Finding myself unable to agree in one respect with the views expressed in the opinion of the majority of the judges in response to the questions asked us, I deem it my duty to set out my position in connection therewith.
I am in general accord with the conclusion reached by the majority of the judges, and for the reasons expressed in their opinion, that a constitutional convention can be called under the constitution by the general assembly to revise that instrument. This is in answer to the first question asked which is marked (a) which reads as follows:
"Would it be a valid exercise of the legislative power if the General Assembly should provide by law,
*Page 113(a) for a convention to be called to revise or amend the constitution of the state."
In one particular, however, I am unable to concur with the holding of the majority opinion, and that relates to the necessity of the submission to the people by the general assembly of the question of the calling of a constitutional convention before the general assembly actually proceeds to make the call.
Granting that a constitutional convention to frame a new constitution or generally revise the existing instrument may properly be held under the present constitution, it seems well settled that the legislature is the proper organ or body to initiate proceedings to bring such a convention into existence. The authorities are not uniform in construing the nature of the power employed in this connection. It would not seem to be the ordinary legislative power in its narrower sense. But whatever its nature, whether inherently legislative, or as being in the legislature as the agent of the sovereign people and the most suitable body to act as representing them, it is clear that the power exists in some form, and a discussion at length as to its scope would not be profitable.
A serious question is raised, however, as to what is the legitimate exercise of this power by the legislature in starting proceedings looking toward the calling of a constitutional convention.
There are two views. One is that the legislature has the power to call a constitutional convention without first submitting to the sovereign people the question as to whether they wish such a convention to be held; the other is that the power of the legislature in the first instance is limited to ascertaining from the people their desires in connection with the holding of a constitutional convention.
Very respectable authority is found supporting both positions. Those arguing for the first contention or the broad power claim that such power is inherent in the legislature, and that it is entirely a matter of policy or the exercise of a sound discretion as to whether the question should first be submitted to the people. Those taking the *Page 114 second position urge that the submission of the question to the people is a necessary prerequisite to the proper exercise of the power of the legislature.
After giving this question careful consideration, I have come to the conclusion that the reasoning which supports the second of the above views, viz; that requiring submission to the people by the legislature of the question of calling a constitutional convention in order to get their approval before making the actual call, is the sounder, the more correct, and the more in accord with modern trends and developments in constitution making.
On this general proposition, without considering at this time conditions peculiar to this state, reference may be had to a few citations of authority. As early as 1820, Chancellor Kent of New York, in writing a report for the Council of Revision of that state, to whom had been submitted an act passed by both houses of the New York Legislature in connection with the calling of a constitutional convention, used the following language: "It is worthy, therefore, of great consideration, and may well be doubted, whether it belongs to the ordinary legislature, chosen only to make laws in pursuance of the provisions of the existing Constitution, to call a Convention in the first instance, to revise, alter, and perhaps remodel the whole fabric of the government, and before they have received a legitimate and full expression of the will of the people that such changes should be made." Jameson, Constitutional Conventions, 670.
There is, in another portion of the report, language which possibly implies that the question of submission might be one of policy. It is submitted, however, that the above quotation indicates that the writer's opinion was clearly against the exercise of the broad power by the legislature.
In Hoar on Constitutional Conventions at page 68 the following statement is found: "Thus convention-calling is not a regular function of the legislature, and there is a growing tendency toward the view that the legislature has *Page 115 no power to call a convention without first obtaining permission from the people."
Dodd in The Revision and Amending of State Constitutions at page 51 says: "The practice of obtaining the popular approval for the calling of a convention may be said to have become almost the settled rule. Thirty-two state constitutions require such a popular expression of approval, and even where it has not been expressly required such a popular vote has been taken in a majority of cases in recent years." At page seventy-one he further says: "According to what is now the more usual procedure in the adoption of constitutions, there are three popular votes connected with the matter: (1) The vote of the people authorizing a convention. (2) The election by the people of delegates to the convention. (3) The submission to the people for approval of the constitution framed by the convention."
In the case of State v. Dahl, 6 N.D. 81, the court at page 85 used the following language: "Nor can it be said that it is an empty form to leave to popular vote the grave question whether the people shall assemble in convention, and revise their fundamental law."
While the decision of the court in this case was finally based on narrower grounds, nevertheless it seems clear from the language used in the opinion that the court stands for the general principle of submission.
In the case of Bennett v. Jackson, 186 Ind. 533, a comparatively recent authority, the following view is approved by the court at page 539: "It seems to be an almost universal custom in all of the states of the Union, where the constitution itself does not provide for the calling of a constitutional convention, to ascertain first the will of the people and procure from them a commission to call such a convention, before the legislature proceeds to do so. The people being the repository of the right to alter or reform its government, its will and wishes must be consulted before the legislature can proceed to call a convention." In this *Page 116 case there was a dissenting opinion which is approved and discussed at length by the other members of this court.
Finally, it is noticeable that in the various state constitutions expressly permitting the calling of constitutional conventions (the number of such constitutions being well over thirty) in all but a very few the provision is contained that the question be submitted to the people for their approval before the convention is called. This state of facts reveals clearly the present trend and development in constitutional law on this point.
The question is next presented as to whether anything in our own constitution or our historical background prevents the application of the general principles above set out to the issue now before us. It is probable that the language of section 10 of Article IV of our constitution, having in mind our constitutional history, presents the strongest argument for the holding that the legislature has the power to call a constitutional convention without first submitting to the people the question of whether they wish one called. In this connection the conclusion of the majority of the judges is based to some extent on said section 10 of Article IV. This section reads as follows: "The general assembly shall continue to exercise the powers they have heretofore exercised, unless prohibited in this constitution."
After the Revolution and prior to the taking effect of the present constitution in 1843, the state was still under the Royal Charter granted in 1663, slightly modified. This charter could hardly be termed a constitution, but it represented the fundamental law of the state. Under it the general assembly had extremely wide powers. In the early years of the nineteenth century that body made use of both methods of calling constitutional conventions. In 1821 and in 1822 questions were submitted to the people as to the expediency of calling a constitutional convention and both times the vote was in the negative. In 1824, 1834, 1841 and 1842, the general assembly proceeded to call conventions without first asking the approval of the *Page 117 people. It is clear therefore that prior to 1843 the general assembly, whether rightly or wrongly, exercised the power of calling constitutional conventions directly.
Apparently, therefore, the next point for consideration is whether, in the legislative grant given the general assembly in section 10, Article IV, under the present constitution, this power was continued on to the general assembly, or whether its exercise is prohibited by any other part of the constitution.
It would seem that the only portion of the present constitution which could act as a check, limitation or prohibition on any powers granted under Article IV, section 10 in this connection would be Article I, section 1. This whole section together with its preamble must be read and construed together. It is set out fully in the majority opinion. It constitutes a part of the bill of rights in the constitution. By its terms the sovereign people expressly reserved for themselves, as a matter of fundamental law, when they voted to accept the present constitution, the right to make and alter their constitutions of government. In the preamble it is declared that the "essential and unquestionable rights and principles hereinafter mentioned shall be established, maintained, and preserved, and shall be of paramount obligation in all legislative . . . proceedings."
It is largely from this general reservation of power that we find the authority to hold a convention at all under the constitution, the latter being otherwise silent on the matter of calling a convention. The language of section 1, Article I and its preamble should be broadly construed. The intent is clear to reserve in the sovereign people all powers in connection with altering and making their fundamental law, except what is granted to the legislature under Article XIII relating to amendments. The language and intent of the reservation seems wide enough to require that the sovereign people be consulted and their favorable opinion obtained before the legislature proceeds to call a constitutional *Page 118 convention. The people should be entitled to a participation in all the incidents and steps connected with the proceedings instituted to set up a constitutional convention, which are included in the full exercise of the right to make and alter their constitutions of government.
In my opinion it does not meet the entire requirements of section 1, Article I and its preamble, to say that the people may vote for delegates to a convention, and that such convention will be obliged to submit its work to the people for approval or disapproval. Under the express reservation of rights in section 1, Article I, they are entitled to be consulted in the beginning as to whether or not they desire a constitutional convention called to alter or revise their constitution. It seems reasonable to hold, therefore, that section 1, Article I and its preamble act as a prohibition to the exercise of any power by the general assembly under section 10, Article IV to call a constitutional convention directly without first ascertaining the will of the people.
Section 10, Article IV of the constitution has been discussed by this court several times. One of the first occasions was in the well known opinion by AMES, C.J., in Taylor v. Place,4 R.I. 324. There it was forcefully held that an affirmative grant in the constitution of the judicial power to the courts operated as a necessary prohibition on the exercise of any judicial power by the general assembly under said section 10, Article IV. This opinion of Taylor v. Place, supra, was later referred to in the case of Higgins v. Tax Assessors of Pawtucket,27 R.I. 405, where the court said "and therefore the affirmative words of the constitution granting judicial power to the Supreme Court and such other courts as the General Assembly should establish were construed as taking away such power from the General Assembly."
On the issue now presented to us for consideration, while perhaps the line of demarcation is not so distinct, nevertheless the same general reasoning would apply. Here instead of an affirmative grant of the judicial power, as in *Page 119 section 1, Article X, we have in section 1, Article I a very clear, positive, and express reservation in the sovereign people of the right to make and alter their constitutions of government, which right is to be of paramount obligation in all legislative proceedings, and which right, as we have seen, may be exercised by means of a constitutional convention.
If the former is held to be a necessary prohibition as applied to the exercise of any judicial power passing to the general assembly under section 10, Article IV, it is difficult to see why, in the present inquiry, the latter reasonably may not be construed as a prohibition to the use of any power by the general assembly in calling a convention without first ascertaining from the people if one is desired.
In the case of the City of Providence v. Moulton,52 R.I. 236, the court discusses at length the theory of local self-government in its relation to the powers given the general assembly under section 10, Article IV. In holding that the general assembly has very broad powers, the following language is used at page 243: "The above references show that under the charter the general assembly had unlimited power and authority restricted only by the constitution of the United States. Cities and towns had no powers of local self-government under the charter, and none were reserved to them by the constitution adopted in 1842." The cases of City of Newport v. Horton,22 R.I. 196 and Horton v. City of Newport, 27 R.I. 283 are cited with approval.
However, the situation presented in the Moulton andHorton cases supra, and that now being considered seem plainly distinguishable. It is clear that no powers were reserved to the towns by the present constitution adopted in 1842, whereas in section 1, Article I there is an unequivocal reservation of right in the sovereign people to make and alter their constitutions of government.
If historical precedents are of any value, we find that twice in 1853 the general assembly submitted to the people *Page 120 the question of whether a constitutional convention should be called. This action was ten years after the present constitution went into effect and, while not conclusive, would seem to have some value as an example of more or less contemporaneous construction.
Under the present constitution, no general assembly as yet has ever issued a direct call for a constitutional convention. Possibly the decision of the judges in 1883 may have had a bearing on this state of facts, but nevertheless the usage and custom which developed have some force as a legislative precedent. This court said in an Advisory Opinion of theJustices, 3 R.I. at page 308, (1854), speaking of the exercise of judicial power by the general assembly: "If the practice of the General Assembly, down to the adoption of the Constitution, had been to exercise such a jurisdiction, and such practice has been discontinued since, it is fair to presume it was discontinued because inconsistent with that instrument."
It is hard to perceive why the same argument on the existing facts cannot be made in connection with the exercise of the power to call constitutional conventions without first submitting the question to the people to find out their will.
In view of the above considerations, it is my opinion that the right reserved to the sovereign people in section 1 of Article I of the constitution operates as a prohibition to the exercise by the general assembly of the power to call directly a constitutional convention under section 10 of Article IV of the constitution, and that there is, therefore, nothing in our existing constitution which prevents the application of what seems to be the sounder principle of the law relating to the calling of constitutional conventions by the legislature.
I therefore answer the question marked (a) in the affirmative, provided that the general assembly has, as a necessary prerequisite, first submitted to the people for their approval or disapproval the question of the calling of the convention. *Page 121 If the sovereign people approve, by a majority of those voting, then the general assembly can proceed to make the call, otherwise not.
If a question should be submitted to the people it would appear that its form is largely discretionary with the general assembly. The question might be merely the simple one as to whether a constitutional convention should be held; or it might be fuller and broader, setting out in some detail the type and scope of the convention proposed to be called. If the latter form of question is made use of, then the general assembly and the convention would be bound, in case of an affirmative vote by the people, to the type and scope of convention referred to in the question.
Assuming a convention called after a vote of approval by the people, then I concur in the answers given in the opinion of the majority of the judges, and for the reasons set out therein, to the subsidiary questions marked (b), (c), (d), (e), (f).
HUGH B. BAKER.
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Oral arguments were made by the following members of the Rhode Island Bar:
For a constitutional convention —