U.S. Supreme Court

Dillon v. Gloss,256U.S. 368 (1921)Dillon v. Gloss

No. 251

Argued March 22, 1921

Decided May 16, 1921

256U.S. 368

APPEAL FROM THE DISTRICT COURT OFTHE UNITED STATES

FOR THE NORTHERN DISTRICT OFCALIFORNIA

Syllabus

1. Article V of the Constitution implies that amendmentssubmitted thereunder must be ratified, if at all, within somereasonable time after their proposal. Pp.256 U. S. 371,256 U. S.374.

2. Under this Article, Congress, in proposing an amendment, mayfix a reasonable time for ratification. P.256 U. S.375.

3. The period of seven years, fixed by Congress in theresolution proposing the Eighteenth Amendment was reasonable. P.256 U. S.376.

4. The Eighteenth Amendment became a part of the Constitution onJanuary 16, 1919, when, as the Court notices judicially, itsratification in the state legislatures was consummated, not onJanuary 29, 1919, when the ratification was proclaimed by theSecretary of State. P.256 U. S.376.

5. As this Amendment, by its own terms, was to go into effectone year after being ratified, §§ 3 and 26, Title II, of theNational Prohibition Act, which, by § 21, Title III, were to be inforce from and after the effective date of the Amendment, were inforce on January 16, 1920. P.256 U. S.376.

262 F. 563 affirmed.

The case is stated in the opinion.

Page 256 U. S. 370

MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.

This is an appeal from an order denying a petition for a writ ofhabeas corpus.Ex parte Dillon, 262 F. 563. The petitionerwas in custody under § 26 of Title II of the National ProhibitionAct, c. 85, 41 Stat. 305, on a charge of transporting intoxicatingliquor in violation of § 3 of that title, and by his petitionsought to be discharged on several grounds, all but two of whichwere abandoned after the decision inNational ProhibitionCases,253 U. S. 350. Theremaining grounds are, first, that the Eighteenth Amendment to theConstitution, to enforce which Title II of the act was adopted, isinvalid, because the congressional

Page 256 U. S. 371

resolution, 40 Stat. 1050, proposing the amendment declared thatit should be inoperative unless ratified within seven years; and,secondly, that, in any event, the provisions of the act which thepetitioner was charged with violating, and under which he wasarrested, had not gone into effect at the time of the assertedviolation nor at the time of the arrest.

The power to amend the Constitution and the mode of exerting itare dealt with in Article V, which reads:

"The Congress, whenever two thirds of both houses shall deem itnecessary, shall propose amendments to this Constitution, or, onthe application of the legislatures of two thirds of the severalstates, shall call a convention for proposing amendments, which, ineither case, shall be valid to all intents and purposes, as part ofthis Constitution when ratified by the legislatures of threefourths of the several states, or by conventions in three fourthsthereof, as the one or the other mode of ratification may beproposed by the Congress: Provided that no amendment which may bemade prior to the year one thousand eight hundred and eight shallin any manner affect the first and fourth clauses in the ninthsection of the first article, and that no state, without itsconsent, shall be deprived of its equal suffrage in theSenate."

It will be seen that this article says nothing about the timewithin which ratification may be had -- neither that it shall beunlimited nor that it shall be fixed by Congress. What then is thereasonable inference or implication? Is it that ratification may behad at any time, as within a few years, a century, or even a longerperiod, or that it must be had within some reasonable period whichCongress is left free to define? Neither the debates in the federalconvention which framed the Constitution nor those in the stateconventions which ratified it shed any light on the question.

The proposal for the Eighteenth Amendment is the

Page 256 U. S. 372

first in which a definite period for ratification was fixed.[Footnote 1] Theretofore,twenty-one amendments had been proposed by Congress and seventeenof these had been ratified by the legislatures of three fourths ofthe states, some within a single year after their proposal and allwithin four years. Each of the remaining four had been ratified insome of the states, but not in a sufficient number. [Footnote 2] Eighty years after the partialratification of one, an effort was made to complete itsratification, and the legislature of Ohio passed a joint resolutionto that end, [Footnote 3] afterwhich the effort was abandoned. Two, after ratification in one lessthan the required number of states had lain dormant for a century.[Footnote 4] The other,proposed March 2, 1861, declared:

"No amendment shall be made to the Constitution which willauthorize or give to Congress the power to abolish or interfere,within any state, with the domestic institutions thereof, includingthat of persons held to labor or service by the laws of said state.[Footnote 5]"

Its principal purpose was to protect slavery, and, at the timeof its proposal and partial ratification, it was a subject ofabsorbing interest, but after the adoption of the ThirteenthAmendment, it was generally forgotten. Whether an amendment

Page 256 U. S. 373

proposed without fixing any time for ratification, and which,after favorable action in less than the required number of states,had lain dormant for many years, could be resurrected and itsratification completed had been mooted on several occasions, butwas still an open question.

These were the circumstances in the light of which Congress, inproposing the Eighteenth Amendment, fixed seven years as the periodfor ratification. Whether this could be done was questioned at thetime and debated at length, but the prevailing view in both houseswas that some limitation was intended, and that seven years was areasonable period. [Footnote6]

That the Constitution contains no express provision on thesubject is not, in itself, controlling, for, with the Constitutionas with a statute or other written instrument, what is reasonablyimplied is as much a part of it as what is expressed. [Footnote 7] An examination of Article Vdiscloses that it is intended to invest Congress with a wide rangeof power in proposing amendments. Passing a provision long sinceexpired, [Footnote 8] itsubjects this power to only two restrictions: one, that theproposal shall have the approval of two-thirds of both houses, andthe other excluding any amendment which will deprive any state,without

Page 256 U. S. 374

its consent, of its equal suffrage in the Senate. [Footnote 9] A further mode of proposal -- asyet never invoked -- is provided, which is that, on the applicationof two-thirds of the states, Congress shall call a convention forthe purpose. When proposed in either mode, amendments, to beeffective, must be ratified by the legislatures or by conventionsin three-fourths of the states, "as the one or the other mode ofratification may be proposed by the Congress." Thus, the people ofthe United States, by whom the Constitution was ordained andestablished, have made it a condition to amending that instrumentthat the amendment be submitted to representative assemblies in theseveral states and be ratified in three-fourths of them. The plainmeaning of this is (a) that all amendments must have the sanctionof the people of the United States, the original fountain of power,acting through representative assemblies, and (b) that ratificationby these assemblies in three-fourths of the states shall be takenas a decisive expression of the people's will and be binding onall. [Footnote 10]

We do not find anything in the article which suggests that anamendment, once proposed, is to be open to ratification for alltime, or that ratification in some of the states may be separatedfrom that in others by many years and yet be effective. We do findthat which strongly suggests the contrary. First, proposal andratification are not treated as unrelated acts, but as succeedingsteps

Page 256 U. S. 375

in a single endeavor, the natural inference being that they arenot to be widely separated in time. Secondly, it is only when thereis deemed to be a necessity therefor that amendments are to beproposed, the reasonable implication being that, when proposed,they are to be considered and disposed of presently. Thirdly, asratification is but the expression of the approbation of thepeople, and is to be effective when had in three-fourths of thestates, there is a fair implication that it must be sufficientlycontemporaneous in that number of states to reflect the will of thepeople in all sections at relatively the same period, which, ofcourse, ratification scattered through a long series of years wouldnot do. These considerations and the general purport and spirit ofthe article lead to the conclusion expressed by Judge Jameson[Footnote 11]

"that an alteration of the Constitution proposed today hasrelation to the sentiment and the felt needs of today, and that, ifnot ratified early while that sentiment may fairly be supposed toexist, it ought to be regarded as waived, and not again to be votedupon, unless a second time proposed by Congress."

That this is the better conclusion becomes even more manifestwhen what is comprehended in the other view is considered; for,according to it, four amendments proposed long ago-two in 1789, onein 1810 and one in 1861 -- are still pending and in a situationwhere their ratification in some of the states many years since byrepresentatives of generations now largely forgotten may beeffectively supplemented in enough more states to makethree-fourths by representatives of the present or some futuregeneration. To that view few would be able to subscribe, and, inour opinion, it is quite untenable. We conclude that the fairinference or implication from Article V is that the ratificationmust be within some reasonable time after the proposal.

Of the power of Congress, keeping within reasonable

Page 256 U. S. 376

limits, to fix a definite period for the ratification weentertain no doubt. As a rule, the Constitution speaks in generalterms, leaving Congress to deal with subsidiary matters of detailas the public interests and changing conditions may require,[Footnote 12] and Article Vis no exception to the rule. Whether a definite period forratification shall be fixed, so that all may know what it is andspeculation on what is a reasonable time may be avoided, is, in ouropinion, a matter of detail which Congress may determine as anincident of its power to designate the mode of ratification. It isnot questioned that seven years, the period fixed in this instance,was reasonable if power existed to fix a definite time; nor couldit well be questioned considering the periods within which prioramendments were ratified.

The provisions of the act which the petitioner was charged withviolating and under which he was arrested (Title II, §§ 3, 26) wereby the terms of the act (Title III, § 21) to be in force from andafter the date when the Eighteenth Amendment should go into effect,and the latter, by its own terms, was to go into effect one yearafter being ratified. Its ratification, of which we take judicialnotice, was consummated January 16, 1919. [Footnote 13] That the Secretary of State did notproclaim its ratification until January 29, 1919, [Footnote 14] is not material, for the dateof its consummation, and not that on which it is proclaimed,controls. It follows that the provisions of the act with which thepetitioner is concerned went into effect January

Page 256 U. S. 377

16, 1920. His alleged offense and his arrest were on thefollowing day, so his claim that those provisions had not gone intoeffect at the time is not well grounded.

Final order affirmed.

[Footnote 1]

Some consideration had been given to the subject before, butwithout any definite action. Cong.Globe, 39th Cong. 1st Sess. 2771;40th Cong.3d Sess. 912, 1040, 1309-1314.

[Footnote 2]

Watson on the Constitution, vol. 2, pp. 1676-1679; House Doc.54th Cong.2d Sess. No. 353, pt. 2, p. 300.

[Footnote 3]

House Doc. 54th Cong.2d Sess. No. 353, pt. 2, p. 317 (No. 243);Ohio Senate Journal, 1873, pp. 590, 666, 667, 678; Ohio HouseJournal, 1873, pp. 848, 849. A committee charged with thepreliminary consideration of the joint resolution reported thatthey were divided in opinion on the question of the validity of aratification after so great a lapse of time.

[Footnote 4]

House Doc. 54th Cong.2d Sess. No. 353, pt. 2, pp. 300, 320 (No.295), 329 (No. 399).

[Footnote 5]

12 Stat. 251; House Doc. 54th Cong.2d Sess. No. 353, pt. 2, pp.195-197, 363 (No. 931), 369 (No. 1025).

[Footnote 6]

Cong.Rec. 65th Cong. 1st Sess. pp. 5648-5651, 5652-5653,5658-5661; 2d Sess. pp. 423-425, 428, 436, 443, 444, 445-446, 463,469, 477-478.

[Footnote 7]

United States v.Babbit, 1 Black 55,66 U. S. 61;Ex parte Yarbrough,110 U. S. 651,110 U. S. 658;McHenry v. Alford,168 U. S. 651,168 U. S. 672;South Carolina v. United States,199 U.S. 437,199 U. S. 451;Luria v. United States,231 U. S. 9,231 U. S. 24;The Pesaro,255 U. S. 216.

[Footnote 8]

Article V, as before shown, contained a provision that

"no amendment which may be made prior to the year one thousandeight hundred and eight shall in any manner affect the first andfourth clauses in the ninth § of the first article."

One of the clauses named covered the migration and importationof slaves, and the other deals with direct taxes.

[Footnote 9]

When the federal convention adopted Article V, a motion toinclude another restriction forbidding any amendment whereby astate, without its consent, would "be affected in its internalpolice" was decisively voted down. The vote was: Yeas 3 --Connecticut, New Jersey, Delaware; nays 8 -- New Hampshire,Massachusetts, Pennsylvania, Maryland, Virginia, North Carolina,South Carolina, Georgia. Elliott's Debates, vol. 5, pp. 551,552.

[Footnote 10]

SeeMartin v. Hunter'sLessee, 1 Wheat. 304,14 U. S.324-325;McCulloch v.Maryland, 4 Wheat. 316,17 U. S.402-404;Cohens v.Virginia, 6 Wheat. 264,19 U. S.413-414;Dodge v.Woolsey, 18 How. 331,59 U. S.347-348;Hawke v. Smith,253 U.S. 221; Story on the Constitution (5th ed.) §§ 362, 363,463-465.

[Footnote 11]

Jameson on Constitutional Conventions, 4th ed., § 585.

[Footnote 12]

Martin v. Hunter'sLessee, 1 Wheat. 304,14 U. S. 326;McCulloch v.Maryland, 4 Wheat. 316,17 U. S.407.

[Footnote 13]

Sen.Doc. No. 169, 66th Cong.2d Sess.; Ark.Gen. Acts 1919, p.512; Ark.House Journal, 1919, p. 10; Ark.Sen. Journal, 1919, p. 16;Wyo.Sen. Journal, 1919, pp. 26, 27; Wyo.House Journal, 1919, pp.27, 28; Mo.Sen. Journal, 1919, pp. 17, 18; Mo.House Journal, 1919,p. 40.

[Footnote 14]

40 Stat. 1941.