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

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? 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between the power of the national government and the power of the states to criminally punish violations of mediately superseded-indeed, as this case their respective sovereignties, as, for inshows, is possibly forestalled and precluded by the power exercised in the Volstead Act. stance, in counterfeiting cases. In such cases And meaningless is the difference the gov-tagonism. Each is inherently possessed and the exercises of sovereignty are not in anernment suggests between concurrent power independently exercised, and can be enforced and concurrent legislation. A power is given to be exercised, and we are cast into helpless no matter what the other sovereignty may do or abstain from doing. On the other hand, and groping bewilderment in trying to think tion 2, the legislation of Congress is supreme under the government's construction of secand exclusive. Whatever the states may do is abortive of effect.

#403

of it apart from its exercise or the effect of 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.

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

*#404 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.

*405

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 congres*sional 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

The government feels the inconsistency of its concessions and recessions. It asserts at one in

stant 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.

(40 Sup.Ct.)

"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

#407

more drastic legislation destroys all that is
urged for congressional supremacy, for nec-
essarily supremacy cannot be transferred
from the states to Congress or from Con-
gress to the states as the quantity of alcohol
may vary in the prohibited beverage. Sec-
tion 2 is not quite so flexible to management.
I may say, however, that one of the con-
clusions of the court has limited the range
of retaliations. It recognizes "that there are
limits beyond which Congress cannot go in
treating beverages as within its power of
enforcement" and declares "that those limits
are not transcended by the provisions of the
Volstead Act." Of course, necessarily, the S. 350, 40 Sup. Ct. 588, 64 L. Ed.
same limitations apply to the power of the
states as well.

From these premises the deduction seems inevitable that there must be united action 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

*406

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)

HAWKE v. SMITH, Secretary of State of

Ohio.

(Argued April 23, 1920. Decided June 1,
1920.)
No. 582

1. STATES 4-FEDERAL CONSTITUTION SU-
PREME LAW OF THE LAND.

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.

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 of government is based upon them. And this predilection for self-government the Eigh-fication of proposed amendments by the Legis

teenth Amendment regards and respects, and by doing so sacrifices nothing of, the policy of prohibition.

2. CONSTITUTIONAL LAW 10-METHOD OF

RATIFYING AMENDMENTS DETERMINABLE BY
CONGRESS AND LIMITED TO METHODS SPECI-
FIED.

Under Const. art. 5, providing for the rati

latures of three-fourths of the states or by conventions in three-fourths thereof, as one or the other mode may be proposed by Congress, the power of determining the method of ratification is conferred upon Congress, and is

It is, however, urged that to require such concurrence is to practically nullify the pro-limited to the two methods specified. hibition of the amendment, for without legislation 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 1⁄2 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:

3. CONSTITUTIONAL LAW 10-COURTS OR

LEGISLATIVE BODIES CANNOT ALTER METH-
ODS OF RATIFYING AMENDMENTS.

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 conveniences and inconveniences of concurrent" power by the Congress and the states

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- RATIFICATION OF AMENDMENT NOT ACT OF "LEGISLATION."

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

portation thereof from, the United States and 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.

The question for our consideration is:

Suit by George S. Hawke against Harvey C. Smith, as Secretary of State of Ohio. A Whether the provision of the Ohio Constitujudgment sustaining a demurrer to the petition, adopted at the general election, Novemtion was affirmed by the Court of Appeals ber, 1918, extending the referendum to the and Supreme Court of Ohio (126 N. E. 400), ratification by the General Assembly of proand plaintiff brings error. Reversed and remanded.

*222

posed 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.

Mr. Lawrence Maxwell, of Cincinnati, Ohio, for defendant in error.

$224

ment of 1918 provides:

"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.

Plaintiff in error (plaintiff below) filed a petition for an injunction in the court of common pleas of Franklin county, Ohio, seeking to enjoin the secretary of state of Ohio from spending the public money in preparing and printing forms of ballot for submission of a referendum to the electors of that state on the question of the ratification which the General Assembly had made of the proposed Eighteenth Amendment to the federal Constitution. A demurrer to the petition was sustained in the court of common pleas. Its judgment was affirmed by the Court of Appeals of Franklin County, which judgment was affirmed by the Supreme Court of Ohio, 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

$225

transportation of *intoxicating liquors within, the importation thereof into, or the ex

Article 5 of the federal Constitution provides:

#226

"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."

[1] 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

(40 Sup.Ct.)

people of the United States. McCulloch v. | electors of Congressmen as those "requisite Maryland, 4 Wheat. 316, 402, 4 L. Ed. 579. for electors of the most numerous branch of The states surrendered to the general govern- the state Legislature." Article 1, section 3, ment the powers specifically conferred upon provided that Senators shall be chosen in the nation, and the Constitution and the each state by the Legislature thereof, and laws of the United States are the supreme this was the method of choosing senators unlaw of the land. til the adoption of the Seventeenth Amend

The framers of the Constitution realized that it might in the progress of time and the development of new conditions require changes, and they intended to provide an orderly manner in which these could be accomplished; to that end they adopted the fifth article.

This article makes provision for the proposal of amendments either by two-thirds of both houses of Congress, or on application of the Legislatures of two-thirds of the states; thus securing deliberation and consideration before any change can be proposed. The proposed change can only become effective by the ratification of the Legislatures of threefourths of the states, or by conventions in a like number of states. The method of ratification is left to the choice of Congress. Both methods of ratification, by Legislatures

*227

or conventions, call for *action by deliberative assemblages representative of the people, which it was assumed would voice the will of the people.

*228

ment, which made *provision for the election of Senators by vote of the people, the electors to have the qualifications requisite for electors of the most numerous branch of the state Legislature. That Congress and the states understood that this election by the people was entirely distinct from legislative action is shown by the provision of the amendment giving the Legislature of any state the power to authorize the executive to make temporary appointments until the people shall fill the vacancies by election. It was never suggested, so far as we are aware, that the purpose of making the office of Senator elective by the people could be accomplished by a referendum vote. necessity of the amendment to accomplish the purpose of popular election is shown in

The

the adoption of the amendment. In article 4 the United States is required to protect every state against domestic violence upon application of the Legislature, or of the executive when the Legislature cannot be con

the several Legislatures to be bound by oath, or airmation, to support the Constitution of the United States. By article 1, section 8, Congress is given exclusive jurisdiction over all places purchased by the consent of the Legislature of the state in which the same shall be. Article 4, section 3, provides that no new states shall be carved out of old states without the consent of the Legislatures of the states concerned.

[2, 3] The fifth article is a grant of author-vened. Article 6 requires the members of ity by the people to Congress. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution; that power is conferred upon Congress, and is limited to two methods, by action of the Legislatures of three-fourths of the states, or conventions in a like number of states. Dodge v. Woolsey, 18 How. 331, 348, 15 L. Ed. 401. The framers of the Constitution might have adopted a different method. Ratification might have been left to a vote of the people, or to some authority of government other than that selected. The language of the article is plain, and admits of no doubt in its interpretation. It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed.

All of the amendments to the Constitution have been submitted with a requirement for legislative ratification; by this method all of them have been adopted.

There can be no question that the framers of the Constitution clearly understood and carefully used the terms in which that instrument referred to the action of the Legislatures of the states. When they intended that direct action by the people should be had they were no less accurate in the use of apt phraseology to carry out such purpose. The members of the House of Representatives were required to be chosen by the people of the several states. Article 1, section 2.

$229

The Constitution of Ohio in its present form, although *making provision for a refer[4] The only question really for determi-endum, vests the legislative power primarily nation is: What did the framers of the in a General Assembly, consisting of a Senate Constitution mean in requiring ratification by and House of Representatives. Article 2, "legislatures"? That was not a term of un- section 1, provides: certain meaning when incorporated into the Constitution. What it meant when adopted vested in a General Assembly consisting of a it still means for the purpose of interpreta-Senate and House of Representatives, but the tion. A Legislature was then the represent people reserve to themselves the power to proative body which made the laws of the peo- pose to the General Assembly laws and amendple. The term is often used in the Constitu- ments to the Constitution, and to adopt or retion with this evident meaning. Article 1,ject the same at the polls on a referendum vote section 2, prescribes the qualifications of as hereinafter provided."

40 SUP.CT.-32

"The legislative power of the state shall be

"There can, surely, be no necessity to answer that argument. The negative of the President applies only to the ordinary cases of legisla- (Argued April 23, 1920. Decided June 1, 1920.)