257 F. 334 | S.D. Ohio | 1919
Albert G. Erkenbrecher, a resident of Cincinnati and a citizen of Ohio, requested the Attorney General of Ohio to bring this suit, and, having been denied, files this bill against James M. Cox, as Governor of Ohio, a citizen of that state and a resident in the Western division of the Southern district. The suit is brought by complainant—
“as such citizen and as a taxpayer in said district and interested in public welfare * * * in his own behalf and in behalf of the citizens of the state of Ohio, and other citizens of the United States who may desire to join in the action and contribute to the expenses of the suit.”
' The further allegations of the bill may be briefly stated:
The Governor has now in his custody, ready to be transmitted by him to the Generál Assembly of Ohio, at its next session beginning January 6, -1919, the proposed amendment to the federal Constitution, reading:
“.Sixty-Fifth Congress of the United States of America.
■ “At the second session begun and held at the city of Washington, on Monday, the third day of December, one thousand nine hundred and seventeen.
“Joint Resolution Proposing an Amendment to the Constitution of ' ' ' ' the United States.
“Resolved by the Senate and House of Representatives of the United States of Am.eriqa; in Congress assembled (two-thirds of each house concurring therein.), that the''following amendment to the Constitution be, and hereby is, proposed to the'states, to become valid as a part of the Constitution when ratified by the Legislátúres of the several states as provided by the Constitution:
*337 “Article-.
“Section 1. After one year from the ratification of this article 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 is hereby prohibited.
“Section 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.
“Section 3. This article shall be inoperative unless it shall have been 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 hereof to the states by the Congress”
—which, in his ministerial capacity, and having no discretion, he threatens to and will transmit to the General Assembly, unless restrained by this court. The recital that “two-thirds of each House” concurred in the proposed amendment was and is untrue and misleading, in that, when the Senate of the United States finally voted on the proposed amendment it was composed of ninety-five members elected and qualified, of whom only forty-seven voted in favor of the proposed amendment, a vote less than two-thirds of the membership of that house; that when the vote was taken in the House of Representatives, its total membership was four hundred and thirty-four members elected and qualified, and that only two hundred and eighty-two members voted in favor of the proposed amendment, a vote less than two-thirds of the membership of that house.
The vote in the Senate and in the House was not in accord with, and was in violation of, article V of the Constitution of the United States, which reads:
“Article V.
‘“The 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 (he several states, shall call a convention for proposing amendments, which, in either case, shall he 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 other mode ol' 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.”
The transmission of the proposed amendment to the General Assembly “would operate as and be a fraud upon the citizens of Ohio and of the United States, in that it would certify that two-thirds of each House of the’ Congress had voted in favor of the alleged amendment, whereas less than two-thirds of each house had voted therefor.”
From the beginning a large part of the revenue of the government lias been derived from taxes upon distilled spirits, wine, and beer, which' also have been subject to duties when imported, and that the revenue of the United States from excise duties upon these commodities during the fiscal year ending June 30, 1918 was $284,008,512.
The United States has encouraged the production of wine and beer
The proposed amendment is not in any legal sense an amendment to . the Constitution, but, if ratified by three-fourths of the states, would tend to subvert the republican form of government established by the Constitution and ratified by the people, and would violate its spirit; intent, and meaning. Its. ratification would be in derogation and in violation of the Tenth Amendment, reserving to the states and to the people all powers not delegated to the United States by the Constitution nor prohibited by it to the states, and, if ratified, would deprive citizens of liberty and property without due process of law, in violation of the Fourteenth Amendment.
The complainant has no other remedy except by injunction in equity, for which he prays, both preliminary and perpetual, enjoining James M. Cox, as Governor, from transmitting the proposed amendment to the General Assembly at its next or any subsequent session.
The issues so tendered are raised by the answer.
The case was argued and submitted December 24, 1918. Some of the briefs were filed later, the latest December 31st, and the case should be decided before Monday, January 6, 1919, the day on which the General Assembly of Ohio convenes. The time is short, but the court has been able to give some—it is hoped adequate—consideration to the issues now herein dealt with.
1. Counsel agree that, although the Governor’s official residence is at Columbus, in the Eastern division of this Southern district of Ohio, yet he is a resident of Dayton, in the Western division, and that, so far as the defendant’s residence is concerned, the bill is properly filed in the Western division.
“But when there is more than one plaintiff, the causes of action joined must be joint.”
Rule 38 (198 Fed. xxix, 115 C. C. A. xxix) reads:
“When the question is one of common or general interest to many persons [constituting a class so numerous as to make it impracticable to bring them all before the .court, one or more may sue or defend for the whole.”
There is a misjoinder, of parties plaintiff. Plaintiff Sues as a taxpayer in this district, and also as a citizen of Ohio and of the United States interested 'in' the public welfare, and as such joins with him all
There is more than one plaintiff, and the injury for which the remedy of injunction is sought affects some of the plaintiffs in one way and all in another. These causes of action are not joint.
The bill, under its allegations, is not properly a “class action,” because the classes claimed by plaintiff to be represented by him are different, as above stated. For these reasons the bill cannot be maintained.
Moreover, if the suit were brought alone in behalf of plaintiff as a taxpayer, and all other taxpayers similarly interested, there would be a clear misjoinder. The right of each is a separate, individual right, not a right common to all taxpayers. In any event, an injunction at plaintiff’s instance will not issue to protect the others. Scott v. Donald, 165 U. S. 107, 115, 116, 17 Sup. Ct. 262, 41 L. Ed. 648.
It may be, if the threatened act of the Governor involved an extraordinary emergency, and, but for injunction, constitutional rights would be irreparably injured, the court would direct the writ to proceed, and make a precedent, if necessary, in the sense of applying old and well-established principles to a new state of facts (the subject is discussed at length in State of Ohio ex rel. J. M. Sheets, Attorney General, v. Hobart, et al., 8 Ohio N. P. 246, 269, 270); but this case presents no such emergency, and the writ will be denied.
The Constitution does not provide how the passage of such joint resolution may be promulgated, nor is there any act of Congress on the subject. The provision found in 1 Comp. Stat. 1901, § 205, p. 104
There is no requirement in the Constitution or laws of the United States imposing any duty on the Secretary of State to transmit to the Governor the evidence of the passing of such a resolution. Neither the Constitution and laws of the United States nor the Constitution and laws of Ohio impose any duty upon the Governor to transmit the certified copy of the joint resolution to the General Assembly of Ohio. The Governor admits his. purpose to do so, and this suit is to restrain the threatened act. In so doing he does not act as Governor; he acts as a private citizen, who. happens to be Governor at the time. If he should refuse, no one could compel him by mandamus to do so.
How, then, can he be enjoined, as Governor, from an act which is merely a convenient method of getting the information to the General Assembly in. a somewhat formal way that the initial step for the proposed amendment had been taken by the two Houses of Congress? Of course, if the. act itself of the individual was that which did the wrong; if the Governor, acting through no authority or requirement of law and in his individual capacity, would or could injure complainant, and there were no adequate remedy at law, and the complainant’s injury would be irreparable, no doubt a court of equity would reach out its strong arm and prevent it. But such injury, if any, as the complainant may receive by the ratification of the amendment by the General Assembly of Ohio, is not done by the Governor in transmitting this certificate.
It is not open to doubt that every member recently elected to the General Assembly knows of the existence of the proposed amendment, and every one knows that the subject is of such interest in the state of Ohio, as well as elsewhere, that there are members of the General Assembly about to sit who will see to it that the subject is brought to the attention of the General Assembly. Moreover, it is the right of every citizen to petition the General Assembly, showing the purported passage of the joint resolution and asking for action thereon. Whatever injury, if any, may result by the consideration by the General Assembly of the proposed amendment, will follow, whether the Governor acts or not. The Governor’s threatened act cannot of itself do plaintiff any injury of any kind, and therefore the suit will not lie against him.
Moreover, if the plaintiff is injured, that injury does not arise until Ihe proposed amendment is adopted by the respective Legislatures of three-fourths of the states. Who can say that that result will come to pass within the seven years the state Legislatures are given to act? The act of the Governor and the affirmative act of the General Assembly would not be an irreparable injury, or any injury, to the plaintiff, if the requisite number of states, by their Legislatures, did not adopt the amendment. However that may be, and whatever the extent of the injury to the plaintiff affirmative action by the General Assembly of Ohio might be, it cannot be said that the act of the Governor in transmitting this certified copy constitutes an irreparable injury to the plainti ff.
. Since restraint on the Governor is the only relief sought, injunction must be denied, because no irreparable injury will result from what he threatens to do.
Ty what right, then, can a court of the United States, or any court, interfere with the preliminaries preceding legislative action by the General Assembly of Ohio? The legislative department of Ohio consists of a General Assembly of two houses, with whose proceedings no court, national or state, is concerned until the time comes when, by some enactment, constitutional rights of citizens, lodged either in the national or in the state Constitution, have been injured. Surely the courts are not concerned with any preliminary proceedings leading up to .legislation. This suit is against the Governor in his official capacity, liven if it is assumed that his threatened act is official, it is now held that this court has no power to enjoin him from acting.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
Counsel do not favor the court with decisions on this subject, but, granting to the claim all that may be argued for it, it must be said that the members of the Senate and the members of the House are the representatives of the states and the l-epresentatives of the people, respectively, to whom is given the power to propose amendments to the Constitution, which become such only when the representatives of the people in three-fourths of the states concur. Reserved powers are so called because they have never been surrendered. When the requisite number of states concur, the people surrender to the United States additional power. It may be absolute, or it may be concurrent, becoming absolute only when Congress shows an intention of occupying the whole field embraced by the particular subject.
One of the declared purposes in the preamble to the Constitution is to “promote the general welfare.” It is not necessary to dwell at length on the evils of the liquor traffic. Mr. Justice Field, in Crowley v. Christensen, 137 U. S. 86, 91, 11 Sup. Ct. 13, 34 L. Ed. 620; Mr. Justice Harlan, in Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205. Everybody knows them. Even those interested in the business do not deny the wisdom of regulating the traffic, so as so far as possible, to minimize its evils. The states, in the exercise of police powers, may prohibit, and there seems to be no reason why the states, should not surrender, in the method provided by the Constitution, further of their reserved powers, and thus delegate them to the national government. So, when the surrender is made by the people in the way provided, the amendment is by the people, in whom lay the power to make their Constitution, and in whom lies the power to> change it, and to add to it for the public welfare, if they consider the subject to involve the public welfare.
But it is urged, as I understand it, that an amendment must be germane to that which it amends, and that there is xio clause in the Constitution to which the proposed amendment is in any way related. Assuming, however, that it is not, yet one is not willing to go so far
It is said in St. Joseph Co. v. Steele, 167 U. S. 659, 662, 17 Sup. Ct. 925, 926 (42 L. Ed. 315):
“A. federal question, * * " to confer original jurisdiction on a Circuit Court of the United States, * * * must be a real substantive question, on which the case may be made to turn.”
The suit must involve, necessarily, a question depending on the laws, Constitution, and treaties of the United States. Railroad v. Myers, 115 U. S. 1, 12, 5 Sup. Ct. 1113, 29 L. Ed. 319. Can it be doubted that, if plaintiff is defeated in this case, he may still raise the question after the requisite number of states has ratified, and Congress, or the state of Ohio, or both, have taken some action to render the amendment effective ? Pie can show then, as well as he can now, if he can at all, the actual number of those present in each house when the vote on the resolution was taken.
‘•The suit must be such that some right, privilege, immunity, or title on which recovery depends will be defeated by one construction of the Constitution or laws, or sustained by a contrary construction.” Simians’ Federal Equity Suit, 135.
By the decision of this case against him, the plaintiff loses no constitutional right.
“If a loss of revenue should accrue to the United States from a diminished consumption of ardent spirits, she would be the gainer a thousand fold in the health, wealth, and happiness of the people.”
In any event, it is manifest that the increased burden would come through indirect taxation, impossible of ascertainment, highly vague and conjectural, and not of tire 'kind measurable by the law. Moreover, if it were ascertainable, it would have to be shown that the loss to at least one citizen would amount to the jurisdictional amount, because individual claims of unjust taxation cannot be aggregated for the purpose of making a sum within the jurisdiction of this court.
Counsel for plaintiff expressly disclaim appearing for any one interested in the liquor traffic. Indeed, they say they have declined retainers from some so interested. They and their client take the high ground that their interest lies deeper than questions of property rights, and grows out of their love of country and their desire to protect it, by insisting that all the safeguards of the Constitution be maintained inviolate. The court believes them.
But, if they did represent such interests, it was settled by the Supreme Court long ago that no one has an inherent right to conduct that traffic, and if any one makes an investment in it, however large, he does it with the knowledge that such property rights as he would otherwise have in the business he has built up are necessarily overborne by the greater right of the public, through the exercise of police power, to enhance the public health, morals, and welfare. So no right of pecuniary value, or any value, is involved in this behalf.
It was said by Mr. Justice Matthews, in Barry v. Edmunds, 116 U. S. 550, 560, 561, 6 Sup. Ct. 501, 507 (29 L. Ed. 729):
“The amount of damages laid in the declaration, however, in cases where the law gives no rule, is not conclusive upon the question of jurisdiction; but if upon the case stated there could legally be a recovery for the amount necessary to the jurisdiction, and that amount is claimed, it would be necessary, in order to defeat the jurisdiction since the passage of the act of March 3, 1875, for the court to find, as a matter of fact, upon evidence legally sufficient, ‘that the amount of damages stated in the declaration was colorable, and had been laid beyond the amount of a reasonable expectation of recovery, for the purpose of creating a case’ within the jurisdiction of the court. Then it would appear to the satisfaction 'of the court that the suit ‘did not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court.’ ”
- When an injunction is sought,, the amount in controversy is the value of the injunction. Bureau v. Sells (D. C.) 211 Fed. 379, 383. The injunction sought here has no pecuniary value to the plaintiff,
It is this court’s opinion, not upon “personal conviction,” but on facts distinctly appearing, that the jurisdiction is only colorable, and does not really exist, and the bill 'should be dismissed upon this ground also.
11. It is urged for defendant that the certificate showing the concurrence of two-thirds of each house is conclusive, and reliance is had upon Field v. Clark, 143 U. S. 649, 12 Sup. Ct. 495, 36 L. Ed. 294, in which it was held:
‘■The signing by the Speaker of the House of Representatives and by the President of the Senate, in open session, of an enrolled bill, is an oilicial attestation by the two houses that such hill has passed Congress; and when the bill, thus attested, receives the approval of the President, and is deposited in the public archives according to law, its authentication as a bill that has passed Congress is complete and unimpeachable.”
It was said by Mr. Justice Harlan (143 U. S. 680, 12 Sup. Ct. 500, 36 L. Ed. 294):
“We are of opinion, for the reasons stated, that it is not competent for the appellants to show, from the journals of either house, from the reports of committees, or from other documents printed by authority of Congress, that the enrolled bill designated -H. R. ÍM16,’ as finally passed, contained a section that does not appear in the enrolled act in the custody of the State Department.”
Also (143 U. S. 671, 12 Sup. Ct. 497, 36 L. Ed. 294):
“Although the Constitution does not expressly require bills that have passed Congress to be attested by the signatures of the presiding officers of the two houses, usage, the orderly conduct of legislative proceedings, and the rules under which the two bodies have acted since the organization of the government, require that mode of authentication.
“The signing by the Speaker of the House of Representatives, and by the President of the Senate, in open session, of an enrolled bill, is an official attestation by the two houses of such hill as one that has passed Congress. It is a declaration by the two houses, through their presiding officers, to the President, that a bill thus attested has received, in due form, the sanction of! the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass Congress shall be presented to him; and when a bill thus attested receives his approval, and is deposited in the public archives, its authentication as a bill that has passed Congress should be deemed complete and unimpeachable. * * * The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed Congress, all bills authenticated in the manner stated, leaving the courts to determine, when the question properly arises, whether the act, so authenticated, is in conformity with the Constitution.”
The journals of the two houses, though required by the Constitution to be kept, were held not to be open for investigation in judicial proceedings. There is ground for holding that as against such a certificate as is involved here the court cannot enter into an inquiry as to the make-up of either house at the time the vote was taken; but, as it is not necessary in the disposition of this case to decide the question, no opinion is here expressed thereon, and the next inquiry goes to the merits of the question:
“ * * * And no person shall be convicted without the concurrence of two-thirds of the members present.”
Article 1, § 5, par. 3, as to the demand for the ayes and nays:
“ * * * And the yeas and nays of the members of either house on any question shall, at the desire of one-fifth of those present, be entered on the journal.”
As to making treaties, article 2, § 2, par. 2:
“ * * * He [the President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur. * * * ”
But, when the subject-matter is an amendment of the Constitution, or the passing of an act over the Presidént’s veto, it is required that “two-thirds of both houses” shall concur, as to one, and “two-thirds of that house”- in which the bill originated shall agree to pass the bill over the veto, as to the other. This, it is said, shows conclusively the purpose to require, in these especially important matters, the concurrence of two-thirds of the entire membership, as distinguished from two-thirds of a quorum or two-thirds of those present.
What does “house” mean? Webster says:
“One of the estates.of a kingdom assembled in Parliament or Legislature; a body of men united in their legislative capacity; as the House of Lords, or Peers, of Great Britain, the House of Commons, the House of Representatives.”
So, when we speak of “both houses,” we mean the members meeting in their legislative capacity. While passing such a resolution is not a legislative act, in the sense that it is the enactment of a law, yet it is action by the legislative bodies assembled in their legislative capacity. Indeed, a resolution is tire first step in that which may result, as has often resulted, in establishing, and in that sense enacting, the fundamental law which is the supreme law of the land. In passing the resolution each house acts in the same capacity in which it enacts ordinary legislation; and when we say that a bill or resolution has passed the Senate or House, as the case may be, we mean that it has received the number of votes required for the transaction of business.
Section 5 of article 1 provides:
“Each house shall be the judge of the elections, returns, and qualifications of its own members, and a majority of each shall constitute a quorum to do business. * * * ”
In United States v. Ballin, 144 U. S. 1, 5, 12 Sup. Ct. 507, 509 (36 L. Ed. 321) the Supreme Court, speaking through Mr. Justice Brewer, said:
“The Constitution provides that ‘a majority oí each [house! shall constitute a quorum to do business.’ * * * Its capacity to transact business is then established, created by the mere presence of a majority, and does not depend upon tlie disposition or assent or action of any single member or fraction of ihe majority present. All that the Constitution requires is the presence of a majority, and when that majority are present the power of the House arises.”
And at page 6 of 144 U. S., at page 509 of 12 Sup. Ct. (36 L. Ed. 321):
“ * * * The general rule of all parliamentary bodies is that, when a quorum is present, the act of a majority of the quorum is the act of the body. This has been the rule l'or all time, except so far as in any given case the terms of the organic act under which the body is assembled have prescribed specific limitations; as, for instance, in those states where the Constitution provides that a majority of all the members elected to either house shall be necessary for the passage of any bill. No such limitation is found in the federal Constitution, and therefore the general law of such bodies obtains.”
Among the many cases cited is State v. Deliesseline, 1 McCord (S. C.) 43, 49, in which it is said:
“Por, according to the principle of all the cases referred to, a quorum possesses all the powers of the whole body; a majority of which quorum must of course govern. * * * The Constitutions of this state and of the United States declare that a majority shall be a quorum to do business; but a majority of that quorum are sufficient to decide the most important question.”
Since the “body” is the “house,” and a majority oí a quorum transact the business of the house in passing a bill, so two-thirds of a quorum passes a resolution proposing an amendment. So it seems to this court.
If the plaintiff’s contention is right, then if, through sickness or unavoidable cause, or because of vacancies, two-thirds of the authorized membership is absent, action on such a joint resolution could not be taken at all, and the “business of the house,” a part of which comprehends resolutions, could not proceed in that behalf, .although a quorum for the transaction of all the business of the house is present. If the framers of the Constitution had intended, by the use of the word “house,” a different meaning from its universal meaning when applied to the ordinary business of enacting laws, it would seem that they would not have left such an important matter to conjecture and inference, and would have said “two-thirds of the membership of the house,” rather than “two-thirds 'of the house.” They knew very well what “house” meant, and so they said “two-thirds of the house,” instead of making an express limitation, as they did in the other cases mentioned, to a fractional number of the members present.
“in those states where the Constitution provides that a majority of all the members elected to either house shall be necessary for the passage of any bill. No such limitation is found in the federal Constitution, and therefore the general law of such bodies obtains.”
One feels one is on firm ground when one stands with such an authority as Judge Cooley, who, in his treatise on Constitutional Limitations (chapter VI, p. 201), says:
“A simple majority of a quorum is sufficient, unless the Constitution establishes some other rule; and where, by the Constitution, a two-thirds or three-fourths vote is made essential to the passage of any particular class of bills, two-thirds or three-fourths of a quorum will be understood, unless the terms employed clearly indicate that this proportion of all the members, or of all those elected, is intended.”
See, also, Warehouse v. McIntosh, 1 Ala. App. 407, 56 South. 102; State v. McBride, 4 Mo. 303, 29 Am. Dec. 636; Southworth v. Railroad, 2 Mich. 287; Smith v. Jennings, 67 S. C. 324, 45 S. E. 821; Tucker on the Constitution, vol. 1, p. 327.
It is true that the principles of the Constitution are fundamental and are designed to be permanent. Chief Justice Marshall, in Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60.
“The great principle to be sought is to make the changes practicable, but not too easy, to secure due deliberation and caution, and to follow experience, rather than to open a way for experiments suggested by mere speculation or theory.” Story on the Constitution, § 1827, citing (section 1S30) No. 43 of the Federalist, in which Hamilton and Madison expressed similar views.
In Elliott’s Debates, vol. 5, p. 431, Hamilton is reported to have said:
“The national Legislature will be the first to perceive, but will be most sensible to, the necessity of amendments, and also to be empowered, whenever two-thirds of each branch should concur, to call a convention. There could be no danger in giving this power, as the people will finally decide in the case.”
Counsel for plaintiff frankly say:
“There was no actual definition anywhere in the Debates, so far as we have , discovered, defining just what the term ‘two-thirds’ meant.”
It is a remarkable fact that nothing appears in the Debates on the subject. No doubt “house” was considered, when used in connection with a proposed amendment, to mean what the word, as well understood, meant at that time in connection with the passing of laws by legislative bodies. Men of strong mind and patriotic purpose have entertained the same views as plaintiff, and the question has been raised many times.
In 1861 (36 Cong., 2d Sess., Journal, p. 383) it appeared:
“Mr. Trumbull raised a question of order whether, the joint resolution being a proposition to amend the Constitution of the United States, it did not require an affirmative vote of two-thirds of the members composing the Senate*349 to pass the same. The President decided that it required an affirmative vote of two-thirds of Senators present only. On appeal, the decision was sustained—yeas, 33; nays, 1.”
On February 26, 1869, a Suffrage Amendment to the Constitution was proposed. The Senate voted yeas 39, nays 13. Upon a point of order made by Mr. Davis that, as the Senate consisted of 74 members, a vote of 50 was necessary to constitute two-thirds, Mr. Trumbull said that the same question was raised in Buchanan’s administration, when, after a debate, Mr. Brecljenridge in the chair, it was voted that the two-thirds required was two-thirds of the Senators present, if a quorum, and thereupon the view of Mr. Trumbull was adopted.
On the joint resolution proposing the amendment providing for the election of Senators May 11, 1899, Mr. Hill called attention to the language of article 5. In ruling upon the point of order the Speaker (Mr. Reed) said:
“The question is one that has been so often decided that it seems hardly necessary to dwell upon it. The provision of the Constitution says ‘two-thirds of both houses.’ What constitutes a house? A quorum of the membership, a majority, one-half and one more. That is all that is necessary to constitute a house to do all the business that comes before the house. Among the business that comes before the house is the reconsideration of a bill which has been vetoed by the President; another is a proposed amendment to the Constitution; and the practice is uniform in both cases that if a quorum of the house is present the house is constituted, and two-thirds of those voting are sufficient in order to accomplish the object. It has nothing to do with the question of what states are present and represented, or what states are present and vote for it 31 * * ”
The vote on the resolution was—yeas, 184; nays, 11. Two-thirds of the whole house were not present. There were, at these times, great men and great lawyers in the Senate and in the House, men just as jealous of maintaining to the last degree the integrity of the Constitution as the plaintiff or his counsel or any one can be. They were satisfied that they were proceeding in the way the Constitution provided. If plaintiff is right, the joint resolution proposing the amendment which became the very first amendment to the Constitution had no constitutional sanction.
The court is not sufficiently advised to say how many of the amendments were proposed by resolutions passed by less than two-thirds of the membership of each house; but the joint resolution proposing the Fourteenth Amendment and the joint resolution proposing the Fifteenth Amendment were invalid, if plaintiff is right, 'and in the innumerable instances in which persons and property have been protected by the courts by virtue of the provisions of those amendments, the courts have had no sanction for their action.
It is argued that, when joint resolutions proposing these amendments were adopted, the 11 Confederate States had seceded, and were not in the Union. But the theory of the North, the theory to which no one held more firmly than Mr, Uincoln, was that the Southern States never were out of the Union. The original purpose of the North in the Civil War was to maintain the integrity of the Union and to compel the Southern States to maintain it. The abolition of slavery was wholly incidental.
“None of the prior amendments could possibly bé affected by the decision of this case, because those prior amendments were ratified on a record which showed a compliance with the Constitution. This necessarily must be presumed. 'Omnia prsesumuntur rite et solemniter esse acta.’ Those prior amendments are like judgments by default, where a good defense on the facts existed and was not interposed. The judgments have become final, irrevocable, and unreversible, and have every force and effect.”
One cannot agree with this. The “record” showing the compliance with the Constitution in those instances is no more solemn and conclusive after adoption by the states than it is before their adoption. If the record can be attacked at all, it can, in the judgment of this court, be attacked after the adoption by the states of the amendment and proceedings had to enforce legislation enacted for the purpose of carrying the amendment into effect.
For the reasons given, the bill will be dismissed.
