dissenting.
I am unable to concur in the conclusion reached by a majority of the court, that the act in question—“to provide for the submitting to the qualified electors the question whether there shall be a convention to revise and amend certain provisions of the Constitution of Virginia and providing an appropriation therefor”—is constitutional.
In-the oral argument, it was suggested by the Attorney General that only certain elements were opposed to the act.
I have no intention of entering upon a political discussion of the question involved. I feel impelled, however, to state that as a father of three sons who volunteered for foreign service shortly after Pearl Harbor, two of whom are now serving their country in the Pacific area, and the eldest of whom, while discharging his duties as a bombardier on a B-24, was killed in action in the European area on May 23, 1944, I have no fear whatever that I will be charged with disloyalty to our service men and women.
As one of two State officers who for fifty years has been affiliated with what is known in Virginia as “the Organization,” I have no apprehension of being charged with being, an “organization baiter.”
As the youngest member of the Constitutional Conven*633tion of 1901-02, I voted for the poll tax provision of the Constitution. /
Hence, I approach this vital and important question without bias or prejudice. It is because of my conscientious conviction that the act in question is subversive of my every concept of democratic principles that I feel constrained to dissent. Though it be admitted that the act has its Genesis in the beneficent purpose of furnishing the service man a medium for'the exercise of the right of suffrage without the payment of a poll tax, its Revelation is to deny him the right of democratic action in selecting his public servants to serve in a Constitutional Convention unhampered by legislative restriction.
The fundamental question involved in the case at bar is: Which shall prevail, expediency or legality? If'expediency is to prevail, then our boys who have died in order that liberty and democracy (as established by their forefathers) should continue, have died in vain.
The legal question involved is this: Has the General Assembly the power to restrict the action of a Constitutional Convention called into being under the provisions of section 197 of the Constitution?
In discussing the question, I wish to acknowledge my indebtedness to Honorable Albert V. Bryan, the attorney appointed by this court to represent the comptroller, for the learned and illuminating brief filed by him.
It is stated and re-stated in the majority opinion that the electors, and not the legislature, impose the restraint provided for in the act. This argument is but1 “a sticking in the bark.”
Under the provisions of the act, the electors, when they exercise their right of suffrage, have only one of two choices —either to vote “no,” or to vote for a convention in which their representatives have no volition save that prescribed by the legislature in the act. If, as contended, the power rests in the electors to call a limited convention, then the friendly office of the legislature was unnecessary. Except in the performance of a revolutionary act, the people and the legisla*634ture are controlled by constitutional limitations. How can a legislature restrict a constitutional right?
The compass which determines the constitutional course is section 197 of our Constitution. That section reads:
“At such time as the General Assembly may provide, a majority of the members elected to each house being recorded in the affirmative, the question ‘Shall there be a convention to revise the Constitution and amend , the same?’ shall be submitted to the electors qualified to vote for members of the General Assembly; * * * ”
In the majority opinion, this is said:
“That section does not expressly or impliedly forbid the legislation here questioned.”
If the mandatory language, “To revise the constitution and amend the same” is not a.prohibition to merely revise and amend only a part of thé Constitution, then the English language has lost its potency.
In Mr. Bryan’s brief this is said:
“But the underlying and primary consideration is whether the General Assembly can submit to the electorate less than the full and unrestricted question^ or may submit the full and unrestricted question but accord the answer of the electors a restricted or interpreted meaning, thereby giving the electorate no option but to call or reject a type of convention unknown to the Constitution.
“The General Assembly cannot constitutionally pose an unconstitutional question. Nor can it pose a diluted constitutional question and doctor the answer.
“On this score Dodd, The Revision and Amendment of State Constitutions, says this (p. 74):
“ ‘In some cases the view has been taken that the people by. voting for delegates under a lgeislative act or by acting thereunder, themselves adopt .the restrictions placed upon the conventions by such act, and that the restrictions sought to be placed upon the convention by. the legislature thus become restrictions imposed by the people, but in most cases this is not true.’’ ”
As I comprehend the full import of section 197 of the *635Constitution, it provides for the calling of a convention without limitation to revise and-amend the Constitution. If it means otherwise, then there is no reason for the existence of section 196 of the Constitution which provides merely for amendments to the Constitution.
It cannot be denied that the General Assembly is the creature of the Constitution. That being true, then it is a paradox to say that the creature, by legislative fiat, can become greater than its creator.
The historical sketch in the opinion regarding constitutional conventions in Virginia, while illuminating, throws no light on the dominant issue, to-wit, a construction of section 197 of the Constitution. In none of the conventions mentioned was there an attempt made to restrict the operation of the convention. Whatever action has heretofore been taken, was taken without reference to a provision similar to section 197. That section offers the only medium to “amend and revise the constitution.” It is inescapable that when the Constitution embodies such a provision, the Constitution then dominates the field of amendment and revision to the exclusion of every other govprnmental. body; that the purpose there expressed cannot be modified; that the ways and means for the submission of the question and call of the convention are likewise exclusive; and that strict adherence is requisite.
I challenge the applicability of the authorities cited in the opinion and relied upon to sustain the power of restriction. In the cases cited there is not found a single expression which indicates that the case involved a question similar to the one here involved. Wherever provision is found in the Constitution for a convention to amend and revise, no case and no text-writer allows the legislature to restrict the purpose of the conveiition.
In re Opinion to the Governor (1935), 55 R. I. 56, 178 A. 433, strongly relied upon, is a case involving an advisory opinion merely. The opinion clearly sets forth that the Rhode Island Constitution “contains no mention of a constitutional change,” except by steps equivalent to our section *636196, viz., amendments. The sole holding of this case was that the provision in the Rhode Island Constitution allowing the legislature to submit proposals for amendment did not exclude the common law right of the legislature to submit to the people the question of whether they wished a constitutional convention to amend the Constitution, and that in such a convention (not provided for in the Constitution) the legislature could submit to the people the question of revising or amending only a part of the Constitution.
Dr. Dodd, in his work The Revision and Amendment of State Constitutions, at page 80, has this to say:
“The better view would seem to be that the convention is a regular organ of the state (although as a rule called only at long intervals)—neither sovereign nor subordinate to the legislature, but independent within its proper sphere. Under this view the legislature cannot bind the convention as to what shall be placed in the constitution, or as to the exercise of its proper duties.”
Great reliance is placed upon the view expressed by Mr. Braxton in the quotation from his article in 7 Va. Law Register. I have, no quarrel with the individual view of Mr. Braxton for whom I had a deep affection and a high regard, but it appears from the “Debates Constitutional Convention” that his views were not accepted by a majority of his brethren, as will hereafter be shown. In the majority opinion we read this language:
“In the convention of 1901-02, section 197 was debated at length by Mr. Barbour, Mr. Braxton, and others. These debates are found on pages 2752 to 2759, inclusive, in Volume 2 of the debates. It was stated that unless the legislature submitted to the people the question of whether there should be a convention, it could call a convention with unlimited powers at any time. It is there shown that the main purpose of section 197 is to prohibit the legislature calling a convention of its own motion whenever it might want to do so without first ascertaining the wishes of the people. A reading of the debates will justify ■ this conclusion.”
*637I am unable to agree with the construction placed upon the debate in regard to section 197. At the risk of being prolix, I deem it necessary for the sake of clarity to set forth the pertinent part of what was said by Mr. Barbour and Mr. Braxton in regard to the resolution offered by Mr. Barbour and the amendment thereto offered by Mr. Braxton:
“Mr. Barbour: Mr. President, I now move to reinsert section 2 as reported from the committee. I will ask the secretary to read it.
“Sec. 2. At such time as the General Assembly may by law provide, the question, ‘Shall there be a Convention to revise the Constitution and amend the same?’ shall be decided by the electors qualified to vote for members of the General Assembly; and in case a majority of the electors so qualified, voting at such election, shall decide in favor of a convention for such purposes, the General Assembly, at its next session, shall provide by law for the election of delegates to such convention.
******
“Mr. Barbour: Mr. President, I desire merely to call the attention of the Convention to the fact that unless they have this provision or some similar provision in the Constitution, every Legislature hereafter elected would have absolute power to call a Constitutional Convention with unlimited powers, whenever they desired to do so, and without ever submitting the question to a vote of the people. The decision to strike this article out was sprung on the Convention in Committee of the Whole the other evening, within five minutes of the time when, under the rule, we had to take a vote on it, and there was absolutely no opportunity to consider it. Since then I have given the matter careful examination, and I have no hesitation in saying, as the result of that investigation, that unless there is a way pointed out in the Constitution for calling a Constitutional Convention, the power of the Legislature in that respect is unlimited. It is too large a power to be granted to any Legislative assembly elected for the ordinary purposes of legislation. *638I do hope the Convention will reinsert this or some similar 'provision which will regulate this power and the exercise of it.”
#####*
“Mr. Braxton: Mr. President, is it in order to offer a substitute?
“The President: There is an amendment pending offered by the gentleman from Culpeper (Mr. Barbour) to which the gentleman from Richmond (Mr. Gordon) has offered an amendment. It is in order to offer to amend either the original proposition offered by the gentleman from Culpeper, or that offered by the gentleman from 'Richmond; but if the gentleman offers an independent proposition it must be a substitute for the- whole.
“Mr. Braxton: I will offer this, then, as an amendment to the amendment offered by the gentleman from Culpeper: Strike out the words ‘shall there be a Convention to revise the Constitution and amend the same,’ and so on, in line 2, down to and including the words ‘General Assembly’ in line 5, and insert in lieu thereof the words: . ■
“The question shall be decided by the electors qualified to vote for members of the General Assembly, shall there be a Constitutional Convention, in which act the powers of the proposed Convention in the matter of proclaiming or submitting the Constitution shall be specified.
“Mr. President, it seems to me that this is a right important matter we are oñ. I fully agree with what my friend from Culpeper (Mr. Barbour) says, that there ought to be some provision in here to prevent Constitutional Conventions being called by any Legislature at any time, clothed with any powers they may choose.. In the absence of any provision to that éffect, I take it the present Legislature could call a Constitutional Convention to sit this summer, with absolute power to proclaim a new Constitution, and all the people could do would be to elect delegates thereto.
“As I understand the law in this matter it is that this Convention has not the power to make any enactment which *639will prevent the people having a reasonable opportunity of amending this Constitution; but it does have the power of prescribing reasonable rules and regulations for the carrying out of that thing, and if we undertake to put a provision in here whereby we cut the people off entirely from amending it, it is absolutely void; but if we put a provision in here which prescribes reasonable regulations and methods for accomplishing that purpose, they are exclusive.
“It seems to me, Mr. President, that the people have the innate right to call a Convention to propose amendments to it, or to call a Convention and leave it to the Convention to say whether they will proclaim it or submit it as they choose; and that any provision we adopt which cuts the people off from the right to do any one of those three things ■ is curtailing the power of the people and not merely providing reasonable regulations for carrying out the power. If we say that the only question that can be submitted to the people is the question Can a Convention be called to amend the Constitution?, we preclude them from calling a Convention to propose amendments to the Constitution and we preclude them calling a convention to—
“Mr. Barbour: Do we not provide here for a system for proposing amendments to the Constitution?
“Mr. Braxton: A system for proposing them to the Legislature, but not through the Convention. The proposition I make is that through every Constitutional Convention they have the right to propose amendments, to enact amendments or to give plenary power to the Convention to do either they choose. When we undertake to provide reasonable regulations for them, they must not be of such a character as to cut them off entirely from doing either one of these things. In order that the people may speak upon that, the Legislature must propose a question to them and it seems to me that the idea embodied in the amendment which .I propose is the most regular one; that the Legislature, whenever they think a Constitutional Convention should be called, shall, in their act submitting the question to the people, say what sort of Convention it is proposed to call.. Do you pro*640pose to call one to proclaim a Constitution? Do you propose to call one to propose amendments to it, or do you propose to call one to give plenary power to proclaim or propose it? Say in the act what sort of a Convention you want and then leave it to' the people whether they will call that kind of a Convention. (Italics supplied.) Then, when the Convention is called, the question will never again arise because the act, which submitted the question to the people and which received its force from the subsequent vote of the people, would prescribe, on its face, the exact powers of the Convention and when a man voted for such a Convention he would not have to depend upon the declarations of political convention, but he would know absolutely whether he was voting for one to submit the Constitution or whether he was voting for a Convention which was to proclaim the Constitution or whether he was voting for a Convention which could do either it chose. If you wish to accomplish that purpose I think it can be done under the language I propose. The question that shall be submitted to the people is not ‘Shall a Convention be called to amend the Constitution? ’ because I contend that amending it and proposing amendments to it are different things. The question is, ‘Shall there be a Constitutional Convention held as prescribed in the act submitting the question, in which act the powers of the proposed Convention' in the. matter of proclaiming or submitting the new Constitution shall be specified?’ I say, Mr. President, that by and in this wáy you can accomplish these purposes. You prescribe a regulaf and orderly method of exercising tiffs function by the people. At the same time you do not cut them off from the free exercise of their rights but leave it to them or to the Legislature to submit to them either one of these- questions they choose. I think this 'is a matter of a great deal of importance and I trust it may be the pleasure of the Convention to adopt, at least in substance, 0the idea involved in this amendment. I would be very much gratified if my friend from-Culpeper could see his way clear to agree with me, in substance.
*641“Mr. Barbour: Mr. President, I am very sorry that I cannot see my way clear to accept the suggestion of my friend from Augusta. It seems to me that when we provide in this Constitution a method by which amendments may be proposed to the Constitution and then provide another way by which the people, if they shall see fit to do so, can call another Convention with power either to proclaim or to submit their work to the people, we have done all we ought to do in this matter. It. is impossible for the people to judge wisely, in advance, as to what should be done with the Constitution which is prepared by' the Convention.
“It is possible for the members of the Convention themselves, to tell what is just and wise and proper to be done with such an instrument.' The best way is to follow the course that has heretofore been followed in' this respect and leave that matter to the Convention itself, as is done under the provisions of the present Constitution of the State of Virginia. The language which has been reported from the committee is exactly the 'language of the Constitution under which we are acting, except that the former provision contained the clause that this question should be submitted every twenty years whether or no. It has never happened that this period of twenty years came at a time when the people thought proper to call a Convention. It is not likely that such a thing will happen in the future. This leaves it absolutely discretionary with the Legislature to submit this question when they want to,-in the future, and the construction which will have been put upon this clause by this Convention, itself, will leave no doubt as to what is the meaning of the language. It seems to me that is an advantage and that we ought to adopt language which we are acting under ourselves and which we have construed ourselves. (Italics added.)
# # * & #
“The President: The question is on agreeing to the amendment offered by the gentleman from Augusta to the amendment proposed by the gentleman from Culpeper.
*642“Ayes—Messrs. Braxton, Clarence J. Campbell, Davis, Ear-man, Epes, Hamilton, Harrison, G. W. Jones, Lincoln, Pedigo, Portlock, Robertson, Stuart, and Willis—14.
“Noes—Messrs. Allen, George K. Anderson, W. A. Anderson, Ayers, Barbour, Boaz, Brown, Carter, Chapman, Dunaway, Eggleston, Fairfax, Fletcher, Garnett, Gilmore, James W. Gordon, Green, Gwyn, Hancock, Hardy, Hat-.ton, Ingram, Lindsay, Mcllwaine, Meredith, Moncure, R. Walton Moore, Mundy, Orr, Parks, Pollard, Quarles, Richmond, Rives, Summers, Tarry, Thornton, Turnbull, Watson, Wise, Withers, and the President—42.”
The amendment was rejected.
The resolution offered by Mr. Barbour was agreed to: Ayes 31, Noes 25.
As a member of the Convention I did not participate in the discussion of this matter, nor did I vote on the question. It does seem to me, however, that it was not the main purpose of the resolution of Mr. Barbour to prohibit the legislature calling a convention of its own, but that the main purpose of the resolution (as is the main purpose of section 197), was to prohibit the calling of a convention with powers restricted by the legislature. ■
The language of Honorable James W. Gordon opposing the Braxton resolution is most apposite:
“Under the provision submitted by the gentleman from Augusta, (Mr. Braxton) he absolutely ties a man down to not only voting for or against the Constitution, but to voting on a particular method which the Legislature has pointed out: For that reason it seems to me it would be unwise to adopt his amendment.”
In my opinion the petitioner has failed to carry the burden of showing the power of the legislature to restrict the proposed convention and, therefore, the writ should be denied.