NOTES OF IMPORTANT DECISIONS

FAITH AND CREDIT CLAUSE-FUTURE INSTALMENTS IN ALIMONY CASES.-In 71 Cent. L. J. 55, we discuss the case of Sistare v. Sistare, 30 Sup. Ct. 682, reversing Connecticut Supreme Court of Errors, holding that past due instalments of alimony were not recoverable in another state under the faith and credit clause of the constitution, where the decree therefor was rendered by a New York of that court, because under the statutes state, such decrees are subject to modification. The federal supreme court merely held that Connecticut construction of New York law was erroneous.

Our esteemed contemporary, the New York Law Journal, on July 22, 1910, refers to the Sistare case remarking as follows:

"Other courts have taken the same position as the Supreme Court of Errors of Connecticut. It is of interest, however, that the Appellate Term of the New York Supreme Court in Patton v. Patton (May, 1910, 123 N. Y. Supp. 329), made a decision which is harmonious with that of the Supreme Court of the United States in Sistare v. Sistare. It was held that a final decree for future alimony is, in the absence of qualification in the decree itself or of a statutory provision permitting it to be subsequently modified, as final and conclusive as any other decree, and hence is entitled under the federal constitution to full faith and credit in other states.

The Appellate Term approved of and sanctioned an action to recover unpaid alimony under a decree of absolute divorce entered in the Supreme Court of the District of Columbia. The following is from the opinion by Bijur, J.: 'A final decree for future alimony, however, is in the absence of qualification in the decree itself, or of a statutory provision permitting it to be subsequently modified, quite as final and conclusive as any other decree. While there are expressions to the contrary in some cases in other states (see Barclay v. Barclay, 184 Ill. 375, 56 N. E. 636, 51 L. R. A. 351, which, by the way, was an action for a separation only), our court of appeals has never subscribed to that doctrine. Since the revised statutes of 1829 (2 Rev. St., 1st ed., p. 145, sec. 45), subsequently embodied in sec. 1759 of the Code of Civil Procedure), and until the act of 1894, which first permitted subsequent modification of a decree for alimony, such a decree was unchangeable. In Walker v. Walker, 155 N. Y. 77, 80, 49 N. E. 663, decided in 1898, and again in Livingston v. Livingston, 173 N. Y. 377, 380, 66 N. E. 123, 61 L. R. A. 800, 93 Am. St. Rep. 600, decided in 1903, the court of appeals dis

tinctly held that alimony granted in decrees, entered in 1891 and 1892, respectively, constituted a vested interest in favor of the wife, which could not be reduced by future legislation; and that Laws 1894, c. 728, Laws 1835, c. 891, and Laws 1900, c. 742, (being the pres ent section 1759 of the code), were ineffective to warrant the modification of such a decree.

There is nothing, therefore, in a decree for future alimony to differentiate it from any other decree in so far as its finality may be concerned. In the case of Lynde v. Lynde, 162 N. Y. 405, 408, 418, 56 N. E. 979, 48 L. R. A. 679, 76 Am. St. Rep. 332, affirmed 181 U. S. 183, 21 Sup. Ct. 555, 45 L. Ed. 810, the decree of divorce upon which suit was brought in itself contained the reservation of the right to change the amount of future alimony. In the case of Israel v. Israel, 148 Fed. 576, 79 C. C. A. 32, 9 L. R. A. (N. S.), 1168, arising in Pennsylvania, upon facts similar to those of the Lynde case, supra, it appears at page 577 of 148 Fed. 79 C. C. A. 32, 9 L. R. A. (N. S.), 1168, that that statute of New York, now in force, was put in evidence. The court, therefore, was properly made aware of the tentative character of the decree so far as it related to future alimony.'

We do not perceive that the appellate term in the Patton case touched the question in the Sistare case, because it was merely claimed by the Connecticut decision that statutory. modification reached the result arrived at, and this was reversed because the federal court held that this modification was not intended to apply to past due instalments. The more interesting question we think was not touched on by the Connecticut or federal court was alluded to by us, namely this practice rather than the technical application of the faith and credit, which consists in giving all means of enforcement recognized by practice the home of the decree for alimony.

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DEEDS-BLANK FOR NAME OF GRANTEE FILLED IN WITH ANOTHER NAME.— The rule that a deed only becomes effective by delivery is of such technical force, that no sort of possession otherwise obtained seems to be of any validity as against the grantor in favor of any party, howsoever innocent, and though the grantor's act in allowing the deed to pass out of his possession without delivery is the cause of loss.

In other words effecting an apparently good delivery through fraud seems about as inefficient to pass title out of grantor as would be forgery of grantor's signature. Thus it was held that where grantor selling for $1,000 executed a deed with a blank for the name of a designated grantee, $100 being paid and the

balance to be paid on the following day, the insertion of the name of a third person did not give to said person any title which he could convey to an innocent purchaser from him for value. Bardin v. Grace, 52 So. 425.

The Supreme Court of Alabama says: "It is true that there are authorities to the effect that, if a person signs a deed in which the space for the name of the grantee is blank, and authorizes some one as his agent to fill in the name of the grantee, and that person does fill it in with the name of the designated grantee, the deed will be valid. But in this case there was no such agreement. Sandy (grantor) thought he was selling to Shreve and the deed was in fact taken by a man of straw and subsequently filled in by the name of a man unknown to the grantor. It was consequently void and the subsequent purchaser is not protected."

While it is true that the grantor might have been willing only to consider the deed delivered if made to Shreve or may have believed it was delivered because he was ignorant about the blank not being filled, yet most assuredly he either consented to the blank being unfilled or was negligent in not seeing that it was filled. We believe that as to negotiable paper the presumption of authority to fill in a blank is irrebuttable as against any innocent holder for value, and it would seem that with the growth of registration and record of title and the presumptions and notice therefrom, that the old technical rule about delivery should be mitigated.

ON THE QUESTION OF THE VALIDITY OF THE FOURTEENTH AMENDMENT TO THE CONSTITU

TION.

Is the Adoption of a Constitutional Amendment a Judicial Question?-The first subject of inquiry is whether or not the fourteenth amendment to the constitution was adopted according to the requirements of the constitution, and whether or not this is a judicial question. If it is not a judicial question, the case is ended.

The wise framers of the organic law of the government of the United States foresaw that changes might be necessary in the course of events and provided two methods by which these amendments could be made. The provision is Article V, which

reads as follows: The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this constitution. * * *

The alternate proposition, a convention of the states, has not yet been tried. Out of the thousands of amendments offered to the constitution, many have been submitted to the states by the joint resolution of the two houses of congress; of these, only fifteen have been declared ratified. Ten of these amendments were proposed in the first session of the congress and were ratified. Since that time only five have been adopted. This enormous disproportion of amendments ratified. to amendments offered shows the extreme reluctance of the states to any changes or additions to the original instrument. Every process required for the proposition and ratification of an amendment is jealously guarded, and the legal maxim, de minimus non curat ler, does not apply to the constructions of constitutions as it does to the statutory law.

There has been no judicial decision as to whether the fourteenth amendment is validly a part of the constitution of the United States. Questions arising under it in state constitutions and laws have been determined by the supreme court, who have spoken of the scope and purpose of the fourteenth and fifteenth amendments; but no direct issue has ever been determined or raised concerning their validity. It is abundantly settled, however, in the decisions of the supreme courts of the states upon the validity of amendments to their respective constitutions, that it is purely a judicial question whether or not the legislature has followed the constitution in proposing an amendment and the ratification has been made strictly in the manner prescribed.

In State of New Jersey v. Wurts,' the court says: The judicial department of the government has the right to consider whether the legislative department and its agencies have observed constitutional in

junctions in attempting to amend the constitution, and to annul their acts in case they have not done so."

In the case of Koehler & Lange v. Hill,3 we find the following language in the syllabus: While it is not competent for courts to inquire into the validity of the constitution and form of government under which they themselves exist and from which they derive their powers, yet, where the existing constitution prescribes a method for its own amendment, an amendment thereto, to be valid, must be adopted in strict conformity to that method; and it is the duty of the courts, in a proper case, when an amendment does not relate to their own powers or functions, to inquire whether, in the adoption of the amendment, the provisions of the existing constitution have been observed; and if not, to declare the amendment invalid and of no effect.*

From the abundant opinions in harmony, some of which have been referred to above. it seems unnecessary to make any argument to show that the Supreme Court of the United States has jurisdiction of this

(2) In other states of the union the decisions on this special phase of the doctrine are numerous and substantially to the same purport. In Collier v. Frierson (1854), 24 Ala. 100, a suit upon the bond of the state treasurer, where the question was whether the state constitution had been amended so as to enlarge the treasurer's official term, the court said (p. 109): "We entertain no doubt that to change the constitution in any other mode than by convention every requisition which is demanded by the instrument itself must be observed, and the omission of any one is fatal to the amendment. We scarcely deem any argument necessary to enforce this proposition. The constitution is the supreme and paramount law; the mode by which amendments are to be made under it is clearly defined. It is said that certain acts are to be done, certain requisitions are to be observed, before a change can be effected. But to what purpose are these acts required, if the legislature or any other department of the government can dispense with them? To do so would be to violate the instrument which they are sworn to support, and every principle of public law and sound constitutional policy requires the court to pronounce against every amendment which is not shown to have been made in accordance with the rules prescribed by the fundamental law."

question, and neither the executive or legislative departments have any jurisdiction to determine. It will be impossible to express it more fully than has been done by the supreme courts of several of the states. There are many other cases that could be cited. Whether or not it is a judicial question can only be determined by the court itself. It alone can determine its jurisdiction in such matters, and it alone can determine the limit of an executive and legislative power.

Was the Amendment Properly Proposed by Congress?-The next inquiry is to the manner of proposing the amendment.

The constitutional provision is "the congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this constitution," and so

forth.

The earliest case of the point is that of Collier v. Frierson, arising in 1854 under the Alabama constitution of 1819. This instrument required, for the enactment of amendments in the legislative mode a twothirds vote in favor of them of two successive legislatures and an intervening majority vote of the people. Eight amendments were recommended by the first legislature, but by mistake one was not included among those adopted by the second, although all the other steps were regularly taken. The supreme court of the state held that the omitted amendment did not become a part of the constitution.

The next question to be considered is what constitutes a quorum. In the case of State v. Rogers, the court, in speaking of this subject says: Prior to 1864 it was held by the senate of the United States that a “quorum" could be formed only by the presence of a majority of all the senators possible from all the states. On June 30, 1862, Senator Sherman introduced the following resolution: "Resolved, That a majority of the senators duly elected and entitled to seats in this body is a constitutional quorum," which met with such oppo

sition that it was not until the 1st day of May, 1864, that it was finally adopted in the following form: "Resolved, That a quorum of the senate consists of a majority of the senators duly chosen." The rule adopted was modified in 1868 by adding the words "and sworn." This rule changing the basis of a quorum had its origin in the fear that the senate of the United States, by reason of secession and other events, was in danger of being frequently without a quorum if a rule requiring a majority of all the senators possible under the constitution was adhered to. The necessity for the adoption of Mr. Sherman's resolution passed away, but the rule has been continued in its present shape since 1868.

It may be said with respect to this that the war closed in 1865, and it was determined that all the states were in the Union, and it seems to have been intended by the amendment of the resolution of 1868, by adding the words "elected and sworn," to obviate the necessity of considering the senators from states which were in the Union, and could not go out of it, but which, not having been admitted into what was called "practical federal relations," were not allowed representation in the sen

ate.

The constitutional requirement as to

(7) In connection with the opinion of the court in the case of State v. Rogers, referred to above, I desire to incorporate in this paper some extracts from a paper submitted by the president pro tempore of the Senate, Mr. Foote, of Vermont, who cites a number of precedents decided by the Senate upon this question at different periods, from which I quote the following:

November 5, 1804. There being 17 states entitled to 34 members, on that day the vice-president and 13 senators appeared; no quorum. On the 6th of November, 17 members attended, and although one of the members had just resigned and his successor was not elected until the 13th of November, this number (17) was not considered a quorum, but on the 7th of November, 18 members attended and were considered a quorum.

November 2, 1812. There being 18 states, entitled to 36 members, of whom 18 attended on that day, but were not considered a quorum. In this case one of the senators from Louisiana had resigned some time previous to the session, and his place was not supplied until the 1st of December, 1812. On the 3d of November,

what is a quorum and what is necessary for a vote on an amendment to the constitution is the same in both houses. It is not necessary to go at length into details concerning the precedents of the house, for if the senate did not give the required majority the joint resolution failed to pass.

The constitution itself is the only authority to determine what is a sufficient number of both houses to propose an amendment to it. The rules of the two houses cannot contravene the constitution, and whether such rules do contravene it or not can only be decided by the courts. Two-thirds of the senators and representatives from all the states in the union were necessary for a valid proposition of an amendment to the constitution, and it is no answer to say, in opposition of this plain constitutional meaning, that certain states by their own acts were excluded from representation in either body; for, even ignoring those states, it will be shown that two-thirds of the senators representing the states that never seceded, did not vote for the amendment. If two-thirds of a majority of the members sitting only were necessary, 27 being a majority of 52, two-thirds of that majority could propose an amendment, although it would be a minority of the senators intended to vote within the meaning of the constitution. We had the anomalous condition of Georgia, in the Fortieth Congress, whose representatives were admitted to the house and whose senators were denied seats in the senate.

It cannot be contended that these were not states in the union and entitled to the representation in the house and to that in the senate which the constitution says they shall never be deprived of except by their own consent. It is true that a very distinguished senator said in debate in the senate that certain states of the South had committed suicide and were dead states, and were no longer to be considered as states

in the union; and a very powerful man in the house declared that those states were conquered provinces, and would be governed as such. These extreme utterances met with feeble echo, and notwithstanding that three-fourths of all the states, mentioning by name all the 37 states-Nebraska having come into the union since the fourteenth amendment was proposed by congress, but before its ratification by the states-counting all not admitted to practical federal relations, were considered necessary in the ratification of the proposed amendment, and notwithstanding these resolutions by which the Congress of theUnited States denied certain states representation to determine the proposition of an amendment to the constitution, they were compelled to count every one of those states so denied representation when the ratification was to be determined.

On June 8, 1866, the senate voted and passed upon the joint resolution proposing the fourteenth amendment, 36 states being in the union. Leaving out the following Southern states, Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, and Arkansas, there remained 26 states which, without any question, were entitled to representation, and making the total number of senators admitted 52. The vote was 33 in the affirmative; the two-thirds required was 35; but there were only 44 present.

The constitution of the United States declares, concerning amendments to itself"The congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this constitution, or, on 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."

In so important a matter as changing the organic law, it is the evident meaning of the constitution that each one of the states

should vote, and none should be deprived of this right without its consent. If it could be held that two-thirds of a mere quorum present should vote, then amendments to the constitution can at any time be proposed by a minority of the senate. and of the house. A quorum of 52 is 27; two-thirds of 27 is 18. So that 18 senators out of a sitting membership of 52 could propose an amendment to the constitution, which is repugnant to a common-sense or any other kind of construction. The reasoning holds good as to the house, concerning which it is unnecessary to speak. So in every case where less than twothirds of the whole membership of the two houses is meant, it is so specifically stated.

In the alternate plan for amending the constitution, it is stated in the article quoted above that two-thirds of the states shall call a convention. It will not be contended by anyone that two-thirds of the states

which choose to act can call a convention; some of the states may be silent and vote neither way, as California on the four

(8) That the constitution intends two-thirds of all the members who may be entitled to seats can be shown by reference to other clauses of the constitution making special provision for votes in other cases, such as the confirmation of officers appointed by the president and the ratification of treaties negotiated by him, where it says expressly "two-thirds of those present."

Article I, section 3, clause 7, says: And no person shall be convicted without the concurrence of two-thirds of the members present.

Article I, section 5, clause 1, says: Each house shall be the judge of the elections, returns, and qualifications of its own members, and a majority of each shall constitute a quorum to do business.

Article I, section 5, clause 3: And the yeas and nays of the members of either house on any question shell, at the desire of one-fifth of those present, be entered on the journal.

Article I, section 7, clause 3: Or, being disapproved by him, shall be repassed by twothirds of the senate and house of representatives, according to the rules and limitations prescribed in the case of a bill.

Article II, section 2, clause 2: He shall have power, by and with the advice and consent of the senate, to make treaties, provided twothirds of the senators present concur.

Article XIV, section 3: Congress may by a vote of two-thirds of each house remove such disability.

So in every case where less than two-thirds of the whole membership of the two houses is meant, it is so specifically stated.