The Montgomery advertiser., 1901-07-21

nistic to the accomplishments ok sne duty imposed by the General Assempls must necessarily be invalid, voio ans s of no effect. Every restriction anu limitation and provision imposed oy .ne General Assembly antagonistic to .s right of the people to have their eeiI 'si,. gates freely and fully ana caIe.u' ., and deliberately perform tneir oe.y y,;.,, I trammeled and unhampered, ana Iihisn their work of careful revision or tne nresent Constitution, and Of framihs and adopting a revised Constitutioi, for the State. must be held nun ano void as in excess of the power ana au ., thority of the General Assempiy Alabama. It therefore follows tna. .ns regulation so far as 1t provides IoI ems per diem compensation of the menr is valid, but the proviso thereto , as per diem compensation shall no. allowed or paid to any member ol sns Convention for a longer time than ill.s days'' must be held void and thus ieas ing in force the other provisioh ,1 lo, compensation for the whoie 'iie
 Convention is in session. .,. Con
 It is. however, insisted that ehe Son- yention cannot provide TOT 'ne ps , met out of the Treasury oi lls ro diem compensation, because sucn pio, S,is;on would be in contraventioh oi Section 33. Article W Uegisiative De nsrtment1 of the Constitution or tnis State to wit: That no money snail pe maid out of the treasury except upoI annronriation made by law ana oi warrant drawn by the proper oincer n r,,rs,arce thereof" and 1t is contend ed that this means that it must De py statute enacted by the General Assem- bly of Alabama-that bill must De lh- troauced in the General Assembly ana passed in compliance with the requile 1nent of the Constitution TOT the pas sage of an act of the General Assem- bly and must be approved by the .Ios, z. ernor. and that as the ConVenlioh is but one body. and cannot compiy Wa.N these requirements of the Constltutioli ii has no powers of legislation. nave heen unable to find any direct ad1uoi- cation by the courts on this question hut have found some dicta in opinions which. arguendo, tend to sustain tiiif contention; and MT. Jameson 1aiis u cite any such direct adjudication or the courts to this effect. He does. however give the three opinions respectively ol ths Attorney Generals of Georgia NeM York and Pennsylvania against tne mower of the Convention to appropri' ate money out of the treasury 10 pay ment of compensation to memoers ol convention and clerks ct al, ana Ioi printing. and for stenograpnlc repol.H
 These States had provisos in tneil Constitutions similar to said Section aa of Article W of the Constitution ol Alabama; but the Constitution Of all these States in force at the time ol the rendition of these opinions did no' contain the same provisions as tc amandments of the Constitution py Conventions as those of this State; ane thair ar1uments were based on the as' sumption that such appropriation Mas vested solely in the Legislative De- partment. and that a statute must DC passed according to the form pre-, scribed by the Constitution ana tna' the legislature had the authority unoei these Constitutions to restrict the ex' ercise of the powers of the Convention It is not full and correct statemeh, of the law to say that a Constitutions ~onvention possesses no legislative mower? In the language of the decis- ion in Goodrich vs. Moore. Minnesota D. 61. "A Constitutional Convention ls the highest legislative assembly recog, nized by law, and has full control ol ifs proceedings and may provide In any manner it sees. fit for the perpetua' lion of the record of it's proceedings. "A constitution which fixes and de- fines a right may exercise legislatlve power in providing the means for its enforcement" !,
 schirley vs. First National Bank. 4 III. Ap.. 124.
 A Constitutional Convention exercis, ,es the highest legislative powers for Il enacts ordains and declares the fun damental law of the State; and the precedents conclusively show that sucf conventions have time and again exer' cised legislative powers in the enact ment of ordinances, resolutions ano schedules to provide for and agalns' temporary contingencies and to mee' the changed conditions necessitated oS reyisions. amendments and alterations fin the existing Constitution, and or the necessity the Convention is the pes' judge and to its judgment ana discre' tion it must ex necessitate DC ieIt From the very necessity Of the case and the uncertainty of the fact tha' existing laws can meet every contln- pencv. or answer every condition and demand. a Constitutional Convention must have the power to enact laws re- ouired by the duty imposed on 1t anc to enable it to discharge the trust re- posed and to provide sor the very changes made in the fundamental law The Constitution of 1875 passed law and placed same in the scedule, chang ing the provision of the act providing for the call of the Convention by re- healing in part and amending Sectior 12 of said act as to certain proclama' tions required to be made by the Gov. ernor and the publication of the copy of said Constitution which. by his proc lamation was to be submitted to the people for ratification. The Constitu- lion does not say that in pursuance oi a statute. or law, but Tin pursuance of law" and when the Convention or dains or declares that anything shal he done within its power then this is a law. and any act directed to be per formed thereunder is in pursuance oi law.
 If is held. and~it is admitted by the learned lawyers differing with me IT this opinion. that when Constitution declares the amount to be paid an of- Sicer. such declaration constitutes ar annropriation made by law, and no sub seouent act was necessary to its pay ment out of the treasury.
 Am. & Eng. Ency. of Law Cd Ed.) n. 914 and note z; State vs. Weston. Nebraska, p. 216; Thomas vs. Owen, Maryland, p. 1S9.
 This settles the fact and law that the Convention has the vested power tc make appropriations and that appro- nriations made by 1t Is in pursuance ot law and the form and place-whetheI In the Constitution or m an ordinance ar in a. resolution or declaration. must denend upon its character-whetheI Ornamental, or permanent, or tempo rary. and upon custom and precedent arj +be rules of procedure adopted by