(Supreme Judicial Court of Maine. 1919.) 1. CONSTITUTIONAL LAW TO FEDERAL CONSTITUTION Aug. 28, To the Honorable Carl E. Milliken, Governor of Maine: The undersigned, Justices of the Supreme Judicial Court, having considered the ques10-AMENDMENTS tions propounded by you under date of July METHOD OF 9, 1919, relating to the ratification of the Eighteenth Amendment to the Constitution The method of proposing and ratifying of the United States and the necessity of subamendments to the federal Constitution is gov-mitting by referendum the ratifying resolve erned solely by the provisions of that instru- of the Legislature to the qualified voters of the state, respectfully submit the follow ment. 2. CONSTITUTIONAL LAW 10-AMENDMENT ing answer: The proposal of constitutional amendments by Congress is independent of executive action, and joint resolutions for that purpose need not be presented to the President for approval or veto. 3. CONSTITUTIONAL LAW 10 AMENDING CONSTITUTION-PROPOSAL-POWER OF CON GRESS. In proposing constitutional amendments, Congress does not exercise strictly legislative power, but acts as the representative of the people under the power conferred by Const. art. 5, prescribing method for proposing amend ments. - AMENDING 4. CONSTITUTIONAL LAW 10 The state Legislature, in ratifying a proposed amendment to the federal Constitution, does not discharge strictly legislative duties, but acts as a representative of the people pursuant to Const. U. S. art. 5, relating to amendments. 5. CONSTITUTIONAL LAW 1⁄2, New, vol. 4 Key-No. Series-NATURE OF FEDERAL CONSTITUTION-CONSTITUTION." The federal Constitution is a compact established by the people of the United States, and not by the states in their sovereign capacity. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Constitution.] 6. STATUTES 351⁄2-INITIATIVE AND REFERENDUM―RATIFYING AMENDMENT TO FEDERAL CONSTITUTION. A state cannot make the ratification of a proposed amendment to the federal Constitution The request for our opinion is accompanied by a statement of facts, from which it appears that the Sixty-Fifth Congress of the United States on December 3, 1917, adopted a joint resolution proposing an amendment to the Constitution of the United States, which amendment provides that after one year from the ratification thereof 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 thereby prohibited. This amendment, thus adopted by joint resolution of Congress, was proposed to the Legislature of Maine of 1919 for ratification, and was ratified by a joint resolve of the Senate and House of Representatives; the concluding paragraph, after reciting all the preliminary steps, being of the following tenor: "Therefore resolved that the Legislature of the state of Maine hereby ratifies and adopts this proposed amendment to the Constitution of the United States. And that the secretary of state of the state of Maine notify the Secretary of State of the United States of this action of the Legislature by forwarding to him an authenticated copy of this resolve." Petitions apparently bearing the requisite number of signatures having been seasonably filled with the secretary of state, requesting that this resolve be referred to the people under Amendment 31 of article 4 of the Constitution of Maine, known as the initiative and referendum amendment, the question is now asked of the Justices whether this joint resolve of the Legislature of Maine, ratifying an amendment to the federal Con351⁄2-AMENDMENT OF FEDER- stitution, proposed by and duly submitted AL CONSTITUTION-INITIATIVE AND REFER- The initiative and referendum amendment for ratification by the Congress of the United States, is subject to the provisions of to the state Constitution, requiring submission Amendment 31, and therefore must be referof certain acts and resolutions of the Legislature red to the people under the facts existing to the people, is inapplicable to a resolution rat- in this case. ifying a proposed amendment to the federal Constitution, since such resolution is not strictly legislative or law-making in character. Answers to question propounded by the Governor to the Justices of the Supreme Judicial Court. Answer. This question we answer in the negative. In our opinion this resolve does not come within the provisions of the initiative and referendum amendment, and cannot be referred to the people for adoption or rejection For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes to the Cabinet, or reserved it in themselves; but they expressly delegated it to Congress or to a constitutional convention. by them. The ratification of the proposed | have given such power to the President, or amendment to the Constitution of the United States was complete, final, and conclusive, so far as the state of Maine was concerned, when the Legislature passed this resolve. As there are two methods of proposal, so [1] Our reasons are as follows: The sub- there are two methods of ratification. Ject-matter of the action of the Legislature | Whether an amendment is proposed by joint under consideration is a proposed amend-resolution or by a national constitutional ment to the Constitution of the United convention, it must be ratified in one of two States, the proposal and ratification of ways: which are wholly governed by the provisions of that Constitution. Those provisions are clear and explicit. They are as follows: "Art. 5. The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the Legislature of twothirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purDoses, 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 may be proposed by the Congress. This article was a part of the original Constitution of 1789, and has remained unchanged to the present day. It will be observed that there are two distinct stages in the process, the proposal and the ratification. The proposal may originate in either of two ways: First, from Congress, by joint resolution, whenever two-thirds of both Houses deem it necessary. First, by the Legislatures of three-fourths of the several states; or, Second, by constitutional conventions held in three-fourths thereof, and Congress is given the power to prescribe which mode 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. [4] 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 and as representative of the people as a ratifying body, under the power expressly conferred upon it by article 5. The people, through their Constitution, two-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. Second, from the states, whenever thirds of the Legislatures of the several states may request that a national constitutional convention be called for that purpose, in which case Congress must call such a convention. [2, 3] All the federal amendments which have thus far been adopted have been proposed in compliance with the first method; that is, by a joint resolution of the two Houses of Congress. No national constitutional convention has ever been called or held. Such proposed amendment is a matter within the sole control of the two houses, and is independent of all executive action. The signature of the President is not necessary, and it need not be presented to him for approval or veto. Hollingsworth v. Virginia, 3 Dall. 378, 1 L. Ed. 644; State v. Dahl, 6 N. D. 81, 68 N. W. 418, 34 L. R. A. 97. Nor is Congress, in proposing constitutional amendments, strictly speaking, acting in the exercise of ordinary legislative power. It is acting in behalf of and as the representative of the people of the United States under the power expressly conferred by article 5, before quoted. The people, through their Constitution, might have designated some other body than the two houses or a national constitutional conven [5] It is a familiar, but none the less fundamental, principle of constitutional law that the Constitution of the United States is a compact made by the people of the United States to govern themselves as to general objects in a certain manner, and this organic law was ordained and established, not by the states in their sovereign capacity, but by the people of the United States. The preamble, "We, the people," so states, and such is the fact. Chisholm v. Georgia, 2 Dall. 419, 1 L. Ed. 440. It is equally well settled that it was competent for the people to invest the federal government, through the Constitution, with all the powers which they might deem necessary or proper, and to make those powers, so far as conferred, supreme, to prohibit the states from exercising any powers incompatible with the objects of the general compact, and to reserve in themselves those sovereign authorities (107 A.) the people voting on it directly. The people have no direct power either to propose an amendment or to ratify it after it is proposed and submitted." Watson, Const. vol. 2, p. 1310. to federal or state government. Martin v. Hunter's Lessee, 1 Wheat. 304, 4 L. Ed. 97. Whether a certain power has been conferred either expressly or by reasonable implication upon the national government, or has been reserved to the states or to the people It is interesting to note in this connection, themselves, must depend upon the construcas an historical fact demonstrating the attion of the language of the Constitution gov-tidude of the federal government, that acerning that particular subject-matter. cording to their admitted and accepted prac[6] It admits of no doubt that in the mat-tice if a state Legislature has once ratified ter of amendment which is governed by a federal amendment a subsequent Legisarticle 5, the people divested themselves of lature has no power to rescind such ratifiall authority and conferred the power of cation. Such rescission was attempted by proposal upon Congress or upon a national Ohio and New Jersey with reference to the constitutional convention, and the power of Fourteenth Amendment, and by New York ratification upon the state Legislature or with reference to the Fifteenth; but the upon state constitutional conventions. proclamation of the Secretary of State for the United States was issued, announcing the final adoption of the amendments as a part of the federal Constitution, notwithstanding the attempted rescission by subsequent Legislatures. The attempted rescission was ignored. Watson, Const. vol. 2, p. 1315. This view has the sanction, not only of reason, but of authority. Mr. Iredell, in the North Carolina convention which ratified the federal Constitution, in discussing this ratifying clause, said: "By referring this business to the Legislatures, expense would be saved, and in general, it may be presumed, they would speak the general sense of the people. It may, however, on some occasions be better to consult an immediate delegation for that purpose. This is therefore left discretionary." 4 Elliott, Deb. 176, 177. If a subsequent Legislature cannot rescind the ratification by a former Legislature, it would seem that much less could such ratification be rescinded by the subsequent vote of the people, especially in view of the fact This discretion, under the terms of ar- that the people have unreservedly surren ticle 5, is to be exercised by Congress. In Dodge v. Woolsey, 18 How. 331, 348 (15 L. Ed. 401), the Supreme Court of the United States, in emphasizing the supremacy of the Constitution, said: "It is supreme over the people of the United States, aggregately and in their separate sovereignties, because they have excluded themselves from any direct or immediate agency in making amendments to it, and have directed that amendments should be made representatively for them, by the Congress of the United States, when two-thirds of both houses shall propose them, or when the Legislatures of two-thirds of the several states shall call a convention for proposing amendments, which, in either case, become valid, to all intents and purposes, as a part of the Constitution, when ratified by the Legislatures of three-fourths of the several states, or by convention in three-fourths of them, as one or the other mode of ratification may be proposed by Congress. * * Now, whether such a supremacy of the Constitution, with its limitations in the particulars just mentioned, and with the further restriction laid by the people upon themselves, and for themselves, as to the modes of amendment, be right or wrong politically, no one can deny that the Constitution is supreme, as has been stated, and that the statement is in exact conformity with it." A well-known writer on Constitutional Law, after tracing the history and the scope of article 5, concludes as follows: "Whether an amendment is proposed by Congress or by a convention, it is ratified or rejected by the representatives of the people either in Legislature or in convention, and not by dered all authority over that subject-matter. It follows, from what has been said, that even if the people of Maine, by adopting in 1908 the initiative and referendum amendment of our state Constitution, had attempted to assume or regain the power of ratification of proposed amendments to the federal Constitution, by exercising a supervisory authority over the state Legislature in that respect, such attempt would have been futile. Their power over amendments had been completely and unreservedly lodged with the bodies designated by article 5, and so long as that article remains unmodified they have no power left in themselves either to propose or to ratify federal amendments. The authority is elsewhere. [7] But the people, by the adoption of the initiative and referendum amendment, did not intend to assume or regain such power. The purpose and scope of that amendment were fully considered and discussed in the case of Moulton v. Scully, 111 Me. 428, 446, 89 Atl. 944, and it was there held that the design of the initiative and referendum was to make the law-making power of the Legislature, not final, but subject to the will of the people, and to confer that power in the last analysis upon the people themselves. the court adds: And "This, too, marks the limitation of the amendment, It applies only to legislation, to the making of laws, whether it be a public act, a private act, or a resolve having the force of law. This is shown clearly and conclusively by the language of section 2 of part third of ar * ticle IV, under the general head of 'Legislative | the states, including by name the state of Power.' 'Every bill or resolution having the Maine, and therefore certifying, in pursuforce of law to which the concurrence of both ance of Rev. St. U. S. § 205 (U. S. Comp. St. houses may be necessary, * which shall § 303), that the amendment aforesaid has have passed both houses, shall be presented to become valid to all intents and purposes as the Governor, and if he approve, he shall sign it,' etc. The referendum applies, and was in- a part of the Constitution of the United States. See appendix to part 2 of U. S. tended to apply, only to acts or resolves of this class, to 'every bill or resolution having the Stat. 3d Session, Sixty-Fifth Congress, 1918force of law,' that is, to what are commonly 1919. known as legislative acts and resolves, which are passed by both branches, are usually signed by the Governor, and are embodied in the Legislative Acts and Resolves, as printed and published. And the words 'No act or joint resolution of the Legislature,' etc., before quoted, in the referendum amendment must be construed in the light of the context, considering all the sections and parts and articles together, as meaning 'no act or joint resolution of the Legislature having the force of law.' This is the simple and plain interpretation of simple and plain language." The construction which we adopt is evidently the same which the federal authorities have placed upon the federal Constitution. With them the chapter is regarded as closed. For the reasons hereinbefore set forth we answer the propounded question in the negative. We have the honor to remain, Very respectfully, WARREN C. PHILBROOK. CHARLES J. DUNN. JOHN A. MORRILL In the application of that rule of construction this court held in that case that a joint address to the Governor on the part of both branches of the Legislature calling for the removal of a public officer was beyond the scope of and unaffected by the referendum. The same rule applies here with equal force. This resolution, ratifying the proposed constitutional amendment, was neither a public act, a private act, nor a resolve having the force of law. It was in no sense legislation. It was not signed by the Governor, nor could it have been (Supreme Court of Pennsylvania. vetoed by him. It was simply the ratifying act of the particular body designated by article 5 of the federal Constitution to perform that particular act. The principles laid down in Moulton v. Scully are decisive of this point. (264 Pa. 85) COMMONWEALTH v. BROWN. March 10, 1. CRIMINAL LAW 1919.) 829(21) — MURDER Nor COURSE OF BURGLARY Where trial judge in instructions eliminated all question of murder committed during perpetration of a burglary, his refusal to affirm points to the effect that, as there was no evidence to show that the store entered by defendant was part of a dwelling house, he could not be convicted of murder in course of a burglary within the meaning of the statute defining degrees of murder was not reversible error. The Supreme Court of Oregon, in a case decided on April 29, 1919, passed upon this branch of the question, where this same federal amendment was involved, and held that the term "any act of the legislative assembly," made the subject of referendum by the amended Constitution of Oregon, did not include a joint resolution, but only propos-2. ed laws. Herbring v. Brown, 180 Pac. 328. In conclusion, it may be said that not only have all previous amendments to the federal Constitution been ratified by twothirds of the Legislatures of the several states, but this particular Eighteenth Amendment, commonly spoken of as the prohibitory amendment, has already been promulgated by federal authorities as having become a part of the Constitution through this same avenue. The State Department of the United States, under date of January 29, 1919, issued its proclamation announcing that this Eighteenth Amendment had been duly ratified by the Legislatures of three-fourths of Where defendant, in a trial for murder, was asked by the district attorney whether he was not a deserter from the army, and defendant, without objection to the question, answered in the affirmative, and was thereafter interrogated by his own counsel as to that matter, his objec tion to the testimony, not made until court refused to permit him to state his reasons for deserting was too late. 3. CRIMINAL LAW 1-"OFFENSE." The word "offense," while sometimes used in various senses, generally implies a crime or a misdemeanor infringing public as distinguished from mere private rights and punishable under the criminal laws though it may also include the violation of a criminal statute for which the (107 A.) remedy is merely a civil suit to recover the pen- | jury returned a verdict of murder in the first alty. degree as to the son, and of murder in the second degree as to the police officer, was no ground for reversal. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Offense.] Appeal from Court of Oyer and Terminer, Allegheny County. Testimony that witness asked one, who at the time was lying on the ground within a few Robert Henry Brown was convicted of feet of defendant as to who had shot him and murder in the first degree as to William J. received the reply that defendant had shot him, Elford and of murder in the second degree to which defendant made no reply, was not com- as to Charles L. Edinger, and he appeals. petent as a part of the res gestæ of the shoot-Affirmed, and record remitted for purpose of ing, being a mere narrative of how it occurred. execution. The fact that defendant was present and WAL Argued before BROWN, C. J., and STEW- W. St. Clair Childs and Drayton Heard, both of Pittsburgh, for appellant. heard witness ask the victim, who was then lying on the ground within a few feet of defendant, as to who had shot him, and received a reply that defendant had shot him, and, having opportunity, made no reply or denial, was evidence from which jury might infer an admis-ry H. Rowand, Dist. Atty., both of Pittssion that defendant did the shooting. burgh, for the Commonwealth. Whether, from the circumstances, defendant standing near the victim, then lying on the ground, actually heard a question by a witness to the victim as to who had shot him, and the answer that defendant had shot him, was for the jury. 8. CRIMINAL LAW 859-READING PART OF TESTIMONY TO JURY-DISCRETION OF TRIAL COURT. The refusal to have read to a juror a part of the testimony, which he claimed he had not heard, was proper, as to have had such testimony read would have given it undue prominence over other testimony to the prejudice of one side or the other. Harry A. Estep, Asst. Dist. Atty., and Har FRAZER, J. On the night of June 5, 1917, defendant entered the vestibule of the liquor store of William L. Elford, in the city of Pittsburgh. He was discovered by William J. Elford, son of the owner, who notified the police, and while he and two policemen, including one Edinger, were attempting to force their way into the entry two shots were fired from the inside, one of which, according to the theory of the Commonwealth, struck Officer Edinger and the other young Elford, both of whom died later from their injuries. Defendant escaped from the doorway, and in passing out by the rear was discovered and wounded by a bullet from the revolver of an officer who had been directed to guard that part of the premises. Defendant was indicted and convicted in the court below on two separate indictments which were tried together, one for the murder of William J. Elford, and the other for the murder of Officer Edinger; the verdict in the Elford case being first-degree murder and in the other second-degree murder. The facts connected with the crime were fully submitted to the 9. CRIMINAL LAW 858(3) — REQUEST TO jury in a careful charge; reference to the VIEW EXHIBIT-RULING. In a trial for murder, the refusal of a juror's request to allow jury to view an exhibit, a photograph of the premises, used in the trial and which he claimed he had not seen, was not error, where it did not appear that the exhibit had been offered in evidence, or that any request had been made to send it out with the jury; such matter being within the trial judge's discretion. 10. CRIMINAL LAW 8761⁄2- MURDER IN DIFFERENT DEGREES-VERDICT. Where defendant entered the vestibule of a liquor store and was discovered by the owner's son, who with a police officer attempted to force their way into the entry and were both alleged to have been shot by defendant, the fact that evidence in detail is unnecessary except in so far as it may have a bearing on certain questions raised in the assignments of error. The first and second assignments are to the refusal of a new trial and to the entry of judgment on the verdict. These questions will be considered under the other assignments. [1] The third and fourth assignments complain of the refusal of the court to affirm points to the effect that there being no evidence tending to show the store entered by defendant was part of a dwelling house, defendant could not be convicted of murder committed in the course of burglary within the meaning of the statute defining the de For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |