U.S. Supreme Court COLEMAN v. MILLER, 307 U.S. 433 (1939)

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Messrs. Robert Stone, of Topeka, Kan., and Rolla W. Coleman, of Olathe, Kan., for petitioners.

Mr. Clarence V. Beck, of Topeka, Kan., for respondents.

Mr. Robert H. Jackson, Sol. Gen., for the United States, as amicus curiae, by special leave of Court.

Mr. Chief Justice HUGHES delivered the opinion of the Court.

In June, 1924, the Congress proposed an amendment to the Constitution, known as the Child Labor Amendment. [Footnote 1] In January, 1925, the Legislature of Kansas adopted a resolution rejecting the proposed amendment and a certified copy of the resolution was sent to the Secretary of State of the United States. In January, 1937, a resolution known as 'Senate Concurrent Resolu-

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would be difficult to imagine a situation in which the adequacy of the petitioners' interest to invoke our appellate jurisdiction in Leser v. Garnett, supra, could have been more sharply presented.

The effort to distinguish that case on the ground that the plaintiffs were qualified voters in Maryland, and hence could complain of the admission to the registry of those alleged not to be qualified, is futile. The interest of the plaintiffs in Leser v. Garnett, supra, as merely qualified voters at general elections is certainly much less impressive than the interest of the twenty senators in the instant case. This is not a mere intra-parliamentary controversy but the question relates to legislative action deriving its force solely from the provisions of the Federal Constitution, and the twenty senators were not only qualified to vote on the question of ratification but their votes, if the Lieutenant Governor were excluded as not being a part of the legislature for that purpose, would have been decisive in defeating the ratifying resolution.

We are of the opinion that Hawke v. Smith and Leser v. Garnett, supra, are controlling authorities, but in view of the wide range the discussion has taken we may refer to some other instances in which the question of what constitutes a sufficient interest to enable one to invoke our appellate jurisdiction has been involved. The principle that the applicant must show a legal interest in the controversy has been maintained. It has been applied repeatedly in cases where municipal corporations have challenged state legislation affecting their alleged rights and obligations. Being but creatures of the State, municipal corporations have no standing to invoke the contract clause or the provisions of the Fourteenth Amendment of the Constitution in opposition to the will of their creator. [Footnote 6] But there

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has been recognition of the legitimate interest public officials and administrative commissions, federal and state, to resist the endeavor to prevent the enforcement of statutes in relation to which they have official duties. Under the Urgent Deficiencies Act,7 the Interstate Commerce Commission, and commissions representing interested States which have intervened, are entitled as 'aggrieved parties' to an appeal to this Court from a decree setting aside an order of the Interstate Commerce Commission, though the United States refuses to join in the appeal. Interstate Commerce Commission v. Oregon-Washington R. & N. Co., 288 U.S. 14, 53 S.Ct. 266. So, this Court may grant certiorari, on the application of the Federal Trade Commission, to review decisions setting aside its orders. 8 Federal Trade Commission v. Curtis Publishing Company, 260 U.S. 568, 43 S.Ct. 210. Analogous provisions authorize certiorari to review decisions against the National Labor Relations Board. [Footnote 9] National Labor Relations Board v. Jones & Laughlin Corporation, 301 U.S. 1, 57 S.Ct. 615, 108 A.L.R. 1352. Under Section 266 of the Judicial Code, 28 U.S.C. 380, 28 U.S.C. 380, where an injunction is sought to restrain the enforcement of a statute of a State or an order of its administrative board or commission, upon the ground of invalidity under the Federal Constitution, the right of direct appeal to this Court from the decree of the required three judges is accorded whether the injunction be granted or denied. Hence, in case the injunction is granted, the state board is entitled to appeal. See, for example, South Carolina Highway Department v. Barnwell Brothers, 303 U.S. 177, 58 S.Ct. 510.

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were not within the taxing jurisdiction of Connecticut. Entertaining jurisdiction, this Court reversed the judgment in that respect. Id., 277 U. S. at page 18, 48 S.Ct. at page 416.

The question received most careful consideration in the case of Boynton, Attorney General, v. Hutchinson Gas Company, 291 U.S. 656, 54 S. Ct. 457, where the Supreme Court of Kansas had held a state statute to be repugnant to the Federal Constitution, and the Attorney General of the State applied for certiorari. His application was opposed upon the ground that he had merely an official interest in the controversy and the decisions were invoked upon which the Government relies in challenging our jurisdiction in the instant case. [Footnote 12] Because of its importance, and contrary to our usual practice, the Court directed oral argument on the question whether certiorari should be granted and after that argument, upon mature deliberation, granted the writ. The writ was subsequently dismissed but only because of a failure of the record to show service of summons and severance upon the appellees in the state court who were not parties to the proceedings here. Boynton v. Hutchinson Gas Co., 292 U.S. 601, 54 S.Ct. 639. This decision with respect to the scope of our jurisdiction has been followed in later cases. In Morehead v. New York ex rel. Tipaldo, , 56 S.Ct. 918, 103 A.L.R. 1445, we granted certiorari on an application by the warden of a city prison to review the decision of the Court of Appeals of the State on habeas corpus, ruling that the minimum wage law of the State violated the Federal Constitution. This Court decided the case on the merits. In Kelly v. Washington ex rel. Foss Company, 302 U.S. 1, 58 S.Ct. 87, we granted certiorari, on the application of the state authorities charged with the enforcement of the state law relating to the inspection and regulation of vessels, to review the decision of the state court holding the statute invalid in its application to navigable waters. We concluded that the state act had a permissible field of operation and the decision of the

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proposed amendment, when the senate was equally divided.

Whether this contention presents a justiciable controversy, or a question which is political in its nature and hence not justiciable, is a question upon which the Court is equally divided and therefore the Court expresses no opinion upon that point.

Third.-The effect of the previous rejection of the amendment and of the lapse of time since its submission.

1. The state court adopted the view expressed by text-writers that a state legislature which has rejected an amendment proposed by the Congress may later ratify. [Footnote 13] The argument in support of that view is that Article V says nothing of rejection but speaks only of ratification and provides that a proposed amendment shall be valid as part of the Constitution when ratified by three-fourths of the States; that the power to ratify is thus conferred upon the State by the Constitution and, as a ratifying power, persists despite a previous rejection. The opposing view proceeds on an assumption that if ratification by 'Conventions' were prescribed by the Congress, a convention could not reject and, having adjourned sine die, be reassembled and ratify. It is also premised, in accordance with views expressed by text-writers,14 that ratification if once given cannot afterwards be rescinded and the amendment rejected, and it is urged that the same effect in the exhaustion of the State's power to act should be ascribed to rejection; that a State can act 'but once, either by convention or through its legislature'.

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Historic instances are cited. In 1865, the Thirteenth Amendment was rejected by the legislature of New Jersey which subsequently ratified it, but the question did not become important as ratification by the requisite number of States had already been proclaimed. [Footnote 15] The question did arise in connection with the adoption of the Fourteenth Amendment. The legislatures of Georgia, North Carolina and South Carolina had rejected the amendment in November and December, 1866.16 New governments were erected in those States (and in others) under the direction of Congress. [Footnote 17] The new legislatures ratified the amendment, that of North Carolina on July 4, 1868, that of South Carolina on July 9, 1868, and that of Georgia on July 21, 1868.18 Ohio and New Jersey first ratified and then passed resolutions withdrawing their consent. 19 As there were then thirty-seven States, twenty-eight were needed to constitute the requisite three-fourths. On July 9, 1868, the Congress adopted a resolution requesting the Secretary of State to communicate 'a list of the States of the Union whose legislatures have ratified the fourteenth article of amendment',20 and in Secretary Seward's report attention was called to the action of Ohio and New Jersey. [Footnote 21] On July 20th Secretary Seward issued a proclamation reciting the ratification by twenty-eight States, including North Carolina, South Carolina, Ohio and New Jersey, and stating that it appeared that Ohio and New Jersey had since passed resolutions withdrawing their consent and that 'it is

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deemed a matter of doubt and uncertainty whether such resolutions are not irregular, invalid and therefore ineffectual'. The Secretary certified that if the ratifying resolutions of Ohio and New Jersey were still in full force and effect, notwithstanding the attempted withdrawal, the amendment had become a part of the Constitution. [Footnote 22] On the following day the Congress adopted a concurrent resolution which, reciting that three- fourths of the States having ratified (the list including North Carolina, South Carolina, Ohio and New Jersey),23 declared the Fourteenth Amendment to be a part of the Constitution and that it should be duly promulgated as such by the Secretary of State. Accordingly, Secretary Seward, on July 28th, issued his proclamation embracing the States mentioned in the congressional resolution and adding Georgia. [Footnote 24]

Thus the political departments of the Government dealt with the effect both of previous rejection and of attempted withdrawal and determined that both were ineffectual in the presence of an actual ratification. [Footnote 25] While there were special circumstances, because of the action of the Congress in relation to the governments of the rejecting States (North Carolina, South Carolina and Georgia), these circumstances were not recited in proclaiming ratification and the previous action taken in these States was set forth in the proclamation as actual previous rejections by the respective legislatures. This

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decision by the political departments of the Government as to the validity of the adoption of the Fourteenth Amendment has been accepted.

We think that in accordance with this historic precedent the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment.

The precise question as now raised is whether, when the legislature of the State, as we have found, has actually ratified the proposed amendment, the Court should restrain the state officers from certifying the ratification to e Secretary of State, because of an earlier rejection, and thus prevent the question from coming before the political departments. We find no basis in either Constitution or statute for such judicial action. Article V, speaking solely of ratification, contains no provision as to rejection. [Footnote 26] Nor has the Congress enacted a statute relating to rejections. The statutory provision with respect to constitutional amendments is as follows: 'Whenever official notice is received at the Department of State that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Secretary of State shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States'.27

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The statute presupposes official notice to the Secretary of State when a state legislature has adopted a resolution of ratification. We see no warrant for judicial interference with the performance of that duty. See Leser v. Garnett, supra, 258 U.S. at page 137, 42 S.Ct. at page 217.

2. The more serious question is whether the proposal by the Congress of the Amendment had lost its vitality through lapse of time and hence it could not be ratified by the Kansas legislature in 1937. The argument of petitioners stresses the fact that nearly thirteen years elapsed between the proposal in 1924 and the ratification in question. It is said that when the amendment was proposed there was a definitely adverse popular sentiment and that at the end of 1925 there had been rejection by both houses of the legislatures of sixteen States and ratification by only four States, and that it was not until about 1933 that an aggressive campaign was started in favor of the amendment. In reply, it is urged that Congress did not fix a limit of time for ratification and that an unreasonably long time had not elapsed since the submission; that the conditions which gave rise to the amendment had not been eliminated; that the prevalence of child labor, the diversity of state laws and the disparity in their administration, with the resulting competitive inequalities, continued to exist. Reference is also made to the fact that a number of the States have treated the amendment as still pending and that in the proceedings of the national government there have been indications of the same view. [Footnote 28] It is said that there were fourteen ratifications in 1933, four in 1935, one in 1936, and three in 1937.

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We have held that the Congress in proposing an amendment may fix a reasonable time for ratification. Dillon v. Gloss, 256 U.S. 368, 41 S.Ct. 510. There we sustained the action of the Congress in providing in the proposed Eighteenth Amendment that it should be inoperative unless ratified within seven years. [Footnote 29] No limitation of time for ratification is provided in the instant case either in the proposed amendment or in the resolution of submission. But petitioners contend that, in the absence of a limitation by the Congress, the Court can and should decide what is a reasonable period within which ratification may be had. We are unable to agree with that contention.

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tion are dominant considerations. [Footnote 30] There are many illustrations in the filed of our conduct of foreign relations, where there are 'considerations of policy, considerations of extreme magnitude, and certainly entirely incompetent to the examination and decision of a court of justice'. Ware v. Hylton, 3 Dall. 199, 260.31 Questions involving similar considerations are found in the government of our internal affairs. Thus, under Article IV, section 4, of the Constitution, U.S.C.A. providing that the United States 'shall guarantee to every State in this Union a Republican Form of Government', we have held that it rests with the Congress to decide what government is the established one in a State and whether or not it is republican in form. Luther v. Borden, 7 How. 1, 42. In that case Chief Justice Taney observed that 'when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal'. So, it was held in the same case that under the provision of the same Article for the protection of each of the States 'against domestic violence' it rested with the Congress 'to determine upon the means proper to be adopted to fulfill this guarantee'. Id., 7 How. at page 43. So, in Pacific Telephone Company v. Oregon, 223 U.S. 118, 32 S.Ct. 224, 231, we considered that questions arising under the guaranty of

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Mr. Justice FRANKFURTER, Mr. Justice DOUGLAS and I have participated in the discussion of other questions considered by the Court and we concur in the result reached, but for somewhat different reasons.

The Constitution grants Congress exclusive power to control submission of constitutional amendments. Final determination by Congress that ratification by three-fourths of the States has taken place 'is conclusive upon the courts.' 2 In the exercise of that power, Congress, of course, is governed by the Constitution. However, whether submission, intervening procedure or Congressional determination of ratification conforms to the commands of the Constitution, call for decisions by a 'political department' of questions of a type which this Court has frequently designated 'political.' And decision of a 'political question' by the 'political department' to which the Constitution has committed it 'conclusively binds the judges, as well as all other officers, citizens, and subjects of ... government.' [Footnote 3] Proclamation under authority of Congress that an amendment has been ratified will carry with it a solemn insurance by the Congress that ratification has taken place as the Constitution commands. Upon this assurance a proclaimed amendment must be accepted as a part of the

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Constitution, leaving to the judiciary its traditional authority of interpretation. [Footnote 4] To the extent that the Court's opinion in the present case even impliedly assumes a power to make judicial interpretation of the exclusive constitutional authority of Congress over submission and ratification of amendments, we are unable to agree.

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cago Auditorium Ass'n, 277 U.S. 274, 48 S.Ct. 507; Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249, 53 S.Ct. 345, 87 A. L.R. 1191.

As abstractions, these generalities represent common ground among judges. Since, however, considerations governing the exercise of judicial power are not mechanical criteria but derive from conceptions regarding the distribution of governmental powers in their manifold, changing guises, differences in the application of canons of jurisdiction have arisen from the beginning of the Court's history. [Footnote 2] Conscious or unconscious leanings toward the serviceability of the judicial process in the adjustment of public controversies clothed in the form of private litigation inevitably affect decisions. For they influence awareness in recognizing the relevance of conceded doctrines of judicial self-limitation and rigor in enforcing them.

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should make us observe fastidiously the bounds of the litigious process within which we are confined. [Footnote 5] No matter how seriously infringement of the Constitution may be called into question, this is not the tribunal for its challenge except by those who have some specialized interest of their own to vindicate, apart from a political concern which belongs to all. Stearns v. Wood, , 35 S.Ct. 229; Fairchild v. Hughes, 258 U.S. 126, 42 S.Ct. 274.

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that the judgment of the Kansas supreme court should be reversed.

The point, that the question-whether more than a reasonable time had elapsed-is not justiciable but one for Congress after attempted ratification by the requisite number of States, was not raised by the parties or by the United States appearing as amicus curiae; it was not suggested by us when ordering reargument. As the Court, in the Dillon case, did directly decide upon the reasonableness of the seven years fixed by the Congress, it ought not now, without hearing argument upon the point, hold itself to lack power to decide whether more than 13 years between proposal by Congress and attempted ratification by Kansas is reasonable.

Mr. Justice McREYNOLDS joins in this opinion. Footnotes

Footnote 1 The text of the proposed amendment is as follows (43 Stat. 670):'Section 1. The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.'Sec. 2. The power of the several States is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress'.

Footnote 2 The state court said on this point:'At the threshold we are confronted with the question raised by the defendants as to the right of the plaintiffs to maintain this action. It appears that on March 30, 1937, the State Senate adopted a resolution directing the Attorney General to appear for the State of Kansas in this action. It further appears that on April 3, 1937, on application of the Attorney General, an order was entered making the State of Kansas a party defendant. The state being a party to the proceedings, we think the right of the parties to maintain the action is beyond question. G.S.1935, 75-702; State ex rel. v. Public Service Comm., 135 Kan. 491, 11 P.2d 999.'

Footnote 3 See Caffrey v. Oklahoma Territory, 177 U.S. 346, 20 S.Ct. 664; Smith v. Indiana, 191 U.S. 138, 24 S.Ct. 51; Braxton County Court v. West Virginia, 208 U.S. 192, 28 S.Ct. 275; Marshall v. Dye, 231 U.S. 250, 34 S.Ct. 92; Stewart v. Kansas City, 239 U.S. 14, 36 S.Ct. 15; Columbus & Greenville Railway Co. v. Miller, 283 U.S. 96, 51 S.Ct. 392.

Footnote 4 Mr. Justice Brandeis.

Footnote 5 Id., 258 U.S. at pages 129, 130, 42 S.Ct. at page 275. See, also, Frothingham v. Mellon, 262 U.S. 447, 480, 486 S., 487, 43 S.Ct. 597, 598, 600, 601.

Footnote 6 Pawhuska v. Pawhuska Oil Co., , 39 S.Ct. 526; Trenton v. New Jersey, 262 U.S. 182, 43 S.Ct. 534, 29 A.L.R. 1471; Risty v. Chicago, R.I. & Pac. Rwy. Co., 270 U.S. 378, 46 S.Ct. 236; Williams v. Mayor, 289 U.S. 36, 53 S.Ct. 431.

Footnote 7 Act of October 22, 1913, 38 Stat. 219; 28 U.S.C. 47, 47a, 345, 28 U.S.C.A. 47, 47a, 345.

Footnote 8 15 U.S.C. 45, 15 U.S.C.A. 45; 28 U.S.C. 348, 28 U.S.C.A. 348.

Footnote 9 29 U.S.C. 160(e), 29 U.S.C.A. 160(e). See, also, as to orders of Federal Communications Commission, 47 U.S.C. 402(e), 47 U.S.C.A. 402(e).

Footnote 10 1 Stat. 73, 85, 86.

Footnote 11 38 Stat. 790; see, also, Act of September 6, 1916, 39 Stat. 726.

Footnote 12 See cases cited in Note 3.

Footnote 13 Jameson on Constitutional Conventions, Secs. 576-581; Willoughby on the Constitution, Sec. 329a.

Footnote 14 Jameson, op. cit., Secs. 582-584; Willoughby, op. cit., Sec. 329a; Ames, 'Proposed Amendments to the Constitution', House Doc. No. 353, Pt. 2, 54th Cong., 2d Sess., pp. 299, 300.

Footnote 15 13 Stat. 774, 775; Jameson, op. cit., Sec. 576; Ames, op. cit., p. 300.

Footnote 16 15 Stat. 710.

Footnote 17 Act of March 2, 1867, 14 Stat., p. 428. See White v. Hart, 13 Wall. 646, 652.

Footnote 18 15 Stat. 710.

Footnote 19 15 Stat. 707.

Footnote 20 Cong. Globe, 40th Cong., 2d Sess., p. 3857.

Footnote 21 Cong. Globe, 40th Cong., 2d Sess., p. 4070.

Footnote 22 15 Stat. 706, 707.

Footnote 23 15 Stat. 709, 710.

Footnote 24 15 Stat. 710, 711; Ames, op. cit., App. No. 1140, p. 377.

Footnote 25 The legislature of New York which had ratified the Fifteenth Amendment in 1869 attempted, in January, 1870, to withdraw its ratification, and while this fact was stated in the proclamation by Secretary Fish of the ratification of the amendment, and New York was not needed to make up the required three-fourths, that State was included in the list of ratifying States. 16 Stat. 1131; Ames. op. cit., App. No. 1284, p. 388.

Footnote 26 Compare Article VII.

Footnote 27 5 U.S.C. 160, 5 U.S.C.A. 160. From Act of April 20, 1818, Sec. 2, 3 Stat. 439; R.S. 205.

Footnote 28 Sen. Rep. 726, 75th Cong., 1st sess.; Sen. Rep. 788, 75th Cong., 1st sess.: Letter of the President on January 8, 1937, to the Governors of nineteen non-ratifying States whose legislatures were to meet in that year, urging them to press for ratification. New York Times, January 9, 1937, p. 5.

Footnote 29 40 Stat. 1050. A similar provision was inserted in the Twenty- first Amendment. United States v. Chambers, 291 U.S. 217, 222, 54 S.Ct. 434, 435, 89 A.L.R. 1510.

Footnote 30 See Willoughby, op. cit., pp. 1326, et seq.; Oliver P. Field, 'The Doctrine of Political Questions in the Federal Courts', 8 Minnesota Law Review, 485; Melville Fuller Weston, 'Political Questions', 38 Harvard Law Review, 296.

Footnote 31 See, also, United States v. Palmer, 3 Wheat. 610, 634; Foster v. Neilson, 2 Pet. 253, 309; Doe v. Braden, 16 How. 635, 657; Terlinden v. Ames, 184 U.S. 270, 288, 22 S.Ct. 484, 491.

[Footnote 1] Cf. Helvering v. Davis, 301 U.S. 619, 639, 640 S., 57 S.Ct. 904, 908, 109 A.L.R. 1319.

[Footnote 2] Leser v. Garnett, 258 U.S. 130, 137, 42 S.Ct. 217.

[Footnote 3] Jones v. United States, 137 U.S. 202, 212, 11 S.Ct. 80, 83; Foster & Elam v. Neilson, 2 Pet. 253, 309, 314; Luther v. Borden et al., 7 How. 1, 42; In re Cooper, 143 U.S. 472, 503, 12 S.Ct. 453, 460; Pacific Telephone Co. v. Oregon, , 32 S.Ct. 224; State of Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 569, 36 S.Ct. 708, 710; 'And in this view it is not material to inquire, nor is it the province of the court to determine, whether the executive ('political department') be right or wrong. It is enough to know that in the exercise of his constitutional functions, he has decided the question. Having done this under the responsibilities which belong to him, it is obligatory on the people and the government of the Union. ... this court have laid down the rule that the action of the political branches of the government, in a matter that belongs to them, is conclusive.' Williams v. Suffolk Ins. Co., 13 Pet. 415, 420.

[Footnote 4] Field v. Clark, 143 U.S. 649, 672, 12 S.Ct. 495, 497.

[Footnote 5] 256 U.S. 368, 375, 41 S.Ct. 510, 512.

[Footnote 1] For an early instance of the abstention of the King's Justices from matters political, see the Duke of York's Claim to the Crown, House of Lords, 1460, 5 Rot.Parl. 375, reprinted in Wambaugh, Cases on Constitutional Law, 1.

[Footnote 2] See e.g. the opinion of Mr. Justice Iredell in Chisholm v. Georgia, 2 Dall. 419, 429; concurring opinion of Mr. Justice Johnson in Fletcher v. Peck, 6 Cranch 87, 143; and the cases collected in the concurring opinion of Mr. Justice Brandeis in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 56 S.Ct. 466, 480.

[Footnote 3] This is subject to some narrow exceptions not here relevant. See, e. g., McKnett v. St. Louis & San Francisco Ry., , 54 S.Ct. 690.

[Footnote 4] As to advisory opinions in use in a few of the state courts, see J. B. Thayer, Advisory Opinions, reprinted in Legal Essays by J. B. Thayer, at 42 et seq.; article on 'Advisory Opinions,' 1 Enc.Soc.Sci. 475. As to advisory opinions in Canada, see Attorney-General for Ontario v. Attorney- General for Canada (1912) A.C. 571. Speaking of the Canadian system, Lord Chancellor Haldane, in Attorney General for British Columbia v. Attorney General for Canada (1914) A.C. 153, 162, said: 'It is at times attended with inconveniences, and it is not surprising that the Supreme Court of the United States should have steadily refused to adopt a similar procedure, and should have confined itself to adjudication on the legal rights of litigants in actual controversies.' For further animadversions on advisory pronouncements by judges, see Lord Chancellor Sankey in In re The Regulation and Control of Aeronautics in Canada (1932) A.C. 54, 66: 'We sympathize with the view expressed at length by Newcombe, J., which was concurred in by the Chief Justice (of Canada) as to the difficulty which the Court must experience in endeavoring to answer questions put to it in this way.'

Australia followed our Constitutional practice in restricting her courts to litigious business. The experience of English history which lay behind it was thus put in the Australian Constitutional Convention by Mr. ( later Mr. Justice) Higgins: 'I feel strongly that it is most inexpedient to break in on the established practice of the English law, and secure decisions on facts which have not arisen yet. Of course, it is a matter that lawyers have experience of every day, that a judge does not give the same attention, he can not give that same attention, to a suppositious case as when he feels the pressure of the consequences to a litigant before him. ... But here is an attempt to allow this High Court, before cases have arisen, to make a pronouncement upon the law at will be binding. I think the imagination of judges, like that of other persons, is limited, and they are not able to put before their minds all the complex circumstances which may arise and which they ought to have in their minds when giving a decision. If there is one thing more than another which is recognized in British jurisprudence it is that a judge never gives a decision until the facts necessary for that decision have arisen.' Rep.Nat. Austral.Conv.Deb. (1897) 966-67.

[Footnote 5] See the series of cases beginning with Hayburn's Case, 2 Dall. 409, through United States v. West Virginia, 295 U.S. 463, 55 S.Ct. 789.

[Footnote 6] A quick summary of the jurisdiction of this Court over state court decisions leaves no room for doubt that the fact that the present case is here on certiorari is wholly irrelevant to our assumption of jurisdiction. Section 25 of the First Judiciary Act gave reviewing power to this Court only over state court decisions denying a claim of federal right. This restriction was, of course, born of fear of disobedience by the state judiciaries of national authority. The Act of September 6, 1916, 39 Stat. 726, withdrew from this obligatory jurisdiction cases where the state decision was against a 'title, right, privilege, or immunity' claimed to exist under the Constitution, laws, treaties or authorities of the United States. This change, which was inspired mainly by a desire to eliminate from review as of right of cases arising under the Federal Employers' Liability Act, 45 U.S.C.A. 51 et seq., left such review only in cases where the validity of a treaty, statute or authority of the United States was drawn into question and the decision was against the validity, and in cases where the validity of a statute of a state or a state authority was drawn into question on the grounds of conflict with federal law and the decision was in favor of its validity.

The Act of February 13, 1925, 43 Stat. 936, 937, extended this process of restricting our obligatory jurisdiction by transferring to review by certiorari cases in which the state court had held invalid an 'authority' claimed to be exercised under the laws of the United States or in which it had upheld, against claims of invalidity on federal grounds, an 'authority' exercised under the laws of the states. Neither the terms of these two restrictions nor the controlling comments in committee reports or by members of this, Court who had a special share in promoting the Acts of 1916 and 1925, give any support for believing that by contracting the range of obligatory jurisdiction over state adjudications Congress enlarged the jurisdiction of the Court by removing the established requirement of legal interest as a threshold condition to being here.

Nor does the Act of December 23, 1914, 38 Stat. 790, touch the present problem. By that Act, Congress for the first time gave this Court power to review state court decisions sustaining a federal right. For this purpose it made certiorari available. The Committee reports and the debates on this Act prove that its purpose was merely to remove the unilateral quality of Supreme Court review of state court decisions on constitutional questions as to which this Court has the ultimate say. The Act did not create a new legal interest as a basis of review here; it built on the settled doctrine that an official has a legally recognizable duty to carry out a statute which he is supposed to enforce.

Thus, prior to the Act of 1914, the Kentucky case, Chandler v. Wise, 307 U.S. 474, 59 S.Ct. 992, 83 L.Ed. --, could not have come here at all, and prior to 1916, the Kansas case would have come here, if at all, by writ of error. By allowing cases from state courts which previously could not have come here at all to come here on certiorari the Act of 1914 merely lifted the previous bar-that a federal claim had been sustained-but left every other requisite of jurisdiction unchanged. Similarly, no change in these requisites was affected by the Acts of 1916 and 1925 in confining certain categories of litigation from the state courts to our discretionary instead of obligatory reviewing power.

[Footnote *] Chronology of Child Labor Amendment.

(A State is said to have 'rejected' when both Houses of its legislature passed resolutions of rejection, and to have 'refused to ratify' when both Houses defeated resolution for ratification.)

June 2, 1924, Joint Resolution deposited in State Department. In that year, Arkansas ratified; North Carolina rejected. Ratification, 1; rejection, 1.

1925, Arizona, California and Wisconsin ratified; Florida, Georgia, Indiana, Kansas, Maine, Massachusetts, Minnesota, Missouri, New Hampshire, Pennsylvania, South Carolina, Tennessee, Texas, Utah, and Vermont rejected; Connecticut, Delaware and South Dakota refused to ratify. Ratifications, 4; rejections, 16; refusals to ratify, 3.

1926, Kentucky and Virginia rejected. Ratifications, 4; rejections, 18; refusals to ratify, 3.

1927, Montana, ratified; Maryland rejected. Ratifications, 5; rejections, 19; refusals to ratify, 3.

1931, Colorado ratified. Ratifications, 6; rejections, 19; refusals to ratify, 3.

1933, Illinois, Iowa, Michigan, New Jersey, North Dakota, Ohio, Oklahoma, Oregon, Washington and West Virginia ratified as did also Maine, Minnesota, New Hampshire, and Pennsylvania, which had rejected in 1925. Ratifications, 20; rejections, (eliminating States subsequently ratifying) 15; refusals to ratify, 3.

1935, Idaho and Wyoming ratified, as did Utah and Indiana, which had rejected in 1925. As in 1925, Connecticut refused to ratify. Ratifications, 24; rejections, 13; refusals to ratify, 3.

1936, Kentucky, which had rejected in 1926, ratified. Ratifications, 25; rejections, 12; refusals to ratify, 3.

1937, Nevada and New Mexico ratified, as did Kansas, which had rejected in 1925. Massachusetts, which had rejected in 1925, refused to ratify. Ratifications, 28; rejections, 11; refusals to ratify, 3.

Six States are not included in this list: Alabama, Louisiana, Mississippi, Nebraska, New York and Rhode Island. It appears that there has never been a vote in Alabama or Rhode Island. Louisiana house of representatives has three times (1924, 1934 and 1936) defeated resolutions for ratification. In Mississippi, the Senate adopted resolution for ratification in 1934, but in 1936 another Senate resolution for ratification was adversely reported. In Nebraska, the House defeated ratification resolutions in 1927 and 1935, but the Senate passed such a resolution in 1929. In New York, ratification was defeated in the House in 1935 and 1937, and in the latter year, the Senate passed such a resolution.