262 F. 563 | N.D. Cal. | 1920
Article 5 of the Constitution of the United States provides as follows:
“Tile Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the Legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress: Provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article, and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.”
Section 205 of the Revised Statutes (Comp. St. § 303) provides:
“Whenever official notice is received at the Department of State that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the' Constitution, the Secretary of State shall forthwith cause the amendment to be published in the newspapers authorized to promulgate the laws, with his certificate, specifying the states by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.”
On the 19th day of December, 1917, Congress proposed the Eighteenth Amendment to the Constitution of the United States. Section 1 of the amendment prohibits the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from, the United States and all territory subject to ■the jurisdiction thereof, for beverage purposes, after one year from date of ratification. Section 3 provides that the article shall be inoperative unless ratified as an amendment to the Constitution by the Legislatures of the several states as provided in the Constitution within seven years from the date of the submission to the states by Congress. On the 29th day of January, 1919, the Department of State promulgated the amendment as required by section 205 of the Revised Statutes, certifying the names of the states by which the same had been ratified, 36 in number. Among the states thus certified were Washington and Ohio. The last section of the National Prohibition Act of October 28, 1919, c. 85, provides that certain provisions of the act shall take effect and be in force from and after the date when the Eighteenth Amendment to the Constitution of the United States goes into effect.
The petitioner is now in custody charged with a violation of one of those provisions of the last-mentioned act, which did not take effect, as already stated, until the same date as the Eighteenth Amendment. The crime is alleged to have been committed on the 17th day of January of the present year. The petitioner claims that his restraint is illegal, first, because the Eighteenth Amendment, and consequently the provision of the National Prohibition Act, were not in force or effect on that date; and, second, because the Eighteenth Amendment itself
“As there are two methods of proposal, so there are two methods of ratification. Whether an amendment is proposed by joint resolution or by a national constitutional convention, it must be ratified in one of two ways: First, by the Legislatures of three-fourths of the several states; or, second, by constitutional conventions held m three-fourths thereof, and Congress is given the power to prescribe which m;ode of ratification shall be followed.
“Hitherto Congress has prescribed only the former method, and all amendments heretofore adopted have been ratified solely by the approving action of the Legislature in three-fourths of the states. That is the mode of ratification prescribed by Congress in case of the amendment now under consideration, and it was in pursuance of that prescribed mode that this ratifying resolve was passed by the Legislature of Maine. Here, again, the state Legislature in ratifying the amendment, as Congress in proposing it, is not, strictly speaking, acting in the discharge of legislative duties and functions as a law-making body, but is acting in behalf of arid as representative of the people as a ratifying body, under the power expressly conferred upon it by article 5. The people, through their Constitution, might have clothed the Senate alone, or the House alone, or the Governor’s Council, or the Governor, with the power of ratification, or might have reserved that power to themselves to be exercised by popular vote. But they did not. They retained no power of ratification in themselves, but conferred it completely upon the two houses of the Legislature; that is, the legislative assembly.”
The requirement of the Fifth Amendment that proposed amendments shall be ratified by the legislatures of three-fourths of the states or by conventions in three-fourths thereof, as one or the other mode of ratification may be proposed by Congress, would seem to me to preclude ratification by direct vote of the people; and the intention of the framers of the Constitution that amendments should be ratified by the representatives of the people, either in Legislature or in Convention, and not by the people themselves seems manifest. Had the resolution in this case provided that the amendment should be ratified by the people of the several states by direct vote, such provision would be clearly in derogation of the Constitution and void, and what Congress could not do it is needless to say the several states cannot do, because full power over the matter is conferred upon the former and denied to the latter. No more in my opinion can the people of a state to-day ratify an amendment to the Constitution of the United States by direct vote than could they elect a United States Senator by direct vote prior to the recent amendment.
The term Legislature does not necessarily mean or imply the same thing at all times or in all parts of the Constitution. Thus, when the Legislature of a state is referred to simply as the lawmaking body, the term may well be construed to embrace the entire lawmaking-machinery of the state including a vote of the people where authorized by the local Constitution, as in Davis v. Ohio, 241 U. S. 565, 36 Sup. Ct. 708, 60 L. Ed. 1172. But where the Legislature is designated as a mere agency to discharge some duty of a nonlegislative character, such as the election of a United States Senator, or the ratification of a pro
An amendment “implies such an addition ox- change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.” Livermore v. Waite, 102 Cal. 118, 36 Pac. 426, 25 L. R. A. 312.
And from this it is argued that inasmuch as the original Constitution was silent on the question of the manufacture ánd sale of intoxicating liquors there is nothing to be amended or to amend by and therefore the amendment itself is void. The term “amend,” as defined by Webster, means:
“To change or alter, as a law, bill, motion, or constitutional provision, by the will of a legislative body, or by competent authority; as to amend a charter.”
That the amendment in question changes the original Constitution does not admit of question, and while it does not change any provision relating to this particular matter it does change the instrument as a whole. The Constitution is a mere grant of power to the federal government by the several states and any amendment which adds to or in any manner changes the powers thus granted comes within the legal and even within the technical definition of that term. The Thirteenth Amendment, abolishing and prohibiting slavery within the states, has been recognized as a part of the Constitution for upwards of half a century. The amendment in question does no more, only the prohibition extends to a different subject-matter. It seems to me therefore that the objections are without substantial merit. Again it is urged that the Constitution does not authorize the submission of conditional amendments. This is no doubt true, but it is equally true that the Constitution does not forbid them. The framers of the Constitution could not foresee the form or character of amendments which might become necessary in the future and wisely left all such questions in the hands
For these reasons I am of opinion that the amendment in form and substance was entirely within competency of Congress and the several states to propose and ratify and that both the amendment and the Nar tional Prohibition Act were in full force and effect on the day in question.
The petition is accordingly denied.