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of Congress, may be considered as still open. It has been held

4 But see opinion Van Devanter, J., in National Prohibition Cases, 253 U. S. 350, 387.

The subject is discussed in Harvard Law Rev. for January, 1921, XXXIV, 317-319.

"Among the problems left undecided when the Supreme Court of the United States sustained the validity of the Eighteenth Amendment (Rhode Island v. Palmer, 40 Sup. Ct. Rep., 486, 1920) and with it the constitutionality of the National Prohibition Act (Volstead Act, 41 Stat., at L., 305) was the construction to be given two phrases of section 2 of the amendment: First, what is meant by the 'concurrent power' (the second section of the Eighteenth Amendment reads as follows: 'The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation') of the Federal and State Governments to enforce the amendment; and, second, what is appropriate' (see note 3, supra) State legislation for its enforcement? The court did declare that the concurrent power is not joint, nor is it such a division as exists between interstate and intrastate commerce (Rhode Island v. Palmer, supra, eighth conclusion). But it left its conception thereof to be gathered from the concurring opinion of the chief justice (ibid., 488), which intimated that Congress had the duty of enacting legislation which should be operative throughout the country, but that each State could act as it saw fit within its jurisdiction as long as such acts contemplated enforcement of the amendment and were consistent with the

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Federal statutes. Such will be assumed to be the meaning and effect of the phrase 'concurrent power' (see 33 Harv. L. Rev., 968).

"From this it would follow that appropriate State legislation for the enforcement of the amendment must be such as coincides, or at least does not conflict, with the Federal statute, i. e., the Volstead Act. But for practical purposes the real question, which is raised in the two recent cases of Commonwealth v. Nickerson (128 N. E., 273, 1920; see recent cases, p. 328, infra) and Ex parte Ramsey (265 Fed. 950, 1920; see recent cases, p. 328, infra), is whether State legislation enacted prior to the ratification of the amendment can come within the definition of 'appropriate,' and, if so, how far such statutes remain in force. To determine this we must look at the nature of the States' power under the amendment.

"Before the Eighteenth Amendment became a part of the Constitution the regulation of intoxicating liquors, apart from questions of interstate commerce, was exclusively. exercised by the States under their general police power (Mugler v. Kansas, 123 U. S., 623, 1887; see License Cases, 5 How., U. S. 504, 1847; In re Rahrer, 140 U. S. 545, 1891). The amendment, as qualified by section 2, affected this power in one of two ways: it operated either (I) as a cession of all their power by the States and a recession of a restricted power; or (II) as a cession of most of their previous power with a reservation of a restricted power.

"I. If it had not been for the ex

press power conferred upon the States by section 2, the amendment would clearly be enforcible by Congress alone (see concurring opinion of White, C.J., in Rhode Island v. Palmer, supra, 490). No State prior to the ratification of this amendment had the right to enforce such a constitutional provision. Under this interpretation, therefore, the effect of section 2 was to give the States a power they did not have before (ibid, 490, White, C.J., said: 'I assume that it will not be denied that the effect of the grant was to confer upon both Congress and the States power to do things which otherwise there would be no right to do.') But if the complete power to regulate liquor passed over to Congress, then the validity of all legislation enacted under it lapsed with it; and though in a twinkling

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State Liquor Law was invalid in so far as it affected imported liquors, when Congress expressly allowed such

liquo quors to fall under State regulation, the State law became operative without re-enactment (In re Rahrer, supra.) But in that case no new power was granted, and the court expressly excluded the present situation with the statement that 'this is not the case of a law enacted in the unauthorized exercise of a Power exclusively confided to Congress, but of a law which it was competent for the State to pass, but which could not operate upon ar

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the theory does not seem tenable. To say that the States in the same breath granted away a complete power and then regranted a part of it back to themselves is to talk in circles. Yet in no other way could this power be regranted; Congress certainly could not grant a constitutional power to the States under our theory of government.

"II. The Federal Government is one of delegated powers (see United States v. Cruikshank, 92 U. S. 542, 551, 1875). The powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people' (United States Constitution, Tenth Amendment). True, the States never had the right to enforce the amendment before. But they had the power to prohibit the manufacture, sale, &c, of intoxicating liquors; in other words, to do exactly what the amendment orders shall be done (see note 10, supra). In ratifying the amendment they agreed to exercise this power exclusively for the enforcement of prohibition. If this be so, it would follow that the State laws in existence prior to the ratifi'cation of the Eighteenth Amend ment were based upon a power which still exists, and are consequently valid if they do not conflict with the purpose of section 1 of the amend-, ment or the Volstead Act (Rhode

in Massachusetts,5 New Jersey, New York," and seems to be the

Island v. Palmer, supra, sixth conclusion).

"Assuming the second interpretation to be correct, the question still remains whether prior State legislation which partially conflicts with the amendment must be discarded altogether or only pro tanto. It is a well-established principle that a statute may be unconstitutional in part and yet valid as to the remainder, if the valid and void parts are separable (Presser v. Illinois, 116 U. S. 252, 1885; Fisher v. McGirr, 1 Gray Mass. 1, 1854; August Busch & Co. v. Webb, 122 Fed. 655, 1903). But if to give effect to so much as is valid would bring about a result not desired or contemplated by the Legislature, the whole law will be held unconstitutional (for cases where the unconstitutionality of part of a statute affected the validity of the whole see Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 1902; Pollock v. Farmers Loan & Trust Co., 158 U. S. 601, 1895; Commonwealth v. Hana, 195 Mass. 262, 1907; Warren v. Mayor and Aldermen of Charlestown, 2 Gray Mass. 84, 1854; for cases where the court held that the valid part of a statute was enforcible apart from the void part see Diamond Glue Co. v. United States Glue Co., 187 U. S. 611, 1903; Lawton v. Steele, 119 N. Y. 226, 1890; State v. Davis, 72 N. J. L. 345, 1905). This rule applies where the legislation is enacted in the light of an existing constitutional provision. But where, as in the present case, legislation perfectly valid when passed is affected by a subsequent change in the organic law, the situation is governed by the further prin

ciple that an addition to the fundamental law only repeals such prior constitutional provisions and statutes as are in conflict with it, in whole or in part (Griebel v. State, 111 Ind. 369, 12 N. E. 700, 1887; State v. Schluer, 59 Ore. 18, 115 Pac. 1057, 1911; Kansas City, Fort Scott & Memphis R. Co. v. Thornton, 152 Mo. 570, 1899; in Trustees of University of North Carolina v. MeIver, 72 N. C. 76, 89, 1875, Pearson, C.J., concurring, aptly compared the effect of a constitutional amendment on prior constitutional provisions and existing statutes to the effect of a codicil on a will or of a second deed on the original one). On this basis all such portions of prior existing State legislation as contemplate the enforcement of prohibition remain in force and are appropriate legislation under the terms of the amendment (for cases concerning the effect of the amendment and Volstead Act on prior Federal legislation, see United States v. Windham, 264 Fed. 376, 1920; United States v. Sohm, 265 Fed. 910, 1920; United States v. One Essex Touring Automobile, 266 Fed. 138, 1920; United States v. Turner, 266 Fed. 248, 1920)." (Note, 34 Harv. Law Rev., 317-319, January, 1921.)

5 Commonwealth V. Nickerson (Mass. 1920), 128 N. E. 273, U. S. 350, 387.

6 Gummere, C.J., charged to the grand jury A. D. 1920, in which the other judges of the State of New Jersey concurred quoted in People's Foley, infra.

7 People v. Foley, N. Y. Sup. Ct., Sp. Tm., per Tuthill, J., N. Y. L. J. Nov. 24, 1920.

rule in Vermont; that the State laws punishing unlicensed sale of intoxicating liquors which were passed before the adoption of the Amendment, so far as they are not inconsistent with the act of Congress for the enforcement of prohibition, are still in force.

It has been held that a State statute passed subsequent to the Amendment which penalizes an offense previously punished by Congress more severely than does the Federal statute, may still be enforced 10 provided that the offender is not arrested under Federal process or that other proceedings in the Federal Courts are not instituted against him before the initiation of the pro-. ceedings in a State Court.11

If the objection of prior custody is not raised by the Federal authorities, it is doubtful whether it will be sustained.12

If in the case of such a State statute, the offender should be taken into the custody of the State authorities, before the institution of a proceeding in the Federal Court against him; it might well be held that the State could obtain his release from the Federal arrest for the same offense.13 The effect of an adjudication by a State Court upon Federal proceedings to punish the same transaction has not yet been decided.14

. It is surprising that no State statute defining the meaning of the phrase "intoxicating liquors" was passed before the act of Congress of October 28, 1919.15 Had there been, it would have been a very serious question whether the State statute did not, within the jurisdiction of the State, take precedence of the act of Congress.16

§ 483c. Criminal jurisdiction over land ceded by the states or reserved, purchased, or otherwise acquired from them. By the Criminal Code, whoever, within the territorial limits of any State, organized territory, or district, but within or upon any lands reserved or acquired for the exclusive use of the United States and under the exclusive jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent

8 Ex parte Guerra (Vt., May 8th, 1920), 110 Atl. 224.

9 Act of October 28th, 1919, 41 St. at L. 305.

10 Ex parte Ramsey, 265 Fed. 950. 11 Ibid.

12 Supra, § 483a, infra, § 489.

13 See supra, §§ 52, 58; infra,

§ 489.

14 See infra, § 520.

15 Act of October 28th, 1919, ch.
41 St. at L. 305; supra, § 52.
16 Supra, §§ 52-59.

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of the Legislature of the State in which the same shall be for the erection of a fort, magazine, arsenal, dockyard, or other. needful building, does or omits the doing of any act or thing which is not made penal by any act of Congress, but which if committed or omitted within the jurisdiction of the State, Territory, or district in which such place is situated, by the laws thereof in force on March 4, 1909,1 would be penal, is deemed, upon a prosecution in the Federal court of the district within which such place is situated, guilty of a like offense and be subject to a like punishment; "and every such State, Territorial, or District law shall, for the purposes of this section, continue in force, notwithstanding any subsequent repeal or amendment thereof by any such State, Territory, or District."2

This is limited to the criminal laws in force at the time of its enactment, or at least at the time when it took effect. It does not authorize the States to change the criminal laws in force in

§ 483c. 1 Criminal Code, § 289. Act of March 4, 1909, 35 St. at L., 1145, § 289, Comp. St., § 10462. The phrase is "now in force.'' Ibid. The act took effect January 1, 1910. Criminal Code, § 345, 35 St. at L. 1159, Comp. St., § 10519. The act might be held to incorporate by reference the State laws existing when it took effect.

2 Criminal Code, §§ 289, 272, Act
of March 4, 1909, 35 St. at L. 1145,
1142, Comp. St., §§ 10462, 10445.
This section re-enacted the Act of
March 3, 1825, ch. 65, 4 St. at L.
115; Act of April 5, 1866, ch. 24, 14
St. at L. 13, U. S. R. S., § 5391;

Act of July 7, 1898, ch. 576, 30 St.
at L. 717. The original statute was
drawn by Judge Story and Daniel
Webster, Story's Life, I, pp. 293,
338.

Daniel Webster said: "As to the
third section, it must be obvious
that, where the jurisdiction of a

small place, containing only a few hundreds of people (a navy yard, for instance), was ceded to the United States, some provision was required for the punishment of offenses; and as, from the use to which the place was to be put, some crimes were likely to be more frequently committed than others, the committee had thought it sufficient to provide for these, and then to leave the residue to be punished by the laws of the State in which the yard, etc., might be. He was persuaded that the people would not view it as any hardship that the great class of minor offenses should continue to be punished in the same manner as they had been before the cession."

8 U. S. v. Paul, 6 Peters 141, 143, 8 L. ed. 348, 349; Franklin v. U. S., 216 U. S. 559, 54 L. ed. 615, affirming 174 Fed. 163.

4 See note 2 supra.

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