State ex rel. Mullen v. Howell

Parker, J.

(dissenting)—I am unable to concur in the majority opinion of the court. The necessity of a prompt disposition of this case, in view of the decision of a majority of the court to grant the writ prayed for, prevents me setting forth, at the length I would like to, my views upon the question presented. I will content myself with the following brief observations, which I think could be materially strengthened in support of the conclusions I have reached, by a more detailed discussion.

*189The resolution of Congress here in question, reads:

“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 America 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 Legislatures of the several States as provided by the constitution:
“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.
“Sec. 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.
“Sec. 3. This article shall be inoperative unless it shall have been ratified by 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.” U. S. Stats. 1918, Sess. II, ch. 212, 40 Stat. 1050.

The constitution of the United States, in the fifth article thereof, prescribes the manner of proposing and ratifying amendments to that instrument as follows:

11 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 the several States, shall call a Convention for proposing Amendments, which, in either case, shall be valid to all intents and purposes, *190as 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; . . . ”

In the sixth article of that instrument, we also read:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

It is therefore plain that the above quoted portion of the fifth article of the Federal constitution is the supreme law of the land touching the subject of amending that instrument. The several states, by the express provisions of that article, have as completely surrendered the power to prescribe a different manner of amending the Federal constitution as they have surrendered to the Federal government the sovereign powers enumerated in that instrument to be exercised by the Federal government. It is to be noted that the Congress of the United States has the power to prescribe either of two ways in which the several states shall voice their ratification of a proposed amendment to the Federal constitution, to wit: “by the legislatures,” or “by conventions” held in the several states for that purpose; and that Congress has in its proposal of this amendment expressly provided that it “shall be inoperative unless it shall have been ratified as an amendment to the constitution by the legislatures of the several states . . .” In other words, Congress has submitted this proposed amendment for ratification or rejection to the legislatures of the several states, instead of to conventions to be held therein.

*191It is contended in behalf of the relator that the word “legislatures,” as used in the above quoted portion of the fifth article of the Federal constitution, means not alone the law-making representative body of the several states, called “legislature” or some other name of the same import, but the entire lawmaking body of the state, though such body include the individual electors of the state, when by its constitution such electors possess the power of direct legislation through the initiative and referendum, as they do in the state of Washington under its constitution by virtue of the seventh amendment thereto, reading, in so far as we need here notice its language, as follows:

“The legislative authority of the state of Washington shall be vested in the legislature, consisting of a senate and house of representatives, which shall be called the legislature of the state of Washington, but the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power, at their own option, to approve or reject at the polls any act, item, section or part of any bill, act or law passed by the legislature.”

I am convinced that the ratification by a state legislature of a proposed amendment to the Federal constitution is- an exercise of a power which the legislature possesses by virtue of the fifth article of that instrument, and the designation by Congress of that method of ratification in pursuance of the power given to Congress by that article, and that the legislature is not acting in pursuance of any power given to it by the state constitution, except in so far as the legislature may owe its existence to the state constitution. I cannot escape the conclusion that such act of ratification by the legislature is not law-making legislation for the state and its people under its constitution, but *192is simply the casting of the vote of the state and its people in the manner prescribed by the Federal constitution and the direction of Congress made in pursuance thereof, as to whether or not the proposed amendment of that instrument shall be ratified. Such act of a state legislature, it may be conceded, is an act or participation in legislation; but I think it is an act of participation in purely national legislation, and is neither state legislation, nor an act of participation in state legislation. I may further observe that the act of ratification would, as I view it,' be in substance identical in character, whether done by the legislature by a vote upon an informal motion, by a formal resolution, or by a formal bill as in the enactment of ordinary state laws; and that the form of ratification by the legislature is of no moment in the determination of whether or not the legislative act of ratification is referable to a direct vote of the people. Of course, the legislature might call for an advisory vote of the people before finally acting, but that is not this case.

In Jameson, Constitutional Conventions (4th ed.), § 583, that learned author says:

“The power of a state legislature to participate in amending the Federal Constitution exists only by virtue of a special grant in that constitution. It is a power which it could not assume under any notion of a general right to legislate, for that right is confined within state limits, and to the enactment of ordinary laws. ’ ’

Our problem here is, What body of persons compose the legislature, within the meaning of that word as used in the fifth article of the Federal constitution? rather than the question of where the whole of the state’s legislative power resides. Recurring to the language of that article, and having in mind what *193must have been the commonly accepted meaning of the word “legislature” when originally placed in that article of the ■ constitution, I am convinced that it means that body of persons composing the ordinary representative law-making body of the state. The fact that Congress is given power to submit proposed constitutional amendments to conventions, manifestly meaning representative conventions, in the several states, as well as to the legislatures thereof; the manner in which the several states and their people express their choice for president and vice-president of. the United States through chosen representatives called electors, instead of by direct vote; the manner in which the several states expressed their choice for United States senators through chosen members of their respective representative law-making bodies called “legislature,” or some other name of the same import, as provided by the Federal constitution until recent years; the fact that the Federal constitution, until the recent amendment thereto providing for the election of senators by direct vote of the people, never contained any provision for the people of the respective states voicing their will by direct vote upon any Federal or national question wherein the decision of a state, or the people thereof as a whole, was called for under some provision of the Federal constitution; and the history of the times touching the original framing and adoption of the Federal constitution, to my mind argue all but conclusively that it was not the intent or purpose of the framers of that instrument that amendments thereto should be ratified by the several states or the people thereof, other than by an expression of their will in that behalf through their representative legislative bodies called “legislature,” or some other name of the same import, or through *194■representative conventions held in the several states for that purpose.

Counsel for the relator call to our attention and invoke in his behalf the decisions of the supreme court of South Dakota and Ohio, in State ex rel. Schrader v. Polley, 26 S. D. 5, 127 N. W. 848, and State ex rel. Davis v. Hildebrant, 94 Ohio St. 154, 114 N. E. 55, holding, in substance, that the word “legislature,” as used in section 4 of article 1 of the Federal constitution, means and comprehends the entire legislative .power of the respective,states, including not only the legislative power possessed by the representative legislative body of each state, but also the legislative power which may be reserved in the people of a state by its constitution, to be exercised by the initiative and referendum, as such power is reserved in the people of South Dakota and Ohio by their constitutions, in substance the same as such power is reserved in the people of our state by the above quoted portions of the seventh amendment to our constitution. Section 4 of article 1 of the Federal constitution, the interpretation of which was involved in those decisions, reads:

“The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the congress may at any time by law make or alter such regulations, except as to the places of choosing senators.”

The question in each of those cases was as to whether or not an act passed by the representative legislative law-making body of the state, called “legislature” in South Dakota, and “general assembly” in Ohio, dividing the state into congressional districts and providing for the election of representatives in Congress therefrom, was subject to a referendum vote of the people of the state under the initiative and ref*195erendum provision of its constitution; those courts deciding that such an act was subject to a referendum vote-of the people. It seems to me at once apparent that there is a marked' distinction between the legislative power reserved to the several states by the provisions of section 4, article 1, of the Federal constitution, and the provisions of article 5 of that instrument, providing the manner in which the respective states and the people shall express their ratification of proposed amendments to that instrument. The former is the enactment of law, the prescribing of a rule of conduct, by the sovereign legislative power of the state, subject, of course, to be superseded by laws which may be enacted by Congress, but nevertheless within itself an act of legislation, completed or to be completed by the sole legislative power of the state; and the fact that such legislation may have to give way to some higher law which Congress may enact, does not in the least change the fact that it is an act done by the legislative power of the state, in the doing of which no other state or power has any voice whatsoever. The latter is but the casting of the vote of the- state and its people upon the question of amending the Federal constitution, in the manner provided for by the terms of that instrument; a question not of state legislation, but of national legislation, in which each state has but one vote. I think that the South Dakota and Ohio decisions are of no controlling force in the solution of this problem. '

It has been suggested that a state constitution might not create any representative law-making body such as is commonly called “legislature,” but provide for the exercise of the whole of the state’s legislative power by direct vote of the people, a thing I concede to be not impossible; and that such a state might de*196eline to provide for the calling of a convention to act upon a proposal to amend the Federal constitution. I am quite unable to see, should my view of the question here presented prevail, that such a condition would in the least impair the right and power of Congress to obtain, in an orderly and lawful way, an expression of the will of the people of such a state touching a proposed amendment to the Federal constitution, since Congress is plainly given the power to submit such a proposal to conventions in the several states and to provide the manner of electing delegates to, and the calling of, such conventions, all of which could be readily done by Congress wholly apart from state constitutional and statutory law.

It is contended in behalf of the relator that the secretary of state should not now be permitted to refuse to file the petition, give a serial number thereto as a referendum measure, transmit a copy thereof to the Attorney General for the preparation of a ballot title, and perform the other acts required of him by law looking to the submission of referendum measures to the people; and that we should not at this time entertain the defense made in the secretary’s behalf that the proposed measure is not referable to the people. Counsel for the relator call to our attention and rely upon that line of decisions holding, in substance, that the courts will not entertain the question of the constitutionality or validity of a proposed initiative or referendum measure in a proceeding to compel an officer to perform, or refrain from performing, some act prescribed by law to be performed by him looking to the submission of such measures to the people.

Our real concern here is not with the constitutionality or validity of the joint resolution of our legislature here in question. The real reason why the secretary of state should not be compelled to perform *197the acts demanded of him hy the relator is that the question of the ratification of a proposed Federal constitutional amendment is not one to be finally decided by direct vote of the people of the several states, but by the vote of the states and the people thereof, expressed through their representative law-making bodies or representative conventions held in the several states for that purpose. No decision of any court has come to our notice holding that an officer whose duty it is to perform acts looking to the submission to the people of initiative and referendum measures can be compelled by mandamus to perform any act looking to the submission of a question to the people which under no circumstances is referable to a direct vote of the people for final decision as an initiative or referendum measure. The demand here made by the relator upon the secretary of state is, in its last analysis, a demand that he perform an act which I think he is not legally required to perform. Our decision in State ex rel. Case v. Howell, 85 Wash. 281, 147 Pac. 1162, and State ex rel. Case v. Howell, 85 Wash. 294, 147 Pac. 1159, Ann. Cas. 1916A 1231, are in harmony with this view of the law, though tins exact question was not there presented to the court.

I am of the opinion that the writ should be denied.

Mitchell, J., concurs with Parker, J.