ported favorably. Two substitute measures were offered, one of which contained the following provision:

"Sec. 5. Be it further enacted, etc. That the Constitution framed by said convention shall be submitted to the people for their adoption or rejection."

Both of these measures were rejected, the latter by a vote of 26 to 7, with three members absent, and the house bill was made a special order for June 30,5 and on that day it came on for final passage. Senator Martin (Democrat) explained his vote as follows:

"In voting on this measure I desire to state that a call for a Constitutional Convention should contain no limitations or restrictions. The people when in convention assembled are supreme, and the Legislators have no right to dictate to them what they should or should not do. I favored, by my amendments to this bill, which unfortunately have been defeated, an unlimited Constitutional Convention assembled and that they will so regard their rights when assembled and if necessary disregard whatever limitations or restrictions which are contained in this bill, I vote ‘yea.'

Senator Sholars (Democrat) said:

"The pending bill declares that there are certain measures about which the people should not legislate. The people are sovereign and we are their servants. This relationship constrains me to declare that I cannot vote for a bill which, while calling them together to frame an organic law, would yet tie their hands as to action on many important measures.'

8

On the roll-call twenty-five senators voted in favor of the measure and seven against, three being absent. On July 7, the measure received the executive approval and became a part of the law of Louisiana."

3. The Measure

The law thus enacted has been styled "a curiosity among the acts calling Constitutional Conventions." 10 It provided for submitting proposals for a convention, "with full power to frame and adopt, without submission to the people, a new Constitution for the State," and then proceeded to enumerate certain subjects upon which the convention was prohibited from acting."

1 Journal of the House of Representatives (1896), 262.

2 Journal of the Senate of Louisiana (1896), 262–266. Id. 296, 297. 3 Id. 266.

4 Id.

10 Eaton, "The Suffrage Law Review, XIII, 281.

• Id. 267.

• Id. 296.

8 Id. 296.

"Acts of Louisiana (1895), 85.

Clause in the New Constitution of Louisiana,” Harvard

11 Acts of Louisiana (1896), 85.

Mr. Eaton further characterizes the act as

"a very shrewd device to tie the hands of the members of the Convention, and yet to put into effect the result of their deliberations without submission to the electors. . . . It would seem that great indeed must have been the necessity for a new Constitution, when coupled with an affirmative vote for calling a Constitutional Convention, was the renunciation by the electors of their right to pass upon the results of the labor of the Convention. This may be shrewd politics, but it is poor statesmanship thus to compel the electors to renounce their rights or else go without a much needed new Constitution." 1

B. The Convention

On February 8, 1898, the convention met at Tulane Hall in New Orleans. All but one of the one hundred and thirty-four delegates were present. In point of nationality the members included twentyone only of the original French stock,2 and politically the body was overwhelmingly Democratic, there being but one of any other political faith and he a populist. The convention was called to order by Chief Justice Nicholls, who had performed a similar duty at the last preceding convention, held nineteen years before, and Hon. Ernest B. Kruttschnitt was unanimously elected President. The attention of the delegates was largely devoted to the discussion of plans concerning the suffrage, and this fact, together with the peculiar wording of the act under which the convention was called, seems to have foreclosed any extensive discussion as to whether the results of its labors ought to have been referred to the people. At any rate, when it adjourned on May 13 it had exercised the power of "putting into effect a new constitution" which the statute in terms conferred and left nothing more to be done by the voters.

C. Validity of the Constitution Assailed

As in Mississippi and South Carolina this action was not accepted as final and steps were soon taken to question its validity in the courts. In a murder case, tried in the parish of Acadia during 1898, the accused filed a motion to quash the indictment on the ground, inter alia, that

1

Eaton, "The Suffrage Clause in the New Constitution of Louisiana,” Harvard Law Review, XIII, 281. State v. Favre, 51 La. Ann. 434 (1899).

2 Id.

3 Id. 290.

• Id. 282.

"the pretended Constitution of the State, of 1898, under which this defendant was indicted and now held for trial, is unconstitutional and illegal, null and void, for this, viz.; that it was passed and adopted in contravention of Article 256 of the Constitution of 1879, which provides, that all amendments shall be submitted to the electors for their approval or rejection," and "that the pretended Constitution of 1898 is a mere amendment of the Constitution of 1879, and is therefore null and void, never having been submitted to the people as required, as aforesaid.”1

The trial court overruled the motion, holding

“that the act calling the convention was in the nature of a proposition submitted to the people as to whether or not a convention should be held, and if held, that it should be held as provided in the act, a feature of which was, that it would not have to submit its work to the people.

"When, therefore, the people voted to hold a convention, they declared that it should be held and adopted without submission to the people, as had been specially provided for in the act calling same together.""

The case was thereupon appealed to the Supreme Court, where the validity of the new instrument was again declared. The reasoning of the court was in part as follows:3·

"The principle [sic] contention of counsel in favor of his theory is, that the legislative act which proposed the convention scheme, suggested certain restrictions to be placed upon the delegates to be thereto accredited, when in convention assembled, and that, in consequence thereof, certain provisions of the Constitution of 1879 were left in full force; hence the present Constitution is essentially an amendment thereof. . . . That the terms of the statute proposing a Constitutional Convention were not unlimited and sweeping, would seem to make no practical difference, as the convention was called upon the lines which were suggested by the legislature, and in exact conformity with the will of the sovereign, as expressed at an election duly held in keeping therewith, and the delegates duly chosen thereto were regularly convened and organized, and thereafter framed and promulgated an instrument which is styled a Constitution for the state of Louisiana.

"We deem it to be our duty to accept that instrument as the organic law of the State without any hesitation, or resort to any refined distinctions or subtle argument on the question; and thus accepting same, it is, in our opinion, exactly what it purports to be, a Constitution and not an amendment to an existing Constitution."

1 Id. 435.

• Id.

• Id. 436.

CHAPTER XXIV

VIRGINIA

A. The Preliminary Movement

THE most recent participant in the movement now under discussion is Virginia. The constitution of 1869, generally known as the "Underwood" constitution, had been a source of dissatisfaction from the first, and resolutions looking toward its amendment or displacement had been introduced at every session of the legislature since 1874.1 In 1888, an act referring the question to the people was passed. But the poll taken the following year showed an overwhelming majority against the proposition. The course of events in the states farther south was, however, keenly followed in Virginia,* and probably did much to change public sentiment on the question of calling a convention, and when another proposal was submitted in 1896, though defeated, it received a much larger vote than on the previous occasion. Finally, in 1900, the question was again submitted, and the result was a large majority in favor of a convention."

In view of subsequent events the language of the constituent act, passed in pursuance of this vote, is important. It provided that the delegates elected should meet "in general convention to consider, discuss, and propose a new constitution or alterations to the existing constitution."

1 Chandler, “The History of Suffrage in Virginia," Johns Hopkins University Studies, XIX, 341.

2 Id.; Brenaman, "A History of Virginia Conventions" (Richmond, 1902), 81. This was in pursuance of a constitutional requirement.

3 Brenaman, id. The vote was 63,125 against and 3698 in favor.

* See the remarks of President Goode of the convention, Brenaman, “A History of Virginia Conventions," 89.

* Id. 82; Chandler, “History of Suffrage in Virginia,” Johns Hopkins University Studies, XIX, 342.

• Virginia Session Laws, 1900, 835.

7 The vote was 77,362 to 60,375. See Brenaman, 83.

It further provided that:

"If said convention shall agree upon a revised and amended constitution on or before the 5th day of October, 1901, the said revised and amended constitution shall be submitted to the qualified voters of the commonwealth as a whole or by separate articles or sections, as the convention may determine, for ratification or rejection, at the general election to be held on the 5th day of November, 1901." Provision is then made for the method of voting, and the act continues as follows:

"But if said convention shall not propose a revised and amended constitution on or before the 5th day of October, 1901, it shall remain for the next General Assembly to enact such measures as it may deem proper for submitting said revised and amended constitution to the people of this commonwealth for ratification or rejection."

Undoubtedly, one of the efficient causes which finally brought about the adoption of the proposal for a convention was the course of the organization of the dominant political party in Virginia. That party had at its state convention at Norfolk in May, 1900, just before the poll was taken, adopted a resolution favoring a new constitution and declaring it the sense of that body "that when such a constitution shall have been framed, it shall be submitted to a vote of the people for ratification or rejection." It is very clear therefore that before the electors of Virginia expressed themselves on the question of calling a convention it was understood and expected that the work of that body was to be ratified by the people.

B. The Convention

Delegates were chosen in May, 1901, and the convention assembled at Richmond in the following month. It included one hundred members, of whom less than one-half were lawyers. On political lines the dominant party in the state had an overwhelming majority

1 Virginia Session Laws, 1901, p. 262. This statute was entitled "An Act to Provide for the Selection of Delegates to the Constitutional Convention for the convening of said delegates, the organization of the said convention, and for submitting the Revised and Amended Constitution to the people of the State of Virginia for ratification or rejection."

2 Chandler, "History of Suffrage in Virginia," Johns Hopkins University Studies, XIX, 344, 345.

3 McKinley, "Two New Southern Constitutions," Political Science Quarterly, XVIII, 481.

Y