and Coleman cases found that as a "subsidiary matter of detail" to this congressional prerogative, Congress must also determine whether or not the local expressions of consent are "sufficiently contemporaneous in that number of States to reflect the will of the people in all sections at relatively the same period. . . ." Dillon 256 U.S. at 375, 41 S.Ct. at 512. In making its determination that the requisite consensus has been reached in a sufficiently contemporaneous period, the Supreme Court in Coleman, supra, indicated that if no time restriction is set initially, Congress retains its authority [1152] to decide that issue when the requisite number of states have acted.

Our decision that the Congress has the power under Article V to fix a reasonable limit of time for ratification in proposing an amendment proceeds upon the assumption that the question, what is a reasonable time, lies within the congressional province. If it be deemed that such a question is an open one when the limit has not been fixed in advance, we think that it should also be regarded as an open one for the condsideration of the Congress when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment. The decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts.

Id. 307 U.S. at 454, 59 S.Ct. at 982. The court in Dillon further clarified the scope of Congress' power by indicating that while Congress is not compelled to make a determination of a reasonable time period in advance of the actions of the requisite number of states, it is not precluded from doing so. The Dillon court held that Congress may fix a reasonable time in advance "so that all may know what it is and speculation . . . be avoided." Id. 256 U.S. at 376, 41 S.Ct. at 513. It should be noted that the Dillon court did not intimate that the setting of a definite time period was a projection or preliminary assessment of a reasonable time period which would be reevaluated as time passed. Rather, the Court indicated that the exercise of Congress' power to set a time period for ratification is one which is intended to infuse certainty into an area which is inherently vague. Thus the inference that can be drawn from Dillon and Coleman is that within Congress' role of determining a reasonably contemporaneous consensus, or in other words, determining whether the socio/political, economic forces giving rise to the amendment remain alive and unchanged during the period in which the states act in giving their assent to the proposal, Congress may exercise its function in one of two ways: first, it can leave the question of a reasonable time open until the requisite number of states have acted and thus continually monitor the viability of the amendment; second, where it appears to Congress that the socio/ political, economic factors giving rise to the amendment are such that they are unlikely to change for an indefinite period of time, and rather than have the proposed amendment pending perpetually, Congress can set an arbitrary yet reasonable time period in

order to establish a termination point for consideration and thus promote prompt action on the amendment by the states.66

[26] It, therefore, appears compelling that in order to fulfill the purposes for fixing a time limitation for ratification as outlined in Dillon-"so all may know and speculation . . . be avoided”—the congressional determination of a reasonable period once made and proposed to the states cannot be altered. If Congress determines that a particular amendment required ongoing assessment as to its viability or monitoring of the time period, it can do so, not by defeating the certainty implied by the Dillon case, but by not setting a time period at the outset and reserving the question until threefourths of the states have acted.

The Court's conclusion that Congress cannot change the ratification period once it is set also finds support from the form in which it is presented to the states. While the setting of a time period for ratification has been described as a, "subsidiary matter of detail,” pursuant to Congress' power to propose the mode of ratification, if the Congress chooses to fix a time period by making it part of its proposal to the states, that determination of a time period becomes and [1153] integral part of the proposed mode of ratification. Once the proposal has been formulated and sent to the states, the time period could not be changed any more than the entity designated to ratify could be changed from the state legislature to a state convention or vice versa. Once the proposal is made, Congress is not at liberty to change it.

[27, 28] In any event, while the general power of Congress to change its prior proposal may be argued, it is more than clear that in this instance Congress' promulgation of the extension resolution was in violation of the constitutional requirement that Congress act by two-thirds of both Houses when exercising its article V powers. Since Congress can act only within the authority given it by article V, and in none other, when proposing amendments or the mode of ratification, arguments relating to acceptable parliamentary order or procedure have little bearing in determining what voting requirement is necessary for Congress to alter a proposed time limitation on ratification. This is because such an argument presumes Congress is functioning in a legislative capacity when exercising its powers under article V. To determine in what manner Congress must act in utilizing its authority under article V, reference must first be made to the Constitution itself. If it is silent, then the courts can leave Congress to decide its own procedural requirements. See Dyer v. Blair, 390 F.Supp. 1291 (N.D.III.1975). Article V grants Congress only one power which can be exercised with regard to two separate considerations. Congress has the power to "propose." It can "propose" the text of the amendment and it can "propose" the mode of ratification. When acting in its function of proposing the amendment itself, article V has given the term "Congress" a particular definition. Article V states, "The Congress, whenever two thirds of both Houses shall

66 It appears from the legislative history of the proposed twenty-seventh amendment that the seven-year time period was well considered and found necessary to prevent the amendment from pending for an inordinate period of time. See S.Rep.No.92 689, 92d Cong. 2d Sess. 1972; 118 Cong Rec. 9552 (1972).

deem it necessary, shall propose Amendments . . " U.S.Const., Art. V (emphasis added). Within its powers to propose the mode of ratification, however, no specific reference is made by what concurrence of both Houses, or even if both Houses must act, in order for the mode of ratification to be proposed and sent to the states. Article V only provides that ratification be "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 Congress . . . ", U.S.Const., art. V (emphasis added). The defendant argues that this failure of the drafters to designate by what majority the power to propose the mode of ratification indicates that it should be left to Congress to set its own procedure. But this argument overlooks the fact that the word "Congress" has been specifically defined earlier in the same sentence. Rather than give the word "Congress" two different meanings within the same provision, it seems more logical to give it a consistent interpretation throughout. This conclusion seems even more reasonable when it is considered that what is being dealt with is the same powerthe congressional power to "propose."

One final observation. Reviewing several of the most recent resolutions proposing amendments to the Constitution and referring particularly to the resolution proposing the Equal Rights Amendment, the mode of ratification has been proposed by the approval of two-thirds of both Houses of Congress, thus indicating by general practice that this is the appropriate measure of approval.

Therefore, the Court is persuaded that the congressional act of extending the time period for ratification was an improper exercise of Congress' authority under article V. While Congress is not required to set a time period in advance of the requisite number of states acting to ratify, if it chooses to do so to remove uncertainty regarding the question, it cannot thereafter remove that certainty by changing the time period. In addition, since it is clear that Congress must act by a two-thirds concurrence of both Houses when acting pursuant to its authority under article V, and because the extension resolution was enacted by only a simple majority, the extension resolution is an unconstitutional exercise of congressional authority under article V.

[1154] Since the Court has determined that the enactment of the extension resolution was an ultra vires act, and thus unconstitutional, the question of the effect of the extension on a state's alleged "conditional" ratification is one that the Court does not need to address. However, the Court would point out the irony of the defendant's position in arguing that a state cannot condition its ratification and then contend that the condition can be purged from the ratification leaving the state's adoption of the amendment intact. If the defendant truly maintains that a ratification cannot be conditioned, then it would seem consistent that conditional ratification must be considered a nullity. If a state has acted improperly in exercising its ratification powers, only the states can cure the impropriety and neither Congress nor the courts can exorcise the statements of condition from the ratification. It must either succeed or fail as it is enacted.

F. Mandatory Injunction

[29,30] To begin with, several observations are appropriate. First, the relief the plaintiffs seek is a mandatory injunction.67 Relief in the form of mandamus, it is conceded, is not appropriate in this action. Second, it is well settled that the injunction remedy is a power given the courts under their equitable jurisdiction. Thus the courts' granting or denying of an injunction in a particular case is governed by those fundamental and established principles by which courts of equity are guided and influenced in their judicial action and in administration of relief. Singleton v. Anson County Board of Education, 283 F.Supp. 895 (W.D.N.C. 1968). It is also clear that a mandatory injunction is viewed as an exceptional remedy and thus not regarded with judicial favor. Black v. Jackson, 177 U.S. 349, 20 S.Ct. 648, 44 L.Ed. 801 (1900); Singleton v. Anson County Board of Education, supra. If the Court finds that its application is called for, it should be used with caution and only in cases of great necessity. Id.

[31] From the rulings that this Court has made on the questions of the validity of Idaho's rescission and the constitutionality of the extension, it appears that these declarations alone are enough to settle all disputes between the parties. Since the Court has found the rescission of Idaho's prior ratification to be valid and the congressional act of extension unconstitutional, little would be served in granting the plaintiffs' request for an order directing the Administrator of the General Services to return Idaho's ratification papers, and barring him from accepting further ratifications. Therefore, the Court will deny the plaintiffs' request for this extraordinary relief.

In summary, the Idaho plaintiffs have standing to bring this action. The matter is ripe for determination and the Court has jurisdiction and properly should determine the issues presented.

The clear purpose of article V of the United States Constitution is to provide that an amendment properly proposed by Congress should become effective when three-fourths of the states, at the same time and within a contemporaneous period, approve the amendment by ratification through their state legislatures.

To allow an amendment to become effective at any time without the contemporaneous approval of three-fourths of the states would be a clear violation of article V of the Constitution. It follows, therefore, that a rescission of a prior ratification must be recognized if it occurs prior to unrescinded ratification by three-fourths of the states. Congress has no power to determine the validity or invalidity of a properly certified ratification or rescission.

Congress, when acting as an amending body under article V, may, by two-thirds vote of both Houses, propose an amendment and the mode of ratification. Congress has no power to propose either an amendment or a mode of ratification except by a twothirds vote of both Houses.

[1155] As part of the mode of ratification, Congress may by a two-thirds vote of both Houses set a reasonable time limit for the states to act in order for the ratification to be effective. When this

67 See plaintiffs' complaint, pp. 42, 47.

time is set, it is binding on Congress and the states and it cannot be changed by Congress thereafter.

Accordingly, the Court declares that Idaho's rescission of its ratification of the twenty-seventh amendment effectively nullified its prior ratification and Idaho may not be counted as a ratifying state. The same is true for any other state which has properly certified its action of rescission to the Administrator of the General Services.

The Court further declares that the majority action of Congress in attempting to extend the period for ratification of the twentyseventh amendment is void and of no effect.

In view of the Court's declarations, it appears that the injunctive relief sought by plaintiffs is unnecessary and the same is denied.

ORDER

This matter having come on before the Court and the Court having heard the arguments of counsel and the matter having been submitted on the briefs, and the Court being fully advised in the premises and having filed its memorandum decision herein;

NOW, THEREFORE, IT IS ORDERED that the defendant's and defendant-intervenors' motion to dismiss or in the alternative for summary judgment be, and the same is hereby, DENIED.

IT IS FURTHER ORDERED, and the Court finds, that the plaintiffs' request for declaratory judgment should be GRANTED, and the Court declares that a state has the power and right to rescind a prior ratification of a proposed constitutional amendment at any time prior to the unrescinded ratification by three-fourths of the states of the United States properly certified to the General Services Administration; and declares that the ratification by Idaho of the twenty-seventh amendment was properly rescinded and such prior ratification is void, as is the ratification of any other state that has properly rescinded its ratification. The Court further declares that Congress' attempted extension of the time for the ratification of the twenty-seventh amendment was null and void.

IT IS FURTHER ORDERED that in light of the Court's declarations, it finds it unnecessary to grant the plaintiffs' requested injunctive relief and therefore will deny the same.