in the majority opinion that not the
legislature, but the people themselves
would limit the work of the convention
if they would vote for it under the terms
of the act, and that the people might
confer upon it limited powers. Rejecting
the objection that the two constitutional
provisions above mentioned occupy sep-
arate fields, one dealing with revision
of the Constitution as a whole and the
other with altering a part or parts there-
of, and that each within its respective
field is exclusive of the other, the major-
ity opinion stated that the provision
allowing a constitutional amendment by
submission thereof to the people did not
impair the right of the people to bring
about such an amendment by voting for
the calling of a constitutional conven-
tion. The chief justice dissented on the
ground that the legislature had no
power to restrict the action of a consti-
tutional convention called into being by
the electors.13
13 In the dissenting opinion the chief justice
quotes from W. dodd, revision and amend-
ment of state constitutions 80 (1910), to
the effect that "the legislature cannot bind the
convention as to what shall be placed in the
constitution, or as to the exercise of its proper
duties." It is believed that in stating this
proposition the author did not intend to in-
clude a situation in which the limitations on
the powers of the constitutional convention
were submitted to, and approved by, the vote
of the people. This appears from the follow-
ing statement on page 77: "The presumption
in favor of a convention's having full power
to act in the framing of a new constitution
would, of course, not apply where no constitu-
tional revision had been in contemplation
either by the legislature or by the people, but
where a convention had been called by legis-
lative act to determine a particular question
of public policy, or to interpret a clause of
the existing constitution, as in New York in
1801, in South Carolina in 1832-33, and in
Mississippi in 1850-51." The view taken
herein is supported also by the observation
made on page 76, footnote 8, where in dis-
cussing the case of Wells v. Bain, 75, Pa. 39,
15 Am. Rep. 563 (1873), and Woods's Appeal,
348
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See also the cases, infra, this division,
under subhead "Louisiana cases."
* * *
In some cases the power of the legis-
lature to limit the powers of a constitu-
tional convention has been sustained in
a situation in which the act containing
such limitations was passed after the
people had voted for the calling of a
constitutional convention, but before
they had elected the delegates thereto.
Ex parte Birmingham & A. R. Co., 145
Ala. 514, 42 So. 118 (1905), followed in
Hawkins v. Taylor, 149 Ala. 673, 42 So.
126 (1906), and in State ex rel. Turner
v. Shelby County, 149 Ala. 674, 42 So.
126 (1906); Wells v. Bain, 75 Pa. 39,
15 Am. Rep. 563 (1873); Woods's
Appeal, 75 Pa. 59 ( 1874) .
In Ex parte Birmingham & A. R. Co.,
145 Ala. 514, 42 So. 118 (1905), after
the people had voted for the holding of
a constitutional convention, the Ala-
bama legislature passed a statute by the
terms of which the constitutional con-
vention called thereby was required to
submit all of its acts to the people of the
State of Alabama for ratification. An
ordinance providing for an additional
courthouse in certain counties was
passed by the constitutional convention,
but was never submitted to the people
for ratification, either separately or as
part of the new Constitution. The ordi-
nance was held invalid, two of the jus-
tices dissenting. The decision was rested
on the theory that a constitutional con-
75 Pa. 59 (1874), the author laid emphasis on
the fact that the act which purported to limit
the powers of the constitutional conventions
there involved was not submitted to the
people; and by the statement on page 92,
footnote 34, that "the Constitutions of Okla-
homa and Oregon by requiring that acts pro-
viding for a convention be submitted to the
people, would seem impliedly to make the
terms of such acts binding upon a convention
when assembled."
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