can a state enforce the criminal laws of the United States or punish violators of those laws,75 nor can it be compelled to execute those laws,76 and it has been held that congress cannot constitutionally confer jurisdiction over such offenses upon state courts.77 But the same act may constitute an offense against the United States and a state, in which case either or both may punish the offender for the violation of its own laws.78 This concurrent jurisdiction may arise

either because the nature of the act is such that at the same time it produces effects respectively within the sphere of state and federal regulation and thus violates the laws of both, or where there is this double effect in a matter in respect to which congress has power to exercise exclusive control but has declared that its paramount jurisdiction shall not exclude jurisdiction by the states,79 as it has sometimes done.80 But if the Federal Constitution or acts of congress passed in pursuance thereof, have expressly or impliedly conferred exclusive jurisdiction upon congress or the federal courts to punish particular acts, such acts cannot be punished by the states.81 And

247, 59 Pac. 707, 48 L. R. A. 153, 78 Am. St. Rep. 772.

Pennsylvania. Rump v. Com., 30 Pa. 475.

Tennessee. State V. Rankin, 4 Coldw. (Tenn.) 145, writ of error dismissed, 11 Wall. (U. S.) 380, 20 L. Ed. 175; Sizemore v. State, 3 Head (Tenn.) 26.

Texas. Martin v. State, 18 Tex.
App. 224.
Vermont.

-

Ex parte Guerra, Vt. 110 Atl. 224. Virginia. Jett v. Com., 18 Gratt. (Va.) 933.

Washington. State v. Kenney, 83 Wash. 441, 145 Pac. 450.

West Virginia. Ex parte Pratt, 83 W. Va. 51, 97 S. E. 301; Weil v. Black, 76 W. Va. 685, 86 S. E. 666.

79 Southern R. Co. v. Railroad Commission of Indiana, 236 U. S. 439, 59 L. Ed. 661, 35 Sup. Ct. 304, rev'g 179 Ind. 23, 100 N. E. 337. See People v. Welch, 141 N. Y. 266, 36 N. E. 328, 24 L. R. A. 117, 38 Am. St. Rep. 793.

80 The Federal Penal Code in terms provides that nothing therein shall be held to take away or impair the jurisdiction of the courts of the sev eral states under the laws thereof. Pen. Code, § 326. Prior to the adoption of the code, the same provision was found in Rev. Stat., § 5328. People v. Burke, 161 Mich. 397, 126 N. W. 446; People v. Welch, 141 N. Y.

266, 36 N. E. 328, 24 L. R. A. 117, 38 Am. St. Rep. 793.

81 United States. Southern R. Co. v. Railroad Commission of Indiana, 236 U. S. 439, 59 L. Ed. 661, 35 Sup. Ct. 304, rev'g 179 Ind. 23, 100 N. E. 337; Ex parte Bridges, 2 Woods 428, Fed. Cas. No. 1,862.

Arkansas. State v. Kirkpatrick, 32 Ark. 117.

California. People v. Kelly, 38 Cal. 145, 99 Am. Dec. 360.

Connecticut. State v. Tuller, 34

3

New York. People v. Sweetman, Park. Cr. (N. Y.) 358.

South Carolina. State v. McBride, Rice (S. C.) 400.

And see Martin v. State, 18 Tex. App. 224.

By the terms of the Federal Judiciary Act of 1789, the courts of the United States were vested with exclusive cognizance of all crimes made punishable by acts of congress, except where the act of congress made other provision. Ex parte Geisler, 50 Fed. 411; United States v. Buskey, 38 Fed. 99; Com. v. Kitchen, 141 Ky. 655, 133 S. W. 586; Com. v. Felton,

a federal criminal statute enacted pursuant to power delegated to congress by the constitution will prevail over a state statute in conflict with it.82

§ 328. Conflict between state and federal statutes. Where a state statute enacted under the police power or other reserved power is in conflict with a federal statute enacted pursuant to power delegated to congress by the constitution, the federal statute prevails.83 But a state statute enacted under any of the powers reserved to the states, especially if under the police power, will not be set aside as inconsistent with an act of congress, unless the two are so directly repugnant or in conflict that they cannot be reconciled or consistently stand together,84 or unless congress has, at least, manifested a purpose to exercise its paramount authority over the subject.85 The state law yields only when and to the extent that its enforcement conflicts with the federal statute, or with the exercise of rights conferred or the discharge of duties enjoined by it, and if it can be upheld and enforced without obstructing or embarrassing the enforcement of the federal statute, there is no invalidating conflict.86 "To the extent

83 Savage v. Jones, 225 U. S. 501, 56 L. Ed. 1182, 32 Sup. Ct. 715; Sinnott v. Davenport, 22 How. (63 U. S.) 227, 16 L. Ed. 243; Ex parte Guerra, Vt. 110 Atl. 224.

An act within the police power of a state may come within the domain of federal authority as defined by the constitution, in which case the authority of congress prevails. Keller v. United States, 213 U. S. 138, 53 L. Ed. 737, 29 Sup. Ct. 470, 16 Ann. Cas. 1066; State v. Holm, 139 Minn. 267, 166 N. W. 181, L. R. A. 1918 C 304.

In determining whether the state law is overridden, the entire scheme of the federal statute must be considered and that which is necessarily

implied is of no less force than that which is expressed, and the state law must yield if the purpose of the federal statute cannot otherwise be accomplished and its operation in its chosen field must otherwise be frustrated and its provisions be refused their natural effect. Savage v. Jones, 225 U. S. 501, 56 L. Ed. 1182, 32 Sup. Ct. 715.

84 Missouri, K. & T. R. Co. of Texas v. Harris, 234 U. S. 412, 58 L. Ed. 1377, 34 Sup. Ct. 790, L. R. A. 1915 E 942; Savage v. Jones, 225 U. S. 501, 56 L. Ed. 1182, 32 Sup. Ct. 715; Reid v. Colorado, 187 U. S. 137, 47 L. Ed. 108, 23 Sup. Ct. 92; Sinnott v. Davenport, 22 How. (63 U. S.) 227, 16 L. Ed. 243; Ex parte Guerra, Vt. 110 Atl. 224.

85 Missouri, K. & T. R. Co. of Texas v. Harris, 234 U. S. 412, 58 L. Ed. 1377, 34 Sup. Ct. 790, L. R. A. 1915 E 942. And see § 329, infra.

86 Presser v. Illinois, 116 U. S. 252, 29 L. Ed. 615, 6 Sup. Ct. 580; State

that the two are in harmony the acts are concurrent, the one supplementing the other." 87 It is no objection to the concurrent validity of both that both penalize the same acts,88 since the same act may constitute a criminal offense equally against the United States and a state, and subject the offender to punishment by both.89 Nor is the state statute rendered invalid because it punishes acts not made criminal by the federal statute.90 So it has been held that a state statute restricting the manufacture, sale and dispensing of habitforming drugs is not invalid if not in conflict with the federal statute on the same subject,91 and that state statutes punishing the illegal sale or keeping for sale of intoxicating liquors were not abrogated by the Volstead Act.92 And the same rule has often been applied in the case of state statutes affecting interstate commerce, 93 or matters covered by federal statutes enacted under the war power, 94 and in many other cases.95

§ 329. Police power. Congress has no general power to enact police regulations operative within the territorial limits of a state. That power has been left with the several states, and cannot be taken from them either wholly or in part.96 "In this field the power of

90 Savage v. Jones, 225 U. S. 501, 56 L. Ed. 1182, 32 Sup. Ct. 715; State v. Brothers, 144 Minn. 337, 175 N. W. 685; State v. Martinson, 144 Minn. 206, 174 N. W. 823.

91 See § 1372, infra. infra.

92 See § 1383,

93 See § 1495, infra. 94 See § 1548, infra.

95 In Presser v. Illinois, 116 U. S. 252, 29 L. Ed. 615, 6 Sup. Ct. 580, a statute making it unlawful for military organizations other than the militia and federal troops to drill or parade with arms in any city or town

of the state was held not to be in conflict with the federal statutes for the organization of the militia.

Further examples will be found in §§ 329-345, infra.

96 Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U. S. 146, 64 L. Ed. 194, 40 Sup. Ct. 106; House v. Mayes, 219 U. S. 270, 55 L. Ed. 213, 31 Sup. Ct. 234, aff'g 227 Mo. 617, 127 S. W. 305; Keller v. United States, 213 U. S. 138, 53 L. Ed. 737, 29 Sup. Ct. 470, 16 Ann. Cas. 1066; Patterson v. Kentucky, 97 U. S. 501, 24 L. Ed. 1115; Hannah & Hogg v. Clyne, 263 Fed. 599; United States v. Hicks, 256 Fed. 707; United States v. Wheeler, 254 Fed. 611; United States v. Shauver, 214 Fed. 154, writ of error dismissed 248 U. S. 594, 63 L. Ed. 438, 39 Sup. Ct. 134; Ex parte Guerra, Vt. 110 Atl. 224.

As to the police power generally, see § 46, supra.

the state is unqualified and exclusive so long as its regulations do not invade the sphere of national sovereignty, obstruct or impede the exercise of any authority which the Constitution has confided to the nation, or deprive a citizen of rights guaranteed to him thereunder." 97 But the federal government has a power analogous to the police power as to its own property,98 and to carry into effect those powers which the constitution has conferred upon it.99 And it is no valid objection to the exercise by it of a power so conferred that such exercise may be attended by the same incidents which attend the exercise by a state of its police power, or that it may tend to accomplish a similar purpose.1

§ 330. Amenability of federal employees to state statutes. eral employees do not secure a general immunity from state laws while acting in the course of their employment.2 But a state cannot interrupt the acts of the federal government itself, or control or punish the conduct of a federal officer or employee while engaged in the performance of his official duties and acting under and in pursuance of the laws of the United States, or while engaged in

99 Hoke v. United States, 227 U. S. 308, 57 L. Ed. 523, 33 Sup. Ct. 281, 43 L. R. A. (N. S.) 906, Ann. Cas. 1913 E 905; United States v. Johnston, 232 Fed. 970; United States v. Shauver, 214 Fed. 154, writ of error dismissed 248 U. S. 594, 63 La Ed. 438, 39 Sup. Ct. 134, and cases cited.

1 Jacob Ruppert, Inc., v. Caffey, 251 U. S. 264, 64 L. Ed. 260, 40 Sup. Ct. 141; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U. S. 146, 64 L. Ed. 194, 40 Sup. Ct. 106; Hannah & Hogg v. Clyne, 263 Fed. 599; United States v. Minery, 259 Fed.

707; United States v. Casey, 247 Fed. 362; Ex parte Guerra, Vt. 110

Atl. 224.

2 Johnson v. Maryland, 254 U. S. 51, 65 L. Ed. 126, 41 Sup. Ct. 16; In re Waite, 81 Fed. 359.

A crime against the state is not excused by the fact that the criminal was at the time, though not in the act of its commission, engaged in the service of the federal government. Hathcote v. State, 55 Ark. 181, 17 S. W. 721; State v. Boone, 132 N. C. 1107, 44 S. E. 595.

3 Johnson v. Maryland, 254 U. S. 51, 65 L. Ed. 126, 41 Sup. Ct. 16; Ohio v. Thomas, 173 U. S. 276, 43 L. Ed. 699, 19 Sup. Ct. 453; In re Waite, 81 Fed. 359.

If, in the performance of the duties of his office, he so acts as to violate his duty to the United States, that government, and not the state, is the proper one to call him to account, and if his acts are violative to the rights