I. Section 7, Article IV, of the Constitution provides for an apportionment and redistricting of the State into senatorial districts by the General Assembly, with the proviso that if for any cause the General Assembly shall fail or refuse to redistrict the State then it is the duty of the Governor, Secretary of State and Attorney-General to redistrict it. It is claimed that that proviso is a limitation upon the all-embracing legislative authority given to the General Assembly by Section 1 of that Article, and is not a grant of power.
If it is a mere limitation upon the legislative power, the argument runs, it is like other limitations in that article and other articles of the Constitution upon the power of the legislative assembly, and it was not affected by the amendment, Section 57.
In form the proviso is directly a grant of power of legislative authority to three executive officers. In effect it vests them with the legislative authority, which otherwise they would not have. But, it is argued, because collaterally and incidentally as a result of the grant it takes that much power away from the General Assembly it is a limitation. Because incidentally it has that limiting effect it loses its character as a direct and positive grant of power. The effect of the argument is that a general grant of power is a grant, while a special grant of power is not a grant. *Page 1064
In purpose and effect it is not even an indirect limitation upon the authority of the General Assembly. It limits in no way any function of that body. Whatever the General Assembly could do without that proviso it had authority to do with it in force. Those officers could not prevent, abridge, modify or annul any redistricting act of the General Assembly. It is said that the effect of conditional power lodged in the three officials was to "withdraw such power from the General Assembly for a limited time." It withdrew nothing. The power of the Legislature must lapse by adjournment before the three officials could act. They acted when the Legislature could not act. The language of Section 1, "subject to the limitations herein contained," means of courselimitations in form, purpose and effect, the direct and specific limitations referred to there. It does not mean the indirect effect upon legislative functions caused by powers conferred upon other branches of the government.
II. In the amendment, Section 57, the people saw fit to restate:
"The legislative authority of the State shall be vested in the General Assembly," but added
"And the people reserve to themselves the power to proposelaws and amendments to the Constitution and to enact or rejectthem at the polls."
The people "reserve to themselves" the power regarding, not merely laws which are or might be enacted by the General Assembly, but laws covering every subject of legislation. By that amendment they take back, reassume, all legislative authority theretofore granted, with the general grant as before to the General Assembly, and the additional limitation of initiative and referendum. Can it be doubted that the initiative and referendum apply to every subject and method of legislation? The people reserve to themselves the unlimited power to redistrict the State, to control such legislation as they do all other legislation. The method provided is by initiative and referendum, the latter applying only to acts of the General Assembly. No provision is made for a referendum of redistricting by the Governor, Secretary of State and Attorney-General. Can it then be said that the people intended to leave to them an uncontrolled authority above that granted to the General Assembly? To set those officers apart and distinguish their acts as beyond the control of the people, beyond the reach of the comprehensive reservations of power in Section 57? After reserving to themselves all legislative "power" the people did not reinvest those officials as they did the General Assembly with the legislative authority formerly granted. The absence of a provision for referring the legislative acts of those officers is conclusive of the intention not to grant again the power taken away.
I concur in the majority opinion. *Page 1065