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of the family organization, which is founded in! The Iowa Liquor Cases. the divine ordinance, as well as in the nature of SUPREME COURT OF THE UNITED STATES. things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say

No. 175.-October Term, 1873. identity, of interests and views which belong, or should belong, to the family institution is re- | F. Bartemeyer, Sr., Plaintiff) In error to the Supreme pagnant to the idea of a woman adopting a dis- |

in Error,

{ Court of the State of tinct and independent career from that of her

08.

The State of Iowa. J husband. So firmly fixed was this sentiment in

Iowa. the founders of the common law that it became 1. The usual and ordinary legislation of the a maxim of that system of jurisprudence that a States regulating or prohibiting the sale of woman had no legal existence separate from her intoxicating liquors raises no question unhusband, who was regarded as her head and re der the Constitution of the United States presentative in the social state; and, notwith. prior to the fourteenth amendment of that standing some recent modifications of this civil instrument. status, many of the special rules of law flowing 2. The right to sell intoxicating liquors is not from and dependent upon this cardinal principle one of the privileges and immunities of citistill exist in full force in most States. One of zens of the United States which by that these is, that a married woman is incapable, amendment the States were forbidden to without her husband's consent, of making const · abridge. tracts which shall be binding on her or him. 3. But if a case were presented in which a perThis very incapacity was one circumstance which son owning liquor or other property at the the supreme court of Illinois deemed important time a law was passed by the State absoin rendering a married woman incompetent fully lutely prohibiting any sale of it, it would to perform the duties and trusts that belong to be a very grave question whether such a the office of an attorney and counsellor.

law would not be inconsistent with the • It is true that many women are unmarried provision of that amendment which forbids and not affected by any of the duties, complica the State to deprive any person of life, libtions, and incapacities arising out of the married erty, or property without due course of state, but these are exceptions to the general law. rule. The paramount destiny and mission of 4. While the case before us attempts to present, woman are to fulfill the noble and benign offices that question, it fails to do it, because the of wife and mother. This is the law of the plea, which is taken as true, does not state, Creator. And the rules of civil society must be in due form and by positive allegation, adapted to the general constitution of things, and the time when the defendant became the cannot be based upon exceptional cases.

owner of the liquor sold; and, secondly, The humane movements of modern society,! because the record satisfies us that this is a which have for their object the multiplication of moot case, made up to obtain the opinion avenues for woman's advancement, and of occu of this court on a grave constitutional quespations adapted to her condition and sex, have tion, without the existence of the facts nemy heartiest concurrence. But I am not pre cessary to raise that question. pared to say that it is one of her fundamental 5. In such a case, where the supreme court of rights and privileges to be admitted into every the State to which the writ of error is dioffice and position, including those which re- ! rected has not considered the question, this quire highly special qualifications and demand court does not feel at liberty to go out of its ing special responsibilities. In the nature of usual course to decide it. things it is not every citizen of every age, Mr. Justice MILLER delivered the opinion of sex, and condition that is qualified for every the court as follows: calling and position. It is the prerogative of Bartemeyer, the plaintiff in error, was tried the legislator to prescribe regulations founded on before a justice of the peace on a charge of sellnature, reason, and experience for the due ad- ing intoxicating liquors, and acquitted. On an mission of qualified persons to professions and appeal to the circuit court of the State, the decallings demanding special skill and confidence. fendant filed the following plea: This fairly belongs to the police power of the “And now comes the defendant, F. BarteState ; and, in my opinion, in view of the pecu- meyer, sr., and for plea to the information in liar characteristics, destiny, and mission of wo- this cause, says: He admits that at the time and man, it is within the province of the legislature place mentioned in said information he did sell to ordain what offices, positions, and callings and deliver to one Timothy Hickey one (1) glass shall be filled and discharged by men, and shall of intoxicating liquor called whiskey, and did receive the benefit of those energies and respon- then and there receive pay in lawful money from sibilities, and that decision and firmness which said Hickey for the same. But defendant alare presumed to predominate in the sterner sex. leges that he committed no crime known to the

For these reasons I think that the laws of Illi- law by the selling of the intoxicating liquor nois now complained of are not obnoxious to the hereinbefore described to said Hickey, for the charge of abridging any of the privileges and reason that he, the defendant, was the lawful immunities of citizens of the United States. .owner, holder, and possessor, in the State of

Iowa, of said property, to wit, said one glass of I concur in the opinion of Mr. Justice Bradley. intoxicating liquor, sold as aforesaid to said

FIELD, J. | Hickey, prior to the day on which the law was

passed under which these proceedings are insti- 1 to be observed that the statute of Iowa, which is tuted and prosecuted, known as the act for the complained of, was in existence long before the suppression of intemperance, and being chapter amendment of the federal Constitution, which is sixty-four (64) of the revision of 1860; and thus invoked to render it invalid. Whatever that, prior to the passage of said act for the sup-1 were the privileges and immunities of. Mr. Barpression of intemperance, he was a citizen of the temeyer, as they stood before that amendment, United States and of the State of Iowa." under the Iowa statute, they have certainly not

Without any evidence whatever, the case was been abridged by any action of the State legissubmitted to the court, the parties waiving a lature since that amendment became a part of jury, and a judgment was rendered that the de- the Constitution. And unless that amendment fendant was guilty as charged. A bill of excep-confers privileges and immunities which he did tions was taken and the case carried to the su- not previously possess, the argument fails. But preme court of Iowa, and that court affirmed the most liberal advocate of the rights conferred the judgment of the circuit court and rendered a by that amendment have contended for nothing judgment for costs against the present plaintiff more than that the rights of the citizen previin error.

ously existing, and dependent wholly on State There is sufficient evidence that the main laws for their recognition, are now placed under ground relied on to reverse the judgment in the the protection of the federal government, and supreme court of Iowa was, that the act of the are secured by the federal Constitution. The Iowa legislature on which the prosecution was weight of authority is overwhelming that no based was in violation of the Constitution of the such immunity has heretofore existed as would United States.

prevent State legislatures from regulating and The opinion of that court is in the record, and, even prohibiting the traffic in intoxicating drinks, so far as the general idea is involved, that acts with a solitary exception. That exception is the for the suppressing the use of intoxicating case of a law operating so rigidly on property in drinks are opposed to that instrument, they existence at the time of its passage, absolutely content themselves with a reference to the pre-prohibiting its sale, as to amount to depriving vious decisions of that court, namely: Our the owner of his property. A single case, that House No. 2 vs. The State, 4 G. Greene, 171 ; of Wynehamer vs. The People, 3 Kernan's N. Y. Zunhof vs. The State, 4 G. Greene, 526; Santos Reports, 486, has held that as to such property vs. The State, 2 Iowa, 165. But, referring to the statute would be void for that reason. But the allegation in the plea that the defendant was no case has held that such a law was void as the owner of the liquor sold before the passage violating the privileges or immunities of citizens of the act under which he was prosecuted, they of a State or of the United States. If, however, say that the transcript fails to show that the such a proposition is seriously urged, we think admissions and averments of the plea were all that the right to sell intoxicating liquors, so far the evidence in the case, and that other testi- as such a right exists, is not one of the rights mony may have shown that he did not so own growing out of citizenship of the United States, and possess the liquor.

and in this regard the case falls within the prinThe case has been submitted to us on printed ciples laid down by this court in The Slaughterargument. That on the part of the plaintiff in House Cases, 16 Wallace. error has taken a very wide range, and is But if it were true, and it was fairly presented largely composed of the arguments familiar to to us, that the defendant was the owner of the all, against the right of the States to regulate glass of intoxicating liquor which he sold to traffic in intoxicating liquors. So far as this Hickey, at the time that the State of Iowa first argument deals with the mere question of regu- imposed an absolute prohibition on the sale of lating this traffic, or even its total prohibition, such liquors, then we concede that two very grave as it may have been affected by anything in questions would arise, namely: 1. Whether this the federal Constitution prior to the recent would be a statute depriving him of his propamendments of that instrument, we do not pro-erty without due process of law; and secondly, pose to enter into a discussion. Up to that time whether, if it were so, it would be so far a violait had been considered as falling within the po- tion of the fourteenth amendment in that regard lice regulations of the State, left to their judg- as would call for judicial action by this court? ment, and subject to no other limitations than Both of these questions, whenever they may such as were imposed by the State constitution, be presented to us, are of an importance to reor by the general principles supposed to limit allquire the most careful and serious consideration. legislative power. It has never been seriously they are not to be lightly treated, nor are we contended that such laws raised any question authorized to make any advances to meet them growing out of the Constitution of the United until we are required to do so by the duties of States.

our position. But the case 'before us is supposed by the In the case before us, the supreme court of counsel of plaintiff in error to present a viola- Iowa, whose judgment we are called on to retion of the fourteenth amendment of the Con- view, did not consider it. They said that the stitution, on the ground that the act of the Iowa record did not present it. legislature is a violation of the privileges and It is true the bills of exceptions, as it seems to immunities of citizens of the United States which us, does show that defendant's plea was all the that amendment declares shall not be abridged evidence given ; but this does not remove the by the States; and that in his case it deprives difficulty in our minds. The plea states that him of his property without due process of law. defendant was the owner of the glass of liquor

As regards both branches of this defense, it is sold prior to the passage of the law under which the proceedings against him were instituted, be- opinion of this court on important constitutional ing chapter sixty-four of the revision of 1860. questions without the actual existence of the

If this is to be treated as an allegation that facts on which such questions can alone arise. defendant was the owner of that glass of liquor It is absurd to suppose that plaintiff, an ordiprior to 1860, it is insufficient, because the revis- nary retailer of drinks, could have proved, ion of the laws of Iowa of 1860 was not an en- if required, that he had owned that particular actment of new laws, but a revision of those glass of whiskey prior to the prohibitory liquor previously enacted; and there has been in ex- law of 1851. istence in the State of Iowa, ever since the code! The defendant, from his first appearance before of 1851, a law strictly prohibiting the sale of the justice of the peace to his final argument in such liquors—the act in all essential particulars the supreme court, asserted in the record in under which defendant was prosecuted, amended various forms that the statute under which he in some immaterial points. If it is supposed that was prosecuted was a violation of the Constituthe averment is helped by the statement that he tion of the United States. The act of the proseowned the liquor before the law was passed, the cuting attorney, under these circumstances, in answer is that this is a mere conclusion of law. going to trial without any replication or denial He should have stated when he became the of the plea, which was intended manifestly to owner of the liquor, or at least have fixed a date raise that question, but which carried on its face when he did own it, and leave the court to decide the strongest probability of its falsehood, satiswhen the law took effect, and apply it to his files us that a moot case was deliberately made up case. But the plea itself is merely argumenta- to raise the particular point when the real facts tive, and does not state the ownership as a fact, of the case would not have done so. As the but says he is not guilty of any offence, because supreme court of Iowa did not consider this quesof such fact.

tion as raised by the record, and passed no opinIf it be said that this manner of looking at ion on it, we do not feel at liberty, under all the the case is narrow and technical, we answer that cicumstances, to pass on it on this record. the record affords to us on its face the strongest The other errors assigned being found not to reason to believe that it has been prepared from exist, the judgment of the supreme court of the beginning for the purpose of obtaining the Iowa is affirmed.

V. PROPOSED AMENDMENTS TO THE CONSTITUTION OF

THE UNITED STATES.

The following propositions of amendment were The executive power shall be vested in a made in the Forty-Second and Forty-Third Con- President of the United States of America; he gresses, to date:

| shall hold his office during the term of four years,

and be elected as follows: IN SENATE- THIRD SESSION, FORTY-SECOND

The qualified voters shall meet at the usual CONGRESS.

I places of holding elections in their respective 1873, January 7-Mr. FRELINGHUYSEN pro States and Territories on the first Monday in posed a new article:

April, in the year one thousand eight hundred Disputes arising with regard to the persons

and seventy-six, and on the first Monday in chosen as electors of President and Vice Presi- |

April every four years thereafter, under such dent in any State shall be decided by the Su-rules and regulations as the Congress may by law preme Court of the United States.

prescribe, and vote by ballot for a citizen qualiJanuary 31-Mr. HARLAN proposed a new

| fied under the Constitution to be President, and article:

the result of such election in each State and TerThe Senate of the United States shall be com-rity shall be certified, sealed, and forwarded to posed of two Senators from each State, chosen by the seat of government in such manner as the the people of the several States for six years, and

Congress may by law direct. the electors in each State shall have the qualifi- The Congress shall be in session on the third cations requisite for electors of the most numer-) Monday in May after such election, and on the ons branch of the State legislature; and if Tuesday next succeeding the third Monday in vacancies happen by resignation, or otherwise, May, if a quorum of each House shall be present, in the senatorial representation from any State, and if not, immediately on the presence of such the executive authority thereof shall issue writs

quorum, the Senators and Representatives shall of election to fill such vacancies.

meet in the Representative Chamber in joint con

vention, and the President of the Senate, in presIN SENATE-FIRST SESSION, FORTY-THIRD Con-ence of the Senators and Representatives thus asGRESS.

sembled, shall open all returns of the election and 1873, December 1-Mr. SUMNER proposed a declare the result. The person having the greatnew article, (preamblo omitted :)

Test number of votes cast for President shall be President, if such number be a majority; if no The term of the President and Vice-President person have such majority, or if the person havo shall be for six years. And no person who has ing such majority decline the office or die before once held the office of President shall be therethe counting of the vote, then the President of after eligible to that office. the Senate shall so proclaim; whereupon the December 1-Mr. WINDOM proposed a new joint convention shall order the proceedings to article: be officially published, stating particularly the That article one, section three, be amended to number of votes for each person as President. read as follows:

Another election shall thereupon take place The Senate of the United States shall be com. on the second Tuesday of October next succeed-posed of two Senators from each State, chosen ing, at which election the duly-qualified voters by the persons qualified to vote for members of shall again meet at the usual places of holding the most numerous branch of the legislature elections in their respective States and Terri- thereof, for six years; and oach Senator sball tories, and vote for one of the three persons having have one vote. the highest number of votes at the preceding December 10–Mr. HAMILTON of Maryland election in April, and the result of such election proposed a new article, (preamble omitted:) in each State and Territory shall be certified, The United States shall never make anything sealed, and forwarded to the seat of Government but gold and silver coin a tender for the payment as provided by law.

debts, either public or private. On the third Tuesday in December after such 1874, May 19-Mr. WRIGHT proposed a new second election, or as soon thereafter as a quo- article: rum of each House shall be present, the Sena- ! SECTION 1. All claims and demands against tors and Representatives shall again meet in the United States shall be presented or rose joint convention, and the President of the Sen-cuted within ten years, at least, next after they ate, in presence of the Senators and Representa accrue or arise, and not after. And it shall not tives thus assembled, shall open all the returns | be competent for Congress or any Department of of the election, and declare the person having the Government, judicial or otherwise, to allow the highest number of votes duly elected Presi- any claim or demand presented after that date. dent for the ensuing term.

May 25-Mr. STEWART proposed a new article. No person elected to the office of President! If any State shall fail to maintain a commonshall thereafter be eligible for re-election. school system, under which all persons between

In case of the removal of the President from the ages of five and eighteen years not incapaci. office by impeachment, or of his death, resigna- tated for the same shall receive, free of charge, tion, or inability to discharge the powers and such elementary educaticn as Congress may pre. duties of the office, the same shall devolve tem. scribe, the Congress shall have power to estab. porarily on the head of an Executive Depart. lish therein such a system, and cause the same ment senior in years. If there be no head of an to be maintained at the expense of such State. Executive Department, then the Senator senior May 28-Mr. MORTON, from the Committee in years shall act as President until a successor Ion Privileges and Elections, reported this new is chosen and qualified.

article: If Congress be in session at the time of the

"Resolved by the Senate and House of Repdeath, resignation, disability, or removal of the resentatives of the United States of America in President, the Senators and Representatives shall

the Senators and Representatives shall | Congress assembled, (two-thirds of each House meet in joint convention, under such rules and

concurring therein :) That the following article regulations as the Congress may by law pre- is hereby proposed as an amendment to the Conscribe, and proceed to elect by viva voce vote a stitution of the United States, and, when ratified President to fill such vacancy, each Senator and by the Legislatures of three-fourths of the several Representative having one vote. A quorum for States, shall be valid, to all intents and purposes, this purpose shall consist of a majority in each as a part of the Constitution, to wit: House of the Senators and Representatives duly elected and qualified, and a majority of all the

“ARTICLE —. votes given shall be neccessary to the choice of "I. The President and Vice President shall be a President. The person thus elected as Presi- elected by the direct vote of the people in the dent shall discharge all the powers and duties of manner following: Each State shall be divided The office until the inauguration of the President into districts, equal in number to the number of elected at the next regular election.

Representatives to which the State may be enIf Congress be not in session at the time a titled in the Congress, to be composed of convacancy occurs, then the Acting President shall tiguous territory, and to be as nearly equal in forthwith issue a proclamation convening Con- population as may be; and the person having gress within thirty days after the occurrence of the highest number of votes in each district for such vacancy.

| President shall receive the vote of that district, On the presence of a quorum in each House, which shall count one presidential vote. the Senators and Representatives shall meet in “II. The person having the highest pumber joint convention and elect a President, as before of votes for President in a State shall receive provided.

Itwo presidential votes from the State at large. The office of Vice-President is abolished.

"III. The person having the highest number The Senate shall choose their own presiding of presidential votes in the United States shall oficer.

be President. December 1-Mr. SUMNER proposed a uew "IV. If two persons have the same number article, (prearable omitted :)

T of votes in any State, it being the highest number, they shall receive each one presidential vote the list, the Senate shall choose the Vice Presifrom the State at large; and if more than two dent; a quorum for this purpose shall consist of persons shall have each the same number of votes two-thirds of the whole number of Senators, and in any State, it being the highest number, no a majority of the whole number shall be necespresidential vote shall be counted from the State sary to a choice. But no person constitutionally at large. If more persons than one shall have ineligible to the office of President shall be elithe same number of yotes, it being the highest gible to that of Vice President of the United number in any district, no presidential vote shall States." (Amendments, Art. XII.) be counted from that district.

**V. The foregoing provisions shall apply to In House_THIRD SESSION, FORTY-SECOND CONthe election of Vice President. "VI. The Congress shall have power to pro

GRESS. vide for holding and conducting the elections of 1872, December 9-Mr. JOHN LYNCH proPresident and Vice President, and to establish posed a new article: tribunals for the decision of such elections as | All citizens of the United States who are qual may be contested.”

ified to vote for Representatives to Congress VII. The States shall be divided into districts shall meet at the places within their respective by the legislatures thereof, but the Congress may States where they are entitled to vote for such at any time by law make or alter the same. Representatives, and vote by ballot for Presi.

NOTE.-The present mode of election is : dent and Vice President, one of whom, at least,

“Each State shall appoint, in such manner as shall not be an inhabitant of the same State with the legislature thereof may direct, a number of themselves; they shall name in their ballots the electors equal to the whole number of Senators person voted for as President and the person and Representatives to which the State may be voted for as Vice President, and the votes thus entitled in the Congress; but no Senator or cast shall be transmitted to the secretary of Representative, or person holding an office of trust state in the State where such votes are cast, who or profit under the United States, shall be ap- shall make distinct lists of all persons voted for pointed an elector." (Art. II, sec. 2.)

as President, and of all persons voted for as “The electors shall meet in their respective Vice President, and of the number of votes for States, and vote by ballot for President and Vice each, which list he shall sign and certify, and President, one of whom, at least, shall not be an transmit sealed to the seat of Government of the inhabitant of the same State with themselves; United States, directed to the President of the they shall name in their ballots the person voted Senate; the President of the Senate shall, in the for as President, and in distinct ballots the per presence of the Senate and House of Representa800 voted for as Vice President, and they shall tives, open all the certificates, and the votes make distinct lists of all persons voted for as shall then be counted; the person having the President and of all persons voted for as Vice. greatest number of votes for President shall be President, and of the number of votes for each, President, if such number be a majority of the which lists they shall sign and certify, and trans. whole number of votes. cast; and if no person mit sealed to the seat of Government of the have such a majority, then from the persons United States, directed to the President of the having the highest numbers, not exceeding three, Senate. The President of the Senate shall, in on the list of those voted for as President, the the presence of the Senate and House of Repre. House of Representatives shall choose immedisentatives, open all the certificates, and the votes ately, by ballot, the President. But in choosing eball then be counted. The person having the the President the votes shall be taken by States, greatest number of votes for President shall be the representation from each State having one the President, if such number be a majority of vote; à quorum for this purpose shall consist of the whole number of electors appointed, and if a member or members from two-thirds of the no person have such majority, then from the States, and a majority of all the States shall be persons having the highest number, not exceed necessary to a choice. And if the House of Reping three, on the list of those voted for as Presi- resentatives shall not choose a President, whendent, the House of Representatives shall choose ever the right of choice shall devolve upon them, immediately, by ballot, the President. But in before the 4th day of March next following, choosing the President the votes shall be taken then the Vice President shall act as President, by States, the representation from each State as in the case of death or other constitutional having one vote; a quorum for this purpose disability of the President. shall consist of a member or members from two. SEC. 2. The person having the greatest numthirds of the States, and a majority of all the ber of votes as Vice President shall be the Vice States shall be necessary to a choice. And if the President, if such number be a majority of the House of Representatives shall not choose a whole number of votes cast; and if no person President whenever the right of choice shall de- have a majority, then from the two highest volve upou them, before the 4th day of March numbers on the list the Senate shall choose the next following, then the Vice President shall act Vice President; a quorum for the purpose shall as President, as in the case of the death or other consist of two-thirds of the whole number of constitutional disability of the President. The Senators, and a majority of the whole number person having the greatest number of votes as shall be necessary to a choice. Vice President shall be Vice President, if such December 9-Mr. HIBBARD proposed a new number be a majority of the whole number of article: electors appointed, and if no person have a Congress shall have power to provide by law majority, then, from the two highest numbers on for holding elections for the choice of State

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