Carson v. Sullivan

WALKER, C. J. This is a proceeding by injunction instituted by the appellant in the Circuit Court of Cole County to restrain the respondents from preparing aud certifying a ballot title to the proposed referendum -on Senate Joint and Concurrent Resolution Number One adopted by the 50th General Assembly ratifying the Eighteenth Amendment to the Constitution of the United States prohibiting the manufacture, sale or transportation of intoxicating liquors within, the importation thereof into, or thq exportation thereof from the United States, etc., and to enjoin the Secretary of State from furnishing his certified copy of said proposed referendum on said Senate Joint and Concurrent Resolution to be placed upon the ballots of the election to be held in November, 1920. The respondents’ demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action and for other reasons supplemental to the foregoing and more particularly definitive of the alleged failure of the petition to show that appellant was entitled to the relief prayed for. The circuit court sustained the demurrer, and from the judgment rendered thereon this appeal has been perfected. *361 Injunction. I. The amenability of respondents as executive or administrative officers of the State to the restrictive power of the courts in a proceeding of this character has been frequently declared in a number of cases sufficiently similar in their substantial facts to authorize c-pation in support of the regularity of this action. [State ex rel. v. Johnston, 234 Mo. l. c. 350: State ex rel. v. Roach, 230 Mo. l. c. 446; Merchants Exchange v. Knott, 212 Mo. 616; State ex rel. v. Adcock, 206 Mo. 550; State ex rel. v. Goodier, 195 Mo. l. c. 560; State ex rel. v. Public Schools, 134 Mo. l. c. 304; State ex rel. v. Lesueur, 103 Mo. l. c. 262.] It is not to be understood from these cases that' the State itself can be enjoined, but when its officers act in an unconstitutional or illegal manner they are not to be regarded as acting for the State, and they may be enjoined. [Ex parte Young, 209 U. S. 123; Smyth v. Ames, 169 U. S. 466; 22 Cyc. p. 881, par. b.] Parties. II. Appellant, being, a citizen of the State and a taxpayer, was entitled to prosecute this action. [Sec. 6750, R. S. 1909; Newmeyer v. Railroad, 52 Mo. 81; State v. Curator’s 57 Mo. 178; State ex rel v. Woodside, 254 Mo. 580; 22 Cyc. pp. 886, par. 4a and 897, par. B. n. 94.] III. These preliminary matters concerning the right of action, the proper parties thereto and the sufficiency of the pleading having been affirmatively settled, there remains for determination the main or vital question as to the right to refer under our State constitutional referendum law an amendment to the Federal Constitution. . ^ The contention of the appellant, which runs counter to and challenges the correctness of the ruling of the trial court, is that the submission pf the ratification of a proposed amendment to the Federal Constitution to the electorate of the State by a referendum is not within the purview of our organic law authorizing that pro *362 cedure (Sec. 57, Art. IV, Con. Mo.); and that it is contrary to Article Y of the Constitution of the United States, which provides, among other things not pertinent hero, that an amendment thereto shall become a part of the Constitution when ratified by the legislatures of three-fourths of the states. A recent decision of the Supreme Court of the United States, State of Rhode Island v. Palmer, 40 Sup. Ct. Rep. 486, has foreclosed all discussion of this question in holding that the referendum provisions of state constitutions and statutes cannot be applied consistently with the Constitution of the United States in the ratification or rejection of amendments to that constitution; and that the Eighteenth Amendment prohibiting the manufacture, etc., of intoxicating liquors for beverages is within the power to amend reserved by Article Y of the United States Constitution. In other words, that the “legislatures of three-fourths of the states,” as the words are employed in that article (V), has reference to legislative bodies as they were known at the time of the adoption of the Constitution and not by any other body or the people generally. The action of the respondents, therefore, in attempting to refer the legislative ratification of the Eighteenth Amendment to the people was without authority, and the trial court was in error in so ruling. Prom this it follows that the appellant is entitled to the relief sought. We therefore-reverse and remand this cause with directions to the circuit court to set aside its judgment and enter a decree herein in favor of the appellant perpetually enjoining the respondents from attempting, to refer the legislative ratification of said Eighteenth Amendment to the Constitution of the United States to the voters of the State for approval or rejection. It is so ordered. Williamson, Graves, Goode, Williams, and Blair, JJ., concur; Graves, J., in separate opinion, ip which Blair, J., concurs; Woodson, J., absent.