Koehler v. Hill

Decision Date21 April 1883
Citation14 N.W. 738,60 Iowa 543
PartiesKOEHLER & LANGE v. HILL
CourtIowa Supreme Court

Appeal from Scott District Court.

ACTION to recover for beer sold and delivered by the plaintiffs to the defendant. Trial to the court, judgment for the plaintiffs, and the defendant appeals.

Smith McPherson, Attorney-general, Peter A. Boyle, William E Miller, J. A. Harvey, James F. Wilson, C. C. Nourse, John F Duncombe and Liston McMillan, for appellant.

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

SEEVERS J., DAY, CH. J. BECK, J., dissenting.

OPINION

SEEVERS, J.

At a special election held on the 27th day of June, 1882, the electors of the State, by a majority of about thirty thousand, ratified an amendment to the Constitution, which, it is claimed, had been previously agreed to by the Eighteenth and Nineteenth General Assemblies, prohibiting the manufacture and use of intoxicating liquors as a beverage, including ale, wine, and beer, as therein provided.

The question is fairly presented in the record in this case, whether or not the amendment aforesaid has been constitutionally agreed to and adopted, and this is the question discussed by counsel, and the only question we are called on to determine. The validity of the amendment, and whether the same now constitutes a part of the Constitution, depend upon the question whether the Eighteenth General Assembly agreed to the amendment which was ratified and adopted by the electors, and whether the amendment was agreed to by the Eighteenth General Assembly in the form and manner required by the Constitution.

When the Constitution was adopted, it was wisely therein provided, or at least it must be so presumed, that "any amendment or amendments to this Constitution may be proposed in either house of the General Assembly; and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment shall be entered on their journals, with the yeas and nays taken thereon, and referred to the legislature to be chosen at the next general election, and shall be published as provided by law for three months previous to the time of making such choice; and if, in the General Assembly so next chosen as aforesaid, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the General Assembly to submit such proposed amendment to the people, in such manner and at such time as the General Assembly shall provide; and if the people shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members of the General Assembly, voting thereon, such amendment or amendments shall become a part of the Constitution of this State." Art. 10, § 1.

This is the only way the Constitution can be amended or changed except by a convention called for that purpose.

In compliance with the foregoing provision, there was introduced into the House of Representatives of the Eighteenth General Assembly a joint resolution, the material portion of which, for the purpose of this case, is as follows:

"Be it resolved by the General Assembly of the State of Iowa That the following amendment to the Constitution of the State of Iowa be, and the same is hereby, proposed, viz.:

"To add as section 26 to article 1 of said Constitution the following:

"SECTION 26. No person shall hereafter manufacture, sell, or keep with intent to sell, within this State, any alcoholic, distilled, brewed, fermented or vinous liquors, except for medicinal and mechanical purposes."

This resolution was agreed to by the House, sent to the Senate, and referred to the appropriate committee. The committee reported it back with the recommendation that it do pass. Various amendments were offered, and finally it was moved to adopt a substitute for the House resolution. The substitute was as follows:

"No person shall manufacture for sale, or sell, or keep for sale, as a beverage, or to be used for such purpose, any intoxicating liquors whatever."

The substitute was amended by adding after the word "whatever" the words "including ale, wine, and beer." it was further amended by striking out the words "for such purposes." Thereupon the substitute, as amended, was adopted. On motion, the rule was suspended, the joint resolution considered engrossed, read a third time, and agreed to by the Senate, as shown by the journal, and it was sent with the following message from the Senate to the House:

"Mr. Speaker: I am directed to inform your honorable body that the Senate has passed the House joint resolution proposing to amend the Constitution so as to prohibit the sale of intoxicating liquors within this State, with amendments, as noted in the resolution.

"A. T. MCCARGAR, Secretary."

The joint resolution which had been agreed to by the Senate was referred to the appropriate committee, and such committee afterward made the following report to the House:

"Mr. Speaker: Your committee on constitutional amendments, to whom was referred the substitute passed by the Senate for the joint resolution passed by the House, proposing to amend the Constitution of the State of Iowa as follows:

"SECTION 26. No person shall hereafter manufacture, sell, or keep with intent to sell, within this State, any alcoholic, distilled, brewed, fermented or vinous liquors, except for medical and mechanical purposes--beg leave to report that they have had the same under consideration, and a majority of said committee have instructed me to report the same back to the House with the recommendation that the House do concur in the passage of said substitute.

Thereupon the House concurred in the "Senate amendments."

The House journal shows that the committee on enrolled bills reported to the House that they had examined the joint resolution, and that the same was correctly enrolled. Thereupon, such enrolled resolution was signed by the Speaker of the House and President of the Senate, and approved by the Governor. The joint resolution thus signed and approved was as follows: "No person shall manufacture for sale, or sell, or keep for sale, as a beverage, any intoxicating liquor whatever, including ale, wine and beer." This proposed amendment to the Constitution was agreed to by the Nineteenth General Assembly, and ratified by the electors at a special election, held on the 27th day of June, 1882. Counsel for the plaintiff insist that the joint resolution, at the time it was agreed to by the Senate, contained the words "or to be used." Their contention is that it then reads as follows: "No person shall manufacture for sale, or sell, or keep for sale as a beverage, or to be used, any intoxicating liquor whatever, including ale, wine and beer." The resolution claimed to have been agreed to by the Senate is materially different in substance from the one ratified by the electors. Counsel for the appellant do not claim this is not so as shown by the journals, but their contention is that the enrolled resolution, signed by the Speaker of the House and President of the Senate, and approved by the Governor, is a verity, and is conclusive evidence that the resolution as enrolled was agreed to by both houses of the Eighteenth General Assembly, or, if this is not so, that the preponderance of the evidence is in favor of the proposition that the resolution which was agreed to was correctly enrolled. The plaintiff contends that it is made clear and certain by an examination of the Senate journal that the words "or to be used" were in the resolution when it passed the Senate, and that the journal is the best evidence of such fact. This question, and all others in the case, have been elaborately and ably argued by counsel, both in print and orally at bar, and we proceed to the consideration of the question just stated.

I. In Cooley's Constitutional Limitations, 4th Ed., 164, it is said: "Each House keeps a journal of its proceedings, which is a public record, and of which courts are at liberty to take judicial notice. If it should appear from these journals that any act did not receive the requisite majority, or that in respect to it the legislature did not follow any requirement of the Constitution, or that in any other respect the act was not constitutionally adopted, the courts may act upon this evidence, and adjudge the statute void." In the opinion of the eminent author, the journals of the respective houses, in the absence of a statute so making them, are evidence of what the houses respectively did, and, upon such evidence, a statute, if not constitutionally passed, should be declared void by the courts. It logically follows that a proposed amendment to the Constitution should be declared void, if the same has not been constitutionally agreed to. It is not claimed that it is not just as essential, in a constitutional sense, that a proposed amendment to the Constitution should be agreed to by two General Assemblies, as that it should be ratified by the electors. Not only so, but each house of each General Assembly must agree to the same amendment, and it must be adopted by the electors. It matters not if not only every elector, but every adult person in the State, should desire and vote for an amendment to the Constitution, it cannot be recognized as valid unless such vote was had in pursuance of, and in substantial accord with, the requirements of the Constitution. If, then, both houses of the Eighteenth General Assembly did not agree to the resolution which was adopted and ratified by the electors at the special election held for that purpose, it is not a part of the Constitution, and cannot be so recognized.

There is much dispute between counsel as to whether Judge Cooley is...

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