to the Convention that the opinion of the Attorney Gen. erai should be printed. Now. some Of us were of different opinions. ana It may be that the opinion of the Attor- ney General may convince members and the public. and think at all events 1t ought to be a part of the record or this Convention.
 A vote being taken the resolution was adopted.
 Montgomery. Ala. July 18th. 1901 Hon. Thos. L. Sowell. Auditor.
 At Office:
 My Dear Sir-I have considered the questions propounded by you for my official opinion in the following com munication:
 Hon. Charles c. Brown, Attorney
 General. etc. Montgomery, Ala:
 Dear Sir--It is apparent that the Constitutional Convention, now in ses- sion. will not be able to complete its labors within fifty days. Section Of an Act entitled An Act to provide for holding a Convention to revise and amend the Constitution of this State. approved Dec. 11th. 1900 provides that per diem compensation shall not pc allowed or paid to any member Of the Convention for a longer time than nifty days In case the Convention does. hold on in session for longer time than fifty days. shall be governed by the mandate of said Act? Or in case the Convention should adopt an ordinance or pass a resolution approprfating money out of the Treasury to cover the extended time, or should order war rants to be drawn to cover the per diem for this extended time, what will be the duty of the Auditor? In your opinion, has the Convention the power to appropriate money out of the Treas ury to pay themselves for per diem be- yond the limits prescribed in the above
 'yery respectfully.
 TT. L. Soweil,
 Auditor"
 A categorical reply by simple yea, or nay. answers to the several ques- tons in the order propounded, would not be proper under the circumstances, as the importance of the inquiry pre- sented and the fact that an official opinion from this office is for your guidance only which, if followed. would protect you in your official action thereon: yet if 1t does not meet with your approval, you can, and should. act according to the dictates of your Judg- ment and disregard the opinion of the Attorney -General--renders Is highly proper that should state the reasons for the opinion submitted for your con- sideration. A correct solution of this, to me, intricate problem demands consideration of the trr1 legal and po- litical concept of Constitutional Con- vention, its office and powers, its re- lation to the whole people of the State and the proper boundaries between the office and powers of the Convention and those of the General Assembly Of the State as the depository of the leg islative power of the State government on matters. or subjects. of general and ordinary legislation. except as limited by provisions of the fundamental law of the State.
 do not deem 1t necessary to even epitomize the history and development of the law of Constitutional Conven- tions. or to note the distinction bet what are termed, by MT. Jameson, Revolutionary Conventions and Con- Estffutional Conventions and shall con- tent myself with only saying that cannot concur with this learned, but paftisan, &ffter in many of his deffni- tions nRjednciusions on this subject. N4 the very threshold of this investiga- ffon. we are confronted with the con- sideration of the question as to the Ieeitimate office and relation of the General Assembly of Alabama towards a Constitutional Convention, ana whether, or no, it can lawfully define and limit the powers of Constitu- tional Convention and restrict their ex- ercise' as to time, mode and method. It is contended by MT. Jameson in ms work on Constitutional Conventions that the legislative department of State can thus define and limit the | GA.efif,ttinnal Convention. shall endeavor to show that many or his postulates are incorrect and the authorities relied upon by him are not applicable to the Constitution and form of ftsoyernment of the State of Alabama. |In its last analysis, he holds that the authority and commission of the dele gates of q Constitutional Convention and the powers of a Convention are de- rived from the Act of the Legislature in w hat Is commonly termed (but im- properly so, as applied to the Constitu. ton of this State). the "Enabnng Act to provide for the holding of Consti- tutional Conve ation. The decisions re- lied upon by this author and MT. or- dronaux were rendered upon Constitu- tions different from our Constitution on the matter of the revision and al teration and amendments of Constitu- tions: in some of which there were no provisions as to such revision, aiterh- tion and amendment, either by the proposal of amendments by the Legis- lature, or providing for call or a con vention. and others contained simply provisions for amendments by propo- sals originating in the Legislature and stil others with provision for proposals of amendments, and with a provision empowering the Legislature to submit to the people the question Of the expe- diency of holding a Convention and then empowering the Legislature, 1T majority of the qualified electors voted in the affirmative to call Convention and for such purposes and Tn such manner and under such regulations as deemed best and expedient. In these States, except the State of Rhode lsl- and. the power to call Convention was referred to the general legislative powers of the Legislative Department of the State and a submission Of the question of the expediency Of a Con Yention was left ts the discretion ana will of the same department, ana the vote of the people was considered as advisory merely-simply addressing It. | self as a moral or political inducement l for the Legislature to grant the ex- pressed desire of the people. In Rhole Island it was held by the court of last resort that as the Constitution specih- cally provided that amendments should | be made by proposalsn snortStna taas m l the Legislature. a convention could not | be held to form a new Constitution, or revise, amend, or alter the existing Con stitutlon In Massachusetts 1t was douhted under the Constitution of 1920,