Koehler v. Hill

• Citation: 15 N.W. 609,60 Iowa 543
• Parties: KOEHLER AND ANOTHER v. HILL.
• Decision Date: 21 April 1883
• Court: United States State Supreme Court of Iowa

60 Iowa 543
15 N.W. 609

KOEHLER AND ANOTHER
v.
HILL.

Supreme Court of Iowa.

Filed April 21, 1883.

Appeal from Scott district court.

BECK, J., dissents.

*609Smith McPherson, Atty. Gen., James F. Wilson, C. C. Nourse, J. A. Harvey, John F. Duncombe, and Liston McMillan, for appellants.

Bills & Block and Wright, Cummins & Wright, for appellee.

DAY, C. J.

A petition for rehearing^a1 was presented in this cause, and the whole case has been reargued by eminent counsel with much ability and research. In view of the great interest which has attached to this question, and of its public importance, we deem it not only proper, but necessary, to examine with considerable fullness the leading points relied upon as necessitating a conclusion different from the one reached in the foregoing opinion.

1. It is asserted in the petition for rehearing that “the judicial department of the state has no jurisdiction over political questions, and cannot review the action of the nineteenth general assembly and of the people in the matter of the adoption or amendment of the constitution of the state.” This position practically amounts to this: that the provisions of the constitution for its own amendment are simply directory, and may be disregarded with impunity; for it is idle to say that these requirements of the constitution must be observed, if the departments charged with their observance are the sole judges as to whether or not they have been complied with. This proposition was advanced for the first time upon the petition for rehearing, and, if correct, it is of course an end of the controversy. Upon this branch of the case counsel cite Luther v. Borden, 7 How. 1. As this case has principally been relied upon by the advocates of the theory now under consideration, and has been given great prominence in the discussions which have taken place, we desire to present its facts with a degree of fullness which, under ordinary circumstances,*610would perhaps be considered unnecessary, to the end that the degree of its applicability to the present case may be fully understood.

In 1841 the state of Rhode Island was acting under the form of goverment established by the charter of Charles II. in 1663. In this form of government no mode of proceeding was pointed out by which amendments could be made. It authorized the legislature to prescribe the qualification of voters, and in the exercise of this power the right of suffrage was confined to freeholders. In 1841 meetings were held and associations were formed by those who were in favor of a more extended right of suffrage, which finally resulted in the election of a convention to form a new constitution, to be submitted to the people for their adoption or rejection. The persons chosen came together and framed a constitution by which the right of suffrage was extended to every male citizen of 21 years of age who had resided in the state for one year. Upon the return of the votes, the convention declared that the constitution was adopted and ratified by a majority of the people of the state, and was the paramount law and constitution of Rhode Island. The charter government did not admit the validity of the proceedings nor acquiesce in them. On the contrary, in January, 1842, when this new constitution was communicated to the governor and by him laid before the legislature, it passed resolutions declaring all acts done for the purpose of imposing that constitution upon the state, to be an assumption of the powers of government, in violation of the rights of the existing government and of the people at large, and that it would maintain its authority and defend the legal and constitutional rights of the people. Thomas W. Dorr, who had been elected governor under the new constitution, prepared to assert the validity of that government by force, and many citizens assembled in arms to support him. The charter government thereupon passed an act declaring the state under martial law, and at the same time proceeded to call out the militia to repel the threatened attack and to subdue those who were engaged in it. The plaintiff, Luther, was engaged in supporting the new government, and, in order to arrest him, his house was broken and entered by the defendants, who were enrolled in the military force of the old government, and in arms to support its authority.

The government, under the new constitution, had but a short and ignoble existence. In May, 1842, Dorr made an unsuccessful attempt, at the head of a military force, to get possession of the state arsenal at Providence, which was repulsed. In June following an assemblage of some hundred of armed men under his command at Chepachet dispersed upon the approach of the troops of the old government, and no further effort was made to establish the new government. In January, 1842, the charter government took measures to call a convention to revise the existing form of government, and a new constitution was formed, which was ratified by the people, and went into operation in May, 1843, at which time the old government formally surrendered all its powers. Under this government Dorr was tried for treason, and in June, 1844, was sentenced to imprisonment for life. In October, 1842, Luther brought an action in the circuit court of the United States against Borden and others to recover damages for the breaking and entering of his house in June, 1842. The defendants justified, alleging that there was an insurrection to overthrow the government; that martial law was declared; that plaintiff was aiding and abetting the insurrection; that defendants were enrolled in the militia force of the state, and were ordered to arrest the plaintiff. The plaintiff relied upon the fact that the Dorr government, to which he adhered, was the legal government of the state, and, as the new constitution had never been recognized by any department of the old government, he offered to prove at the trial, by the production of the original ballots and the original registers of the persons voting, and by the testimony of the persons voting, and by the constitution itself, and by the census of the United States for the year 1840, that the Dorr constitution was ratified by a large majority of the male people of the state of *611the age of 21 and upwards, and also by a majority of those who were entitled to vote for general officers under the then existing laws of the state. The circuit court rejected the evidence, and instructed the jury that the charter government and laws, under which the defendants acted, were, at the time the trespass was alleged to have been committed, in full force and effect, and constituted a justification of the acts of the defendants. The correctness of this ruling involved the only question which was taken to the supreme court of the United States for review. The supreme court held that the evidence was properly rejected. Of the correctness of that decision no one can entertain the shadow of a doubt. But the difference between that case and this are so many and so evident, as to deprive it of all force as an authority in the present controversy. In that case an entire change in the form of government was undertaken; in this, simply an amendment in no manner affecting the judicial authority of those acting under the existing government is sought to be incorporated into the existing constitution. In that case the charter provided no means for its amendment; in this, the mode of an amendment is specifically provided. In that case the authority of the court was invoked for the admission of oral evidence to overthrow the existing government and establish a new one in its place; in this, that authority is invoked simply to preserve the existing constitution intact.

It is evident, from an examination of the entire case of Luther v. Borden, that the question which the court was considering pertained to the power of the federal courts to determine between rival constitutions in the states. The power is not denied to the state courts unless one of the constitutions involved in the controversy be the one under which the court is organized. This is fully apparent from the whole opinion. Referring to the trial of Thomas W. Dorr for treason in the supreme court of Rhode Island, the court say: “It is worthy of remark, however, when we are referring to the authority of state decisions, that the trial of Thomas W. Dorr took place after the constitution of 1843 went into operation. The judges who decided that case held their authority under that constitution, and it is admitted on all hands that it was adopted by the people of the state and is the lawful and established government. It is the decision, therefore, of a state court, whose judicial authority to decide upon the constitution and laws of Rhode Island is not questioned by either party to this controversy, although the government under which it acted was framed and adopted under the sanction and laws of the charter government. The point, then, raised here has already been decided by the courts of Rhode Island. The question relates altogether to the constitution and laws of that state, and the well-settled rule in the court is that the courts of the United States adopt and follow the decisions of the state courts in questions which concern merely the constitution and laws of the state. Upon what ground could the circuit court of the United States which tried this case have departed from this rule, and disregarded and overruled the decisions of the courts of Rhode Island?” It seems from the foregoing quotation, which is really the fact, that the courts of Rhode Island had determined the question involved in Luther v. Borden, and that the courts of the United States were bound by and followed that adjudication.

The language of the court which, it is claimed, asserts the doctrine that the question of a change of constitutions is a political one, with which courts have nothing to do, was clearly employed with reference to the peculiar...