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JUDICAL DECISIONS AND OPINIONS.
of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husband's consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the supreme court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counsellor.
It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.
The humane movements of modern society, which have for their object the multiplication of avenues for woman's advancement, and of occupations adapted to her condition and sex, have my heartiest concurrence. But I am not prepared to say that it is one of her fundamental rights and privileges to be admitted into every office and position, including those which require highly special qualifications and demanding special responsibilities. In the nature of things it is not every citizen of every age, sex, and condition that is qualified for every calling and position. It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the State; and, in my opinion, in view of the peculiar characteristics, destiny, and mission of woman, it is within the province of the legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex.
For these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of abridging any of the privileges and immunities of citizens of the United States.
I concur in the opinion of Mr. Justice Bradley.
The Iowa Liquor Cases.
Supreme Court Op The United States.
No. 175.—October Term, 1873.
F. Bartemeyer Sr., Plaintiff } In em)r to the Su me vs ( Court of the state of
The State of Iowa. J Iowa*
1. The usual and ordinary legislation of the
States regulating or prohibiting the sale of intoxicating liquors raises no question under the Constitution of the United States prior to the fourteenth amendment of that instrument.
2. The right to sell intoxicating liquors is not
one of the privileges and immunities of citizens of the United States which by that amendment the States were forbidden to abridge.
3. But if a case were presented in which a per
son owning liquor or other property at the time a law was passed by the State absolutely prohibiting any sale of it, it would be a very grave question whether such a law would not be inconsistent with the provision of that amendment which forbids the State to deprive any person of life, liberty, or property without due course of law. 4. While the case before us attempts to present that question, it fails to do it, because the plea, which is taken as true, does not state, in due form and by positive allegation, the time when the defendant became the owner of the liquor sold; and, second 1}^, because tho record satisfies us that this is a moot case, made up to obtain the opinion of this court on a grave constitutional question, without the existence of the facts necessary to raise that question. 5. In such a case, where the supreme court of the State to which the writ of error is directed has not considered the question, this court does not feel at liberty to go out of its usual course to decide it. Mr. Justice Miller delivered the opinion of the court as follows:
Bartemeyer, the plaintiff in error, was tried before a justice of the peace on a charge of selling intoxicating liquors, and acquitted. On an appeal to the circuit court of the State, the defendant filed the following plea:
"And now comes the defendant, F. Bartemeyer, sr., and for plea to the information in this cause, says: He admits that at the time and place mentioned in said information he did sell and deliver to one Timothy Hickey one (1) glass of intoxicating liquor called whiskey, and did then and there receive pay in lawful money from said Hickey for the same. But defendant alleges that he committed no crime known to the law by the selling of the intoxicating liquor hereinbefore described to said Hickey, for the reason that he, the defendant, was the lawful owner, holder, and possessor, in the State of Iowa, of said property, to wit, said one glass of intoxicating liquor, sold as aforesaid to said Hickey, prior to the day on which the law was passed under which these proceedings are instituted and prosecuted, known as the act for the suppression of intemperance, and heing chapter sixty-four (64) of the revision of 1860; and that, prior to the passage of said act for the suppression of intemperance, he was a citizen of the United States and of the State of Iowa."
Without any evidence whatever, the case was submitted to the court, the parties waiving a jury, and a judgment was rendered that the defendant was guilty as charged. A bill of exceptions was taken and the case carried to the supreme court of Iowa, and that court affirmed the judgment of the circuit court and rendered a judgment for costs against the present plaintiff in error.
There is sufficient evidence that the main ground relied on to reverse the judgment in the supreme court of Iowa was, that the act of the Iowa legislature on which the prosecution was based was in violation of the Constitution of the United States.
The opinion of that court is in the record, and, so far as the general idea is involved, that acts for the suppressing the use of intoxicating drinks are opposed to that instrument, they content themselves with a reference to the previous decisions of that court, namely: Our House No. 2 vs. The State, 4 G. Greene, 171; Zunhof vs. The State, 4 G. Greene, 526; Santos vs. The State, 2 Iowa, 165. But, referring to the allegation in the plea that the defendant was the owner of the liquor sold before the passage of the act under which he was prosecuted, they say that the transcript fails to show that the admissions and averments of the plea were all the evidence in the case, and that other testimony may have shown that he did not so own and possess the liquor.
The case has been submitted to us on printed argument. That on the part of the plaintiff in error has taken a very wide range, and is largely composed of the arguments familiar to all, against the right of the States to regulate traffic in intoxicating liquors. So far as this argument deals with the mere question of regulating this traffic, or even its total prohibition, as it may have been affected by anything in the federal Constitution prior to the recent amendments of that instrument, we do not propose to enter into a discussion. Up to that time it had been considered as falling within the police regulations of the State, left to their judgment, and subject to no other limitations than such as were imposed by the State constitution, or by the general principles supposed to limit all legislative power. It has never been seriously contended that such laws raised any question
trowing out of the Constitution of the United tates.
But the case before us is supposed by the counsel of plaintiff in error to present a violation of the fourteenth amendment of the Constitution, on the ground that the act of the Iowa legislature is a violation of the privileges and immunities of citizens of the United States which that amendment declares shall not be abridged by the States; and that in his case it deprives him of his property without due process of law. As regards both branches of this defense, it is
to be observed that the statute of Iowa, which is complained of, was in existence long before the amendment of the federal Constitution, which is thus invoked to render it invalid. Whatever were the privileges and immunities of Mr. Bartemeyer, as they stood before that amendment, under the Iowa statute, they have certainly not been abridged by any action of the State legislature since that amendment became a part of the Constitution. And unless that amendment confers privileges and immunities which he did not previously possess, the argument fails. But the most liberal advocate of the rights conferred by that amendment have contended for nothing more than that the rights of the citizen previously existing, and dependent wholly on State laws for their recognition, are now placed under the protection of the federal government, and are secured by the federal Constitution. The weight of authority u overwhelming that no such immunity has heretofore existed as would prevent State legislatures from regulating and even prohibiting the traffic in intoxicating drinks, with a solitary exception. That exception is the case of a law operating so rigidly on property in existence at the time of its passage, absolutely prohibiting its sale, as to amount to depriving the owner of his property. A single case, that of Wynehamer vs. The People, 3 Kernan's N. Y. Reports, 486, has held that as to such property the statute would be void for that reason. But no case has held that such a law was void as violating the privileges or immunities of citizens of a State or of the United States. If, however, such a proposition is seriously urged, we think that the right to sell intoxicating liquors, so far as such a right exists, is not one ot the rights growing out of citizenship of the United States, and in this regard the case falls within the principles laid down by this court in The SlaughterHouse Cases, 16 Wallace.
But if it were true, and it was fairly presented to us, that the defendant was the owner of the glass of intoxicating liquor which he sold to Hickey, at the time that the State of Iowa first imposed an absolute prohibition on the sale of such liquors, then we concede that two very grave questions would arise, namely: 1. Whether this would be a statute depriving him of his property without due process of law; and secondly, whether, if it were so, it would be so far a violation of the fourteenth amendment in that regard as would call for judicial action by this court?
Both of these questions, whenever they may be presented to us, are of an importance to require the most careful and serious consideration. They are not to be lightly treated, nor are we authorized to make any advances to meet them until we are required to do so by the duties of our position.
In the case before us, the supreme court of Iowa, whose judgment we are called on to review, did not consider it. They said that the record did not present it.
It is true the bills of exceptions, as it seems to us, does show that defendant's plea was all the evidence given; but this does not remove the difficulty in our minds. The plea states that defendant was the owner of the glass of liquor sold prior to the passage of the law under which the proceedings against him were instituted, being chapter sixty-four of the revision of 1860.
If this is to be treated as an allegation that defendant was the owner of that glass of liquor prior to 1860, it is insufficient, because the revision of the laws of Iowa of 1860 was not an enactment of new laws, but a revision of those previously enacted; and there has been in existence in the State of Iowa, ever since the code of 1851, a law strictly prohibiting the sale of such liquors—the act in all essential particulars under which defendant was prosecuted, amended in some immaterial points. If it is supposed that the averment is helped by the statement that he owned the liquor before the law was passed, the answer is that this is a mere conclusion of law. He should have stated when he became the owner of the liquor, or at least have fixed a date when he did own it, and leave the court to decide when the law took effect, and apply it to his case. But the plea itself is merely argumentative, and does not state the ownership as a fact, but says he is not guilty of any offence, because of such fact.
If it be said that this manner of looking at the case is narrow and technical, we answer that the record affords to us on its face the strongest reason to believe that it has been prepared from the beginning for the purpose of obtaining the
opinion of this court on important constitutional questions without the actual existence of the facts on which such questions can alone arise.
It is absurd to suppose that plaintiff, an ordinary retailer of drinks, could have proved, if required, that he had owned that particular glass of whiskey prior to the prohibitory liquor law of 1851.
The defendant, from his first appearance before the justice of the peace to his final argument in the supreme court, asserted in the record in various forms that the statute under which he was prosecuted was a violation of the Constitution of the United States. The act of the prosecuting attorney, under these circumstances, in going to trial without any replication or denial of the plea, which was intended manifestly to raise that question, but which carried on its face the strongest probability of its falsehood, satisfies us that a moot case was deliberately made up to raise the particular point when the real facts of the case would not have done so. As the supreme court of Iowa did not consider this question as raised by the record, and passed no opinion on it, we do not feel at liberty, under all the cicumstances, to pass on it on this record.
The other errors assigned being found not to exist, the judgment of the supreme court of Iowa is affirmed.
PROPOSED AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES.
The following propositions of amendment were made in the Forty-Second and Forty-Third Congresses, to date:
In Senate—Third Session, Forty-second Congress.
1873, January 7—Mr. Frelinghuysen proposed a new article:
Disputes arising with regard to the persons chosen as electors of President and Vice President in any State shall be decided by the Supreme Court of the United States.
January 31—Mr. Harlan proposed a new article:
The Senate of the United States shall be composed of two Senators from each State, chosen by the people of the several States for six years, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature; and if vacancies happen by resignation, or otherwise, in the senatorial representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies.
In Senate—First Session, Forty-third ConGress. 1873, December 1—Mr. Sumner proposed a new article, (preamble omitted:)
The executive power shall be vested in a President of the United States of America; he shall hold his office during the term of four years, and be elected as follows:
The qualified voters shall meet at the usual places of holding elections in their respective States and Territories on the first Monday in April, in the year one thousand eight hundred and seventy-six, and on the first Monday in April every four years thereafter, under such rules and regulations as the Congress may by law prescribe, and vote by ballot for a citizen qualified under the Constitution to be President, and the result of such election in each State and Territy shall be certified, sealed, and forwarded to the seat of government in such manner as the Congress may by law direct.
The Congress shall be in session on the third Monday in May after such election, and on the Tuesday next succeeding the third Monday in May, if a quorum of each House shall be present, and if not, immediately on the presence of such quorum, the Senators and Representatives shall meet in the Representative Chamber in joint convention, and the President of the Senate, in presence of the Senators and Representatives thus assembled, shall open all returns of the election and declare the result. The person having the greatest number of votes cast for President shall be
President, if such number be a majority; if no person have such majority, or if the person having such majority decline the office or die before the counting of the vote, then the President of the Senate shall so proclaim; whereupon the joint convention shall order the proceedings to be officially published, stating particularly the number of votes for each person as President.
Another election shall thereupon take place on the second Tuesday of October next succeeding, at which election the duly-qualified voters shall again meet at the usual places of holding elections in their respective States and Territories, and vote for one of the three persons having the highest number of votes at the preceding election in April, and the result of such election in each State and Territory shall be certified, sealed, and forwarded to the seat of Government as provided by law.
On the third Tuesday in December after such second election, or as soon thereafter as a quorum of each House shall be present, the Senators and Representatives shall again meet in joint convention, and the President of the Senate, in presence of the Senators and Representatives thus assembled, shall open all the returns of the election, and declare the person having the highest number of votes duly elected President for the ensuing term.
No person elected to the office of President shall thereafter be eligible for re-election.
In case of the removal of the President from office by impeachment, or of his death, resignation, or inability to discharge the powers and duties of the office, the same shall devolve temporarily on the head of an Executive Department senior in years. If there be no head of an Executive Department, then the Senator senior in years shall act as President until a successor is chosen and qualified.
If Congress be in session at the time of the death, resignation, disability, or removal of the President, the Senators and Representatives shall meet in joint convention, under such rules and regulations as the Congress may by law prescribe, and proceed to elect by viva voce vote a President to fill such vacancy, each Senator and Representative having one vote. A quorum for this purpose shall consist of a majority in each House of the Senators and Representatives duly elected and qualified, and a majority of all the votes given shall be neccessary to the choice of a President. The person thus elected as President shall discharge all the powers and duties of the office until the inauguration of the President elected at the next regular election.
If Congress be not in session at the time a vacancy occurs, then the Acting President shall forthwith issue a proclamation convening Congress within thirty days after the occurrence of such vacancy.
On the presence of a quorum in each House, the Senators and Representatives shall meet in joint convention and electa President, as before provided.
The office of Vice-President is abolished.
The Senate shall choose their own presiding officer.
December 1—Mr. Sumner proposed a new article, (preamble omitted:)
The term of the President and Vice-President shall be for six years. And no person who has once held the office of President shall be thereafter eligible to that office.
December 1—Mr. Windom proposed a new article:
That article one, section three, be amended to read as follows:
The Senate of the United States shall be composed of two Senators from each State, chosen by the persons qualified to vote for members of the most numerous branch of the legislature thereof, for six years; and each Senator shall have one vote.
December 10—Mr. Hamilton of Maryland proposed a new article, (preamble onrtted:)
The United States shall never make anything but gold and silver coin a tender for the payment debts, either public or private.
1874, May 19—Mr. Wright proposed a new article:
Section 1. All claims and demands pgainst the United States shall be presented or prosecuted within ten years, at least, next after they accrue or arise, and not after. And it shall not be competent for Congress or any Department of the Government, judicial or otherwise, to allow any claim or demand presented after that date.
May 25—Mr. Stewart proposed a new article.
If any State shall fail to maintain a commonschool system, under which all persons between the ages of five and eighteen years not incapacitated for the same shall receive, free of charge, such elementary education as Congress may prescribe, the Congress shall have power to establish therein such a system, and cause the same to be maintained at the expense of such State.
May 28—Mr. Morton, from the Committee on Privileges and Elections, reported this new article:
"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 article is hereby proposed as an amendment to the Constitution of the United States, and, when ratified by the Legislatures of three-fourths of the several States, shall be valid, to all intents and purposes, as a part of the Constitution, to wit:
"I. The President and Vice President shall be elected by the direct vote of the people in the manner following: Each State shall be divided into districts, equal in number to the number of Representatives to which the State may be entitled in the Congress, to be composed of contiguous territory, and to be as nearly equal in population as may be; and the person having the highest number of votes in each district for President shall receive the vote of that district, which shall count one presidential vote.
"II. The person having the highest number of votes for President in a State shall receive two presidential votes from the State at large.
"III. The person having the highest number of presidential votes in the United States shall be President.
"IV. If two persons have the same number of votes in any State, it being the highest number, they shall receive each one presidential vote from the State at large; and if more than two persons shall haveeach the same number of votes m any State, it being the highest number, no presidential vote shall be counted from the State at large. If more persons than one shall have the same number of votes, it being the highest number in any district, no presidential vote shall be counted from that district.
"V. The foregoing provisions shall apply to the election of Vice President.
"VI. The Congress shall have power to provide for holding and conducting the elections of President and Vice President, and to establish tribunals for the decision of such elections as may be contested."
VII. The States shall be divided into districts by the legislatures thereof, but the Congress may at any time by law make or alter the same.
Note.—The present mode of election is:
"Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector." (Art. II, sec. 2.)
"The electors shall meet in their respective States, and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice President, and they shall make distinct lists of all persons voted for as President and of all persons voted for as Vice President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest number, not exceeding three, on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from twothirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the 4th day of March next following, then the Vice President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice President shall be Vice President, if such number be a majority of the whole number of electors appointed, and if no person have a majority, then, from the two highest numbers on
the list, the Senate shall choose the Vice President; a quorum for this purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States." (Amendments, Art. XII.)
In House—Third Session, Forty-second ConGress.
1872, December 9—Mr. John Lynch proposed a new article:
All citizens of the United States who are qualified to vote for Representatives to Congress shall meet at the places within their respective States where they are entitled to vote for such Representatives, and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President and the person voted for as Vice President, and the votes thus cast shall be transmitted to the secretary of state in the State where such votes are cast, who shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice President, and of the number of votes for each, which list he shall sign and certify, and transmit sealed to the seat of Government of the United States, directed to the President of the Senate; the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted; the person having the greatest number of votes for President shall be President, if such number be a majority of the whole number of votes- cast; and if no person have such a majority, then from the persons having the highest numbers, not exceeding three, on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President, whenever the right of choice shall devolve upon them, before the 4th day of March next following, then the Vice President shall act as President, as in the case of death or other constitutional disability of the President.
Sec. 2. The person having the greatest number of votes as Vice President shall be the Vice President, if such number be a majority of the whole number of votes cast; and if no person have a majority, then from the two highest numbers on the list the Senate shall choose the Vice President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.
December 9—Mr. Hibbard proposed a new article:
Congress shall have power to provide by law for holding elections for the choice of Stat©