sometimes found others, whose true
place is in the Frame of Government,
or whose character is such that they
cannot rightfully find any place in a
Constitution. Of the former, sections
relating to subjects treated of in the
body of the instrument, but bearing
upon points which have apparently
been forgotten, or which are mere
after-thoughts, are instances. It is,
perhaps, rather a sense of logical com-
pleteness and order than substantial
propriety which is offended by such
provisions; but if a Schedule is a
proper subdivision of a Constitution,
it should be, not in the nature of a
labor-saving postscript, made at the
expense of clearness and finish, but
of an appendix, in which to gather
provisions of a temporary and miscel-
laneous character, related to the in-
strument in the main only as subser-
vient to its general objects. Among
provisions which ought to find no
place in a Constitution at all, but
which are, nevertheless, occasionally
placed in a Schedule, may be men-
tioned laws or ordinances relating to
the submission of the Constitution to
the people, to take effect at once, in
cases where power to make such laws
or ordinances has been expressly with-
held by the legislature calling the
Convention, or where different direc-
tions have already been given to that
end by the legislature itself, and, per-
haps, where the legislature has been
altogether silent on the subject of sub-
mission. The objection to such pro-
visions is, that they are exercises of a
legislative discretion not belonging to
a Convention ; and as, from the nature
of the case, the action of such a body,
in placing them in the Schedule as
rules of conduct, cannot be revised,
but is definitive, it is an excess of
authority to assume to enact them.
|
Whether or not it might be allowable
to make such provisions in the case
last supposed, where the legislature
has been silent on the subject of sub-
mission, or of the time and mode in
which it shall be made, is a fair sub-
ject for argument, which will be con-
sidered in a subsequent chapter.
"It should be noted that the Sched-
ule did not make its appearance until
after the first batch of Constitutions,
including those of the Union, had
been framed and put in operation.
The first Constitutions in which it
was used were those of South Caro-
lina and Pennsylvania, framed in
1790. Of the Constitutions now in
force, only about two in three have
them, though in a few instances a
separate article containing similar pro-
visions is embraced in the Constitu-
tion, without special designation, or
under the title of General Pro-
visions."8
C.J.S. in its section on "Constitutional
Law," considers "Ordinances and Sched-
ules" in the following terms:9
ORDINANCES AND SCHEDULES
APPENDED TO CONSTITUTION
"While ordinances and schedules
appended to a constitution are con-
sidered temporary enactments for the
purpose of effecting a transition from
the old government to the new, the
provisions thereof, adopted as a part
of the constitution, may be equally
binding with it.
"It is generally the rule that ordi-
nances and schedules appended to a
constitution, as distinguished from
the permanent and fundamental law
embodied in the constitution itself,
are temporary enactments for the
8 J. jameson, the constitutional con-
vention 95-96 (1867).
9 16 C.J.S. Constitutional Law § 11 (1956).
365
|
