In re Opinions of the Justices

• Decision Date: 26 April 1933
• Citation: In re Opinions of the Justices, 204 N.C. 806, 172 S.E. 474 (N.C. 1933)
• Parties: In re OPINIONS OF THE JUSTICES.
• Court: North Carolina Supreme Court

172 S.E. 474

204 N.C. 806

In re OPINIONS OF THE JUSTICES.

Supreme Court of North Carolina

April 26, 1933

Opinions of the Justices in the matter of calling a convention to pass upon a proposed amendment to the Constitution of the United States repealing the Eighteenth Amendment.

Whether proposed amendment to United States Constitution had been submitted by Congress and ratified in accordance with provisions of Federal Constitution must be determined finally by United States Supreme Court (Const.U.S. art. 5).

On March 29, 1933, the following resolution was received from the President of the Senate and the Speaker of the House of Representatives of the North Carolina General Assembly:

Joint Resolution No. 31

A Joint Resolution Requesting the Advisory Opinion of the Chief Justice and the Associate Justices of the Supreme Court Upon Senate Bill 320 and House Bill 879 Providing for the Calling of a Convention of the People of this State to Pass Upon the Proposed Amendment to the Constitution of the United States Repealing the Eighteenth Amendment.

Whereas Senate Bill 320, introduced by Senator A. D. MacLean, to provide for the calling of a convention of the people of this State to consider the proposed amendment to the Constitution of the United States, repealing the Eighteenth Amendment as submitted by the seventy-second Congress, is now pending in the Senate upon a favorable report from the Senate Committee on Constitutional Amendments; and,

Whereas the Senate Committee on Constitutional Amendments is of the opinion that a convention of the people of this State for the purpose of passing on the proposed amendment to the Constitution of the United States repealing the Eighteenth Amendment must be called and held, in accordance with the Constitution of this State, and by the method set up in said Senate Bill 320, and that Article XIII, section one, of the Constitution of this State, sets up and provides the sole and exclusive method by which a convention of the people of this State can be called to pass on said amendment to the Constitution of the United States; and,

Whereas House Bill 879, introduced by Representative Walter Murphy, providing for the calling of a convention of the people of this State, for the purpose of considering and passing on said proposed amendment to the Constitution of the United States, repealing the Eighteenth Amendment, is now pending in the House of Representatives, upon a favorable report of the House Committee on Constitutional Amendments; and,

Whereas, it is the opinion of the House Committee on Constitutional Amendments, that a convention of the people of this State, for the purpose of passing on said proposed amendment to the Constitution of the United States, need not, and ought not to be called, in the manner and by the methods as set up in Article XIII, section one, of the Constitution of North Carolina, and that the said House Bill 879, providing for an election of delegates to said convention at a special election, contains the sole and exclusive method of calling a convention of the people of this State to pass on the proposed amendment to the Constitution of the United States; and,

Whereas, much doubt and confusion exists as to which, if either of said bills, sets up and provides the proper method of calling a convention of the people of this State to pass on said proposed amendment to the Constitution of the United States; and,

Whereas, it is the purpose of the General Assembly, that is, of the requisite number of the members of the Senate and the House of Representatives each, to pass one of the said proposed bills, as the one or the other may be found to be constitutional; and,

Whereas, it is important and necessary that this doubt be resolved, so that such action as may be taken by the General Assembly upon said two bills may be in accordance with the Constitution:

Now, therefore, Be it resolved by the Senate, the House of Representatives concurring:

Section 1. That copies of the said two bills, Senate Bill 320 and House Bill 879, be sent to the Chief Justice and the Associate Justices of the Supreme Court, together with this resolution, and that the said Chief Justice and Associate Justices be, and they are hereby, respectfully requested to inspect said bills, and advise the General Assembly, through the presiding officers of the Senate and House of Representatives, whether, in the opinion of the said Chief Justice and Associate Justices, said bills, either or both of them, set up the constitutional procedure by which a convention of the people of this State may be called for the purpose of passing on the said proposed amendment to the Constitution of the United States.

Sec. 2. That the President of the Senate and Speaker of the House of Representatives be, and they are hereby, instructed to send this resolution, with copies of Senate Bill 320 and House Bill 879, to the Chief Justice and the Associate Justices of the Supreme Court, upon the ratification of this joint resolution.

Sec. 3. This joint resolution shall be in full force and effect from and after its ratification.

In the General Assembly, read three times, and ratified, this 28 March, 1933.

A. H. Graham, President of the Senate.

R. L. Harris, Speaker of the House of Representatives.

Compared and found correct. For Committee.

Substance of Bills.

1. The Senate Bill 320, introduced by Senator MacLean, proposes to submit the question of calling a convention to consider the proposed amendment to the Constitution of the United States as submitted by the Seventy-second Congress, to the qualified voters of the whole state at the next general election in 1934, in accordance with the provisions of section 1, article 13 of the state Constitution; and provides for the election of delegates at the same time in case a majority of the votes cast be in favor of said convention.

2. The House Bill 879, introduced by Representative Murphy, proposes to call a convention to pass upon the proposed amendment to the Constitution of the United States as submitted by the Seventy-second Congress, without submitting the question of "Convention or No Convention" to a vote of the people; and provides that delegates to said convention shall be elected at a special election to be held on the first Tuesday after the first Monday in November, 1933.

The following response was made by the Chief Justice and Associate Justices of the Supreme Court on April 5, 1933:

April 5, 1933.

To the General Assembly of North Carolina, Gentlemen:

In compliance with your request contained in Joint Resolution No. 31, copies of which have been transmitted to each of us by the President of the Senate, and the Speaker of the House of Representatives, as directed by the Resolution, we, the Chief Justice and Associate Justices of the Supreme Court of North Carolina, have inspected and carefully considered the provisions of Senate Bill No. 320, introduced by Senator A. D. MacLean, and of House Bill No. 879, introduced by Representative Murphy.

You request us further to advise you whether in the opinion of said Chief Justice and Associate Justices, the said bills, either or both of them, set up the constitutional procedure by which a convention of the people of this state may be called for the purpose of passing on the proposed amendment of the Constitution of the United States, referred to in said resolution. We herewith comply with this request.

It is the opinion of the Chief Justice and Associate Justices of the Supreme Court of North Carolina, as individuals, that a convention called, organized, and held under the provisions of Senate Bill No. 320, introduced by Senator MacLean, and now pending in the Senate, if said bill shall be enacted by the General Assembly of North Carolina, would be valid under the provisions of section 1, article 13, of the Constitution of North Carolina, and that the action of such convention upon the proposed Amendment to the Constitution of the United States would be valid and effective for all purposes.

There is a difference of opinion, however, among the Chief Justice and Associate Justices of the Supreme Court of North Carolina, as to the validity of a convention in this state as provided for, organized, and held under the provisions of House Bill No. 879, introduced by Representative Murphy, and now pending in the House of Representatives, if said bill shall be enacted by the General Assembly, the majority being of opinion that such convention would not be valid for any purpose, the minority being of a contrary opinion.

It is deemed proper to say that it is the opinion of the Chief Justice and Associate Justices of the Supreme Court of North Carolina that the question presented by Joint Resolution No. 31, in its final analysis, is a federal question, and can be answered only by the Supreme Court of the United States, when properly presented to that court. Whether or not a proposed Amendment to the Constitution of the United States has been submitted by Congress and ratified in accordance with the provisions of article 5 of the said Constitution, must necessarily be determined finally by the Supreme Court of the United States.

Notwithstanding this principle, we have deemed it our duty as Chief Justice and Associate Justices of the Supreme Court of this state to comply with the requests of the General Assembly contained in Joint Resolution No. 31.

Respectfully,

W. P. STACY, Chief Justice.

W. J. ADAMS, Associate Justice.

HERIOT CLARKSON, Associate Justice.

GEO. W. CONNOR, Associate Justice.

W. J. BROGDEN, Associate Justice.

Thereafter on April 20, 1933, the following resolution was received from the President of the Senate and the Speaker of the House of Representatives of the...