The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1917-01-29
the crucial point of the entire ques-

ton.
In cases where constitutions contain
no express provision for procedure and
no express restriction on procedure,
and where it is conceded that the peo-
pie have the power to revise their
constitutions, as we'll as that the legis-
lature must initiate such revision by
one method or another, in my opinion
any method followed by the legislature
in placing before the people a nav
constitution for adoption or rejection
in their sovereign capacity is legal.
Any other conclusion is denial Of
the sovereign power Of the people or
partial restriction Of that power
utterly unwarranted by our constitu-
ton and accepted rules of constitution
al Interpretation. 1t would be in direct
contravention of our American theory
that popular sovereignty is restricted
in the exercise of its powers only by
express written prohibitions contained
in constitutions. as set forth in the
first section of this opinion.
The truth is that the argument in
favor of revision by constitutional
convention as opposed to revision by
commission or legislative action is not
an argument of legality, but solely of
expediency. The possible greater ex-
pediency or wisdom of the conven-
ton method has been mistaken by it's
advocates for. exclusive legality.
Dodd, in his authoritative work, the
revision and amendment Of state con-
situations, page 261. has stated this
point clearly and conclusively: -
Judge Jameson has said as to the
legislative method of proposing amend
ments: 1t ought to be confined, 1t is
believed, to changes which are few,
| simple, independent, and of compare
lively small Importance. For gen.
eral revision of a constitution, or even
for single propositions involving radi-
cal changes as to the policy OF which
the popular mind has not been in
formed by prior discussion, the en-
ployment of this mode Is impractic-
able, or of doubtful expediency.' Judge
Jameson's point is purely one as to
expedience, and it is legally proper, 1t
would seem, in the absence of specific
constitutional restrictions. to propose
to the people by the legislative process
any constitutional alteration short of
complete revision, or even complete
revision"
The real merit of revision by con-
vention over legislative revision APP
pears to lie in the fact that the
constitutional convention. elected sole
ly upon the issue of revision, Is likely
to be more carefully selected, to con-
tain a greater number of men specially
fitted for the task and to approach its
task with greater elaboration and
more concentrated energy. This may
all be true. The same consideration
probably will hold good In connection
with revision by a commission ap-
pointed by the legislature. and yet all
these considerations merely go to the
expediency of the method. not to its
legality.
When once we concede that the
legislature has authority to set in
motion this great sovereign power of
the people by initiating revision, then,
upon the mere ground of reasoning by
implication and without written
authority, who are we to say that the
sovereignty of the people shall from
thence on be exercised only in one
certain narrow way? We may say
that it is inadvisable that it is UNI
wise, that it is inexpedient, for 1t to be
exercised in that manner, but we are
unable in the light OF American
institutions, to say that 1t cannot be
so exercised.
The sovereign power of revision
having reached the threshold of the
legislature without express written
authority and solely by its irresistible
power can then, without vestige of
authority, assume the right to bride
it and lead 1t tamely down the narrow,
though highly respectable, avenue OF
revision by convent en-?
AnG other conclusion as TO the rule
under our constitution must wrongflI-
ly seek by mere Implication to restrict
the sovereign power of revision to the
narrow channel of constitutional con-
Ventions The ground for Conceding
| to the legislature the right to initiate
revision is the compelling power of
necessity, no other method being pro-
vided. No such necessity exists to re-
strict the sovereign power as to any
particular method Of revision through
the initiative or the legislature. In
fact. such restriction would rest up
on the most doubtful reasoning Gas to
/ legality distinguished from expedl-
ency). Opposed to 1t would be the in
herent right of the people to secure
the freest possible expression OF their
sovereign power. Under these circum-
i stances, and, in the absence of any
every presumption of legality is in
| favor Of whatever method the. legis-
lature may adopt and such method
will prevail.
1t is urged that, since our constitu-
| ton provides a method OF amendment
| by exclusion the legislature is pros
hibited from initiating revision it
self by drafting a new constitution
This argument is untenable when
dealing with sovereignty of the peo-
pie seeking expression through re-
vision. It is an instance where the
| ordinary doctrine of exclusion appli-
cable to contracts 10 not binding.