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certiorari. The latter properly bring the issues before us, and the former must be dismissed.

The railroad company as terminal carrier sued York & Whitney Company, a commission merchant, to recover the balance claimed for freight and refrigeration on nine carloads of melons, vegetables, and fruit consigned to the latter, subject to lawful charges, and delivered at Boston during the years 1911 and 1912. They were shipped in interstate commerce upon straight bills of lading approved as to form by the Interstate Commerce Commission, but none of these came into the consignee's possession and it had no knowledge of their issuance or terms. When York & Whitney Company accepted the cars it paid all charges claimed. The merchandise was sold at once and the net proceeds remitted to the shippers. Later the railroad company discovered that it had collected less than lawful rates established under the Interstate Commerce Act (24 Stat. 379), and thereupon demanded the balance alleged to be due by reason of such undercharges. Maintaining it had accepted the shipments upon the understanding that the charges were as reported, and had not agreed to pay more, York & Whitney Company re

fused the demand.

Commission merchants often receive from strangers shipments of perishable articles for sale at market prices. Under a trade custom such things are promptly disposed of and the net proceeds remitted to the consignors. Successful conduct of the business requires prompt settlements. The court below held that whether York & Whitney Company impliedly agreed to pay the rates imposed by law was a question of fact to be determined upon consideration of all the circumstances. It accordingly approved a judgment, entered upon a verdict, favorable to that company as to charges upon one car

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*load (No. 280), and in behalf of the railroad for those claimed on account of eight carloads (No. 281).

[2] We think the doctrine announced in Pittsburgh, Cincinnati, Chicago & St. Louis Ry. v. Fink, 250 U. S. 577, 40 Sup. Ct. 27, 63 L. Ed. 1151 (November 10, 1919) is controlling, and that the liability of York & Whitney Company was a question of law. The transaction between the parties amounted to an assumption by the consignee to pay the only lawful rate it had the right to pay or the carrier the right to charge. The consignee could not escape the liability imposed by law through any contract with the carrier. The judgment of the court below in No. 280, so far as challenged, must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. The judgment in No. 281, so far as challenged, is affirmed.

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proposed amendment must be completed within reasonable time.

of adopting amendments, does not expressly Though Const. art. 5, regulating method prescribe any limit to the time within which ratification of a proposed amendment must be completed, it is implied thereby that such ratification must be completed within a reasonable time after the amendment is proposed, so that it represents a contemporaneous sentiment of the required number of states. 3. Constitutional law 10-Congress can fix definite period for ratification, within reasonable limitation.

Congress has power, under the broad authority given it by Const. art. 5, regulating the method of adopting amendments, to fix a time ratified to become effective, so long as the time within which a proposed amendment shall be so fixed is a reasonable one.

4. Constitutional law 10-Seven-year period, fixed for ratification of Eighteenth Amendment, is reasonable.

The period of seven years prescribed by Congress within which the proposed Eighteenth Amendment to the Constitution must be ratified by the requisite number of states to make the amendment effective was a reasonable period, in view of the fact that all amendments which had been adopted theretofore had been ratified in a shorter time.

5. Evidence 34-Court takes judicial notice of consummation of ratification of constitutional amendment.

The Supreme Court takes judicial notice of the date of the consummation of the ratification

of an amendment to the United States Constitution.

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Habeas corpus proceedings by J. J. Dillon against R. W. Gloss, Deputy Collector of In

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(41 Sup.Ct.)

ternal Revenue, to secure petitioner's dis- be had within some reasonable period which charge from custody under the National Prohibition Act. From an order denying the petition for the writ (262 Fed. 563), petitioner appeals. Affirmed.

*369

*Messrs. Levi Cooke, of Washington, D. C., and Theodore A. Bell, of San Francisco, Cal., for appellant.

⚫370

Congress is left free to define? Neither the debates in the federal convention which framed the Constitution nor those in the state conventions which ratified it shed any light on the question.

The proposal for the Eighteenth Amend*372

ment is the *first in which a definite period for ratification was fixed.1 Theretofore 21

*The Assistant Attorney General Adams, amendments had been proposed by Congress for appellee.

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

and seventeen of these had been ratified by the Legislatures of three-fourths of the states -some within a single year after their proposal and all within four years. Each of the remaining 4 had been ratified in some of the states, but not in a sufficient number.2 Eighty years after the partial ratification of one, an effort was made to complete its ratification, and the Legislature of Ohio passed a joint resolution to that end, after which the effort was abandoned. Two, after ratification in one less than the required number of states had lain dormant for a century. The other, proposed March 2, 1861, declared:

"No amendment shall be made to the Con

This is an appeal from an order denying a petition for a writ of habeas corpus. Ex parte Dillon (D. C.) 262 Fed. 563. The petitioner was in custody under section 26 of title 2 of the National Prohibition Act, c. 85, 41 Stat. 305, on a charge of transporting intoxicating liquor in violation of section 3 of that title, and by his petition sought to be discharged on several grounds, all but two of which were abandoned after the decision in National Prohibition Cases, 253 U. S. 350, 40 Sup. Ct. 486, 588, 64 L. Ed. 946. The remaining grounds are, first, that the Eight- stitution which will authorize or give to Coneenth Amendment to the Constitution, to en-gress the power to abolish or interfere, within force which title 2 of the act was adopted, is invalid, because the congressional resolution (40 Stat. 1050) proposing the amendment declared that it should be inoperative unless ratified within seven years; and, secondly, that, in any event, the provisions of the act which the petitioner was charged with violating, and under which he was arrested, had not gone into effect at the time of the asserted violation nor at the time of the arrest.

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of, including that of persons held to labor or service by the laws of said state." 5

any state, with the domestic institutions there

and at the time of its proposal and partial Its principal purpose was to protect slavery ratification it was a subject of absorbing interest, but after the adoption of the Thirteenth Amendment it was generally forgotten. Whether an amendment *proposed without fixing any time for ratification, and which after favorable action in less than the re

*373

The power to amend the Constitution and the mode of exerting it are dealt with inquired number of states had lain dormant article 5, which reads:

"The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the 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, as the one or the other mode of ratification may be proposed by the Congress: Provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate."

It will be seen that this article says nothing about the time within which ratification may be had-neither that it shall be unlimited nor that it shall be fixed by Congress. What then is the reasonable inference or implication? Is it that ratification may be had at any time, as within a few years, a century or even a longer period, or that it must

for many years, could be resurrected and its ratification completed had been mooted on several occasions, but was still an open question.

These were the circumstances in the light of which Congress in proposing the Eighteenth Amendment fixed seven years as the period for ratification. Whether this could be done was questioned at the time and debated at length, but the prevailing view in both houses was that some limitation was

1 Some consideration had been given to the subject before, but without any definite action. Cong. Globe, 39th Cong. 1st Sess. 2771; 40th Cong. 3d Sess. 912, 1040, 1309-1314.

Watson on the Constitution, vol. 2, pp. 1676-1679;

House Doc. 54th Cong. 2d Sess. No. 353, pt. 2, p. 300.

House Doc. 54th Cong. 2d Sess. No. 353, pt. 2. p. 317 (No. 243); Ohio Senate Journal, 1873, pp. 590,

666, 667, 678: Ohio House Journal, 1873, pp. 848, 849. A committee charged with the preliminary consideration of the joint resolution reported that they were divided in opinion on the question of the validity of a ratification after so great a lapse of

time.

House Doc. 54th Cong. 2d Sess. No. 353, pt. 2, pp. 300, 320 (No. 295), 329 (No. 399).

12 Stat. 251; House Doc. 54th Cong. 2d Sess. No. 353, pt. 2, pp. 195-197, 363 (No. 931), 369 (No. 1025).

intended and that seven years was a reasonable period.

[1] That the Constitution contains no express provision on the subject is not in itself controlling; for with the Constitution, as with a statute or other written instrument, what is reasonably implied is as much a part of it as what is expressed. An examination of article 5 discloses that it is intended to invest Congress with a wide range of power in proposing amendments. Passing a provision long since expired, it subjects this power to only two restrictions: one that the proposal shall have the approval of two-thirds of both houses, and the other excluding any amendment which will deprive any state,

*374

without its consent, of its equal suffrage in
the Senate. A further mode of proposal-
as yet never invoked-is provided, which is,
that on the application of two-thirds of the
states Congress shall call a convention for
the purpose.
When proposed in either mode
amendments to be effective must be ratified
by the Legislatures, or by conventions, in
three-fourths of the states, "as the one or
the other mode of ratification may be pro-
posed by the Congress." Thus the people of
the United States, by whom the Constitution
was ordained and established, have made
it a condition to amending that instrument
that the amendment be submitted to repre-
sentative assemblies in the several states and
be ratified in three-fourths of them. The
plain meaning of this is (a) that all amend-
ments must have the sanction of the people
of the United States, the original fountain
of power, acting through representative as-
semblies, and (b) that ratification by these
assemblies in three-fourths of the states shall
be taken as a decisive expression of the peo-
ple's will and be binding on all.10

time.

*375

[2] We do not find anything in the article which suggests that an amendment once proposed is to be open to ratification for all time, or that ratification in some of the states may be separated from that in others by many years and yet be effective. We do find that which strongly suggests the contrary. First, proposal and ratification are not treated as unrelated acts, but as succeeding steps *in a single endeavor, the natural inference being that they are not to be widely separated in Secondly, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed they are to be considered and disposed of presently. Thirdly, as ratification is but the expression of the approbation of the people and is to be effective when had in three-fourths of the states, there is a fair implication that it must be sumiciently contemporaneous in that number of states to reflect the will of the people in all sections at relatively the same period, which of course ratification scattered through a long series of years would not do. These considerations and the general purport and spirit of the article lead to the conclusion expressed by Judge Jameson 11 "that an alteration of the Constitution proposed to-day has relation to the sentiment and the felt needs of to-day, and that, if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by Congress." That this is the better conclusion becomes even more manifest when what is comprehended in the other view is considered; for, according to it, four amendments proposed long ago-two in 1789, one in 1810 and one in 1861-are still pending and in a situation where their ratification in some of the states many years

Cong. Rec. 65th Cong. 1st Sess. pp. 5648-5651, since by representatives of generations now

5652-5653, 5658-5661; 2d Sess. pp. 423-425, 428, 436, 443, 444, 445-446, 463, 469, 477-478.

United States v. Babbit, 1 Black, 55, 61, 17 L. Ed. 94; Ex parte Yarbrough, 110 U. S. 651, 658, 4 Sup. Ct. 152, 28 L. Ed. 274; McHenry v. Alford, 168 U. S. 651, 672, 18 Sup. Ct. 242, 42 L. Ed. 614; South Carolina v. United States, 199 U. S. 437, 451, 26 Sup. Ct. 110, 50 L. Ed. 261, 4 Ann. Cas. 737; Luria v. United States, 231 U. S. 9, 24, 34 Sup Ct. 10, 58 L.

largely forgotten may be effectively supplemented in enough more states to make threefourths by representatives of the present or some future generation. To that view few would be able to subscribe, and in our opinion it is quite untenable. We conclude that the fair inference or implication from article Ed. 101; The Pesaro, 255 U. S. 216, 41 Sup. Ct. 308,5 is that the ratification must be within some

65 L. Ed. 592.

Article 5, as before shown, contained a provi- reasonable time after the proposal. sion that "no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article." One of the clauses named covered the

[3, 4] Of the power of Congress, keeping *376

within reasonable *limits, to fix a definite period for the ratification we entertain no doubt.

migration and importation of slaves and the other As a rule the Constitution speaks in general

deals with direct taxes.

When the federal convention adopted article 5 a motion to include another restriction forbidding any amendment whereby a state, without its consent, would "be affected in its internal police" was decisively voted down. The vote was: Yeas 3 -Connecticut, New Jersey, Delaware; nays 8-New Hampshire, Massachusetts, Pennsylvania, Mary land, Virginia, North Carolina, South Carolina, Georgia. Elliott's Debates, vol. 5, pp. 551, 552.

10 See Martin v. Hunter's Lessee, 1 Wheat. 304, 324, 325, 4 L. Ed. 97; McCulloch v. Maryland, 4

terms, leaving Congress to deal with subsidiary matters or detail as the public interests

Wheat. 316, 402-404, 4 L. Ed. 579; Cohens v. Virginia, 6 Wheat. 264, 413, 414, 5 L. Ed. 257; Dodge v. Woolsey, 18 How. 331, 347, 348, 15 L. Ed. 401; Hawke v. Smith, 253 U. S. 221, 40 Sup. Ct. 495, 64 L. Ed. 871, 10 A. L. R. 1504; Story on the Constitution (5th Ed.) §§ 362, 363, 463-465.

11 Jameson on Constitutional Conventions (4th Ed.) § 585.

(41 Sup.Ct.)

and changing conditions may require;12 and, ue has been added solely to prevent corrosion article 5 is no exception to the rule. Whether of steel tank cars essential for the transportaa definite period for ratification shall be fix- tion of nitric acid in large quantities, is not ed, so that all may know what it is and dutiable as a "preparation" or "mixture." speculation on what is a reasonable time may and Phrases, First and Second Series, Mixture; [Ed. Note.-For other definitions, see Words be avoided, is, in our opinion, a matter of Preparation.] detail which Congress may determine as an incident of its power to designate the mode of ratification. It is not questioned that seven years, the period fixed in this instance, was reasonable, if power existed to fix a definite time; nor could it well be questioned considering the periods within which prior amendments were ratified.

[5, 6] The provisions of the act which the petitioner was charged with violating and under which he was arrested (title 2, 88 3, 26) were by the terms of the act (title 3, § 21) to be in force from and after the date when the Eighteenth Amendment should go into effect, and the latter by its own terms was to go into effect one year after being ratified. Its ratification, of which we take judicial notice, was consummated January 16, 1919.18 That the Secretary of State did not proclaim its ratification until January 29, 1919,14 is not material, for the date of its consummation, and not that on which it is proclaimed, controls. It follows that the provisions of the act with which the petitioner is concerned

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Mr. Justice Clarke dissenting.

On Writ of Certiorari to the United States Court of Customs Appeals.

Proceedings on protests of the Ætna explosives Company against assessments of duty on imported goods. A decision of the Board of General Appraisers, upholding the action of the Collector of Customs and overruling Customs Appeals (9 Ct. Cust. App. 298), the protests, was reversed by the Court of and the United States brings certiorari.

firmed.

*403

Af

*Mr. Assistant Attorney General Hanson for the United States. Mr. Addison S. Pratt, of New York City, for respondent.

Mr. Justice McREYNOLDS delivered the opinion of the Court.

A writ of certiorari to the Court of Customs Appeals was granted (253 U. S. 481, 40 Sup. Ct. 483, 64 L. Ed. 1023) under the Act of August 22, 1914 (chapter 267, 38 Stats. 703 [Comp. St. § 1186]). Etna Explosives Co. v. United States, 9 Ct. Cust. App. 298.

The question presented is whether the imports came within paragraph 387 of the free list, Tariff Act of 1913 (chapter 16, 38 Stats. 114), which provides:

"Acids: Acetic or pyroligneous, arsenic or arsenious, carbolic, chromic, fluoric, hydrofluoric, hydrochloric or muriatic, nitric, phosphoric, phthalic, prussic, silicic, sulphuric or oil of vit

UNITED STATES v. ÆETNA EXPLOSIVES riol, and valerianic"

CO.

(Argued April 27 and 28, 1921. Decided
May 16, 1921.)
No. 296.

Customs duties 38(5)-Nitric acid, to which
sulphuric acid added to prevent corrosion, not
dutiable as "preparation" or "mixture."

Under Tariff Act 1913, par. 387, including nitric and sulphuric acid in the free list, and paragraph 5, imposing a duty of 15 per centum ad valorem on all chemical and medicinal compounds, preparations, and mixtures, nitric acid, to which sulphuric acid amounting to 20 per cent. by weight and 5 per cent. according to val

Martin v. Hunter's Lessee, 1 Wheat. 304, 326, 4 L. Ed. 97; McCulloch v. Maryland, 4 Wheat. 316,

407, 4 L. Ed. 579.

Sen. Doc. No. 169, 66th Cong. 2d Sess.; Ark. Gen. Acts 1919, p. 512; Ark. House Journal, 1919, p. 10; Ark. Sen. Journal, 1919, p. 16; Wyo. Sen. Journal, 1919, pp. 26, 27; Wyo. House Journal,

1919, pp. 27, 28; Mo. Sen. Journal, 1919, pp. 17, 18;

Mo. House Journal, 1919, p. 40.

14 40 Stat. 1941.

--or was dutiable under paragraph 5:

"Alkalies, alkaloids, and all chemical and medicinal compounds, preparations, mixtures and salts, and combinations thereof not specially provided for in this section, 15 per centum ad valorem."

The imported merchandise was nitric acid, to which approximately 20 per cent. by weight and 5 per cent. according to value of sulphuric acid had been added for the sole purpose of preventing corrosion of steel tank cars essential for transportation of the former acid in large quantities. That the addition of sulphuric acid prevents nitric acid from attacking steel is a well-known fact concerning which there is no very satisfactory explanation. The court below found the sulphuric acid was added solely for transportation purposes, and that the result was not a mixture merchantable as such for use in the United States. It accordingly held that no duty should have been demanded and among other things said:

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
41 SUP.CT.-33

*404

*"The word 'preparations' [in paragraph 5] implies of course that they are something prepared and adapted to particular uses or services. It is no stretch to say that the word 'mixtures' as here employed was used in a similar sense to import mixtures susceptible of commercial use as they exist, or are at least such as are purposely started on their way toward adaption to such use. While not resting this case solely upon this view, it certainly would appeal with great force were it the only consideration involved."

"The testimony fairly tends to show that as a commercial proposition there is only one practical means of transporting strong nitric acid such as that involved in the present importation in quantities sufficient to meet the current demand, and that is to mix it with a sufficient amount of sulphuric acid and ship it in tank cars or drums."

question was nothing more than nitric acid rendered noninjurious to steel tanks by adding sulphuric acid of small value. The two acids do not interact, and the result was a mere mechanical mixture, not intended or adapted as such for commercial use, and not a chemical mixture within the true intent of paragraph 5.

The judgment of the court below must be affirmed.

Mr. Justice DAY took no part in the consideration or decision of this case. Mr. Justice CLARKE dissents.

(256 U. S. 363)

KRICHMAN v. UNITED STATES.

(Argued March 23, 1921. Decided May 16, 1921.)

No. 260.

1(2)-Porter of railroad under government control is not "officer of the United States."

"It is evident that the importer sought to introduce nitric acid and had no desire to import sulphuric acid, or nitric and sulphuric acid as a usable mixture. This small percentage of sulphuric acid which was relatively insignificant in its money value was employed solely for the purpose of making it possible to ship the nitric acid into this country in usable quantities. The result was not a mixture merchantable as such. Bribery for use in the United States. * * * The merchandise had not reached the state of a commercial mixture contemplated by the statute. It was susceptible of no use other than as nitric acid which must before use be again treated. The mixing of this minimum amount of sulphuric acid should be treated as a means of and part of the shipment, and as an act as essential in the importation of nitric acid as would have been the proper packing of glassware or other goods designed for shipment by rail."

"In the present case we are convinced that there was neither an advantage to the importer in adding the requisite amount of sulphuric acid to admit of safe shipment of the nitric acid nor was there any possible loss of revenue *405

to the *government. The sole purpose for which this addition was made was to admit of shipment. It would be sticking in the bark to say that this was such a mixture as the statute in question contemplates. It is not yet prepared. It has not been advanced as a preparation for actual use except to the extent that a small portion of the requisite amount of sulphuric acid which when added in the proper quantity would result in making a mixture which was usable, is found in this tank instead of some other. The quantity is relatively insignificant."

"We think that the true rule is that the introduction of a quantity of sulphuric acid solely for the purpose of rendering the transportation of nitric acid safe, and which does not result in a usable mixture, is more in the nature of an act of shipment than an admixture, and does not produce a substance which is dutiable under paragraph 5."

A baggage porter, employed by a railroad under the control of the United States government, was not an officer of the United States, within Criminal Code, § 39 (Comp. St. § 10203), making it an offense to bribe an officer to influence his action.

2. Bribery (2)—Porter of railroad under government control does not exercise official function.

A baggage porter, in the employ of a railroad while it is under control of the federal government, does not exercise an official funetion, so that giving him a bribe to induce him to deliver a trunk checked as baggage to one not the owner is not an offense, under Criminal Code, § 39 (Comp. St. § 10203), making it an offense to offer or give anything of value to a person acting on behalf of the United States in an official function to influence his action.

3. Criminal law 13-Ambiguity must not be solved so as to embrace offense not clearly within the law.

inal offense is not to be solved so as to emThe ambiguity in a statute defining a crimbrace offenses which are not clearly within

the law.

On Writ of Certiorari to the United States Circuit Court of Appeals for the Second Circuit.

Harry Krichman was convicted of offering a bribe to a baggage porter to do an act in violation of his duty to the United States, We find no reason for disapproving the which was in control of the railroad. The conclusion reached by the Court of Customs denial of his motion in arrest of judgment Appeals. The applicable tariff act granted (256 Fed. 974) was affirmed by the Circuit free entry to both nitric and sulphuric acids, Court of Appeals (263 Fed. 538), and defendand, viewed practically, the commodity inant brings certiorari. Reversed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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