State of Ohio ex rel. Erkenbrecher v. Cox

• Decision Date: 04 January 1919
• Docket Number: 163.
• Citation: 257 F. 334
• Parties: STATE OF OHIO ex rel. ERKENBRECHER v. COX, Governor of Ohio.
• Court: U.S. District Court — Southern District of Ohio

257 F. 334

STATE OF OHIO ex rel. ERKENBRECHER v. COX, Governor of Ohio.

No. 163.

United States District Court, S.D. Ohio, Western Division.

January 4, 1919

[Copyrighted Material Omitted]

Aaron A. Ferris, of Cincinnati, Ohio, Everett P. Wheeler, of New York City, and Charles B. Wilby, of Cincinnati, Ohio, for plaintiff.

Jos McGhee, Atty. Gen., of Ohio, L. D. Johnson, of Urbana, Ohio Wayne B. Wheeler, of Washington, D.C., Simeon M. Johnson, of Cincinnati, Ohio, and James A. White, of Columbus, Ohio, for defendant.

HOLLISTER District Judge.

Albert G. Erkenbrecher, a resident of Cincinnati and a citizen of Ohio, requested the Attorney General of Ohio to bring this suit, and, having been denied, files this bill against James M. Cox, as Governor of Ohio, a citizen of that state and a resident in the Western division of the Southern district. The suit is brought by complainant--

'as such citizen and as a taxpayer in said district and interested in public welfare * * * in his own behalf and in behalf of the citizens of the state of Ohio, and other citizens of the United States who may desire to join in the action and contribute to the expenses of the suit.'

The further allegations of the bill may be briefly stated:

The Governor has now in his custody, ready to be transmitted by him to the General Assembly of Ohio, at its next session beginning January 6, 1919, the proposed amendment to the federal Constitution, reading:

'Sixty-Fifth Congress of the United States of America.

'At the second session begun and held at the city of Washington, on Monday, the third day of December, one thousand nine hundred and seventeen.

'Joint Resolution Proposing an Amendment to the Constitution of the United States.

'Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each house concurring therein), that the following amendment to the Constitution be, and hereby is, proposed to the states, to become valid as a part of the Constitution when ratified by the Legislatures of the several states as provided by the Constitution: 'Article-- .

'Section 1. After one year from the ratification of this article the manufacture, sale or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

'Section 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.

'Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the Legislatures of the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress'

-- which, in his ministerial capacity, and having no discretion, he threatens to and will transmit to the General Assembly, unless restrained by this court. The recital that 'two-thirds of each House' concurred in the proposed amendment was and is untrue and misleading, in that, when the Senate of the United States finally voted on the proposed amendment it was composed of ninety-five members elected and qualified, of whom only forty-seven voted in favor of the proposed amendment, a vote less than two-thirds of the membership of that house; that when the vote was taken in the House of Representatives, its total membership was four hundred and thirty-four members elected and qualified, and that only two hundred and eighty-two members voted in favor of the proposed amendment, a vote less than two-thirds of the membership of that house.

The vote in the Senate and in the House was not in accord with, and was in violation of, article V of the Constitution of the United States, which reads:

'Article V.

''The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the Legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or other mode of ratification may be proposed by the Congress: Provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article, and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.'

The transmission of the proposed amendment to the General Assembly 'would operate as and be a fraud upon the citizens of Ohio and of the United States, in that it would certify that two-thirds of each House of the Congress had voted in favor of the alleged amendment, whereas less than two-thirds of each house had voted therefor.'

From the beginning a large part of the revenue of the government has been derived from taxes upon distilled spirits, wine, and beer, which also have been subject to duties when imported, and that the revenue of the United States from excise duties upon these commodities during the fiscal year ending June 30, 1918 was $284,008,512.

The United States has encouraged the production of wine and beer by giving premiums to the producers of these commodities, and also by discriminative duties upon imported wine and beer, with the result that over $1,000,000,000 have been invested in breweries, vineyards, the production of barley and hops, and the manufacture of wine. The by-products from the manufacture of beer are yeast cakes and brewers' grains, of nourishing quality as a food for cattle; such products amounting annually to over $20,000,000. The adoption and enforcement of the proposed amendment would destroy in part and impair in part the value of the capital so invested, and diminish the revenues of the government, which would necessitate the imposition of other taxes additional to those now levied and be a heavy burden upon the taxpayers of this country.

The proposed amendment is not in any legal sense an amendment to the Constitution, but, if ratified by three-fourths of the states, would tend to subvert the republican form of government established by the Constitution and ratified by the people, and would violate its spirit, intent, and meaning. Its ratification would be in derogation and in violation of the Tenth Amendment, reserving to the states and to the people all powers not delegated to the United States by the Constitution nor prohibited by it to the states, and, if ratified, would deprive citizens of liberty and property without due process of law, in violation of the Fourteenth Amendment.

The complainant has no other remedy except by injunction in equity, for which he prays, both preliminary and perpetual, enjoining James M. Cox, as Governor, from transmitting the proposed amendment to the General Assembly at its next or any subsequent session.

The issues so tendered are raised by the answer.

The case was argued and submitted December 24, 1918. Some of the briefs were filed later, the latest December 31st, and the case should be decided before Monday, January 6, 1919, the day on which the General Assembly of Ohio convenes. The time is short, but the court has been able to give some-- it is hoped adequate-- consideration to the issues now herein dealt with.

1. Counsel agree that, although the Governor's official residence is at Columbus, in the Eastern division of this Southern district of Ohio, yet he is a resident of Dayton, in the Western division, and that, so far as the defendant's residence is concerned, the bill is properly filed in the Western division.

2. Equity rule 26 (201 F. v, 118 C.C.A. v.) provides, among other things:

'But when there is more than one plaintiff, the causes of action joined must be joint.'

Rule 38 (198 F. xxix, 115 C.C.A. xxix) reads:

'When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole.'

There is a misjoinder of parties plaintiff. Plaintiff sues as a taxpayer in this district, and also as a citizen of Ohio and of the United States interested in the public welfare, and as such joins with him all the citizens of the United States. Some of these are no doubt taxpayers in this district, and some taxpayers in other parts of the United States. But it is probable that the majority of citizens of the United States are not taxpayers, though they are all interested in the public welfare. The taxpayer's interest is quite different from the public interest all citizens have in maintaining the integrity of the Constitution. One is a property interest; the other intangible and personal in its nature, having to do with political rights.

There is more than one plaintiff, and the injury for which the remedy of injunction is sought affects some of the plaintiffs in one way and all in another. These causes of action are not joint.

The bill, under its allegations, is not properly a 'class action,' because the classes claimed by plaintiff to be represented by him are different, as above stated. For these reasons the bill cannot be maintained.

Moreover if the suit were brought alone in behalf of plaintiff as a taxpayer, and all other taxpayers similarly interested, there would be a clear misjoinder. The right of each is a separate, individual right, not a right common to all taxpayers. In any event, an injunction at plaintiff's instance will not...