Wells v. Bain

The opinion of the court was delivered, December 6th 1873, by

Agnew, C. J.

Since the Declaration of Independence in 1776, it has been an axiom of'the American people, that all just government is founded in the consent of the people. This is recognised in the second section of the declaration of rights of the Constitution of Pennsylvania, which affirms that the people “ have at all times an inalienable and indefeasible right to alter, reform or abolish rheir government in such manner as they may think proper.” A self-evident corollary is, that an existing lawful government of the people cannot be altered or abolished unless by the consent of the same people, and this consent must be legally gathered or obtained. The people here meant are the whole — those who constitute the entire state, male and female citizens, infants and adults. A mere majority of those persons who are qualified as electors are not the people, though when authorized to do so, they may represent the whole people.

The words “ in such manner as they may think proper,” in the declaration of rights, embrace but three known recognised modes by which the whole people, the state, can give their consent to an alteration of an existing lawful frame of government, viz.:

1. The mode provided in the existing constitution.

'2. A law, as the instrumental process of raising the body for revision and conveying to it the powers of the people.

3. A revolution.

The first two are peaceful means through which the consent of the people to alteration is obtained, and by which the existing government consents to be displaced without revolution. The government gives its consent, either by pursuing the mode provided in the constitution, or by passing a law to call a convention. If consent be not so given by the existing government the remedy of the people is in the third mode — revolution.

When a law becomes the instrumental process of amendment, it is not because the legislature possesses any'inherent power to change the existing constitution through a convention, but because it is the only means through which an authorized consent of the whole people, the entire state, can be lawfully obtained in a state of peace. Irregular action, whereby a certain number of the people assume to act for the whole, is evidently ‘revolutionary. The people, that entire body called the state, can be bound as a whole only by an act of authority proceeding from themselves. In a state of peaceful government they have conferred this authority upon a part to speak for the whole only at an election authorized by law. It is only when an election is authorized by law, the electors, who represent the state or whole people, are bound to attend, and if they do not, can be bound by the expression of the will of those who do attend. The electors who can pronounce the voice of the people are those alone who possess the qualifications sanctioned by the people in order to represent them, otherwise they speak for themselves only, and do not represent the people.

The people, having reserved the right to alter or abolish their form of government, have, in the same declaration of their rights, reserved the means of procuring a law as the instrumental process of so doing. The twentieth section is as follows:—

“ The citizens have a right, in a peaceable manner, to assemble together for their common good, and to apply to those invested with the powers of government for redress of grievances or other proper purposes, by petition, address or remonstrance.”

If the legislature, possessing these powers of government, be unwilling to pass a law to take the sense of the people, or to delegate to a convention all the powers the people desire to confer upon their delegates, the remedy is still in their own hands; they can elect new representatives that will. If their representatives are still unfaithful, or the government becomes tyrannical, the right of revolution yet remains. To what extent the Constitution of the United States controls this it is unnecessary now to inquire.

I It is not pretended that the late convention sat as a revolutionary body, or in defiance of the existing government, and it did not proceed in the mode provided for amendment in the constitution, that being a legislative proceeding only. It was, therefore, the off- ' spring of 'law. It had no other source of existence. The process was an application or petition to the legislature to call a convention , the passage of a law to gather the sense of the people on the question whether a convention should be called ; an election authorized by this law to take the sense of the whole people on this question, and, finally, the passage of a law to call the convention and define its powers and duties. A law is the only form in which the legislature, the body invested with the powers of government, can act, and thereby its own consent be given and revolution avoided. The people having adopted a proceeding by law as the means of executing their will, having acted under it and chosen their delegates by virtue of its authority, submitted themselves to it, as their own selected and approved means of carrying out peacefully their purpose of amendment. The law, being thus the instrument of their own choice to express their will, necessarily became the channel of their authority. Having furnished no other means of arriving at their will, it is the only channel through which it has been conveyed. The'law, therefore, being the instrument of delegation, this warrant to the delegates from the people becomes the only chart of their powers. The will of the people has been expressed in no other form, and the powers of the delegates, therefore, come in no other wise.

It will not do to assert that the whole original power of the people was conferred by the election. This election itself was a part of the instrumental process of the law, the means provided by this very law, of selecting the delegates. The law was the warrant for their election, and expressed the very terms chosen and adopted by the people, under which they delegated their power to these agents. The delegates possess no inherent power, and when convened by the law at the time and place fixed in it, sit and act under it, as their letter of attorney from the people themselves, and can know and discover the will of the people only so far as they can discern it through this the only warrant they have ever received to act for the people. If they claim through any other source, they must be able to point to it.

Outside of the law to take the sense of the people whether a convention should be called, and the law to call the convention, no other source has been or can be shown. ' To make this more distinct, let us suppose a voluntary election unauthorized by law, and delegates elected. It is plain a convention composed of such delegates would possess no power to displace the existing government, and impose a new constitution on the whole people. Those voting at the unauthorized election had no power to represent or to bind those who did not choose to vote. A majority of the adult males having the qualifications of electors can bind the whole people only when they have authority to do so.

To make this still more plain. Suppose a constitution formed by a volunteer convention, assuming to represent the people, and an attempt to set it up and displace the existing lawful government. It is clear that neither the people as a whole nor the government having given' their assent in any binding form, the executive, judiciary and all officers sworn to support the existing constitution would be bound, in maintenance of the lawfully-existing institutions of the people, to resist the usurpation, even to the whole extent of the force of the state. If overpowered, the new government would be established, not by peaceful means, but by actual revolution.

It follows, therefore, that in a state of peace a law is the only means \ by which the will of the whole people can be collected in an autho- j! rized form, and the powers of the people can be delegated to the ij agents who compose the convention. The form of the law is imma- : terial in this question of derivative authority. It may be a law to confer general authority or one to confer special authority. It may be an invitation in the first place, as was the Act of 1789, under which the convention of 1790 Avas convened, and an authority to the people to meet in primary assemblies to select delegates and confer on them unrestricted powers; or it may be a laAV to take the sense of the people on the question of calling a convention, and then a law to make the call and confer the powers the people intend to confer upon their agents. The power to pass.the law carries Avith it of necessity that to frame and declare the terms of the law. The terms of delegation, which the people themselves declare, when acting under and by virtue of the law which they have called to their aid, as the instrumental process of conferring their authorities and reaching their purpose of amendment, become of necessity the terms of their own. will. All outside of this channel is revolutionary, for it has neither the consent of the government nor of the people who have called the government to their aid and acted through it. The process of amendment being through the instrumentality of legislation, these laws must be enacted in the forms of the constitution and be interpreted by the rules which govern in the interpretation of laws.

The next inquiry is — What powers of the people were conferred upon the late convention ? A change in the fundamental relations of the people and of that sacred compact which they have instituted to guard and protect their own rights and interests is one of vast, indeed most solemn import; for to impose a new constitution without authority, or to usurp powers not delegated, may lead to bloodshed and ruin. The power to act, then, should be clearly conferred. The sacred fire from the altar of the people’s authority cannot be snatched by unhallowed hands.

The present inquiry is not how much power may be conferred by law, but what power was conferred on this convention ? A law must be passed according to the forms of the constitution. One of these is that no bill shall contain “ more than one subject, which shall be clearly expressed in the title.” The title of the Act of June 2d 1871, is “An act to authorize a popular vote upon the question of ealling a convention to amend the constitution of Pennsylvania.” The text of the act is: “ That the question of calling a convention to amend the Constitution of this Commonwealth be submitted to a vote of the people at the general election, to be held,” &c. The one subject of both title and text is the question of ealling a convention. That question was authorized to be submitted to a popular vote. In that election each elector expressed his individual opinion on that question, and that alone, by voting “ for a convention ” or “ against a convention.” This question was answered in the affirmative by a majority of votes, and the people, answering the legislature, said: “You may call a convention.” This was all the vote expressed. Each vote expressing the opinion of the elector on that question, the majority expressed no more, for the majority was composed of the sum total of the votes on that side. Thus an analysis of the act, both in its title and its text, demonstrates that the vote was not a delegation of power, except to the legislature. There is no principle of sound interpretation which can extend the voice of the elector or the sum total of those voices, beyond the question each was called to answer. The result of that vote, therefore, was that the legislature might call a convention. It was not in itself a call, nor did it declare when, how, or on what terms the call should be made. That, the very answer to the question proposed to the electors, necessarily left to those who asked their judgment on the propriety of making the call.

It was not even a mandate, further than the moral force contained in an expressed desire of the people. It is very evident, had the matter dropped there, and the legislature had made no call, no convention and no terms would ever have existed. Not a line, nor a word, nor a syllable in this act expresses an intent of the people to make the call themselves, or on what terms it shall be made, or what powers should be conferred. Did the people by this act, without an expressed intent, and by mere inference, intend to abdicate all their own power, their rights, their interests, and their duty to each other in favor of a body of mere agents, and to confer upon them, by a blank warrant, the absolute power to dictate their institutions, and to determine finally upon all their most cherished interests? If the argument be admitted for an instant that because nothing was said in this law on the subject of delegation, therefore, greater powers were conferred than were granted in the subsequent Act of 1872, then all power belonging to the people passed, and they did grant by it the enormous- power stated. Then,- by a covert intent, hidden in the folds of this act, the people delegated power to repeal all laws, abolish all institutions, and drive from place the legislature, the governor, the judges, and every officer of the Commonwealth, without submitting the work of the delegates to the ratification of the people. If by an ordinance under a power | derived from this Act of 1871, the delegates can set aside the law-1 fully-existing election laws for Philadelphia, where shall their \ power end ? Can they draw money from the treasury to pay their ¡ own salaries ? Can they seize and condemn a hall for their own J use under the power of eminent domain ? It is not possible, by/ any sound rule of interpretation, natural or civil, we can attribute} to the Act of 1871, such an enormous, fearful, portentous delegar-! tion of power, founded on a vote upon the mere question of calling’ a convention. The result of the vote on this question declared the ¡ sense of the greater number of electors, that a convention might1 be called. Biit how called ?. It was not itself a call. It left that to those invested Avith the powers of government. In and of Í itself it conferred no authority upon the delegates, but left that to \ a subsequent act. The call proceeding from the legislature was } necessarily hy means of a law, for in no other form can the legisla- ■■ tive will be expressed. When the people called in legislative aid i to procure the call of a convention, they kneAV, therefore, that-a | law could be the only instrumental process the legislature could ¡Í give; and a laAV being invoked, they knew that the power to legis- } late carried Avith it the power to frame the terms of the law. They knew still more, when they accepted the law as the means of ,; making the call, that they adopted its terms by' acting under it. Í When, therefore, they, in 1872, elected delegates under the Actj of 1872, they elected them under the terms and provisions of that * law, and none other, for there was no other law under which an! authorized and binding election was or could be had. The people] themselves, therefore, ratified and adopted the terms of the Act of} 1872, as the terms on Avhich they delegated their powers to those! elected under it. The delegates so elected are clearly estopped, ■ by the record itself, from denying the terms under which they hold; their seats, for they hold them under the Act of 1872, and no| other. The entire process of raising a convention and conferring’ upon it the poAvers of the people, was a matter of law, in a state | of peace, under the forms of the constitution, through which the consent both of the people and of the existing government was given to prevent the convention from being or becoming a revolutionary body.

Accordingly, the Act of April 11th 1872, is entitled “An act ' to provide for calling a convention to amend the constitution.” The text of the act is, “ that at the general election to be held, &c., there shall be elected by the qualified voters of the Commonwealth, delegates to a convention to revise and amend the constitution of the state,” &c. The act then provides for the election, the assembling of the delegates, their powers and duties, and the submission of the constitution or amendments agreed upon to a vote of the people for adoption or rejection. When the people voted under this law, did they not vote for delegates upon the express terms that they should submit their work to the people for approval ? Did not every man who went to the polls do so with the belief in his heart that, by the express condition on which his vote was given, the delegates could not bind him without his subsequent assent to what the delegates had done? On what principle of interpretation of human action can the servant now set himself up against the condition of his master and say the condition is void ? Who made it void ? Not the electors; they voted upon it. The people required the law, as the act of the existing government, to which they had appealed under the Bill of Rights, to furnish them legal process to raise a convention for revision of their fundamental compact, and without which legal process the act of no one man could bind another. This law, being unrepealed, and being acted upon by the people, became their own delegation of authority— the chart of the delegates to guide and control them in the duties they were elected to perform as the servants of the people. Without this legislation the convention had not existed ; and to exist on terms not found in or contrary to the law, is to seek for a grant of power’s to be found nowhere else, except in a state of revolution, and, therefore, do not exist in this peaceful process of amendment.

The absolute necessity of the convention to claim the protection of the Act of 1872 is seen in andther view. Of the one hundred and thirty-three members of this body, less - than one hundred in number were elected by the people. Some never received a single vote, but sat by the appointment of men themselves not elected by the people at large. It is not meant to discuss the wisdom or the merits of the so-called limited system of voting, by which a majority of the electors are prevented from voting against persons seeking to represent them; but the purpose now is to show that without the authority of this very Act of 1872, more than thirty-three members of the body had no warrant whatever to represent the people. On what principle of right, dominion or power, had these persons any claim to exercise the power of the people, and by their votes, perhaps, to fix upon a people they do not represent, the most odious features of a proposed constitution ? Is it not clear that their whole delegated 'power to speak and to vote for the people comes from the force and effort of the statute ? They have that, and none other. 8

In considering this question of delegated power some are apt to forget that the people are already under a constitution and an existing frame of government instituted by themselves, which stand as barriers to the exercise of the original powers of the people, unless in an authorized form. They glide insensibly into the domain of abstract rights, and clothe mere agents with primordial power. But delegated authority is derived, and those who claim it must show whence and how they derived it. Three and a half or four millions of people cannot assemble themselves together in their primary capacity — they can act only through constituted agencies. No one is entitled to represent them unless he can show their warrant — how and when he was constituted their agent. The great error of the argument of those who claim to be the people, or the delegates of the people, is in the use of the word people. Who are the people ? Not so many as choose to assemble in a county, or a city, or a district, of their own mere will, and to say — we the people. Who gave them power to represent all others who stay away ? Not even the press, that wide-spread and most powerful of all subordinate agencies, can speak for them by authority. The voice of the people can be heard only through an authorized form, for, as we have seen, without this authority a part cannot speak for the whole, and this brings us back to a law as the only authority by which the will of the whole people, the body politic called the state, can be collected under an existing lawful government. To wander outside of this channel is to run in search of original powers, which, though possessed by the people, they have conferred in no other form. If the power be delegated, it must be seen in the derivation, otherwise it does not exist. If, then, the delegates elected by the people themselves, under the Act of 1872, have greater powers than are contained in it, when, where and hoto did they obtain them ? It is not in the Act of 1871, for that, as we have shown,decided but one question, and conferred but one power, to wit: That a convention might be called, and that the legislature might call it. There is no other source to which this convention can appeal, and not being found there it is found nowhere.

This brings us to an examination of the powers conferred by the Act of 1872, as the dernier resort. The power claimed for the convention is, by ordinance, to raise a commission to direct the election upon the amended constitution, in the city of Philadelphia, and to confer power on this commission to make a registration of voters, and furnish the lists so made to the election officers of each precinct; to appoint a judge and two insj>ectors for each division, by whom the election therein shall be conducted. This ordinance further claims the power to regulate the qualifications of the officers thus appointed to hold the election and to control the general returns of the election. It is clear, therefore, that the ordinance assumes a present power to displace the election officers now in office under the election laws for the city, to substitute officers appointed under the authority of the convention, and' to set aside these election laws so far as relates to the qualification of the officers and the manner in which the general returns shall be made, and in other respects not necessary to be noticed. The authority to do this is claimed under the fifth section of the Act of 1872, giving the convention power to submit the amendments, at such time or times, and in such manner as the convention shall prescribe, subject, however, to the limitation as to the separate submission of amendments contained in this act. It is argued that the manner of submission confers a power to conduct the election upon the matter submitted. To state the proposition is to refute | it, for the manner of submitting the amendments is a totally different thing from conducting the election upon the submitted ; amendments. But it is argued that the fourth, fifth and sixth sections of the act are contradictory, unless the term manner shall be applied to the conducting of the election as well as to the manner of submitting the amendments. The very reverse is true. Each of the three sections has a different subject, and it is clearly provided for in its respective place. These three different subjects are: First, the power -to propose amendments; second, the mode or manner in which these propositions shall be submitted, and third, the regulation of the election itself upon the propositions submitted. To be more specific, the fourth section confers the power to propose to the citizens, for approval or rejection a new constitution or amendments to the present one, or specific amendments to be voted on separately. Then comes the fifth section, which deals not with the power to propose, but with the manner of submitting the thing proposed; that is, in whole or in parts. This is proved by the condition immediately annexed to the manner, to wit: Subject, however, to the limitation as to separate submission of amendments contained in this act, which was: “ Provided, that one-third of all the' members of the convention shall have the right to require the separate submission to a popular vote or any change and amendment proposed by the constitution. ” The word manner is one of large signification, but one thing is clear — it cannot exceed the subject it qualifies or belongs to. The incident cannot be extended beyond its principal. What then does the word manner qualify or pertain to in this section ? Clearly it is the submission — “ Shall submit the amendments” “ in such manner as the convention shall prescribe, subject to,” — subject to what? — the limitation as to the separate submission of amendments. Can language be clearer to express the mode of submitting or placing the amendments before the people for their adoption or rejection ?

Now we come to the 6th section, which begins a different subject. “ The election to decide for or against the adoption of the new constitution, or specific amendments, shall be conducted as the general elections of this Commonwealth are now by law conducted.” Thus the legislature said to the convention in these three sections — You shall have power to propose your work in three forms; you shall have power to determine the time and the manner in which these propositions shall be submitted; but the election by the citizens shall be conducted as the law itself directs as to general elections. The 6th section, as to how the election on the propositions submitted shall be conducted is mandatory, and is so for the best of reasons — it is the only legally authorized means of taking the sense of the people upon adoption of the amendments which can bind the whole people. In this way only can a majority of voters, who are not a majority of the people, bind them as the body politic or state. The legislature intended that the election should be conducted by known officers legally elected, and should be governed by a known system of laws with which the people are familiar, and thereby that they should both' know and respect the authority under which the election should be held. No implication can be drawn from the word “manner” to contradict the plain and positive enactment that the election shall be conducted according to the laws governing general elections. It would violate the plainest rules for the interpretation of statutes to make the merest inference stand higher than an intent expressed in distinct language. It is, therefore, clear to our minds that the ordinance relating to the election in the city of Philadelphia is flatly opposed to the Act of 1872, and is therefore illegal and void. The prospective validation in the 32d section of the schedule only betrays the doubt the convention itself had of the validity of the ordinance in this respect.

The next question is one of great importance, but stands on a very different footing from that upon the ordinance — I mean the alleged refusal of the convention to submit the judiciary article separately to a vote of the people. The convention was clothed with express power to act upon the question of submitting the amendments in whole or in part. It is a deliberative body, having all the necessary authority to make rules for its own procedure, and to decide upon all questions falling within the scope of its authority. The power over the manner of submitting amendments is expressly conferred in the fifth section. It is true the law gives to one-third of all the members a right to require a separate submission of any amendment. But while this right is awarded to a minority of the body, it is one upon which the convention itself must act, and it must act according to its own rules of procedure. The question of a separate submission being one committed to the whole body, of which the requiring third is itself a part, it must be presumed that the decision of the body as a whole was rightly made, and either that the request was not made by a full one-third of all the members, or, if made by one-third, it was not in a regular or orderly way. It would be a violent presumption to suppose that the body would wilfully disregard their own oaths as well as a full and orderly request. And if they did this wrong, no appeal is given to the judiciary, and the error can be corrected only by the people themselves, by rejecting the work of the convention. If the people, notwithstanding, choose to ratify their work, with them lies the consequence. Mere errors of procedure will then be of no avail. The convention having in that matter acted within the scope of its undoubted power, we must take its decisions as final, and leave correction to the power to which it belongs.

Not to omit to notice the arguments drawn from precedents, we think none referred to throw much light on the general question in these cases — this power of the convention to pass the ordinance setting aside the election laws governing the city of Philadelphia and substituting provisions of its own. Even the proceedings in 1789 in our own state, furnish a precedent of but little service. There the legislature not only invited the action of the people in primary assemblies, but in advance committed to their hands all the authority legislation can confer to act in those assemblies. The convention was summoned without restriction, and acted without trammel, while the people reserved no power of ratification, and subsequently disposed of all questions of power by living under and acting upon the constitution, thereby ratifying the work of the convention in the most efficacious manner. The question before us is, can the convention, before they either proclaim a constitution themselves, if they have the power, or before any ratification, if they have not, pass an ordinance to repeal an existing system of law on a particular subject? This is a question of power, not of wisdom. However wise the substitution of their own election machinery for that provided by law for this city may be, the question is not for us. We can decide only the question of power. At last, therefore, we must come to the decision on principle and in the light of reason, having a due regard to the rights, interests, welfare and peace of a people living under a recognised government of their own choice, and seeking to amend it in a peaceful way, and to such extent as they may deem salutary and wise.

The question of jurisdiction has been reserved for the conclusion. The first remark to be made is, that all the departments of government are yet in full life and vigor, not being displaced by any authorized act of the people. As a court we are still bound to administer justice as heretofore. If the acts complained of in these bills are invasions of rights without authority, we must exercise our lawful jurisdiction to restrain them. One of our equity powers is the prevention or restraint of the commission or continuance of acts contrary to law, and prejudicial to the interests of the community or the rights of individuals. Page v. Allen, 8 P. F. Smith 338, and the authorities cited by counsel are precedents sufficient to justify the exercise in this case. Here the court is asked to restrain a body of men attempting to proceed contrary to laiy — to set aside the lawful election system of the city, and substitute an unlawful system in its place. Their acts are not only contrary to law, but are prejudicial to the interests of the community, by endangering the rights of all the electors, through means of an illegal election held by unauthorized officers. In Patterson v. Barlow, 10 P. F. Smith 54, the aid of the court was asked not to prevent acts contrary to law, but to strike down the only lawful, system of election in the city, and thereby to disfranchise all its citizens, for all other election laws had been actually repealed. We said then it was more than doubtful how far private citizens can call for an injunction beyond their own invaded rights, or ask to restrain a great system of law in its public aspects. In this case we are called upon not to strike down, but to protect a lawful system, and to prevent intrusion by unlawful authority. If this ordinance is invalid, as we have seen it is as to the city elections, the taxes of the citizens will be diverted to unlawful uses, the electors will be endangered in the exercise of their lawful franchise, and an officer necessary to the lawful execution of the election law ousted by unlawful usurpation of his fun ctions.

The convention is not a co-ordinate branch of the government. It exercises no governmental power, but is a body raised by law, in aid of the popular desire to discuss and propose amendments, which have no governing force so long as they remain propositions. While it acts within the scope of its delegated powers, it is not amenable for its acts, hut when it assumes to legislate, to repeal and displace existing institutions before they are displaced by the adoption of its propositions, it acts without authority, and the citizens injured thereby are entitled, under the declaration of rights, to an open court and to redress at our hands.

In conclusion, we regret that the nature of the ease requires prompt, instant action, and that the circumstances under which we act demand a written expression of our views. We gladly would have had more time, for discussion among ourselves, and for the preparation of the opinion. As it is, we have given to the subject all our most anxious thoughts and labor, and have arrived at the best conclusions honest convictions can reach.

And now, December 5th 1873, this case having come on to be heard before the Hon. Isaac G. Gordon, sitting at Nisi Prius, with the aid of the chief justice and all the other judges of the Supreme Court, called in to sit with him as assessors, and having been duly considered by all the said judges, it is now ordered and decreed that a special injunction be issued out of the said court to the said defendants, Edwin H. Eitler, Edward Browning, John P. Verree, Henry S. Hagert and John O. James, commissioners appointed in an ordinance made by the convention to propose amendments to the constitution of this Commonwealth, and done on the 3d day of November last, enjoining and strictly prohibiting them as such commissioners from directing or in any manner controlling an election to be held under the said ordinance in the said city of Philadelphia, on the 16th day of this December, and especially enjoining and prohibiting them from appointing judges and inspectors to hold the said election in the several districts in the said city, apdfrom making a registration of voters and furnishing the list thereof to the election officers; and a special injunction is issued to the said defendants, James Bain, Alexander McOuen and Thomas Locke, commissioners of the said city of Philadelphia, enjoining and prohibiting them from appropriating, using or expending any money or property of the said city in and about preparing for and conducting the election aforesaid, in so far as the said defendants, E. H. Eitler, Edward Browning, John P. Verree, Henry S. Hagert and John 0. James, propose to direct and control the said election and to appoint the officers thereof, or otherwise to manage the same. These injunctions to continue until final hearing or-< further order of the court.