New-York tribune., 1920-03-02
2l States Ask
Dismissal Of
Dry Test Suit
No Justiciable Questions In.
volved Says Brief in Joint
Fight With u. S. ON
Rhode Island Action
Hughes Files Argument
Says ''Nothing Left But Po-
litical Policy, With Which
Court Has No Concern"

WASHINGTON, March Twenty
one states joined with the Federal
government to-day in asking the Su-
preme Court to dismiss the original
suit brought by Rhode Island to test
the validity of the prohibition amend
mcnt to the Constitution.
Subscribing to brief, which as filed
by Charles E. Hughes with the coart's
permissio nand which asked dismissal
of the Rhode Island case on the
grounds that no justiciable questions
were involved, were the states of Della
ware, North Carolina, Kentucky, Louis
lana. Indiana. Alabama, Maine, Arkan-
sas. Michigan, Florida, Oregon. Kansas,
West Virginia, Nevada, Nebraska, Mon
tana, North Dakota, South Dakota,
Wyoming. Utah and Arizona
Government Suit Fought
Dismissal of the suit, which the gov
ornment has moved, was opposed in
another brief presented by Attorney
General Herbert A. Rice of Rhode
Island, who asserted that the govern
ment's view that the amendment is
''unassailable" could "only lead to an
archy and oppression"
Another development to-day in the
proceedings was indefinite postpone
ment, by permission of the court. of ar
guments, which were to have been heard
Monday, in order TO permit appeals
from Kentucky and Massachusetts, in
volving the amendments validity. to
be heard at the same time. Assistant
Attorney General Frierson indicated to-
night that the arguments might be
heard March Is.
IN asking permission to file the
brief Mr.. Hughes told the court that
of'lclals of nineteen OF the twenty-one
states had communicated with him di-
rcctly relative to opposing Rhode Isl
and's suit, while the governors of the
other two, Nevada and Kansas, had
given nm authority to include them.
Rhode Islands Action Assailed
The State of Rhode Island" Mr..
Hughes said in his brief, docs not
bring its bill of complaint to enforce
any property right or any interest of
the state which can be regarded as the
proper subject of judicial considera-
tlon.
IF this court may consider the ques-
.lop whether an amendment not ex-
pressiy prohibited by the Constitution
itself can validly be adopted, it is sub
mltted that there is nothing in the
nature of the Eighteenth (prohibition)
Amendment which exposes it to the
charge of invaldity.
we submit thai the conception in
VOWED in the bill OF comp plaint-tha
an amendment duly submitted by Con-
2ress on the vote OF two-thirds Of each
mouse and duly ratified by the legisla
lures OF thrcc-fourths Of the states is
sun subject to judicial review and may
De held tor naught through judicial ac-
tlon by virtue of a process Of implied
restrictions upon the amending power.
restrictions which thus set up by Judi
clal decree would be unalte rabe by
any constitutional process--s con-
ccptIon of the most eXtravagant char
2cter and opposed to the fundamental
principles of our government No prin-
ciple of judicial action can possibly be
lnVoked tor sustaining such an au-
thorty.
Question of Policy
The truth is the brief concluded.
that there is nothing left but a oues
ton of political policy, with which this
court has no concern. If any restric-
ron upon the power of amendment
could be implied there could be no i'm
which would justify a judicial decree
denying validity to this amendment"
Attorney General Rice in his brief
declared the prohibition amendment to
be revolutionary and direct invasion
OF jurisdiction and power of the states.
The United States Supreme Court
must pass on the validity of the
eighteenth amendment if the "cher-
lshed principles of the Constitution
and the perpetuity of free government
lnereunder" are to be maintained, the
Rhode Island brief continues
he theory of the government ais SO
subverslve of fundamental principles
that It's acceptance would bring about
a constitutional revolution" continues
tho brief
Rights Of People Involved
ut would convert the sovereignty of
the people into sovereignty of Of
hcials. 1t would endanger civil liberty
and those lnnumerable rights that have
been inherited from the common law
since the time of Magma Charta Under
ITS application the boundary cstab-
lshed by the Constitution between
Federal and state authority could be
shifted at Will, as officials might be
influenced by political cowardicc or cx-
absorbed by the Federal government
and the states become dependencies.
states only in name. for the mere pur-
pose OF having equal representation in
the Senate
The brief declares that Article V of
thc NohStltutlon relating to amend
ments only provides for the "correc-
ton of errors committed in framing
the Constitution" and that the amend
ment functions" of Congress are linn
tied
The proposal of the Eighteenth
Amendment 'to the states," the brief
asserts. is unconstitutional "and is a
revolutionary proceeding" Heretofore
1T was stated. Congress has proposed
amendments "to the legislatures of the
several states"
The procedure is revolutionary and
without constitutional sanction" the
brief says.