204

FEDBRAL REPORTER.

effect \:larch 3, 1883,-tbe day of its passage. In my opinion no such single word in a statute would be sufficient to determine the question. An examination of the whole act in all its parts should be resorted to before we undertake to say what was the expressed intention of congress as to the date when it should take effect. The earlier sections, from 1 to 5, are mainly concerned with internal revenue matters, and provide for the taking effect of the act on different dates. The provision with regard to duties upon imports will be found in section 6 and those succeeding. Section 6 provides that on and after the first day of July, 1883, "the following sections shall constitute and be substituted for title 33 of the Revised Statutes," and then follows the enumeration of the various dutiable articles, with the rates of duty which they 8hall respectively pay. Then follows section 7, which is. directed to removing the duty upon the packages, sacks, or boxes, or other coverings in which dutiable goods may come. Were there nothing here save section 6 and section 7, while it migllt seem somewhat remarkable that congress should have fixed upon different dates for the taking effect of these different provisions with regard to imports, there would not be sufficient to show a clear intention on the part of congress that the regulations with regard to coverings should not go into effect until the 1st of July. In my opinion, however, the next section is controlling of the question. Its sole purpose, when it is examined in connection with the section of which it is an amenr'ment, indicates that it was part of the plan or scheme for relieving importers from the obligation of paying duties upon the coverings in which their goods come to this country, and that section expressly provides that the provisions it contains shall go into effect on and after the 1st day of July, 1883. I am forced, then, to the. conclusion that it was the clear intention of congress, and that they have expressed that intention with sufficient clearness to warrant holding, that the provisions in regard to the coverings went into effect on the 1st of July, 1883, and I shall therefore direct a verdict for the defendant, and give the plaintiff an exception.

SMITH

et al. v.

GOOD.

(Clrc'Uit Court, D. Rhode Island. March 8, 1888.)
CoNSTITUTIONAL LAW-AMENDMENT TO STATE CoNSTITUTION-RIGHT TO QUESTION IN FEDERAL COURTS.

Act R. I. March 10, 1886. (Pub. Laws, 0,.550,) provides that the question of the adOPtion of article 5 of amendments to the constitution, prohibiting the manufacture and sale of intoxicating liquors to be used as a beverage, shall be submitted to the people, the ballots counted by the governor, secretary of state. aud attorney general, and the result authoritatively announced by the governor by proclamation. Held, in an action on a promissory note, given for the purchase price of such liquors. by the indorsee. who took it with full knowledge of the consideration, that the circuit court of the United States sitting in Rhode Island had no power to inquire into the question of the legal

SMITH V.

GOOD.

205

adoption of the amendment, the political power of the state having declared that the amendment had been legally adopted, the amendment baving been acquiesced in by the people, and it never having been adjudged illegal by the courts of the state, and that judgment should be entered for the maker the note.

At Law, OhaB. E. Gcrrm(Ln, for plaintiffs. Wilson &; Seneke8, for defendant. COLT, J. This case was heard hy the court, jury trial having been waived. It is an action upon a promissory note given for the purchase of intoxicating liquors. It is admitted that the plaintiffs cannot recover if article 5 of amendments to the constitution of Rhode Island, which prohibits the manufacture and sale of intoxicating liquors to be used as a beverage, has been legally adopted. By the agreed statement of facts it appears that Hanley, Hoye & Co. were liquor dealers in the city of Providence, on June 12, 1886; that they were duly licensed to sell liquors at wholesale and retail under the law for one year from July 1, 1885, and that they sold to the defendant, at Providence, on June 12, 1886, certain intoxicating liquors to be used asa beverage, for the sum of $696.50, and in payment thereof took the note declared on in this action. The note was afterwards, for value received, indorsed and delivered to the plaintiffs, with full knowledge and notice that it was given for the purchase of intoxicating liquors to be used as a beverage. It is further admitted that the governor of Rhode Island issued the proclamation of May 14, 1886, uec)aring article 5 to be a part of the constitution of the state. It is also 'agreed that there were no town meetings in certain towns in the state on the first Wednesday of April, 1886, and no ward meetings held in the Ninth and Tenth wards of the city of Providence on that date; and that the ballots cast for the amendment in the towns of Lincoln, Cumberland, \Varwick, and East Providence, and in the Ninth and Tenth wards of the city of Providence, were given in district meetings, and not in town or ward meetings. The contention of the plaintiffs is that the amendment was not legally adopted beeause-Rrst, under article 13 of the constitution of Rhode Island a ballot on a proposed amendment can only be given in town or ward meetings; second, in the several acts creating districts no jurisdiction is conferred upon district meetings to receive ballots upon a constitutional amendment; third, the act of submission of March 10, 1886, does not submit the proposition of amendment to be voted upon in district meetings, but to "meetings of electors,"-meaning necessarily those established in the constitution; fourth, even if the act can be construed as intending to submit the amendment to district meetings, it was beyond the power of the legislature to submit it to be voted upon at other meetings than those designated in article 13 of the constitution. The first question which meets us at the beginning of this case is whether the court has any jurisdiction to determine the issue which is here raised. When the political power of a state declares that an amend-

208

FEDERA.L REPORTER.

-metit ter the constitution duly: adopted, and the ani.endment is acquiesced in by the and hasI;lever been adjudged illegal by the state court, the jurisdiction of 8 federi.t1 court to question the validity of such a change in the fundamental law of a state should clearly appear. I am referred to no case in which any federal court has assumed to exercise such a power. There are decisions of state courts where the supreme court of the state has passed uponthe regularity of the adoption of amendments to their constitution where the instrument prescribed the mode of amendment. The question is reviewed at great length in the recent case of' Koehlerv. HiU,60 Iowa, 543, 14 N. W. Rep. 738,15 N. W. Rep. 609, and the majority of the court there held that a case involvinp; the regularity of the adoption of an amendment to the constitution, not in any manner pertaining to the judicial authority, is subject to the jurisdiction of the state court; but in view of the powerful dissenting opinion of Judge BECK in that case it can hardly be said that such a rule of decisiol\ is fuIry established in the state tribunals. But however this may be, I cannot but consider the position of the federal courts I&S different. I am not satisfied that any such judicial power is conferred nnder the federal constitution upon the courts of the United States. It ireems to me contrary to the plan of the federal government for its judiciary to thus interfere with what is recognized and accepted as part of the ::JOnstitution or: a. state. The very framework of the federal government presupposes that the states are to be. the judges of their own laws; and it is not for the federal courts to interpose,' unless· some provision of the federal constitution has been violated. It is not pretended in this case that any question is raised.. The federal courts derive'their powers from sootion' 2 of article 3 of the constitution of. the United States, and I flndnosuch power there enumerated as is here sought to be invoked .. 'fhe constitution itself provides when the United States may interfereinthe 'government of the states. Section 4 of article 4 declares that the United States shall guaranty'to every state in the Union a repUblican.fortn'ofgovernment, and shall protect each of them against invasion; and, onnpplication of the legislature or of the executive, (when the legislature cannot be convened,) against domestic violence. When the United States will interfere with the government of a state under this provision, rests with congress or the executive· rather than with the courts. ' . The assumption of such a power by the federal courts as is now contended for would lead to much confusion, and place the fundamental laws of the states on very unstable foundations., The adoption of an .amendment may turn upon a question: of fact as well as law, and, if it be a question of fact, where is the limit or end of the cuntroversy that maybe provdked? Suppose one party denies that the requisite num·ber of'qualified -electors voted for the amendment. not, the court be forced into the inquiry as a question of fact of the legal qualification of-everyivoter in the state who voted for the amendment? Where thepOlitical power,ot' the state -has declared that. the fundamental law has been changed; and the, legislature have passed . statutes in obedience

SMITH V. GOOD.

207

thereto, and the people have accepted such change, it cannot be that the state of Rhode Island must wait uhtil the end of protracted proceedings in a federal oourt to discover what its fundamental law is, in a case where it is not that any question arising under the federal constitutio.n is involved. ' Further, questions of fact are tried by jury, and a decision only binds the parties to the case; one jury in one case might decide that the amendment was valid, and another jury iu another case, upon a different presentation of the facts, might reach ,the conclusion that the amendment was invalid. Surely a court should hesitate before assuming a jurisdiction which might lead to such results. And this is another reason why the clearest authority should be shown before a federal court should assume to pass upon, and perhaps declare illegal, the solemn act ofa state by which its fundamental law is changed. But the federal courts have refused to interfere in these cases. I know that the plaintiffs rely on the distinction between the adoption of anew COI}stitution and :an amendment to an existing constitution. It is admitted that the first act, is politiqal in its nature, and therefore outside of the judicial power. . But .upon reason it is difficult to see any wide .distinction ,between the two. Both are acts of .the same sovereign character. on the part of the people, a.nd both concern changes in thc organic law of the state. The federal courts have never recognized this distinction. Indeed, the reasons. which are urged against the power of a state court .to adjudicate upon. the validity of a new constitution do not apply to the federal courts, and therefore, if a .federal court Can take jurisdiction in the case, it' may,in the other. It is said· that a state court ifl, forbidden from,tmtering upon: such an inquiry when applied to a new Constitution, and not to an amendment, because the judicial power presupposes an established government, and if the authority of that government is annulled and overthrown. the power ofits CQurts is annulled with it; and therefore, if a state court should enter upon such an inquiry. apd· .come to the conclusion that the. government under which it acted had been displacedbya,ll OPPQSh1ggovernment, it would be a court, and· it would be incapable of pronouncing a,judioial decisiOllupon qllestipn before it; but, if it decides at all. it must necessarily affirm the existence of the government under which it exercises its judicial powers. But it is manifest that these objections to a state court entering upon such an inquiry are inapplicable to a federal court, which is independent of the state government. The re&soning of the supreme court of the United States in Luthfff v. Borden; 7 Itow. 1, where the court was asked to cide contesting governments in Rhode Island,-the old ,charter government and the Dorr government,-is as pertinent, it seems as to rival copstitutions.. Indj:)ed, to me, to the caseof an by the language of the court itself, no distinction is made betwe,ell a constitution and an amendment. Mr. Chief Justice TANEY, speaking for . the court, says: "In forrningthe of the different states, after the Declaration of andln the various changeS andll.lterations which have since beim made, the political department has always deteL'minedw4ethei: tJ;lil pro-

208

FEDERAL REPORTER.

posed constitution or amendment was ratified or not by the people of the state, and the jUdicial power has followed its decision." On the point of the authority in the constitution for the federal courts to entertain ju'risdiction in this class of cases, Mr. Justice WOODBURY, who agreed with the opinion of the court on this branch of the case, says: "Again, the constitution of the United States enumerates specially the cases over which its judiciary is to have cognizance, but nowhere ineludes controversies between the people of a state as to the formation or change of their oonstitutions." The case of Luther v. Borden is still the law of the federal courts, and it has been followed by the supreme court wherever similar· questions have arisen. White v. Hart, 13 Wall. 646; Georfiia v. Stanton, 6 Wall. 50. . In this case the law of the state has provided (act March 10,1886, c. 550, Pub. Laws) that the question of the adoption of this amendment should be submitted to the people, that the ballots should be counted .by the governor l secretary of state l and attorney general, and the result authoritatively announced by the governor by proclamation. So far as . the federal courts are concerned, I think that the determination made by the state officers, acting under and in pursuance of this provision, is toM taken as the voice of the people of Rhode Island on the question whethe:r :the amendment has· or has not been adopted. Further questions might arise if the supreme court of the state should at any time decide to'the contrary, but with these questions we have nothing to do in the present case. It is sufficient now to say that since the result of the vote on amendment has been ascertained by the authority appointed for that purpose by the law of the statej and no other authority or department of the state government has spoken to the contrary, it seems clear to me that the federal government is to take the result as announced by the governor as a final statement of the fact in the case. I am of opinion, both upon reason and authority, that this court has no lawful power to inquire into the validity of artiole 5 of amendments to the constitution of Rhode Island, and therefore judgment must be entered for the defendant.' Judgment for defendant.

HILL t1. SCOTLA;Np CoUNTY.

(Oircuit Oourt, E. D. Mis8ouri. 'N, D. March 1>,1888.)
1. COiJNTIES-LuBILITIES AND INDEBTlilDNESS-BoNDS-BoNA FIDE HOLDER.

A purchaser of neg0tiable bonds of a county is not affected with constructof the pendency of a suit tQ .test the of such bonds.

2.

SAME-PURCHASER OF BONA FIDE HOLDER.

A purchaser from an innocent holder of negotiable bonds of a county, issued under proper authority in subscription for. stock of a railroad corporation, call recover thereon against the county, even though he purchased them with the.pendencJ:of a suit to test the validity of such bonds, in which they· were adJudged· vOId.