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terior, in the place of Franklin K. Lane, former Secretary thereof, on motion of Mr. Solicitor General King for the appellee.

(253 U. S. 473)

No. 231. Edward A. SHEDD et al., appellants, v. GUARDIAN TRUST COMPANY et al. May 17, 1920. Appeal from the District Court of the United States for the Western District of Missouri. Messrs. O. H. Dean and J. C. Rosenberger, both of Kansas City, Mo., for appellants. Messrs. Delbert J. Haff, Charles W. German, and Justin D. Bowersock, all of Kansas City, Mo., for respondents.

PER CURIAM. Dismissed for want of jurisdiction upon the authority of Farrell v. O'Brien, 199 U. S. 89, 100, 25 Sup. Ct. 727, 50 L. Ed. 101; Empire State-Idaho Mining Co. v. Hanley, 205 U. S. 225, 232, 27 Sup. Ct. 476, 51 L. Ed. 779; Goodrich v. Ferris, 214 U. S. 71, 79, 29 Sup. Ct. 580, 53 L. Ed. 914; Brolan v. United States, 236 U. S. 216, 218, 35 Sup. Ct. 285, 59 L. Ed. 544; Sugarman v. United States, 249 U. S. 182, 184, 39 Sup. Ct. 191, 63 L. Ed.

550.

(253 U. S. 475)

PER CURIAM. Dismissed for the want of jurisdiction upon the authority of (1) Equitable Life Assurance Society v. Brown, 187 U. S. 308, 314, 23 Sup. Ct. 123, 47 L. Ed. 190; Consolidated Turnpike Co. v. Norfolk, etc., Ry.

Co., 228 U. S. 596, 600, 33 Sup. Ct. 605, 57 L Hospital v. City of Philadelphia, 245 U. S. 20, Ed. 982; Contributors to the Pennsylvania 24, 38 Sup. Ct. 35, 62 L. Ed. 124; (2) Southern Ry. Co. v. King, 217 U. S. 524, 534, 30 Sup. Ct. 594, 54 L. Ed. 868; Gaar, Scott & Co. v. Shannon, 223 U. S. 468, 473, 32 Sup. Ct. 236, 56 L. Ed. 510; Middleton v. Texas Power & Light Co., 249 U. S. 152, 157, 39 Sup. Ct. 227, 63 L. Ed. 527; (3) Shevlin-Carpenter Co. v. State of Minnesota, 218 U. S. 57, 67, 30 Sup. Ct. 663, 54 L. Ed. 930.

(253 U. S. 474)

No. 324. Robert D. KINNEY, plaintiff in error, v. PLYMOUTH ROCK SQUAB COMPANY. May 17, 1920. In error to the District Court of the United States for the District of Massachusetts. Mr. Robert D. Kinney, for plaintiff in error.

PER CURIAM. Dismissed for want of jurisdiction upon the authority of (1) Farrell v. No. 256. Samuel W. SCOTT et al., plaintiffs O'Brien, 199 U. S. 89, 100, 25 Sup. Ct. 727, in error, v. Ida B. W. BOOTH. May 17, 1920. 50 L. Ed. 101; Goodrich v. Ferris, 214 U. S. In error to the Supreme Court of the State of 71, 79, 29 Sup. Ct. 580, 53 L. Ed. 914; Brolan Missouri. For opinion below, see 276 Mo. 1, v. United States, 236 U. S. 216, 218, 35 Sup. 205 S. W. 633. Messrs. J. H. Ralston, of Ct. 285, 59 L. Ed. 544; Sugarman v. United Washington, D. C., and Robert O. McLin, States, 249 U. S. 182, 184, 39 Sup. Ct. 191, 63 O. H. Dean, and H. M. Langworthy, all of Kan-L. Ed. 550; (2) Kinney v. Plymouth Rock sas City, Mo. (Messrs. James T. Montgomery, Squab Company, 236 U. S. 43, 49, 35 Sup. Ct. of Sedalia, Mo., Bruce Barnett, R. B. Thomson, 236, 59 L. Ed. 457. and R. D. Williams, all of Kansas City, Mo., of counsel), for plaintiffs in error. Messrs. J. W. Porter, of Tucumcari, N. M., and C. W. Prince, E. A. Harris, James N. Beery, all of Kansas City, Mo., and A. E. Crane, of Topeka, Kan., for defendant in error.

(253 U. S. 499)

No. 346. John S. RANDOLPH, plaintiff in error, v. The UNITED STATES of America. May 17, 1920. In error to the District Court of the United States for the Northern District of New York. Mr. Frederick A. Mohr, of Au

General for the United States. Dismissed, on motion of counsel for the plaintiff in error.

PER CURIAM. Dismissed for want of juris-burn, N. Y., for plaintiff in error. The Attorney diction upon the authority of Schlosser v. Hemphill, 198 U. S. 173, 175, 25 Sup. Ct. 654, 49 L. Ed. 1000; Louisiana Navigation Co. v. Oyster Commission of Louisiana, 226 U. S. 99, 101, 33 Sup. Ct. 78, 57 L. Ed. 138; Gray's Harbor Co. v. Coats-Fordney Co., 243 U. S. 251, 255, 37 Sup. Ct. 295, 61 L. Ed. 702; Bruce v. Tobin, 245 U. S. 18, 19, 38 Sup. Ct. 7, 62 L. Ed. 123.

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No. 370. J. Hartley MANNERS, petitioner, v. Oliver MOROSCO. May 17, 1920. See, also, 252 U. S. 317, 40 Sup. Ct. 335, 64 L. Ed. 590. Messrs. Walter C. Noyes and David Gerber, both of New York City, and William J. Hughes, of Washington, D. C., for petitioner. Mr. Charles H. Tuttle, of New York City, for respondent. Motion to modify decree denied.

No. 412. Franklin K. LANE, Secretary of the

Interior, et al., appellants, v. The STATE OF NEW MEXICO. May 17, 1920. See, also, 258 Fed. 980. The Attorney General, for plaintiffs in error. Mr. Patrick H. Loughran, of Washington, D. C., for the State of New Mex

ico. Leave granted to substitute as one of the appellants John Barton Payne, present Secretary of the Interior, in the place of Frankin K. Lane, former Secretary thereof, on motion of Mr. Solicitor General King for the appellants.

No. 434. The UNITED STATES of America ex rel. C. E. SYKES, plaintiff in error, v. Franklin K. LANE, Secretary of the Interior.

(40 Sup.Ct.)

May 17, 1920. See, also, 258 Fed. 520. Mr. Francis W. Clements, of Washington, D. C., for plaintiff in error. Leave granted to substitute as defendant in error John Barton Payne, present Secretary of the Interior, in the place of Franklin K. Lane, former Secretary thereof, on motion of Mr. Solicitor General King for the defendant in error.

(253 U. S. 474)

No. 437. The COUNTY OF DOUGLAS, in the STATE OF NEBRASKA, plaintiff in error, v. George Warner SMITH. May 17, 1920. In error to the United States Circuit Court of Appeals for the Eighth Circuit. For opinion below, see 254 Fed. 244, 165 C. C. A. 532. Mr. William C. Lambert, of Omaha, Neb., for petitioner.

PER CURIAM. Dismissed for the want of jurisdiction upon the authority of (1) section 128 of the Judicial Code (Comp. St. § 1120); Shulthis v. McDougal, 225 U. S. 561, 568, 32 Sup. Ct. 704, 56 L. Ed. 1205; Hull v. Burr, 234 U. S. 712, 720, 34 Sup. Ct. 892, 58 L. Ed. 1557; Louisville & Nashville R. R. Co. v. Western Union Tel. Co., 237 U. S. 300, 302, 35 Sup. Ct. 598, 59 L. Ed. 965; Delaware, Lackawanna & Western R. R. Co. v. Yurkonis, 238 U. S. 439, 444, 35 Sup. Ct. 902, 59 L. Ed. 1397; (2) Brown v. Alton Water Co., 222 U. S. 325, 332, 333, 32 Sup. Ct. 156, 56 L. Ed. 221; Alaska Pacific Fisheries v. Alaska, 249 U. S. 53, 61, 39 Sup. Ct. 208, 63 L. Ed. 474.

(253 U. S. 475)

No. 633. Fred W. WEITZEL, plaintiff in error, v. The UNITED STATES. May 17, 1920. In error to the District Court of the United States for the Eastern District of Kentucky. PER CURIAM. Dismissed for want of jurisdiction upon the authority of (1) Equitable Life Assurance Society v. Brown, 187 U. S. 308, 314, 23 Sup. Ct. 123, 47 L. Ed. 190; Consolidated Turnpike Co. v. Norfolk, etc., Ry. Co., 228 U. S. 596, 600, 33 Sup. Ct. 605, 57 L. Ed. 982; Contributors to the Pennsylvania Hospital v. City of Philadelphia, 245 U. S. 20, 24, 38 Sup. Ct. 35, 62 L. Ed. 124; (2) Lamar v. United States, 240 U. S. 60, 36 Sup. Ct. 255, 60 L. Ed. 526; Lamar v. United States, 241 U. S. 103, 36 Sup. Ct. 535, 60 L.

Ed. 912.

(253 U. S. 487)

No. 840. Emily DE FOUR, petitioner, v. The UNITED STATES of America. May 17, 1920. For opinion below, see 260 Fed. 596. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit denied.

(253 U. S. 488)

Nos. 848 and 849. The BACKSTAY MACHINE & LEATHER CO., petitioner, v. Helen Wade HAMILTON. May 17, 1920. For opinion below, see 262 Fed. 411. Petition for writs of certiorari to the United States Circuit Court of Appeals for the First Circuit denied.

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(253 U. S. 350) erage purposes, is within the power to amend STATE OF RHODE ISLAND v. PALMER, reserved by article 5. Atty. Gen., et al. No. 29, Original.

STATE OF NEW JERSEY v. SAME.

No. 30, Original.

5. CONSTITUTIONAL LAW 10-PROHIBITION AMENDMENT HELD LAWFULLY PROPOSED AND RATIFIED.

Const. Amend. 18, prohibiting the manufacture, sale, etc., of intoxicating liquors for beverage purposes, has become, by lawful proposal

DEMPSEY v. BOYNTON, U. S. Atty., et al. and ratification, a part of the Constitution.

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6. INTOXICATING LIQUORS 13- STATUTES AUTHORIZING WHAT PROHIBITION AMENDMENT PROHIBITS ARE INVALIDATED.

Const. Amend. 18, § 1, prohibiting the manufacture, sale, etc., of intoxicating liquors for beverage purposes, is operative throughout the entire territorial limits of the United States and of its own force invalidates every legisla

CHRISTIAN FEIGENSPAN v. BODINE, U. tive act of Congress, state Legislatures, or ter

S. Atty., et al.

No. 788.

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ritorial assemblies, authorizing or sanctioning what it prohibits.

7. INTOXICATING LIQUORS 13 - PROHIBI

TION AMENDMENT ONLY AUTHORIZES STAT-
UTES ENFORCING ITS PROVISIONS.

Const. Amend. 18, § 2, giving Congress and the states concurrent power to enforce such

ST. LOUIS BREWING ASS'N v. MOORE, amendment by appropriate legislation, does not

Collector, et al.

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PROPOSING AMENDMENT NEED NOT CONTAIN
DECLARATION THAT IT IS REGARDED AS ES-
SENTIAL.

A joint resolution proposing an amendment to the Constitution need not contain an express declaration that those voting for it regard it as essential; its adoption sufficiently showing that they deem it necessary.

2. CONSTITUTIONAL LAW

10-"Two-THIRDS VOTE" OF MEMBERS PRESENT CONSTITUTING QUORUM MAY ADOPT RESOLUTION PROPOSING AMENDMENT.

The "two-thirds vote" in each house, which is required in proposing an amendment to the Constitution, is a vote of two-thirds of the members present, assuming the presence of a quorum, and not a vote of two-thirds of the entire membership.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, TwoThirds Vote.]

authorize Congress or the states to defeat or
thwart the prohibition contained in section 1,
but only to enforce it by appropriate means.
8. INTOXICATING LIQUORS 13-Congres-
SIONAL LEGISLATION UNDER PROHIBITION
AMENDMENT NEED NOT BE JOINED IN ОВ
SANCTIONED BY STATES; "CONCURRENT
POWER.

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The words "concurrent power," in Const. Amend. 18, § 2, giving concurrent power to Congress and the states to enforce that amendment, do not mean a joint power or require that legislation thereunder by Congress to be effective, shall be approved or sanctioned by the several states, or any of them.

9. INTOXICATING LIQUORS 13-POWER OF CONGRESS NOT LIMITED ΤΟ INTERSTATE TRANSACTIONS.

Const. Amend. 18, § 2, does not divide the power to enforce such amendment between Congress and the states along lines which separate or distinguish foreign and interstate commerce from intrastate affairs, but confides to Congress power territorially coextensive with the prohibition of the first section and embracing manufacture and other intrastate transactions as well as importation, exportation, and interstate traffic.

3. CONSTITUTIONAL LAW 10-REFERENDUM 10. INTOXICATING LIQUORS

PROVISIONS CANNOT BE APPLIED TO ADOP-
TION OF AMENDMENT TO FEDERAL CONSTI-
TUTION.

The referendum provisions of state Constitutions and statutes cannot be applied, consistently with the Constitution of the United States, in the ratification or rejection of amendments to that Constitution.

4. CONSTITUTIONAL LAW

10-PROHIBITION AMENDMENT WITHIN POWER TO AMEND CONFERRED BY CONSTITUTION.

13-POWER OF

CONGRESS NOT DEPENDENT ON ACTION OF

THE STATES.

The power conferred on Congress by Const. Amend. 18, § 2, to enforce the prohibition contained in section 1, is in no wise dependent on, or affected by, action or inaction on the part of the states, or any of them.

11. INTOXICATING LIQUORS

13-CONGRESS

MAY PROHIBIT DISPOSAL OF LIQUORS MANU-
FACTURED PRIOR TO PROHIBITION AMEND-

MENT.

Const. Amend. 18, prohibiting the manufacUnder Const. Amend. 18, Congress may ture, sale, etc., of intoxicating liquors for bev- prohibit the disposal, for beverage purposes, of

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

(40 Sup.Ct.)

liquors manufactured before such amendment No. 30. Argued March 29, 1920: became effective.

12. INTOXICATING LIQUORS 13-NATIONAL PROHIBITION ACT IS WITHIN POWERS OF CONGRESS.

The National Prohibition Act, which treats liquors containing one-half of 1 per cent. of alcohol by volume and fit for use for beverage purposes as within the powers of enforcement conferred on Congress by Const. Amend. 18, does not transcend the powers so conferred.

Mr. Justice McKenna and Mr. Justice Clarke dissenting in part.

No. 696: Appeal from the District Court of the United States for the District of Massachusetts.

No. 752: Appeal from the District Court of the United States for the Western District of Kentucky.

No. 788: Appeal from the District Court of the United States for the District of New Jersey.

No. 794: Appeal from the District Court of the United States for the Eastern District of Wisconsin.

No. 837: Appeal from the District Court of the United States for the Eastern District of Missouri.

Original suits by the State of Rhode Island and by the State of New Jersey against A. Mitchell Palmer, Attorney General, and others. Suits dismissed.

Suits by George C. Dempsey against Thomas J. Boynton, as United States Attorney, and others, by the Kentucky Distilleries & Warehouse Company against W. V. Gregory, as United States Attorney, and others, by Christian Feigenspan, a corporation, against Joseph L. Bodine, as United States attorney, and others, by the Manitowoc Products Company against Hiram A. Sawyer, as United States Attorney, and others, and by the St. Louis Brewing Association against George H. Moore, Collector, and others. From a decree in favor of plaintiff in the suit by the Manitowoc Products Company, defendants appeal, and from decrees for the defendants in the other suits, the plaintiff's appeal. Decree in the suit by the Manitowoc Products Company reversed, and decrees in the other suits affirmed.

Mr. Thomas F. McCran, of Paterson, N. J., for complainant.

Mr. Assistant Attorney General Frierson, for respondents.

No. 696. Argued March 9, 1920:

Mr. Patrick Henry Kelley, of Boston, Mass., for appellant.

Mr. Assistant Attorney General Frierson, for appellees.

No. 752. Argued March 9 and 10, 1920:

Messrs. Levy Mayer, of Chicago, Ill., and William Marshall Bullitt, of Louisville, Ky., for appellant.

Mr. Solicitor General King and Mr. Assistant Attorney General Frierson, for appellees.

No. 788. Argued March 29 and 30, 1920:

Messrs. Elihu Root and William D. Guthrie, both of New York City, for appellant.

Mr. Solicitor General King and Mr. Assistant Attorney General Frierson, for appellees. No. 794. Argued March 30, 1920:

Mr. Solicitor General King and Mr. Assistant Attorney General Frierson, for appellants.

Mr. Ralph W. Jackman, of Madison, Wis., for appellee.

No. 837. Submitted March 29, 1920:

Messrs. Charles A. Houts, John T. Fitzsimmons, and Edward C. Crow, all of St. Louis, Mo., for appellant.

Mr. Solicitor General King and Mr. Assistant Attorney General Frierson, for appellees.

*384

*Mr. Justice VAN DEVANTER announced the conclusions of the Court. Power to amend the Constitution was reserved by 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

*385

Application of the Legisla*tures 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 For opinion below in Christian Feigenspan thereof, as the one or the other Mode of Ratifiv. Bodine, see 264 Fed. 186.

See, also, State of Rhode Island v. Palmer, 40 Sup. Ct. 179, 64 L. Ed.; State of New Jersey v. Palmer, 252 U. S. 570, 40 Sup. Ct. 345, 64 L. Ed.

No. 29. Argued March 8 and 9, 1920:

*353

*Mr. Herbert A. Rice, of Providence, R. I., for complainant.

Mr. Solicitor General King and Mr. Assistart Attorney General Frierson, for respondents.

cation 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."

The text of the Eighteenth Amendment, proposed by Congress in 1917 and proclaimed as ratified in 1919 (40 Stat. 1050, 1941), is as follows:

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

"Section 1. After one year from the ratifica-erative throughout the entire territorial limtion of this article the manufacture, sale, or its of the United States, binds all legislative transportation of intoxicating liquors within, bodies, courts, public officers and individuals the importation thereof into, or the exporta- within those limits, and of its own force intion thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. "Sec. 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation."

$387

validates every *legislative act, whether by Congress, by a state Legislature, or by a territorial assembly, which authorizes or sanctions what the section prohibits.

[7] 7. The second section of the amendment-the one declaring "The Congress and We here are concerned with seven cases the several states shall have concurrent powinvolving the validity of that amendment er to enforce this article by appropriate legand of certain general features of the Na-islation"-does not enable Congress or the tional Prohibition Law, known as the Vol- several states to defeat or thwart the prostead Act, c. 85, Acts 66th Cong., 1st Sess. hibition, but only to enforce it by appro(41 Stat. 305), which was adopted to enforce priate means. the amendment. The relief sought in each case is an injunction against the execution of that act. Two of the cases-Nos. 29 and 30, original,-were brought in this court, and the others in District Courts. Nos. 696,

752, 788, and 837 are here on appeals from decrees refusing injunctions, and No. 794 from a decree granting an injunction. The cases have been elaborately argued at the #386 bar and in *printed briefs; and the arguments have been attentively considered, with the result that we reach and announce the following conclusions on the questions involved: [1] 1. The adoption by both houses of Congress, each by a two-thirds vote, of a joint resolution proposing an amendment to the Constitution sufficiently shows that the proposal was deemed necessary by all who voted for it. An express declaration that they regarded it as necessary is not essential.

None of the resolutions whereby prior amendments were proposed contained such a declaration.

[2] 2. The two-thirds vote in each house which is required in proposing an amendment is a vote of two-thirds of the members present-assuming the presence of a quorum -and not a vote of two-thirds of the entire membership, present and absent. Missouri Pacific Ry. Co. v. Kansas, 248 U. S. 276, 39 Sup. Ct. 93, 63 L. Ed. 239, 2 A. L. R. 1589. [3] 3. The referendum provisions of state Constitutions and statutes cannot be applied, consistently with the Constitution of the United States, in the ratification or rejection of amendments to it. Hawke v. Smith, 253 U. S. 221, 40 Sup. Ct. 495, 64 L. decided June 1, 1920.

Ed.

[4] 4. The prohibition of the manufacture, sale, transportation, importation and exportation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amend reserved by article 5 of the Constitution.

[5] 5. That amendment, by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument.

[6] 6. The first section of the amendment -the one embodying the prohibition-is op

[8-10] S. The words "concurrent power," in that section, do not mean joint power, or require that legislation thereunder by Congress, to be effective, shall be approved or sanctioned by the several states or any of them; nor do they mean that the power to enforce is divided between Congress and the several states along the lines which separate or distinguish foreign and interstate commerce from intrastate affairs.

9. The power confided to Congress by that section, while not exclusive, is territorially coextensive with the prohibition of the first section, embraces manufacture and other intrastate transactions as well as importation, exportation and interstate traffic, and is in no wise dependent on or affected by action or inaction on the part of the several states or any of them.

[11] 10. That power may be exerted against the disposal for beverage purposes of liquors manufactured before the amendment became effective just as it may be against subsequent manufacture for those purposes. In either case it is a constitutional mandate or prohibition that is being en

forced.

[12] 11. While recognizing that there are limits beyond which Congress cannot go in treating beverages as within its power of enforcement, we think those limits are not transcended by the provision of the Volstead Act (title 2, § 1), wherein liquors containing as much as one-half of 1 per cent. of alcohol by volume and fit for use for beverage *purposes are treated as within that power. Jacob Ruppert v. Caffey, 251 U. S. 264, 40 Sup. Ct. 141, 64 L. Ed.

*388

Giving effect to these conclusions, we dispose of the cases as follows:

In Nos. 29 and 30, original, the bills are dismissed.

In No. 794, the decree is reversed. In Nos. 696, 752, 788 and 837, the decrees are affirmed.

Mr. Chief Justice WHITE concurring. I profoundly regret that in a case of this magnitude, affecting as it does an amendment to the Constitution dealing with the powers and duties of the national and state

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