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The pages will distribute the amendment.
DELEGATE BOYER: May I suggest
that we mark this one "G", for "good"?
DELEGATE JAMES (presiding): The
amendment will be modified and marked G.
I hope there is no confusion created by
doing this.
This is Amendment No. 5. The Clerk will
read the amendment.
READING CLERK: Amendment No. 5
as amended by Report S&D-17 to Commit-
tee Recommendation GP-7, GP-8, GP-9,
GP-12, R&P-1, and LB-3 on second reading,
by Delegate Boyer, Chairman of the Com-
mittee on General Provisions. On page 1,
section 10.01, "Effect of Constitution on
Existing Law", in line 13 strike out the
words: ", and all", and insert in lieu there-
of the following: ". A law in effect on June
30, 1968, shall not be deemed in conflict with
this constitution solely because it was en-
acted pursuant to authority granted by a
provision of the prior Constitution. All".
DELEGATE JAMES (presiding): Dele-
gate Boyer.
DELEGATE BOYER: This is more or
less really a housekeeping amendment. It
was born as a result of the fact that some
legal experts raised some questions about
the existing language in 10.01.
What this does is to reassure those who
may feel that there is a gap in the enu-
meration of legislation. You could stop,
I imagine, before enumerating "includ-
ing local legislation or common law," but
once you start adding things by enumera-
tion, then there is some question raised.
This is an attempt to reassure those who
may be concerned that some of the statu-
tory law now on the books pursuant to
Article XVII of the existing Constitution,
that this will not be unintentionally elimi-
nated. This Amendment G is an attempt to
close that gap and plug up that loop-hole.
DELEGATE JAMES (presiding): Is
there any further discussion ?
The Chair recognizes Delegate Case.
DELEGATE CASE: Will Delegate Boyer
yield to a question?
DELEGATE JAMES (presiding): Will
Delegate Boyer yield to a question ?
DELEGATE BOYER: I will be very
happy to.
DELEGATE CASE: I am in sympathy
with what you seek to do here, Delegate
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Boyer, but is it not true that laws are en-
acted by the General Assembly in accord-
ance with their inherent and implicit legis-
lative power, and that they are not en-
acted, as I understand it at least, pursuant
to authority granted by a state constitu-
tion ?
Now, your amendment says "laws en-
acted pursuant to authority granted", and
actually authority is not granted usually
in state constitutions to enact laws, but
state constitutions are restraints upon the
inherent authority of the legislature.
Had you taken that into consideration
when you drafted this ?
DELEGATE JAMES (presiding): Dele-
gate Boyer.
DELEGATE BOYER: What Delegate
Case says is correct. Of course, the legis-
lature or General Assembly does have the
inherent power to pass laws. The fountain-
head of all laws, however, is any constitu-
tion, in this case the Constitution of 1867,
and hopefully this 1968 constitution.
This is an attempt, as I say, from the
best expert legal opinion that we have, that
this language might close up some question
that does not exist in my mind, frankly,
but I yield to beter judgment to add this
amendment, to put the cork in the bottle
for any misunderstanding later on.
DELEGATE JAMES (presiding): Dele-
gate Case.
DELEGATE CASE: Delegate Boyer, I
suggest to you that constitutions are not
the fountainhead of all legislative power.
In states, the legislative power comes from
the sovereignty of the people delegated
through the legislature, so it is the people
who are the fountainhead of the power,
and the constitution is only repressive or
restrictive in nature. It is unlike the fed-
eral constitution which, of course, is a
document of granted powers. And I am
wondering whether or not you would not
be amenable to asking that action on this
amendment be postponed until perhaps
more appropriate language could be worked
out.
DELEGATE JAMES (presiding): Dele-
gate Boyer.
DELEGATE BOYER: Of course we
are always interested in obtaining the best
language possible, and certainly if there is
any question in Delegate Case's mind, there
probably is in others, and I would certainly
be willing to concur postponement.
DELEGATE JAMES (presiding): Would
you withdraw the amendment temporarily?
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