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the words "concurrent power" action in con- | rule of construction that in the exposition of junction, contribution of effort, certainly har- statutes and constitutions, every word "is mony of action, not antagonism. Opposing to be expounded in its plain, obvious, and laws are not concurring laws, and to assert common sense, unless the context furnishes the supremacy of one over the other is to as- some ground to control, qualify or enlarge sert the exclusiveness of one over the other, it," and there cannot be imposed upon the not their concomitance. Such is the result of words "any recondite meaning or any extraorthe government's contention. It does not dinary gloss." 1 Story, Const. § 451; Lake satisfy the definitions, or the requirement of County v. Rollins, 130 U. S. 662, 9 Sup. Ct. section 2-"a concurrent power excludes the 651, 32 L. Ed. 1060. And it is the rule of idea of a dependent power." Mr. Justice reason as well as of technicality, that if the McLean in the Passenger Cases, 7 How. 283, words so expounded be "plain and clear, and 399, 12 L. Ed. 702. the sense distinct and perfect arising on them" interpretation has nothing to do. This can be asserted of section 2. Its words express no "double sense," and should be accepted in their single sense. It has not yet been erected into a legal maxim of constitutional construction, that words were made to conceal thoughts. Besides, when we depart from the words, ambiguity comes. There are
Other definitions assign to the words "existing or happening at the same time," "concurring together," "coexistent." These definitions are, as the others are, inconsistent with the government's contention. If coexistence of the power of legislation is given to Congress and the states by section 2, it is given to be coexistently exercised. It is to be remembered that the Eighteenth Amendment was intended to deal with a condition, not a theory, and one demanding something more than exhortation and precept. The habits of a people were to be changed, large business interests were to be disturbed, and it was considered that the change and disturbance could only be effected by punitive and repressive legislation, and it was naturally thought that legislation enacted by "the Congress and the several states," by its concurrence would better enforce prohibition and avail for its enforcement the two great
divisions of our governmental system, *the nation and the states, with their influences and instrumentalities.
From my standpoint, the exposition of the case is concluded by the definition of the words of section 2. There are, however, confirming considerations; and militating considerations are urged. Among the confirming considerations are the cases of Wedding v. Meyler, 192 U. S. 573, 24 Sup. Ct. 322, 48 L. Ed. 570, 66 L. R. A. 833, and Nielsen v. Oregon, 212 U. S. 315, 29 Sup. Ct. 383, 53 L. Ed. 528, in which "concurrent jurisdiction" was given respectively to Kentucky and Indiana over the Ohio river by the Virginia Compact, and respectively to Washington and Oregon over the Columbia river by act of Congress. And it was decided that it conferred equality of powers, "legislative, judicial and executive," and that neither state could override the legislation of the other. Other courts have given like definitions. 2 Words and Phrases Judicially Defined, p. 1391 et seq.; Bouvier's Dictionary, vol. 1, page 579. Analogy of the word "concurrent" in private instruments may also be invoked.
Those cases are examples of the elemental
ing with; coincident. 3. Conjoint; joint; concom-
as many solutions *as there are minds considering the section, and out of the conflict, I had almost said chaos, one despairs of finding an undisputed meaning. It may be said that the court, realizing this, by a declaration of conclusions only, has escaped the expression of antithetical views and considered it better not to blaze the trails, though it was believed that they all led to the same
If it be conceded, however, that to the words "concurrent power" may be ascribed the meaning for which the government contends, it certainly cannot be asserted that such is their ordinary meaning, and I might leave section 2, and the presumptions that support it, to resist the precedents adduced by the government. I go farther, however, and deny the precedents. The Federalist and certain cases are cited as such. There is ready explanation of both, and neither sup ports the government's contention. The dual system of government contemplated by the Union encountered controversies, fears, and jealousies that had to be settled or appeased to achieve union, and the Federalist in good and timely sense explained to what extent the "alienation of state sovereignty” would be necessary to "national sovereignty," constituted by the "consolidation of the states," and the powers that would be surrendered, and those that would be retained. And the explanation composed the controversies and allayed the fears of the states that their local powers of government would not be displaced by the dominance of a centralized control. And this court after union had been achieved, fulfilled the assurances of the explanation and adopted its distribution of powers, designating them as follows: (1) Powers that were exclusive in the states-reserved to them; (2) powers that were exclu sive in Congress, conferred upon it; (3) powers that were not exclusive in either, and hence said to be "concurrent." And it was
decided that, when exercised by Congress, | ment, it is made supreme by article 6 of they were supreme-"the authority of the the Constitution. The article is not applicable. It is not a declaration of the supremacy of one provision of the Constitution
states then retires" to inaction. *To understand them, it must be especially observed that their emphasis was, as the fundamental principle of the new government was, that it had no powers that were not conferred upon it, and that all other powers were re served to the states. And this necessarily must not be absent from our minds, whether construing old provisions of the Constitution or amendments to it or laws passed under
"A concurrent power excludes the idea of a dependent power."
or laws of the United States over another,
but of the supremacy of the Constitution and laws of the United States over the Constitutions and laws of the states. Gibbons v. Ogden, 9 Wheat. 1, 209, 6 L. Ed. 23, 211; Sec. 1838 et seq.; 2 Story, Const., 5th Ed.
The government nevertheless contends that the decisions (they need not be cited) constitute precedents for its construction of section 2 of the Eighteenth Amendment. In other words, the government contends (or must so contend for its reasoning must bear the test of the generalization) that it was decided that in all cases where the powers of Congress are concurrent with those of the states, they are supreme as incident to conThe contention is not tenable; it overlooks the determining consideration. The powers of Congress were not decided to be supreme because they were concurrent with powers in the states, but because of their source, their source being the Constitution of the United States and the laws made in pursuance of the Constitution, as against the source of the powers of the states, their source being the Constitution and laws of the states, the Constitution and laws of the United States being made by article 6 the supreme law of the land, “any Thing in the Constitution or Laws of any State to the Contrary notwithstand-states, in some way becomes constitutionally ing." McCulloch v. Maryland, 4 Wheat. 316, subordinate in the states to Congress.
to the states as well as to Congress, and it is a contradiction to say that a power constitutionally concurrent in Congress and the
426, 4 L. Ed. 579.
This has example in other powers of sovereignty that the states and Congress posIn McCulloch v. Maryland, at pages 425, 430 of 4 Wheat. (4 L. Ed. 579), Chief Justice Marshall said that the power of taxation retained by the states was not abridged by the granting of a similar power to the government of the Union, and that it was to be concurrently exercised, and these truths, it was added, had never been denied, and that there was no "clashing sovereignty" from incompatibility of right. And, necessarily, a con*currence of power in the states and Congress excludes the idea of supremacy in either. Therefore, neither principle nor precedent sustains the contention that section 2 by giving concurrent power to Congress and the states, gave Congress supreme power over the states. I repeat the declaration of Mr.
It is, however, suggested (not by the government) that if Congress is not supreme upon the considerations urged by the govern
The Eighteenth Amendment is part of the Constitution of the United States, therefore of as high sanction as article 6. There seems to be a denial of this, based on article 5. That article provides that the amendments proposed by either of the ways there expressed "shall be valid to all intents and purposes as part of this Constitution." Some undefinable power is attributed to this in connection with article 6, as if article 5 limits in some way, or defeats, an amendment to the Constitution inconsistent with a previously existing provision. Of course, the immediate answer is that an amendment is made to change a previously existing provision. What other purpose could an amendment have and it would be nullified by the mythical power attributed to article 5, either alone or in conjunction with article 6? A contention that ascribes such power to those articles is untenable. The Eighteenth Amendment is part of the Constitution and as potent as any other part of it. Section 2, therefore, is a new provision of power, power
If it be said that the states got no power over prohibition that they did not have before, it cannot be said that it was not preserved to them by the amendment, notwithstanding the policy of prohibition was made national, and besides, there was a gift of power to Congress that it did not have before, a gift of a right to be exercised within
state lines, but with the limitation or condí
tion that the powers of the states should remain with the states and be participated in by Congress only in concurrence with the states, and thereby preserved from abuse by either, or exercise to the detriment to prohibition. There was, however, a power given to the states, a power over importations. This power was subject to concurrence with Congress and had the same safeguards.
This construction of section 2 is enforced by other considerations. If the supremacy of Congress had been intended it would have been directly declared as in the Thirteenth, Fourteenth and Fifteenth Amendments. And such was the condition when the amendment left the Senate. The precedent of preceding amendments was followed, there was a single declaration of jurisdiction in Congress.
I am not, therefore, disposed to regard the concessions seriously. They confuse-"make not light, but darkness, visible." Of what use is a concession of power to the states to enact laws which cannot be enforced? of what use a concession of jurisdiction to the courts of the states when their judgments cannot be executed, indeed the very law upon which it is exercised may be declared void in an antagonistic jurisdiction exerted in execution of an antagonistic power?s And equally worthless is the analogy that the government assays between the power of the national government and the power of the states to criminally punish violations of their respective sovereignties, as, for instance, in counterfeiting cases. In such cases the exercises of sovereignty are not in an
mediately superseded-indeed, as this case shows, is possibly forestalled and precluded by the power exercised in the Volstead Act. And meaningless is the difference the gov-tagonism. Each is inherently possessed and ernment suggests between concurrent power independently exercised, and can be enforced and concurrent legislation. A power is given no matter what the other sovereignty may do to be exercised, and we are cast into helpless or abstain from doing. On the other hand, and groping bewilderment in trying to think of it apart from its exercise or the effect of tion 2, the legislation of Congress is supreme under the government's construction of sec
its exercise. The addition to section 2 was a conscious adaptation of means to the purpose. It changed the relation between the states and the national government. The lines of exclusive power in one or the other were removed, and equality and community of powers substituted.
There is a suggestion, not made by the government, though assisting its contention, that section 2 was a gift of equal power to Congress and to the states, not, however, to be concurrently exercised, but to be separately exercised; conferred and to be exercised is the suggestion, to guard against neglect in either Congress or the states, the inactivity of the one being supplied by the activity of the other. But here again we encounter the word "concurrent" and its inexorable requirement of coincident or united action, not alternative or emergent action to safeguard against the delinquency of Congress or the states. If, however, such neglect was to be apprehended, it is strange that the framers of section 2, with the whole vocabulary of the language to draw upon, selected words that expressed the opposite of what the framers meant. In other words, expressed concurrent action instead of substitute action. I cannot assent. I believe they meant what they said and that they must be taken at their word.
Section 2 was amended in the House upon recommendation of the Judiciary Committee and the provision giving concurrent power to Congress and to the states was necessarily estimated and intended to be additive of something. The government's contention makes it practically an addition of nothing but words, in fact denuding it of function, making it a gift of impotence, not one of power to be exercised independently of Congress or concurrently with Congress, or, indeed, at all. Of this there can be no contradiction, for what power is assigned to the states to legislate if the legislation be im
The government with some consciousness that its contention requires indulgence or excuse, but at any rate in recognition of the insufficiency of its contention to satisfy the words of section 2, makes some concessions to the states. They are, however, not very tangible to measurement. They seem to
yield a power of legislation to the states *and a power of jurisdiction to their courts, but almost at the very instant of concession, the power and jurisdiction are declared to be without effect.
is abortive of effect.
The government seeking relief from the perturbation of mind and opinions produced by departure from the words of section 2, suggests a modification of its contention, that in case of conflict between state legislation and congressional legislation, that of Congress would prevail, by intimating that if state legislation be more drastic than congressional legislation, it might prevail, and in support of the suggestion, urges that section 1 is a command to prohibition, and that the purpose of section 2 is to enforce the command, and whatever legislation is the most prohibitive subserves best the command, displaces less restrictive legislation and becomes paramount. If a state, therefore, should define an intoxicating beverage to be one that has less than one-half of 1 per cent. of alcohol, it would supersede the Volstead Act and a state might even keep its legislation supreme by forestalling congressional retaliation by prohibiting all artificial beverages of themselves innocuous, the prohibition being accessory to the main purpose of power; adducing Purity Extract Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184, and Ruppert v. Caffey, 251 U. S. 264, 40 Sup. Ct. 141. Of course this concession of the
3 The government feels the inconsistency of its concessions and recessions. It asserts at one instant that the legislation of the states may be enforced in their courts, but in the next instant asserts that the conviction or acquittal of an offender there will not bar his prosecution in the federal courts for the same act as a violation of the federal law. From this situation the government hopes that there will be rescue by giving the Eighteenth Amendment "such meaning that a prosecution in the courts of one government may be held to bar a
prosecution for the same offence in the courts of the other." The government considers, however, the question is not now presented.
"are obvious and do not need to be stated. We have nothing to do with them when the lawmaking power has spoken."
I am, I think, therefore, justified in my dissent. I am alone in the grounds of it, but in the relief of the solitude of my position, I invoke the coincidence of my views
more drastic legislation destroys all that is
From these premises the deduction seems
with *those entertained by the minority membership of the Judiciary Committee of the House of Representatives, and expressed in its report upon the Volstead Act.
Mr. Justice CLARKE dissents. See 253 U.
(253 U. S. 221)
inevitable that there must be united action HAWKE v. SMITH, Secretary of State of between the states and Congress, or, at any rate, concordant and harmonious action; and will not such action promote better the purpose of the amendment-will it not bring to the enforcement of prohibition, the power of
(Argued April 23, 1920. Decided June 1,
1. STATES 4-FEDERAL CONSTITUTION SU-
The powers specifically conferred on the general government by the Constitution were surrendered by the states, and the Constitution and laws of the United States are the supreme law of the land.
2. CONSTITUTIONAL LAW 10-METHOD OF
the states and the power of *Congress, make all the instrumentalities of the states, its courts and officers, agencies of the enforce ment, as well as the instrumentalities of the United States, its court and officers, agencies of the enforcement? Will it not bring to the states as well, or preserve to them, a partial autonomy, satisfying, if you will, their prejudices, or better say, their predilections; and it is not too much to say that our dual system Under Const. art. 5, providing for the ratiof government is based upon them. And this predilection for self-government the Eigh-fication of proposed amendments by the Legisteenth Amendment regards and respects, and by doing so sacrifices nothing of, the policy of prohibition.
It is, however, urged that to require such concurrence is to practically nullify the prohibition of the amendment, for without leg islation its prohibition would be ineffectual, and that it is impossible to secure the concurrence of Congress and the states in legislation. I cannot assent to the propositions. The conviction of the evils of intemperance-the eager and ardent sentiment that impelled the amendment, will impel its execution through Congress and the states. It may not be in such legislation as the Volstead Act with its 2 of 1 per cent. of alcohol or in such legislation as some of the states have enacted with their 2.75 per cent. of alcohol, but it will be in a law that will be prohibitive of intoxicating liquor for beverage purposes. It may require a little time to achieve, it may require some adjustments, but of its ultimate achievement there can be no doubt. However, whatever the difficulties of achievement in view of the requirement of section 2, it may be answered as this court answered in Wedding v. Meyler, supra:
"The conveniences and inconveniences of concurrent" power by the Congress and the states
RATIFYING AMENDMENTS DETERMINABLE BY
latures of three-fourths of the states or by
conventions in three-fourths thereof, as one
LEGISLATIVE BODIES CANNOT ALTER METH-
It is not the function of courts or legislative bodies, national or state, to alter the method of ratifying proposed amendments to the federal Constitution, which the Constitution has fixed.
4. CONSTITUTIONAL LAW 10- "LEGISLATURES" EMPOWERED TO RATIFY AMENDMENTS DEFINED.
The word "legislatures," in Const. art. 5, relative to the ratification of the proposed amendments, has the same meaning as when the Constitution was adopted, and means the representative body which makes the laws of the people.
[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Legislature.]
5. CONSTITUTIONAL LAW 10- RATIFICA
TION OF AMENDMENT NOT ACT OF "LEGISLA-
Ratification by a state of a proposed amendment to the federal Constitution is not an act
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
of "legislation," within the proper sense of portation thereof from, the United States and the word, but the expression of the assent of the state to the proposed amendment.
all territory subject to the jurisdiction thereof for beverage purposes. The several states were given concurrent power to enforce the amendment by appropriate legislation. The resolution provided that the amendment should be inoperative unless ratified as an amendment of the Constitution by the Legislatures of the several states, as provided in the Constitution, within seven years from the date of the submission thereof to the states. The Senate and House of Representatives of the state of Ohio adopted a resolution ratifying the proposed amendment by the General Assembly of the state of Ohio, and ordered that certified copies of the joint resolution of ratification be forwarded by the Governor to the Secretary of State at Washington and to the presiding officer of each House of Congress. This resolution was adopted on January 7, 1919; on January 27, 1919, the Governor of Ohio complied with the resolution. On January 29, 1919, the Secretary of State of the United States proclaimed the ratifica
In Error to the Supreme Court of the tion of the amendment, naming 36 states as State of Ohio. having ratified the same, among them the state of Ohio.
[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Legislation.]
6. CONSTITUTIONAL LAW 10-POWER TO RATIFY AMENDMENTS DERIVED FROM CONSTI
While the power of a state Legislature to legislate in the enactment of laws for the state is derived from the people of the state, the power to ratify a proposed amendment to the federal Constitution has its source in such Con
7. CONSTITUTIONAL LAW 10-STATE CANNOT PROVIDE REFERENDUM ON RATIFICATION OF AMENDMENT TO FEDERAL CONSTITUTION. A state has no authority to provide for the submission to a referendum under the state Constitution of the ratification of a proposed amendment to the federal Constitution, as is attempted by the amendment of 1918 to the Constitution of Ohio.
Suit by George S. Hawke against Harvey C. Smith, as Secretary of State of Ohio. A judgment sustaining a demurrer to the peti
tion was affirmed by the Court of Appeals and Supreme Court of Ohio (126 N. E. 400), and plaintiff brings error. Reversed and remanded.
The question for our consideration is:
Whether the provision of the Ohio Constitution, adopted at the general election, November, 1918, extending the referendum to the ratification by the General Assembly of proposed amendments to the federal Constitution is in conflict with article 5 of the Con*Mr. J. Frank Hanly, of Indianapolis, Ind., stitution of the United States. The amendfor plaintiff in error. ment of 1918 provides:
Mr. Lawrence Maxwell, of Cincinnati, Ohio, for defendant in error.
"The people also reserve to themselves the legislative power of the referendum on the action of the General Assembly ratifying any proposed amendment to the Constitution of the
*Mr. Justice DAY delivered the opinion of United States." the Court.
Article 5 of the federal Constitution provides:
Plaintiff in error (plaintiff below) filed a petition for an injunction in the court of common pleas of Franklin county, Ohio, seek- "The Congress, whenever two-thirds of both ing to enjoin the secretary of state of Ohio houses shall deem it necessary, shall propose from spending the public money in preparing amendments to this Constitution, or, on the apand printing forms of ballot for submission plication of the Legislatures of two-thirds of of a referendum to the electors of that state the several states, shall call a convention for on the question of the ratification which the proposing amendments, which, in either case, General Assembly had made of the proposed shall be valid to all intents and purposes, as Eighteenth Amendment to the federal Con- part of this Constitution, when ratified by the stitution. A demurrer to the petition was Legislatures of three-fourths of the several sustained in the court of common pleas. Its states, or by conventions in three-fourths therejudgment was affirmed by the Court of Ap- of, as the one or the other mode of ratification peals of Franklin County, which judgment may be proposed by the Congress: Provided was affirmed by the Supreme Court of Ohio, that no amendment which may be made prior and the case was brought here.
A joint resolution proposing to the states this amendment to the Constitution of the United States was adopted on the 3d day of December, 1917. 40 Stat. 1050. The amendment prohibits the manufacture, sale or
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."
transportation of *intoxicating liquors within, the importation thereof into, or the ex
 The Constitution of the United States was ordained by the people, and, when duly ratified, it became the Constitution of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes