Staples v. Gilmer

Per Curiam. — 616 — The constitutionality of an Act of the 1944 Extra Session of the General Assembly, known as Chapter 1, approved on December 16, 1944, has been challenged. This Act in general provides for submitting to the qualified electors the question whether there shall be a constitutional convention to make such revisions and amendments to the suffrage provisions of the Constitution of Virginia as are necessary to remove certain registration and poll tax requirements which are obstacles to voting by members of the armed forces. On January 17, 1945, after hearing argument of counsel, and after full consideration of all questions raised, because of the importance of the matter and the public requirement that it be speedily determined, we entered an order holding that the Act in question was constitutional and directing that the mandamus prayed for be issued. At that time we announced that a full opinion, which necessarily required considerable time for its preparation, would be filed later. The Act, in' part, reads as follows: “Whereas, by an Act designated as chapter two hundred eighty-seven of the Acts of nineteeen hundred forty-four, the General Assembly sought to enact measures to enable certain Virginia members of the armed forces in active service to vote in elections for State and local officers, which said Act has been adjudicated by the Supreme Court of Appeals to be void because in violation of certain provisions of the Constitution respecting registration and poll tax payments as voting qualifications; and, “Whereas, in order to permit said members to vote in said election it is deemed necessary that said provisions of the Constitution be revised and amended in so far as they relate to said members of the armed forces; and, “Whereas, it is impossible to procure such amendments and revisions within the time required to permit such members to vote in the nineteen hundred forty-five elections except by convening a constitutional convention; and, “Whereas, because it a great number of Virginia citizens in "war service, to make — 617 — any sweeping or drastic changes in the fundamental laws of the State, in the making of which they are unable to participate, and also, in order to assure the adoption of the contemplated amendments and revisions within the time necessary to permit said members of the armed forces to vote in the primary and general elections of nineteen hundred forty-five, it is deemed necessary that the people eliminate all questions from consideration by said convention save and except those essential to the adoption of those revisions and amendments specified in this Act; and, “Whereas, in order to avoid heated and untimely controversies throughout the State as to what other matters, if any, may or should be acted upon by said convention, it is believed to be in the public interest to submit to the electors the sole question whether a convention shall be called which will be empowered by the people- to consider and act upon said limited revisions and amendments only, and not upon any others: “Now, therefore, be it enacted by the General Assembly of Virginia as follows: “ 1. That at an election to be held on such day as may be fixed by proclamation of the Governor (but not later than ninety days after the passage of this Act) there shall be submitted to the electors qualified to vote for members of the General Assembly the question ‘Shall there be a convention to revise the Constitution and amend the same?’ Should a majority of the electors voting at said election vote for a convention, the legal effect of the same will be that the people will thereby delegate to it only the following powers of revision and amendment of the Constitution and no others. “A. The convention may consider and adopt amendments necessary to accomplish the following purposes, and no others. “1. To eliminate registration and payment of poll taxes by members of the armed forces while in active service in time of war as a prerequisite to the right of said members — 618 — to vote in any and all elections while in such service, but not to eliminate same with respect to any other person§. “2. To cancel and annul all poll-taxes heretofore assessed or assessable against members of the armed forces for every year during all or a part of which said members were ■ in active service in time of war, and to exempt said members from future assessments of poll taxes for all years, during a part of which they are hereafter engaged in such active service in time of war. “B. The convention shall be empowered to proclaim and ordain said revisions and amendments adopted by it within the scope of its powers as above set forth without submitting same to the electors for approval, but the convention will not have the power to either consider, adopt or propose any other amendments or revisions.” Then follows provision for holding the election, for the ballots to be printed by the Secretary of the Commonwealth, and for the expenses incurred in conducting the election. An appropriation of $25,000 is made, to cover necessary expenses, to be paid by warrants drawn'by the Comptroller on the Treasurer, pursuant to vouchers or invoices approved by the Secretary of the Commonwealth. The Act is an emergency one. In the Act provision is made for an “Informatory Statement” to be printed on the ballot. It, in substance, is a part of the Act above quoted, and concludes, “In the light of the foregoing information, the question to be voted on is as follows: Shall there be a convention to revise the Constitution and amend the same?” The proposed ballot carries the usual designated squares in which the' elector may register his vote either “for” or “against” the convention. At the regular 1944 session of the General Assembly of Virginia, chapter 287 of the Acts of Assembly of 1944, page 414, known as sections 220 (27)-22o(4o), inclusive, of the 1944 Supplement to the Code of Virginia, was enacted to enable certain Virginia members of the armed forces of the United States to vote in elections for State and local officers without complying with the required poll tax and registra — 619 — tion provisions of the Virginia Constitution. This Act was held to be unconstitutional by this court. Staples v. Gilmer, ante, p. 338, 32 S. E. (2d) 129. The challenged Act now under consideration is another effort made by .the General Assembly to enable certain members of the armed forces of the United States to vote in the State and local elections without complying with the present poll tax and registration provisions of the Virginia Constitution. Doubt having arisen in the mind of the Comptroller of Virginia respecting the constitutionality of this Act, and he having notified the Attorney General of Virginia that he would not make any payments pursuant thereto until there •had been a final adjudication of its validity by the Supreme Court of Appeals, the Attorney General filed his petition for a writ of mandamus, in which he invokes the original jurisdiction of this court under chapter 289 of the Acts of Assembly of 1944, at page 425, also known as section 374c of the 1944 Supplement to the Code of Virginia (Michie), to determine the constitutionality of the Act. It is contended by the respondent that the Act is in conflict with section 197 of the Constitution of Virginia, and therefore void. Section 197 of the Constitution is as follows: “Constitutional convention] how called—At such time as the general assembly may provide, a majority of the members elected to each house being recorded in the aflirmative, the question, ‘shall there be a convention to revise the Constitution and amend the sanie?’ shall be submitted to the electors qualified to vote for members of the general assembly; and in case a majority of the electors so qualified, voting thereon, shall vote in favor of a convention for such purpose, the general assembly, at its next session, shall provide for the election of delegates to such convention; and no convention for. such purpose shall be otherwise called.” Section 196 is another'very material and pertinent section of the Constitution. It reads as follows: uAmendments.—Any amendment or amendments to the Constitution may be proposed in the senate or house of — 620 — delegates, and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, with the ayes and noes taken thereon, and referred to the general assembly at its first regular session held after the next general election of members of the house of delegates, and shall be published .for three months previous to the time of such election. If, at such regular session or any subsequent extra session of that general assembly the proposed amendment or amendments shall .be agreed- to by a majority of all the members elected to each house, then it shall be the duty of the general assembly to submit such proposed amendment or amendments to the people, in such-manner and at such times as it shall prescribe; and if the people shall approve and ratify such amendment ór amendments by a majority of the electors, qualified to vote for members of the . general assembly, voting thereon, such amendment or amendments shall become part of the Constitution.” The position of the respondent is that, “the Act restricts the question submitted, it restricts the effect of the electors’ vote on the question, and it restricts the purpose of the convention; while the Constitution, section. 197, stipulates an unrestricted submission, an unrestricted question,, and . an unrestricted answer, with no strictures upon the convention’s purpose.” • The petitioner contends that the Act submits to the people the question whether they desire a convention possessed only of the powers defined in the Act, and if a majority of the electors vote for such a convention they, the electors, and not the legislature, will limit the powers. The petitioner also contends that in calling a constitutional convention pursuant to section 197 of the Constitution it is not necessary that such convention be possessed of unlimited .sovereign powers. The petitioner further contends that the General Assembly may submit to the people the question, whether or not some of the powers of the convention are to be restricted. He — 621 — asserts that it is not essential that the entire Constitution be laid before the convention in order to effect a revision and amendments of any particular part or parts of the Constitution. Finally the petitioner contends that sections 196 and 197 of the Constitution are not mutually exclusive, that they do not occupy separate fields and that the Governor, the legislature, and the people of Virginia, have rejected the idea that the two sections are mutually exclusive by their action in employing section 196 instead of section 197. for the purpose of the general revision of the Constitution of 1928. We are not concerned with the wisdom or expediency of the challenged Act. We are interested only in whether it is in conflict with and forbidden by section 197 of the Constitution. The reason these changes are sought to be made in the Constitution by the convention method instead of by the procedure under section 196 is set forth in the preamble to the Act. Of course, we must presume that this Act of the legislature is valid, and unless it is clearly prohibited by the provisions of section 197 of the Constitution it must stand. That section does not expressly or impliedly forbid the legislation here questioned. It does not provide that the question of whether there shall be a convention to revise the whole Constitution shall be submitted to the electors. The affirmative vote of the electors on the question as to whether the Constitution shall be revised and amended in any of its particular parts is not prohibited. For instance it might be necessary and expedient that a convention be called to revise and amend the tax laws of the Constitution or the suffrage laws without amending and revising the rest of the Constitution. There is no language in section 197 which would prohibit such a partial revision. A bare reading of the Act will clearly disclose that it simply submits to the people the question whether they wish to have a convention possessing the limited powers which are defined in the Act. If they vote in favor of such a convention, they and not the legislature, will limit the work of the convention and its scope, and the convention to be held — 622 — will be limited in its authority to effecting the amendments submitted to and' approved by the electors. The distinguished counsel for respondent concedes that this-is so if the Act be valid. The authorities generally sustain the petitioner’s contention. In re Opinion to the Governor, 55 R. I. 56, 178 A. 433, 452, the principle was stated in this clear language: “In the second instance, .the legislature summons the convention only after the people have expressed their will to this effect. If, at the time the question of calling the convention is submitted to them, the people are informed of the scope of the convention and the manner in which it is to conduct its deliberation, and report its results by virtue of the Act of the general assembly specifying such matters, then a convention called in this manner wül be limited as therein set forth and the convéntion will then be bound to confine itself within the stated limits of the act of the assembly. The reason for this is that it is the people, under such circumstances, who prescribe the conditions in the legislative act by approving the call for the convention in accordance with the provisions of such act. The legislature merely proposes the conditions. It is the vote of the people for the convention that ratifies them and makes them binding upon the delegates. 6 R. C. L., sec. 18, p. 27. For this reason, in order that the delegates be so bound, it is necessary for the General Assembly to propose the conditions before' the election is held, and to take all necessary steps to bring them to the attention of the people seasonably before the time of voting at the election.” Again in Opinion of the Justices, 6 Cush. (Mass.) 573, at page 575, this was said: “ * * * If, however, the people should, by the terms of' their vote, decide to call a convention of delegates to consider the expediency of altering the Constitution in some particular part thereof, we are of opinion that such delegates would derive their whole authority and commission from such vote; and, upon the general principles governing the delegation of power and authority, they would have no — 623 — right, under such vote, to act upon and propose amendments in other parts of the Constitution not so specified.” (Italics supplied.) In 11 Am. Jur., Constitutional Law, sec. 27, the author makes this clear statement of the principle: “ * * * People who, acting under a proper resolution of the legislature, vote in favor of calling a constitutional convention are presumed to ratify the terms of the legislative call, which thereby becomes the basis of the authority delegated (by the people) to the convention. # * * ” Other interesting and supporting cases are: Bradford v. Shine, 13 Fla. 393, 7 Am. Rep. 239; State v. American Sugar Refin. Co., 137 La. 407, 68 So. 742; Wells v. Bain, 75 Pa. 39, 15 Am. Rep. 563; In re Opinion to the Governor, 55 R. I. 56, 178 A. 433. The power to amend or revise in whole or in part the Virginia Constitution resides in .the people, not in the State legislature. The people are possessed with ultimate sovereignty and are the source of all State authority. See section 2, Virginia Constitution. The people have the unlimited power to control and alter their Constitution, subject only to such limitations and restraints as may be imposed by the Constitution of ‘the United States. Cooley’s Constitutional Limitations, 8th Ed., Vol. 1, p. 84. The people of Virginia have placed sections 196 and 197 in the Constitution to define the means by which it may be revised and amended. They must be followed if a valid revision or amendment is to result. 11 Am. Jur., Constitutional Law, sec. 22. The respondent argues that the legislature, in restricting the question submitted by the Act, thereby limits the scope of the convention. With this we cannot agree, for the people themselves limit the work of the convention, if they vote for it under the terms of the Act. As previously indicated, section 197 of the Constitution does not prohibit the revision and amendment of a part of the Constitution by the convention method. The purpose of the procedure initiated — 624 — here is to revise the Constitution and amend the same—not the entire Constitution, but a part thereof. An amendment of a Constitution, and a revision of a Constitution are defined in this language in 16 C. J. S., Constitutional Law, sec. 7, p. 31: “Every proposition which affects a change in a Constitution, or adds or takes away from it, is an amendment # * * , while a revision implies a reexamination and restatement of the Constitution or some part of it in a corrected or improved form # * # .” As authority for this statement the author cites State v. Cooney, 70 Mont. 355, 225 P. 1007. Revision and amendment have been held synonymous terms. See State v. Taylor, 22 N. D. 362, 133 N. W. 1646. In submitting the question to the electors whether there shall be a convention, the legislature is performing an exclusive function for the people delegated to it in section 197. In no other way maya convention be initiated in Virginia. If the legislature refused to submit the question to the electors whether there shall be a convention, nothing can be done about it except for the electors to replace its membership by others who will submit the question. The sovereign power being in the people, it can be exercised only through an agency of the people. Cooley’s Constitutional Limitations, 8th Ed., Vol. 1, p. 87. The constitutional convention is an agency of the people to formulate «or amend and revise a Constitution. The convention does not possess all of the powers of the people but it can exercise only such powers as may be conferred upon it by the people. The people may confer upon it limited powers. Undoubtedly' the people have a right to “reform, alter or abolish”, within democratic principles, a part or parts of their fundamental law without reforming, altering or abolishing all of it. The first binding declaration of this fundamental principle was made on the 6th of May, 1776, since which time it has been retained in the Constitution without substantial change as sections 2 and 3 of the Bill of Rights. The pertinent part, as originally approved, reads: — 625 — “ # , when any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.” The people did not destroy their right to reform or alter a part or parts of the Constitution by means of a convention when they approved the provisions of section 197 of the present Constitution. If by section 197 the entire Constitution may be revised and amended, certainly the people, the source of all power, could exercise the lesser power and revise and amend only a part of it “in such manner as shall be judged (by the people) most conducive to the public weal.” Prior to the so-called Underwood Constitution which was assembled by an Act of Congress of the United States on December 3, 1867, there was no constitutional provision for malting future changes in the Constitution. Then the authority to call a constitutional convention resided in the legislature. Under article 12 of the Underwood Constitution provision was made for amendments, and at the, gener'al election to be held in 1888 and each twentieth year thereafter, the question of calling a convention was to be submitted to the people, and also at such time as the General Assembly might by law provide, the question “shall there be a convention to revise the Constitution and amend the same?” was to be decided by the electors. It will be noted that the words used in the question are identical, with those in our present section 197. It is further noted that in addition to the mandatory duty of submitting the question every twentieth year after 1888, the legislature, of its own motion, was given the power to submit to the electors the question whether to call a convention at any time. The constitutional conventions of 1829 and of 1850-51, were called by the legislature, and their powers were limited, even though there was no constitutional provision for making future changes in the Constitution at the time. The Honorable A. Caperton Braxton, a distinguished — 626 — member of the constitutional convention of 1901-02, in an interesting article in 7 Va. Law Register, at pages 93 and 94, speaking of the powers of a convention, said: “But are the people, by the mere act of calling a convention, obliged to confer upon it all of their powers? Surely not. Upon what principle, for what reason, or by what, analogy, can it be contended that the people cannot constitute a limited, as well as a general, agency—that they cannot employ an agent or appoint a representative to do a particu- • lar service for them, without surrendering to such agent or representative all of their powers and functions? To refuse to the people this right would be to deny them the powers conceded to every individual or private corporation—á position hard to be maintained with any show of consistency by those who, at the same time, claim for the people a transcendent, limitless omnipotence, even beyond their real powers.” In Jameson on Constitutional Conventions (4th ed.), p. 364, this is said: “By universal custom, as well as by the express provision of-most of the American Constitutions, no person or body in a State has power to call a convention but the legislature; and none but the legislature can either prescribe or indicate the purposes for which it is to assemble. Accordingly, as we shall see, our legislatures nearly always expressly declare, with more or less precision, those purposes, whether to make a general revision of the Constitution, or to consider specific subjects, accompanying that declaration sometimes with a prohibition to consider other subjects. While a legislature, however, has a clear constitutional right, in its discretion, to prescribe the scope of the duties of the convention it calls, it- would seem to be unwise to hamper, by too stringent limitations, a body which, if it meet at all, ought to meet for some rational purpose, and that, in general, it could not do if its work were laid out for it too minutely in advance, by imperative provisions of law.” But in Virginia, since the Underwood Constitution of 1869, and later, by virtue of the convention of 1902, the — 627 — people, by article 12 of the former, and section 197 of the latter, may authorize a convention. They, by their vote, determine whether to call a convention or not. Section 197 expressly provides, “At such time as the General Assembly may provide * * # the question ‘shall there be a convention to revise the Constitution and amend the same’ shall be submitted to the electors * * # .” Certainly since the enactment of section 197 in 1902 the electors have possessed the exclusive power and right to call a convention. The legislature, as we have seen, is purely an agent of the people to ascertain their wishes. Counsel for the respondent freely admits that section 197 permits a convention for the purpose of amending the Constitution. In his brief he says: “ * * * We again remind the Court that provision for amendment by convention exists in the Constitution.” The power to amend, as well as the power to revise, by a convention is expressly incorporated in section 197, for it says in the question to the 'electors, “Shall there be a convention to revise the Constitution and amend the same?” If the electors vote in favor of a convention, it may amend the Constitution as well as revise it, and where the legislature, in the performance of its representative function, asks the electors if they desire a convention to amend or revise a certain part of the Constitution but not the whole Constitution, an affirmative vote of the people on such question would have the binding effect of the people themselves limiting the scope of the convention to the very portion of the Constitution suggested to them by the legislature. The wishes of the people are supreme. Some agency must ascertain the desire of the people, and the legislature, by section 197, has been selected by them to do so. 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 Vol. 2 of the debates. It was stated that unless the legislature submitted to the people the question as to whether there should be a convention, it could call a convention with unlimited powers at any time. It is there shown that the main — 628 — 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. Sections 196 and 197 were placed in fhe Constitution to facilitate the making of future changes in the Constitution, not to obstruct them. By section 196 the legislature proposes amendments which the people adopt or reject. By section 197 the legislature propounds the question to the people, who by their vote answer whether they do or do not want a convention. Prior to the Underwood Constitution the legislature not only called the convention but actually set out its work, prescribing the changes to be made. The legislatures convening just prior to the conventions of 1829, 1851, and the secession convention of 1861, limited the scope of those conventions. Congress limited the scope of the Convention of 1869. The manifest purpose and effect of section 197 is not to curtail the right to limit the work of a convention but rather to take that right from the legislature and place it in the people. So now the people have the right to limit the work of a convention in any respect they choose, section 197 providing the machinery for that purpose. The constitutional changes that will be necessary to carry out the purposes of the Act of the legislature, if the people vote for a convention, will not be limited to the adoption of a single amendment to a single section. In fact a largé part of article 2, embracing many sections of the Constitution will be affected. ' Some of those sections may have to be substantially revised and rewritten. It may be necessary to amend others. The convention method, in addition to being more expeditious under the conditions obtaining, likely will more readily lend itself to effectuating these changes than the amendment, process under section 196. We are satisfied that the convention of 1901-02 and the revision of 1928 did not intend, by section 197, to take away from the people the right to vote to call a convention to revise and amend a portion of the Constitution. Our — 629 — conclusion is that the legislative Act brought in question by this proceeding does not run counter to that section. The respondent contends that sections 196 and 197 occupy separate fields, and that each within its respective field is exclusive of the other. It is stated that amending the Constitution by convention, as provided in section 197, is available to the people only in cases where a general revision of the entire Constitution is proposed, whereas section 196 can be used only when a few specific amendments are to be submitted to the people for approval or rejection. It is. contended that the amendment sought to be made by the challenged Act should have been made under section 196 rather than by the convention method under section 197. In our opinion sections 196 and 197 are not mutually exclusive. Amendments under section 196 are those which come in due course, but the procedure therein provided for requires a considerable period of time. On the other hand, in an emergency, when time is of the essence, it might be better to proceed under section 197. Whether the one course rather than the other should be followed is a matter delegated to the discretion of the General Assembly. In 1928 we had a general revision of the Constitution without a convention. This revision was effected not by following the provisions of section 197, but by following those of section 196. The General Assembly in 1926, Acts 1926, page 797, created a commission of seven members to be appointed by the Governor, “To study the Constitution of Virginia and propose in detail such revision of the same as it may be of the opinion will be for the best interest of the Commonwealth.” The commission reported to the Extra Session of 1927. See Acts 1927, page 46. .In this report it was proposed to strike out from the Constitution all of the articles and sections thereof except five, and insert in lieu thereof the articles and sections appearing on pages 47 to 103, inclusive, of said Acts. The next regular session of the General Assembly in 1928 acted upon the 1927 joint resolutions proposing said amendments and revisions by enacting chapter *05, page 636, of the Acts of 1928, entitled — 630 — “An act to provide for the submission to .the people for ratification or rejection the proposed revision and/or amendments”. Then follow all of the articles and sections in the Constitution except section 170. Included in the revision were both sections 196 and 197, the former with a slight, immaterial change, the latter with no change. Provision was made for the vote to be taken on the general revision. It was framed in this language: “For the genéral revision of the Constitution of Virginia except sections * * * .” The vote was favorable, and Virginia had a new Constitution. In fact, every section was re-examined. The Governor, the legislature, and the people all approved , and ratified the revised Constitution. No one challenged its validity on the ground that it had been revised and amended in its entirety under the provisions of section 196 instead of by a convention under .the provisions of section 197. In this revised Constitution, as we have already stated, sections. 196 and 197 were readopted. Section 196 was in effect construed to be broad enough to authorize a general revision of the Constitution' without a convention. That construction makes available that section (196) for a revision and amendment of the entire Constitution. Its meaning is identical with the meaning of the words used in section 197, “revise the Constitution and amend the same”. This would seem to be conclusive of the interchangeability of the two sections, and that- now the. people are permitted to use either section which better fits the occasion to amend or revise the Constitution. That construction is made conclusive by the readoption of the two sections, 196 and 197, in the revision of 1928. .On the whole we are of opinion that the Act in question (Acts 1944, Ex. Sess., ch. 1) does not contravene any provision in the Constitution and is therefore valid; that in the event a majority of the electors vote in favor of the convention, the powers of the convention to consider, adopt or propose revisions or amendments to the Constitution will be legally restricted or limited, as defined in the Act, and in the informatory statement printed on the ballot — 631 — to be used in the proposed referendum election; and that the mandamus prayed for in the petition in this cause should issue. Writ awarded.