January 1, 1874.] CENTRAL LAW JOURNAL. 3
a great judge; not great in the sense of originating legal reforms, or in the field of original investigation, but great in the power to decide correctly, according to the principles which the courts and legislature have established for the settlement of judicial controversies. The judicial annals of America are bright with the names of Marshall, Story, Taney, Kent, Gibson and Shaw. To these is now to be added the name of Nelson, the mild lustre of which will remain undimmed as long as the constitution endures, and the law is reverenced.
Power of Constitutional Conventions—New Constitution of Pennsylvania.
The extent of the power of a convention "to revise and amend the constitution" of a state, or rather the right of the legislature in the enactment authorizing the calling of such a convention to limit the powers of the convention, and to prescribe its mode of action, has been recently considered by the supreme court of Pennsylvania, in a case which has attracted great attention throughout the country.
On July 2, 1871, pursuant to provisions in the existing constitution, the legislature passed "an act to authorize a popular vote on the question of calling a convention to amend the constitution of Pennsylvania;" and the proposition having been carried, the legislature, on the 11th day of April, 1872, passed "an act for calling a convention to amend the constitution." Among other things, this act contained a provision (Sec. 6) "that the election to decide for or against the adoption of the new constitution, or specific amendments, shall be conducted as the general elections of this commonwealth are now by law conducted."
The convention, before adjourning, passed "an ordinance" regulating the time and manner of holding the election for voting on the proposed constitution, which ordinance was opposed in its provisions, to the general election laws of the state.
A bill was filed to enjoin the commissioners appointed by the ordinance from acting under the ordinance, and from appointing election officers, or making a registration of voters, or directing or controlling the election; and in the case of Wells v. Bain and Fitler et al (Phila. Legal Gazette, Vol. 5, p. 400, Dec. 12, 1873) the supreme court sustained the bill and awarded the injunction. The opinion of the court appears to have been unanimous, and was delivered by Chief Justice Agnew, on the 5th day of December, 1873.
Grave doubts, however, attend the doctrine of the supreme court, that it is competent for the legislature in the absence of constitutional provision, or a vote of the people upon the point, to limit in this manner the mode of action of a constitutional convention, lawfully assembled. The view of the supreme court of Pennsylvania, however, is very strongly argued by the chief justice, and the substance of his argument appears in the syllabus of the case, which, as found in the Legal Gazette, supra, is as follows:
The constitutional convention of Pennsylvania, before adjourning, passed an "ordinance," regulating the time and manner of holding the election for voting upon the proposed new constitution prepared by them. The ordinance provided, inter alia, for the appointment of election commissioners for the city of Philadelphia, who were to conduct the election in that place, in accordance with the regulations laid down for their guidance in the ordinance. These regulations being contrary to the general election laws of the commonwealth, as applicable to Philadelphia, an injunction was sought or to restrain the commissioners, and the officers appointed by them, from conducting the election, and to restrain the city officials from furnishing blanks, etc., to the commissioners, or otherwise expending the city moneys for the expenses of said commissioners. The supreme court at Nisi Prius granted the injunction, holding as follows:
1. The constitutional convention was the offspring of law, which law was the only form in which the legislature, the body invested with the powers tf government, could act, and thereby its (the legislature's), own consent be given and revolution avoided.
2. The law being the instrument of delegation, the act of assembly, or warrant to the delegates from the people (i. e. the members of the convention) was the only chart of their powers.
3. The delegates possess no inherent power, and when convened by law at the time and place fixed in it, sit and act under it, as their letter of attorney from the people themselves.
4. The act of assembly of April 11th, 1872, which provided "for calling a convention to amend the constitution," gave the convention no power to frame the ordinance in question, which is, therefore, illegal and void.
5. The court has jurisdiction to restrain invasions of right, without authority under the exising laws, and therefore has jurisdiction of this case.
We may observe, that in the case of Woods v. Hare, 5 Phil. Legal Gazette, 397, the court of common pleas of Allegheny county, held the following propositions:
"1. The act of assembly of 1871, providing for a vote of the people upon the question of calling a constitutional convention, and the act of 1872, which provided for calling it, were both constitutional and valid.
2. There is underlying our whole system of government, a principle of acknowledged right, in the people, to change their constitutions, except where specially prohibited in a constitution itself, in all cases and at all times, whether there is a way provided in their constitution or not.
3. A convention to amend the constitution without the power passed upon by the people, in determining the question of amendments, has inherently, by the very nature of the case, under the great principle, quasi-revolutionary in its character, above mentioned, absolute power, so far as may be necessary, to carry out the purpose for which they were called into existence by the popular will.
4. Unless prohibited or restricted in the manner specified by the people, the convention has a right, untrammeled by mere legislative limitations, to propose to the people for their consideration and adoption, any plan they may see fit."
But this last named court did not pass upon the question of the right of the convention to provide a mode of submission to the voters, differing from, and in substance, repealing the act of the legislature under which the convention was called together.
The general subject is exhaustively discussed by Judge Jameson in his valuable work on Constitutional Conventions, and his views favor the judgment of the supreme court of Pennsylvania. But the doctrine that a convention lawfully assembled, to amend a constitution, can be trammeled and restricted ed as to the mode in which it shall submit its work to the people, by an ordinary act of legislation, is by no means clear to our mind, and seems to be open to grave objections, and might be used to perpetuate abuses, or deprive the people of powers and rights which justly belong to them.
Taxation of the Union Pacific Railroad by the States.
The Union Pacific Railroad Company is a corporation chartered by congress, and was aided by the general government by bonds and lands, and subjected to military and postal duties. The relation of this corporation to the public, and to the state of Nebraska traversed by it, is anomalous and peculiar, and has given rise to some interesting and important questions. The circuit court of the United States for the district of Nebraska, in 1871, held that the state had the power to tax the road-bed and rolling stock of the company, for the reasons which appear in the report of the case. Union
