170 A. 903 | Vt. | 1934
This is a petition for a writ of certiorari to review the action of a convention held pursuant to the provisions of Act No. 6 of the Acts of 1933, which is entitled "An Act to provide for the calling of conventions for the adoption or rejection of proposed amendments to the Constitution of the United States, submitted by Congress to conventions."
The petitioner is a resident of the city of Brooklyn, New York, and brings this petition on behalf of himself and various named organizations and societies which it is alleged that he represents.
The petition is dated November 8, 1933. It appears therefrom that a convention was held in accordance with the provisions of the act above mentioned on September 26, 1933, to act upon the proposed amendment to the Constitution of the United States relating to the repeal of the Eighteenth amendment *152 to such Constitution; that the petitionee, Billings, was the chairman, and the petitionee, Myrick, was the secretary of the convention; that the convention adopted a resolution ratifying the proposed amendment; that on the same day, "in conformity with the statute" and a resolution adopted by the convention, the petitionees made and transmitted to the Secretary of State of the United States a certificate showing in detail the action of such convention, and that the facts appearing in such certificate are now a matter of record in the office of the petitionee, Myrick, as Secretary of this State. The prayer of the petition is that the petitionees be ordered to certify and return said record to this Court, and that, that being done, we review and quash the same because such statute does not conform to article 5 of the Constitution of the United States or to section 8, chapter 1, and section 5, chapter 2, of the Constitution of this State, and consequently said statute and all acts done under it are void. The petition is challenged by demurrer on several grounds.
Our practice regarding petitions of this nature is clearly pointed out in Davidson v. Whitehill et al.,
He contends that United States Code, title 5, U.S.C.A. § 160 (U.S. Revised Statutes, § 205), purports to vest in the Secretary of State of the United States power to determine judicially whether a proposed amendment has received the sanction provided by article 5 of the federal Constitution, and *153
that the court in Leser v. Garnett,
Another reason why this writ should not be granted is that the issuance of such a writ is largely a matter of discretion,Davidson v. Whitehill et al., supra, and clearly ought not to issue when, as here, it will be unavailing. It appears from the petition that the resolution of Congress submitting the proposed amendment provided that the proposed amendment "shall be valid to all intents and purposes as part of the Constitution when ratified by conventions in three-fourths of the several states." It appears from the proclamation of the Secretary of State of the United States issued December 5, 1933, of which we take judicial notice, Dillon v. Gloss,
That this State had power to adopt the resolution of ratification by a proper convention is not questioned. Nor is it questioned but that official notice, duly authenticated, was given to the Secretary of State of the United States on September 26, 1933, that it had done so. Such notice was conclusive upon him, Leser v. Garnett, supra, and Dillon v. Gloss, supra, and when he received like notice from the requisite number of states the ratification of the proposed amendment was consummated, and became, to all intents and purposes, part of the federal Constitution. See cases last cited. The Secretary's proclamation certifying the states that had ratified the proposed amendment was official notice to the world of what had happened, and as we have seen, is conclusive upon the courts. Leser v. Garnett,supra.
The fact that these proceedings were brought before the ratification was consummated does not change the situation. No one with authority to act in the matter at the time they were brought, or since, is party to them, or chargeable with knowledge of them.
The ratification of the proposed amendment having been consummated and the same having become part of the federal Constitution, the writ prayed for should be denied as a matter of discretion. *155
Since this disposes of the case there is no occasion to consider the constitutionality of the act in question. This ordinarily will not be done unless the disposition of the case in hand requires it. State v. Hall,
Petition dismissed.