If the delegates to a constitutional con-
vention need to be apportioned on the
basis of Article XIV, Section 2, it would
also seem necessary for these persons to
be the only delegates (since they are the
only ones authorized in Article XIV,
Section 2) and for them to be elected.
Maryland has had three constitutional
conventions since 1776. The first was
held in 185 1;5 the second was held in
1864;6 and the third was held in 1867.7
At each of these conventions all dele-
gates were elected by the qualified
voters.8
Legal authority outside of Maryland
is also sparse, but what does exist indi-
cates clearly the impropriety of selecting
delegates by any means other than elec-
tion by the qualified voters.
In Re Opinion to the Governor9
decided by the Supreme Court of Rhode
Island, is directly on point. In holding
that the general officers of the State can-
not, by virtue of their offices, be mem-
bers of the Constitutional Convention,
the court said :
"A constitutional convention is an
assembly of the people themselves
acting through their duly elected dele-
gates. The delegates in such an as-
sembly therefore must come from the
people who choose them for this high
purpose and this purpose alone. They
cannot be imposed upon the conven-
tion by any other authority. Neither
the Legislature nor any other depart-
ment of the government has the power
to select delegates to such a conven-
tion. The delegates elected by and
5 Pursuant to chapter 346, Acts of 1849.
6 Pursuant to chapter 5, Acts of 1864.
7 Pursuant to chapter 327, Acts of 1867.
8Cf. Md. Laws of 1849, c. 346, § 4; Md.
Laws of 1864, c. 5, § 1 ; Md. Laws of 1867, c.
327, § 2.
955 R.I. 56, 178 A. 433 (1935).
|
from the people, and only such dele-
gates, may and of right have either a
voice or a vote therein."10
This position has recently been re-
affirmed by the Rhode Island Supreme
Court in Opinion to the House of Rep-
resentatives.'11 In holding that dele-
gates to a constitutional convention do
not have the power and authority to fill
a vacancy in their membership by them-
selves electing a person possessing the
same qualifications as the delegate pre-
viously elected, the Court stated :
"The convention and the delegates
who compose it are the products of
the formally expressed will of the
people manifested through their duly
qualified electors. The delegates are
their agents and as such derive their
power and authority solely from the
people."12
The Court then quoted with approval
from its earlier opinion the sentences
previously quoted herein.
While the Rhode Island decisions are
not binding authority in Maryland, the
fact that they are the only two cases
found directly in point, and the fact that
they are recent cases, combined with the
other matters discussed herein, appear
to give them strong weight in any pos-
sible determination by the Maryland
Court of Appeals.
See also Baker v. Moorhead,13 where
the Supreme Court of Nebraska held
that it was unconstitutional for the gov-
ernor or the legislature to appoint mem-
bers when the constitution apparently
provided for the method of election of
10 In re Opinion to the Governor 55 R.I.
97, 178 A. 452.
11 Opinion to the House of Representatives,
208A.2d 116 (1965).
12 Id. at 117.
13 103 Neb. 811, 174 N.W. 430 (1919).
357
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