#### The State, ex rel. Donnelly, *v.*Myers, Secy. of State.

(No. 24269

Decided July 12, 1933.)

*Mr. Sidney G. Strieker,*for relator.

*Mr. John W. Bricker,*attorney general, *Mr. W. Dale Dunifon*and *Mr. Perry L. Graham,*for respondent.

By the Court.

Article V of the Constitution of the United States provides for the proposal of amendments by the Congress, which shall become valid as parts of the Constitution itself “when ratified by the Legislatures of three-fourths of the several states, or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.”

By the requisite majority, both houses of the Seventy-Second Congress passed a joint resolution proposing as an amendment to the Constitution of the United States an article providing for the repeal of the Eighteenth Amendment. Section 3 of the proposed article provided that “This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress.”

On February 13, 1933, the Secretary of State of the United States by letter transmitted this resolution to the Governor of Ohio for appropriate action.

On March 20, 1933, the Ninetieth General Assembly *105of Ohio adopted Amended Senate Bill No. 204, providing for the calling of a convention to pass on amendments to the Constitution of the United States. This hill was approved by the Governor, and on March 24, 1933, was duly filed with the secretary of state of Ohio.

On June 21, 1933, there was deposited with the secretary of state of Ohio a petition purporting to be signed by the requisite number of persons, seeking a referendum upon Amended Senate Bill No. 204 (Section 4785-235, *et seq.,*General Code; 115 O. L., 74). The present action seeks to prohibit the secretary of state of Ohio from submitting this matter to the vote of the people.

Under the decision of the Supreme Court of the United States in *Hawke*v. *Smith, Secy. of State,*253 U. S., 221, 40 S. Ct., 495, 64 L. Ed., 871, 10 A. L. R., 1504, there can be no referendum upon the decision of a state Legislature to ratify or to reject a proposed amendment to the Federal Constitution. By a parity of reasoning, there could be no referendum upon the final action of a convention ratifying or rejecting such a proposal.

We are here concerned, however, not with an attempted referendum upon such final action, but with an attempted referendum upon an act of the state Legislature setting up the machinery by which a convention may be assembled to take such final action.

In our opinion, however, the calling of such convention is but a step necessary and incidental to the final action of the convention in registering the voice of the state upon the amendment proposed by the Congress. The action of the Legislature in performing this function rests upon the authority of Article Y of the Constitution of the United States. It is a federal function, which, in the absence of action by the Congress, the state Legislature is authorized to perform. *Leser*v. *Garnett,*258 U. S., 130, 42 S. C., 217, 66 L. *106Ed., 505; *Smiley*v. *Holm, Secy. of State,*285 U. S., 355, 52 S. Ct., 397, 76 L. Ed., 795. The mode of assembling the convention set up in Amended Senate Bill No. 204 provides for a vote by all of the electors of the state upon the selection of all of the delegates. The views of the candidates, for election as delegates to the convention,' will be known in advance, so that the final action of the convention should be truly representative of the will of the people upon the one special question involved. The intent of Article Y of the Constitution of the United States will therefore be effectuated by this action of the state Legislature.

We are of the opinion, therefore, that the referendum provisions of the Constitution and the laws of Ohio have no application to Amended Senate Bill No. 204. The demurrer to the petition of the relator is accordingly overruled, and, respondent not desiring to plead further, the writs are allowed.

*Writs allowed.*

Weygandt, C. J., Day, Allen, Stephenson, Bevis and Jones, JJ., concur.

Matthias, J.,

dissenting. I cannot concur with the conclusions announced by the majority. I dissent therefrom and my dissent is based solely upon the fundamental question presented in this case. That question is whether Amended Senate Bill No. 204, passed by the General Assembly, of this state, and approved by the Governor, is a law or merely “An Act in aid or performance of a federal function.”

If it is a law, then under the express provisions of our state Constitution it is subject to referendum, for concededly it does not fall within the class of laws specifically exempt from the referendum provisions of our Constitution.

No legislation had previously been enacted in this state providing for such conventions or for the elec*107tion of delegates. Concededly. such legislation is essential. The act in question was passed to meet that necessity. It is general in its terms, and fully provides for conventions to pass upon amendments to the Constitution of the United States proposed by Congress for ratification. It specifies the number of delegates, the qualification of candidates, the method of their nomination, the form of the ballot, the manner of election, the certification thereof, and other essential details. It is a law, was passed as such, approved by the Governor as such, and filed in the office of the secretary of state.

The enactment of this legislation is no more the performance of a federal function, and no less a state function, than legislation providing for the election of United States Senators and Representatives in Congress, or legislation redistricting the state for congressional purposes. The Supreme Court of the United States in the case of *Smiley*v. *Holm, Secy. of State,*285 U. S., 355, 52 S. Ct., 397, 76 L. Ed., 795, the opinion being by Chief Justice Hughes, held that the function of a state Legislature in prescribing the time, place, and manner of holding elections for representatives in Congress is a lawmaking function. It specifically held that, being a lawmaking function, the act in question was subject to the veto power of the Governor of the state. It reversed the Supreme Court of Minnesota, which had held that the Legislature in redistricting the state was not acting strictly in the exercise of the lawmaking power but merely as an agency, discharging a particular duty in the manner which the Federal Constitution required.

The Supreme Court of the United States in the case of *Davis*v. *Hildebrant,*241 U. S., 565, 36 S. Ct., 708, 60 L. Ed., 1172, affirming this court (94 Ohio St., 154, 114 N. E., 55), the opinion being by Chief Justice White, held that the term “Legislature ’ ’ means not only the General Assembly, but embraces the lawmaking *108power of the state as prescribed by the Constitution, and that an act redistricting the state for congressional purposes is subject to referendum. The case of *Hawke*v. *Smith,*253 U. S., 221, 40 S. Ct., 495, 64 L. Ed., 871, 10 A. L. R., 1504, has no application whatever to this ease. The distinction pointed out in the opinion in that case between it and the *Davis case*is likewise applicable here. It is as follows: “Such legislative action is entirely different from the requirement of the Constitution as to the expression of assent or dissent to a proposed amendment to the Constitution. In such expression no legislative action is authorized or required. ’ ’

The people of this state may provide the method of selecting those who are to represent them, whether in convention or Congress. We have nothing to do with the method of constituting conventions in other states, and they have no part in such proceeding in this state. That is a state function,, particularly in the absence of any definite provision otherwise by Congress. If Congress had provided that the proposed amendment be submitted to the respective Legislatures, instead of to conventions, certainly no one would contend that the legislation providing the procedure for election of members of the General Assembly of Ohio was not a law, but was merely “An act in aid or performance of a federal function.”

The right of referendum is not dependent upon the opinion of the court or any other tribunal respecting the virtues or vices of the legislation. If in accord upon the proposition that it is the acme of perfection as a legislative measure, yet, if the requisite number of qualified electors of the state duly sign and file with the secretary of state petitions calling for the submission of such law to the electors of the state for their approval or rejection it should be submitted in accordance with the referendum provisions of the state Constitution.