has no recognized state government; and
the powers of a convention assembled at
such a time are not necessarily the same
as those of a convention assembled un-
der an existing constitution for the regu-
lar purpose of its revision or amend-
ment.6
This annotation deals only with situ-
ations in which by its terms a legislative
enactment purports to limit the powers
of a constitutional convention, and does
not include the broader question
whether independently of and apart
from the terms of such legislative enact-
ment, the power of a constitutional con-
vention is subject to other limitations,
inherent or arising from the existing
constitution, for instance, whether a
constitutional convention has "legisla-
tive" powers.7
6 As stated in Ex parte Birmingham & A. R.
Co., 145 Ala. 514, 42 So. 118 (1905), due to
the exigencies of the time, which required
prompt and immediate action, the powers of
a convention called into being at a time when
Alabama had no recognized civil government
may be broader than those of a convention
called for revising or amending an existing
constitution.
"No argument for the implied power of
absolute sovereignty in a convention can be
drawn from revolutionary times, when neces-
sity begets a new government. Governments
thus accepted and ratified by silent submission
afford no precedents for the power of a con-
vention in a time of profound tranquillity,
and for a people living under self-established,
safe institutions." Wood's Appeal, 75 Pa. 59
(1874).
"In one point of view, a convention may be
illimitable. It is, however, then a revolution-
ary and not a constitutional convention. It
is one which assembles to resolve society into
its elements, and to which the people neces-
sarily give all power." O'Neall, J., in State
ex rel. M'Cready v. Hunt, 20 S.C.L. (2 Hill)
1,222 (1834).
7 See Bragg v. Tuffts, 49 Ark. 554, 6 S.W.
158 (1887) ; Pender v. Gray, 149 La. 184, 88
So. 786 (1921); State ex rel. Hoffman v.
Judge of Div. B, Civil Dist.,Ct., 149 La. 363,
89 So. 215 (1921); Opinion of Justices, 76
342
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* * *
Attention is called to the fact that
where the question under annotation
affects the validity of a new constitu-
tion as adopted by a constitutional con-
vention and does not arise until some
time after the new constitution has been
promulgated and acted upon by the
people, the courts are apt to leave the
question open, proceeding upon the
theory that it is the duty of the court to
treat the new constitution as valid, since
it has been so recognized after its
promulgation and great interests have
already arisen under it.8
IN GENERAL
In the absence of express constitu-
tional provisions specifying the powers
N.H. 612, 85 A. 781 (1889) (dealing, inter
alia, with the question whether a constitu-
tional convention or the legislature has the
power to fix the date when amendments to
the Constitution are to take effect).
In State ex rel. Hoffman v. Judge of Div.
B, Civil Dist. Ct., 149 La. 363, 89 So. 215
(1921), the court held invalid a resolution
adopted by a constitutional convention to the
effect that if a member or officer of the con-
vention be employed as attorney in any cause
pending in the courts of the state he should
be entitled to a stay of all proceedings in and
continuance of the cause until ten days after
the final adjournment of the convention. To
the same effect is Fender v. Gray, 149 La. 184,
88 So. 786 (1921), where the court pointed
out that under the state Constitution the
legislative power of the state was vested in
the general assembly, and that nowhere in
the act calling the constitutional convention
into existence was authority given to the con-
vention to pass or enact laws; that is, powers
to enact laws without incorporating them in
the Constitution.
See also Downs v. Birmingham, 240 Ala.
177, 198 So. 231 (1940), and Ex parte Bir-
mingham & A. R. Co., 145 Ala. 514, 42 So.
118 (1905), infra, III.
8 See Miller v. Johnson, 92 Ky. 589, 18 S.W.
522, 15 L.R.A. 524 (1892), and Taylor v.
Com., 101 Va. 829, 44 S.E. 754 (1903).
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