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issued out of the Supreme Court. The issuance of this writ involves the assertion by the tribunal whence it emanates, that the body to whom it is directed is an inferior tribunal, usurping powers which it does not possess, and encroaching upon a jurisdiction beyond its purview.
Quimbo Appo v. People, 20 N. Y., 531.
The logical conclusion from this definition must be, that in order to warrant judicial interference in the pending juncture, it must be determined, first, that the Constitutional Convention is inferior to the Supreme Court, and, secondly, that it has no jurisdiction to pass upon the qualifications and elections of its members.
We proceed to the consideration of these questions. Prior to the adoption of the Constitution of 1846, the organic law of this State contained no provision for a Constitutional Convention, although such conventions were ordered by the people pursuant to recommendations of the Legislature and held in 1801, 1821, and 1846.
Article 13, section 2, of the present Constitution provides :
"At the general election to be held in the year 1866 and in each twentieth year thereafter, and also at such time as the Legislature may by law provide, the question, "Shall there be a Convention to revise the Constitution and amend the same?” shall be decided by the electors qualified to vote for members of the Legislature, and in case a majority of the electors so qualified, voting at such election shall decide in favor of a convention for such purpose, the Legislature, at its next session, shall provide by law for the election of delegates to such convention."
The Constitutional Convention is thus one of the recognized elements of our constitutional government. Whenever the People shall determine that such a Convention is to be held the duty is devolved upon the Legislature to provide by law for the election of delegates to the Convention. The voice of the People calls the Convention into being. Their mandate is the warrant by which the Convention acts. The power of the People to revise and amend their Constitution is exercised by them in a Convention created by their fiat, through the delegates elected by them.
Under the present Constitution changes in the organic law can be originated in but one of two methods. Either by means
of a Constitutional Convention called into existence by the People, or by the action of the majority of the members elected to a Senate and Assembly, subsequently referred to another Legislature to be chosen at the next general election of Senators, and agreed to by a majority of all the members elected to each house. Should two Senates and two Assemblies fail to concur in any proposed amendment to the Constitution, no change can be wrought except in the manner provided by article 13, section 2. It is of the greatest importance that a body chosen by the People of this State to revise the organic law of the State, should be as free from interference from the several departments of government as the legislative, executive and judiciary are, from interference by each other. Unless this were so, the will of the people might easily be nullified by the existing judiciary or Legislature.
Should the latter attempt to enact a law prohibiting the Constitutional Convention from restricting the existing powers of the Legislature, the act would be at once recognized as an unwarranted invasion of the rights of the People. How does the action of a court which seeks to restrain the Convention in the transaction of its business differ from the case supposed? It might happen, as it has frequently occurred, in other public assemblies, that the members elected to a Constitutional Convention were so narrowly divided in sentiment, that upon a single vote might depend the passage or defeat of a measure abolishing an existing court. If a writ of prohibition could tie the hands of the Convention, a judge of some court whose existence was at stake, might perpetuate his tribunal by the allowance of a writ identical with that which has been served upon this Convention. To sustain such a contention would amount to a nullification of the will of the People; would perpetuate an institution against the express wishes of the sovereign.
There is high authority in support of the proposition that a Constitutional Convention, is in effect a gathering of the People in their sovereign capacity. Such was the declaration of Mr. Livingston, in the New York Convention of 1821. He said: "The people are here themselves. They are present by their delegates. No restriction limits our proceedings. We are standing upon the foundations of society." In 1836 George M. Dallas, of Pennsylvania, declared a Constitutional Convention to be: "The provided machinery of peaceful revolution." He said, "It
is the civilized substitute for intestine war. When ours shall assemble it will possess within the territory of Pennsylvania every attribute of absolute sovereignty, except such as may have been yielded and are embodied in the Constitution of the United States. What may it not do? It may reorganize our entire system of social existence, terminating and proscribing what is deemed injurious, and establishing what is preferred."
In the Illinois Convention of 1847, Mr. Peters said, "We are the sovereignty of the State. We are what the people of the State would be if they were congregated here in one mass meetings. We are what Louis XIV said he was, 'We are the State."" The Constitutional Convention, held in Pennsylvania in 1872, was created by an act of the Legislature of that State, and did not derive authority in any manner from the Constitution. The statute provided a method for the submission of the work of the Convention to the People. The Convention adopted an entirely different method, which was declared illegal by the Supreme Court of Pennsylvania, in Wells v. Bain (75 Pa. St., 39); Woods Appeal (75 Pa. St., 59); upon grounds not applicable to a Convention ordered as this Convention is, by the People under authority of the Constitution. The action of the courts was, nevertheless, considered a breach of the prerogatives of the Convention and by the almost unanimous vote of the Convention the report of a committee consisting of some of the ablest lawyers in the State was adopted, the material portions of which were as follows:
A proceeding to which the Convention was a party, has, in effect, and result, brought into controversy some of the fundamental principles of constitutional government. The opinion that has been pronounced in this proceeding contains doctrines, which, in our judgment, ought not to be left unchallenged. We believe them to be subversive of some of the absolute rights of the People. We, therefore, submit for the action of the Convention, the People, as determined by their vote under the act of 1871,
Resolved that this Convention was called by authority of the People, as determined by their vote under the act of 1871, declaring that a Convention should be called to amend the Constitution of this Commonwealth; and that this vote was a mandate to the Legislature, which that body was not at liberty to disobey or modify.
"2. Resolved, That the Constitution of the State is the only recognized form of its government, and the People having expressly reserved to themselves the right to alter, reform or abolish their government in such manner as they think proper, and declared that such right shall forever remain inviolate, this Convention deems it to be its duty to declare that it is not in the power of any department of an existing government to limit or control the powers of a Constitutional Convention called by the People to reform their Constitution; and that the Convention, subject to the Constitution of the United States is answerable only to the People from whom it derived its power."
Jamieson in his work on Constitutional Conventions, which was written with the express purpose of refuting the claims of those who asserted the identity of the Convention and the People admits that in the United States the Constitutional Convention belongs to the legislative class of assemblies. He says at section 420, "By this is meant that its proper function is to elaborate to a certain extent, to be determined by the tenor of its commission, the fundamental law, much as the Legislature enacts the ordinary municipal law. Of these two species of law, the distinction between which has been already explained, it is the most important thing to note, that the one denominated fundamental law is, generally speaking, the work only of a Convention, a special and extraordinary assembly, convening at no regularly recurring periods, but whenever the harvest of constitutional reforms has become ripe, while, on the other hand, the ordinary statute law, whose provisions are tentatory and transient, is, regularly at least, the work of a Legislature, a body meeting periodically at, short intervals of time. It is thoroughly settled that, under our Constitutions, State and Federal, a Legislature cannot exercise the functions of a Convention-cannot in other words, take upon itself the duty of framing, amending, or suspending the operation of the fundamental law. Being the supreme law of the land, all departments of the government are subject to its control, for from and under it they derive both their commissions and their existence; and to permit either of them to modify it would be to invert the relations of dependence on which the safety of the whole system depends. This has never been doubted since the early days of the republic."
In Goodrich v. Moore (2 Minn., 61), the Supreme Court of that State declared that a Constitutional Convention is the highest legislative assembly recognized in law, invested with the power
of enacting or framing the supreme law of the State. It has full control of all its proceedings, and may provide in such manner as it sees fit, to perpetuate its records; and, although the Convention may have been called together by legislative authority, that body has no right to select officers for the Convention or otherwise control the transaction of its legitimate business. Mr. Justice Atwater, speaking for the court, said: "The admission of such a right in the Legislature would place the Convention under its entire control. It would have less power than a town meeting, and be incompetent to perform the objects for which it convened. It would be absurd to suppose a Constitutional Convention had only such limited authority. It must have plenary power for this and all the incidents thereof. The fact that the Convention assembled by the authority of the Legislature renders it in no respect inferior thereto, as it may well be claimed whether, had the Legislature refused to make provision for calling a Convention, the people in their sovereign capacity would not have had the right to have taken such measures for confirming and adopting the Constitution as to them seemed meet."
In Loomis v. Jackson (6 W. Va., 708), the court reached the following conclusions upon a similar question: "First, that a Constitutional Convention lawfully convened does not derive its power from the Legislature but from the people. Second, that the powers of a Constitutional Convention are in their nature sovereign powers. Third, that the Legislature can neither limit nor restrict them in the exercise of these powers."
Treating the Constitutional Convention then, as a legislative body, whose function is the revision and amendment of the Constitution, the question arises whether, in the absence of express constitutional grant, it is precluded from adjudging the election and qualification of its members.
From what has been already said, it is manifest that the existence of such a power is essential to the preservation of its efficiency; that the intervention of the executive, legislative or judicial departments of the government in the deliberations of the Convention and in the conduct of its business would be fraught with great danger, and would tend to destroy that independence which is so essential to the proper performance of the high duties imposed upon it by the People. The sessions of the Convention must necessarily be of short duration. The public welfare demands expedition. The delay incident to the trial of