delivered the opinion of the court.
The question presented is a grave and exceedingly important one. It- reaches to the very foundation of constitutional government. Little aid in arriving at a correct solution of it is furnished by precedent. Little, if indeed any, authority of direct bearing can be found.
Under the provisions of the Constitution of 1849, steps were taken to form a new one. We must assume, in-view of what has taken place, that they were legal. As the result the Legislature passed the Act of May 8, 1890,.
It provided that before any form of constitution made by them should become operative, it should be submitted to the voters of the State, and ratified'by a majority of those voting. The Constitution then in force authorized the Legislature, the preliminary steps having been taken, to call a convention for “the purpose of re-adopting, amending or changing” it, but contains no provision giving the Legislature the power to require a submission of its work to a vote of the people.
The convention met in September, 1890, and having in April, 1891, completed a draft of a constitution, it, by ordinance, submitted it to a popular vote, and then adjourned until September following. During the recess the work was approved by a majority of nearly one hundred and forty thousand, the total vote east being two hundred and eighty-eight thousand, three hundred and sixty. "When the convention re-assembled, the delegates, moved no doubt by patriotic impulse, made numerous changes in the instrument, some of which are claimed to be material, while others were but a change of language or the correction of grammatical errors; and as thus amended it was promulgated by the convention on September 28, 1891, as the Constitution of the State.
The appellants, who are voters and taxpayers, suing for themselves and per an order of court for all others united with them in interest, as provided by our Code of Practice, shortly thereafter brought this action against the Public Printer and the Secretary of State, to enjoin the one from printing, at the public expense, the instrument so promulgated; and the other from preserving it
It is urged upon the part of the appellees, that the appellants’ suit is based upon a speculative idea of injury; and that no such special, particular and substantial damage is impending to them as to authorize it. Also that the action does not lie against the appellees because the printing or preservation of the instrument will not add to or detract from its validity. Ve waive the consideration of these objections, because even if entitled to it, the importance of this controversy to the State requires a decision upon the merits.
It is conceded by all that the people are the source of all governmental power; and as the stream can not rise above its source, so there is no power above them. Sovereignty resides with them, and they are the supreme law-making power. Indeed, it has been declared in each of the several constitutions of this State, that “ all power is inherent in the people,” and this is true from the very nature of our government. It is contended by some, however, that inasmuch as the then existing constitution provided for the calling of a convention by the Legislature, without giving the latter the power to direct a submission to a vote of the people of the proposed new one, and gave the power to the convention to make one, that therefore it was not necessary, to its validity, to submit it to a popular vote, and that in attempting to require this, the Legislature exceeded its rjower. In other words, that
If a set of men, not selected by the people according to the forms of law, were to formulate an instrument and declare it the constitution, it would undoubtedly be the duty of the courts to declare its work a nullity. This would be revolution, and this the courts of the existing government must resist until they are overturned by power and a new government established.
The convention, however, was the offspring of law. The instrument which we are asked to declare invalid as a constitution, has been made and promulgated according to the forms of law. It is a matter of current history, that both the executive and legislative branches of the government have recognized its validity as a constitution, and are now daily doing so. Is this question, there
It may be said, however, that for every violation of, or non-compliance with, the law there should be a remedy in the courts. This is not, however, always the case. For instance, the power of a court as to the acts of other departments of the government is not an absolute one, but merely to determine whether they have kept within constitutional limits. It is a duty rather than a power. The judiciary can not compel a co-equal department to perform a duty. It is responsible to the people; but if it does act, then when the question is properly presented, it is the duty of the court to say whether it has conformed to the organic law. While the judiciary should protect the rights of the people with great care and jealousy, because this is its duty, and also because in times of great popular excitement, it .is usually their last resort, yet it should at the same time be careful not to' overstep the proper bounds of its power as being perhaps equally dangerous; and especially where such momentous-results might follow, as would be likely in this instance, if the power of the judiciary permitted, and its duty required, the overthrow of the work of the convention.
After the American Revolution, the State of Rhode Island retained its colonial charter as its constitution, and no law existed providing for the making of a new one. In 1841 public meetings were held resulting in the election of a convention to form a new one, it to be submit
The Supreme Court of the United States, in Luther v. Borden, 7 Howard, page 1, while not expressly deciding the principle, as it held the Federal Court was bound by the decision of the State court, yet in the argument approves it, and in substance says, that where the political department has decided such a matter the judiciary should abide by it.
Let us illustrate the difficulty of a court deciding the question. Suppose this court were to hold that the convention when it re-assembled had no power to .make any material amendment, and that such as were made are void by reason of the people having theretofore approved the instrument. Then next this court must determine what amendments were material, and we find the court in effect making a constitution. This would be arrogating sovereignty to itself. Perhaps the members of the court might differ as to what amendments are material, and the result would be confusion and anarchy. One judge might say that all the amendments, material and
If through error of opinion the convention exceeded its power, and the people are dissatisfied, they have ample remedy, without the judiciary being asked to overstep the proper limits of its power. The instrument provides for amendment and change. If a wrong has been done, it can and the proper way in which it should be remedied, is by the people acting as a body politic. It is not a question whether merely an amendment to a constitution, made without calling a convention, has been adopted as required by that constitution. If it provides how it is to be done then, unless the manner be followed, the judiciary, as the interpreter of that constitution, will declare the amendment invalid. (Koehler v. Hill, 60 Iowa, 548; State v. Tufly, 19 Nev., 391.)
But it is a case where a new constitution has been formed and promulgated according to the forms of law. C-reat interests have already arisen under it; important rights exist by virtue of it; person® have been convicted of the highest crimes known to the law according to its
"We need not consider the validity of the amendments made after the convention re-assembled. If the making of them was in excess of its power, yet as the entire instrument has been recognized as valid in the manner suggested, it would be equally an abuse of power by the judiciary, and violation of the rights of the people, who can and properly should remedy the matter, if not to their liking, if it were to declare the instrument or a portion invalid, and bring confusion and anarchy upon the State.
The judgment of the lower court dismissing the action is affirmed.
delivered the following separate opinion.
The question made in this case is: Could the convention that promulgated the present constitution, on the occasion of its re-assembling in last September, make material amendments to, or change the constitution .'that the people, by their votes, adopted in August preceding? The importance of that question justifies me in writing this separate opinion upon that subject; not that according to the opinion of this court it is absolutely essential, but as the assumption and exercise of the power by the convention, which might have been exercised by twenty-nine members of that honorable body — that number only being a majority of a quorum consequently could effect the changes — is so heavily laden with mischief to the inherent and inalienable rights of the people, and is so
Did the convention, upon its re-assembling, have the extraordinary power to materially change or abrogate in toto the constitution, which the people,’just a few weeks before, had adopted as their fundamental law, by a majority of one hundred and thirty-eight thousand votes, and declare their own production to be the fundamental law of the State for the government of their masters ? I say the convention had no such power, and only a few suggestions will suffice to show the truth of my assertion.
The 4th section of the Bill of Rights, found in the constitution of 1849-50, is the keystone of all republics. It is: “ That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, happiness, security and protection of property. For the advancement of these ends they have the inalienable and indefeasible right to alter, reform or abolish their government as they may think proper.”
As said, the people that adopted the constitution of-1849-50, declared that all power was inherent in them, and that the constitution then made for their peace, safety, happiness, security and protection of property, was founded on their authority; that for the advancement of
It has never been doubted, and it is certainly true, that republican government is founded upon the direct authority of the people, and that they alone have the right to alter, reform or abolish it in such manner as they may prescribe. It is these fundamental principles that distinguish republican governments from arbitrary or monarchal power. It is also true that this inherent* power in the people means sovereign power,which they may exercise in any manner prescribed by themselves. They may prescribe that the alteration, reformation or abolition of their government, and a new one established in its stead, may be effected by their agents having absolute authority from them. In such case, the authority would be that of an agency, with unrestricted or unlimited powers. Such authority the people may give to their delegates as agents, the same as a private individual may confer upon his agent unlimited authority; or the people may effect these changes by conferring upon their agents — the delegates— a limited authority to formulate changes in their fundamental law, and submit those changes to them for their ratification or rejection. It seems to me that the people can not be denied this right, upon natural grounds, apart from the constitutional provision quoted, except by their consent^ expressly given in language that admits of no doubt; there must be no uncertain sound about it; and if the language is susceptible of construction, it must be construed in favor of the inalienable and inherent right of the people to found their free government by their
It is conceded by the distinguished gentleman, ex-Governor J. Proctor Knott, in his argument before the court, in behalf of the appellees, and his position in his printed brief means substantially the same thing, that these propositions are fundamental. He said, if I caught him correctly — and I paid marked attention to his speech — in answer to the question, "Were the people or the delegates sovereign ? The people were sovereign, of course. Question — Were the delegates the agents of the people? Answer — They were. Question — Had not the people the: right to limit the authority of their agents and to reserve to themselves the right to approve of or to reject the act of their agents, and to make their action in reference thereto, final? - Answer — Yes, the people would have had that, authority, except for the fact that they surrendered it by the 12th article of the constitution of 1849-50, and conferred absolute authority upon their delegates to change that constitution, and denied to themselves the right to-approve or reject the same, except as a mere matter of grace; and that the 10th section of the Act of May 3, 1890, authorizing the selection of delegates to the convention, which section provides that, “ before any constitution agreed upon by said convention shall take effect or become operative, the same shall be submitted to the qualified voters of the Commonwealth, and ratified by a. majority of those voting,” was unconstitutional and void. In other words, the people, by the 12th article of the constitution of 1849-50, retained only so much of their' inherent and inalienable right to, alter, reform or abolish their government, as consisted in electing delegates, and
The language of said section, after providing for the selection of delegates and after they have been elected, makes it the duty of the delegates “ to meet within three months after' their election for the purpose of re-adopting, amending or changing this constitution.” As said, it is contended that this language gives the delegates plenary power to bind the people, hands and feet, and any effort of theirs to restrict the arbitrary power, and secure to themselves the right to approve or reject the work of their agents, is unconstitutional and void. Now, it seems to me to be clear that the language quoted is not a grant of additional power to the delegates; they possessed, by implication, that power. Why, then, was the language inserted ? The answer is, that the people, always vigilant in the protection of their rights, and being unwilling to leave that which affected their inherent rights to the construction of delegates reasoning logically from different analogies existing in the minds of each delegate, or from selfish motives, used language that clearly limited the power of the delegates to the duty of re-affirming, amending or changing the constitution. They are told that they should have in view — it should be their aim (the expression “ for the purpose ” means just that thing) — the re-adopting, amending or changing the constitution. That was to be the business in hand, and none other. The language quoted does not say that the people surrendered their right to adopt or reject the work of the convention; such conclusion is the result of construction,
Now to guard against calamity of that kind, is it not the best to adhere to the proposition so clearly expressed in the language supra, that the right of the people to make, amend or change their government is inherent and inalienable, which can not be taken away from them, nor which they can not surrender or delegate to others, except by language unequivocally expressing that intention ? There is no language to be found in the constitution expressing that intention. It is admitted by all that the constitution is silent upon that subject.
The opinion of the court in this case, in substance, says that the constitution is silent upon that subject. The language is: “ But contains no provision giving the Legislature the power to require a submission of its work to the people.” The fact that the instrument is silent upon that subject means that the people did not surrender their right. It is upon the principle that the right of the people is inherent, inalienable and indestructible, ex.cept as they may surrender that right in forming their government, that when the constitution is silent upon any subject, their right has not been surrendered, and the power of the Legislature is supreme in reference
As said, section 4 of the Bill of Rights is the foundation of the supreme power of the people and the Legislature over any subject about which their organic law is silent. And the constitution being silent upon the subject of submission, the power of the Legislature, as the people’s agents, is supreme upon that subject; and they
But it may be true, and I believe it is true, that if the people, through their accredited agents, adopt the constitution, amendments and all, and administer the government under it, that is an end of our authority. It is certainly true, that if the people hold elections under the instrument and government is administered under it, they thereby ratify it. I do not mean to say that the convention, upon re-assembling, might not have corrected mere verbal inaccuracies that did not change the substance of the instrument. Eor instance, where a promissory note reads, I promises to pay, there is no doubt that the payee may erase the letter s, so as to make it grammatical, without being guilty of materially changing the instrument, and thereby releasing the obligor. But it is said the
Now it is not the merit of the amendments that I ■object to, because they seem to me to be wise and proper; but it is the exercise of a dangerous and arbitrary power that I object to. Nor do I mean to reflect upon the honor and patriotism of the gentlemen that advocated the right to make the amendments. I know that some of them, and I believe all of them, are patriots, and honestly believed they had the power; but I do mean to say that, in my humble opinion, they labored under a grave misapprehension.