The relator is under indictment charging, among other things, the unlawful transportation of intoxicating liquors in this State, in violation of the Act of the Thirty-sixth Legislature. Chapter 78, Second Called Session, known as the Dean Law.
He seeks release upon the assertion that in passing the Act the State exceeded its power. He contends that the Eighteenth Amendment to the Constitution of the United States must be construed in connection with the clause of the Constitution making it and the laws of Congress passed thereunder paramount, and that so construed the Act of the Legislature in prescribing a definition of intoxicating liquor and a penalty different from those prescribed by Congress is inoperative. We quote the first and second sections of the Amendment:
"Section 1. After one year from the ratification of this article the manufacture, sale or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited."
"Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation."
Before its adoption, the State possessed the exclusive power to prohibit traffic in intoxicating liquors, and to punish those who disobeyed. It was within the police power of the State. Beyond doubt, the Amendment establishes prohibition throughout the country. It is appellant's view that the power to enforce obedience to this Amendment rests in Congress, and that when this power is exerted the State is excluded from the field of legislation covered by the Act of Congress. In one of the articles of the United States Constitution, it is said:
"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."
Prior to the adoption of the Eighteenth Amendment, from the discussion by the Supreme Court of the United States, of the powers of government, they have been divided into: Those which belong exclusively to the State, those which belong exclusively to the National Government, those which may be exercised concurrently and independently by both, and those which may be exercised by the State but only until Congress shall see fit to act upon the subject. Ex parte McNiel, 13 Wallace, 236; Port Richmond v. Board of Freeholders, 234 U.S. 330; Simpson v. Shepard, 230 U.S. 400, 48 L.R.A., New Series, 1151, and numerous cases cited in Rose's Notes on U.S. Reports, Revised Edition, Vol. 7, p. 589.
The relator maintains that by the first section of the Eighteenth Amendment the subject covered is made national in character and admits and requires uniformity of regulation, affecting alike all the
States; and that in consequence of this character, the rules of construction applied to the clause of the Constitution of the United States, conferring upon Congress the power to regulate commerce between the several States govern; and that under this construction this field of legislation is not open to the States, it having been covered by the Act of Congress known as the Volstead Act. See Chapter 85, Acts Sixty-sixth Congress, First Session. In support of this view many decisions of the Supreme Court of the United States are referred to, in which State laws have been held inoperative upon the ground that under the Constitution the nature of the power conferred upon the Congress was such that when exercised it was exclusive, and ipso facto
superceded the existing State legislation on the subject. See Southern Ry v. Ry Commission of Indiana, 236 U.S. 446; Chicago v. Hardwick E. Co., 226 U.S. 426; Erie Ry. Co. v. N Y233 U.S. 683.
The force of these decisions, and others in the same line, upon the subject in hand is dependent upon the analogy of the power conferred upon Congress by the Eighteenth Amendment and that relating to its authority over interstate commerce. If the premises were conceded, the invalidity of the State law would not necessarily follow. Many instances are found in which State statutes which affected the subject of interstate commerce, have been upheld, notwithstanding Congress had passed laws upon the same subject. Gilman v. Philadelphia, 3 Wallace, 713; Mobile v. Kimball, 102 U.S. 691; Cardwell v. River Bridge Co.,113 U.S. 205; Gloucester Co. v. Penna., 114 U.S. 186; Chicago v. Arkansas, 219 U.S. 451. And the police power of the State has been permitted to operate where it incidentally affected interstate commerce. Sherlock v. Alling, 93 U.S. 99; N.Y.N.H.
H.R.R. v. People, 165 U.S. 628. In those cases the rule is observed that the State laws must not burden or trammel the interstate commerce, or trench upon the exclusive power of Congress to regulate it, and they must yield to the Federal power in case of conflict which is so direct and positive that the two acts cannot be reconciled or consistently stand together. Ruling Case Law, vol. 5, p. 702, sec. 15; Silz v. Hesterberg,211 U.S. 31; Haber v. Ry., 169 U.S. 613; Atlantic Coast Lines v. Wharton,207 U.S. 328; Savage v. Jones, 225 U.S. 501.
Though there be no conflict, the Federal law in a given case may exclude the State law. It is the intent of Congress which prevails, and this the courts must determine. But we have been able to discern no fixed rule by which in all cases this may be decided; and in a case in which the State's exclusion from a field of legislation is determined by the repugnancy of its laws to those of the Federal Government, there is likewise an absence of a definite rule. In an early case it was said:
"It is no objection to the distinct substantive powers that they may be exercised upon the same subject. It is not possible to fix definitely their respective boundaries." Gilman v. Phila.,supra. See Manigault v. Spring, 199 U.S. 478; Chicago v. Illinois, 200 U.S. 592.
The soundness of relator's claim, that the power of Congress under the commerce clause of the Constitution and that under the prohibition amendment are analogous, and the power of the States subject to the same limitations, is, in view of the second section of the Eighteenth Amendment, open to serious question. The only expressions of the U.S.
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The relator is under indictment charging, among other things, the unlawful transportation of intoxicating liquors in this State, in violation of the Act of the Thirty-sixth Legislature. Chapter 78, Second Called Session, known as the Dean Law.
He seeks release upon the assertion that in passing the Act the State exceeded its power. He contends that the Eighteenth Amendment to the Constitution of the United States must be construed in connection with the clause of the Constitution making it and the laws of Congress passed thereunder paramount, and that so construed the Act of the Legislature in prescribing a definition of intoxicating liquor and a penalty different from those prescribed by Congress is inoperative. We quote the first and second sections of the Amendment:
"Section 1. After one year from the ratification of this article the manufacture, sale or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited."
"Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation."
Before its adoption, the State possessed the exclusive power to prohibit traffic in intoxicating liquors, and to punish those who disobeyed. It was within the police power of the State. Beyond doubt, the Amendment establishes prohibition throughout the country. It is appellant's view that the power to enforce obedience to this Amendment rests in Congress, and that when this power is exerted the State is excluded from the field of legislation covered by the Act of Congress. In one of the articles of the United States Constitution, it is said:
"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."
Prior to the adoption of the Eighteenth Amendment, from the discussion by the Supreme Court of the United States, of the powers of government, they have been divided into: Those which belong exclusively to the State, those which belong exclusively to the National Government, those which may be exercised concurrently and independently by both, and those which may be exercised by the State but only until Congress shall see fit to act upon the subject. Ex parte McNiel, 13 Wallace, 236; Port Richmond v. Board of Freeholders, 234 U.S. 330; Simpson v. Shepard, 230 U.S. 400, 48 L.R.A., New Series, 1151, and numerous cases cited in Rose's Notes on U.S. Reports, Revised Edition, Vol. 7, p. 589.
The relator maintains that by the first section of the Eighteenth Amendment the subject covered is made national in character and admits and requires uniformity of regulation, affecting alike all the
States; and that in consequence of this character, the rules of construction applied to the clause of the Constitution of the United States, conferring upon Congress the power to regulate commerce between the several States govern; and that under this construction this field of legislation is not open to the States, it having been covered by the Act of Congress known as the Volstead Act. See Chapter 85, Acts Sixty-sixth Congress, First Session. In support of this view many decisions of the Supreme Court of the United States are referred to, in which State laws have been held inoperative upon the ground that under the Constitution the nature of the power conferred upon the Congress was such that when exercised it was exclusive, and ipso facto
superceded the existing State legislation on the subject. See Southern Ry v. Ry Commission of Indiana, 236 U.S. 446; Chicago v. Hardwick E. Co., 226 U.S. 426; Erie Ry. Co. v. N Y233 U.S. 683.
The force of these decisions, and others in the same line, upon the subject in hand is dependent upon the analogy of the power conferred upon Congress by the Eighteenth Amendment and that relating to its authority over interstate commerce. If the premises were conceded, the invalidity of the State law would not necessarily follow. Many instances are found in which State statutes which affected the subject of interstate commerce, have been upheld, notwithstanding Congress had passed laws upon the same subject. Gilman v. Philadelphia, 3 Wallace, 713; Mobile v. Kimball, 102 U.S. 691; Cardwell v. River Bridge Co.,113 U.S. 205; Gloucester Co. v. Penna., 114 U.S. 186; Chicago v. Arkansas, 219 U.S. 451. And the police power of the State has been permitted to operate where it incidentally affected interstate commerce. Sherlock v. Alling, 93 U.S. 99; N.Y.N.H.
H.R.R. v. People, 165 U.S. 628. In those cases the rule is observed that the State laws must not burden or trammel the interstate commerce, or trench upon the exclusive power of Congress to regulate it, and they must yield to the Federal power in case of conflict which is so direct and positive that the two acts cannot be reconciled or consistently stand together. Ruling Case Law, vol. 5, p. 702, sec. 15; Silz v. Hesterberg,211 U.S. 31; Haber v. Ry., 169 U.S. 613; Atlantic Coast Lines v. Wharton,207 U.S. 328; Savage v. Jones, 225 U.S. 501.
Though there be no conflict, the Federal law in a given case may exclude the State law. It is the intent of Congress which prevails, and this the courts must determine. But we have been able to discern no fixed rule by which in all cases this may be decided; and in a case in which the State's exclusion from a field of legislation is determined by the repugnancy of its laws to those of the Federal Government, there is likewise an absence of a definite rule. In an early case it was said:
"It is no objection to the distinct substantive powers that they may be exercised upon the same subject. It is not possible to fix definitely their respective boundaries." Gilman v. Phila.,supra. See Manigault v. Spring, 199 U.S. 478; Chicago v. Illinois, 200 U.S. 592.
The soundness of relator's claim, that the power of Congress under the commerce clause of the Constitution and that under the prohibition amendment are analogous, and the power of the States subject to the same limitations, is, in view of the second section of the Eighteenth Amendment, open to serious question. The only expressions of the U.S. Supreme Court concerning the Amendment, of which we are aware, are those found in Rhode Island v. Palmer, 252 U.S. 612. In that case it was shown that the State of Rhode Island had enacted a law defining intoxicating liquors as those containing two per cent or more of alcohol. In the Volstead Act the percentage allowed was not exceeding one-half of one per cent. An injunction was sought against the officers of the United States, restraining them from enforcing the Volstead Act, on the ground, as we understand it, that the definition fixed in the State law protected its citizens against prosecution for the traffic in intoxicating liquor which did not fall within that definition. This construction was not sanctioned by the Supreme Court. In denying the injunction the Court stated certain conclusions, which are relied on by both the relator and the State as supporting their conflicting interpretations of the prohibition amendment to the Constitution. The following quotations are taken from the opinion.
"6. The first section of the amendment — the one embodying the prohibition — is operative throughout the entire territorial limits of the United States, binds all legislative bodies, courts, public officers and individuals within those limits, and of its own force invalidates every legislative act, whether by Congress, by a State Legislature, or by a territorial assembly, which authorizes or sanctions what the section prohibits.
"7. The second section of the amendment — the one declaring "The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation" — does not enable Congress or the several States to defeat or thwart the prohibition, but only to enforce it by appropriate means.
"8. 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. 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 II. Sec. 1), wherein liquors containing as much as 1/2 of 1 per cent of alcohol by volume, and fit for use for beverage purposes, are treated as within that power. Jacob Rupert v. Caffey, 251 U.S. 264, ante, 138, 40 Sup.Ct. Rep., 141."
One of the judges wrote a concurring opinion which contained statements relied on by the relator. Among these are: the statement "The first section imposes a general prohibition which it was the purpose to make universal and uniformly operative and efficacious; upon Congress was cast the duty, not only of defining the prohibited beverages, but also of enacting such regulations and sanctions as was essential to make them operative and final; in dealing with the new prohibition created by the Constitution, operating throughout the length and breadth of the United States, without reference to State lines or the distinction between State and Federal power, and contemplating the exercise by Congress of the duty cast upon it to make the prohibition efficacious, it was sought by the second section to unite national and State administrative agencies in giving effect to the amendment and the legislation of Congress enacted to make is completely operative; observe also the words of the grant which confine the concurrent power given to legislation appropriate to the purpose of enforcement; limiting the concurrent power to enforce given by the second section to the purposes which I have attributed to it, that is, to the subjects appropriate to execute the amendment as defined and sanctioned by Congress, I assume that it will not be denied that the effect of the grant of authority was to confer upon both Congress and the State power to do things which otherwise there would have been no right to do."
We understand that the Court decided that the Eighteenth Amendment was legally adopted; that by it the traffic in intoxicating liquors for beverage purposes was forbidden; that no law of Congress nor any State could make such traffic lawful; that Congress was given power to enforce the prohibition by appropriate legislation without reference to whether the States did or did not legislate upon this subject; and that this power was not exclusive in Congress.
It is argued that Chief Justice WHITE, in the concurring opinion from which we have quoted, interpreted the Amendment as limiting the power of the States to the enforcement of the laws of Congress. If it be conceded that this is a correct conception of the meaning of the Chief Justice, it goes further than the opinion of the majority of the Court; and it may be reasonably inferred that the views of the majority did not coincide with those of the writer of the concurring opinion. Considering the matter that was before the Supreme Court for decision — in connection with the several opinions filed, we are not prepared to accept the view that it was decided that the second section of the Amendment conferred upon the State no power, and left in it no reserve power that it would not have possessed had the second section been omitted. The declaration "the second section of the Amendment does not enable Congress or the several States to defeat
or thwart the prohibition, but only to enforce it by appropriatemeans," and the declaration that the power confided to Congress is not exclusive, appear not to admit of a construction denying force to the second section. The same may be said of some of the language of the Presiding Justice, notably that in which it is declared that the effect of the grant of authority was to confer upon both Congress and the States power to do things which otherwise there would have been no right to do. We are constrained to regard the opinion as intended to be decisive alone of the questions before the Court at the time. We are confirmed in this opinion by the expressions of Justice McREYNOLDS, who, in concurring in the disposition of the case, said:
"It is impossible now to say with fair certainty what construction should be given to the Eighteenth Amendment. Because of the bewilderment which it creates, a multitude of questions will inevitably arise and demand solution here. In the circumstances I prefer to remain free to consider these questions when they arise."
An opinion by the Supreme Court of the United States, giving specific interpretation to the Amendment to the Federal Constitution, would be conclusive and binding upon this Court. In the absence of such declaration, however, and without precedents which we regard as clearly pointing to the interpretation that would be ultimately given to the Amendment by that Court, we would not feel justified in rejecting the second section of the Amendment as meaningless, and upon that theory declare a law of this State passed thereunder invalid.
We understand that it was not decided that the passage of a law by Congress would exclude the power of the State to pass an enforcement Act, or one adopting means of making the law effective different from those adopted by Congress. Nor was it, we think, decided that the State might not enforce a law appropriate to make the prohibition effective, in which law the percentage of alcohol contained in the beverage prohibited was greater than that prescribed by Congress. Under the existing laws, should an effort be made to enjoin the officers of the United States government from prosecuting in the State of Texas an individual who dealt in an intoxicating liquor fit for beverage which contained more than one-half of one per cent, the case of Rhode Island v. Palmer would be a conclusive authority against the issuance of the injunction. The impotence of the State, in view of the Federal law, to render lawful the manufacture, sale, or transportation of a beverage containing more than one-half of one per cent of alcohol does not imply that the State, in the exercise of its judgment, could not elect to punish persons who dealt in intoxicants containing one per cent or more of alcohol. Its refusal to punish where the percentage of alcohol was less than one per cent would not obstruct or impede the right of the Federal government to do so under its own law. The prosecution by the State of those who disobeyed its mandate with reference to intoxicants containing one per cent or more of alcohol, would conduce
to make effective the prohibition declared in the amendment to the National Constitution.
The term "appropriate legislation," as used in other amendments to the Constitution, has been construed by the Supreme Court of the United States to mean legislation contemplated to make the amendment fully effective; that is, legislation adapted to carry out the objects the legislators had in view. Ex parte Virginia,100 U.S. 339; People v. Washington, 36 Cal. 658. The Law in question apparently fills this measure.
Doubtless, if the second section had been omitted from the amendment, Congress would not have been without power to enforce the prohibition; and the States would likewise have had authority subordinate to that of Congress. Instead of these implied powers, the second section of the amendment would seem to make express, definite and secure the "concurrent power" of Congress and the States.
The framers of the Amendment, having selected language specifically conferring upon the States concurrent power to enforce the prohibition by "appropriate legislation," in our opinion, did not intend that the State's legislation should be identical with that of Congress, nor that it should be confined to the enforcement of the laws of Congress. A general law adapted to all parts of the country, it is conceived, might be inadequate to meet the conditions requisite in the enforcement of the prohibition in a given State. Legislation by the State supplementing that of Congress would seem more consistent with the intent of the framers of the Amendment. Should an irreconcilable conflict develop, no doubt the provision of the Federal Constitution making that document and the laws of Congress paramount, would prevail. But neither Congress nor the State being able to thwart the prohibition, but being empowered only to enforce it, the development of such a conflict would appear remote, if not impossible. The difference in the penalty prescribed by Congress and the State would not condemn the State law as unconstitutional. On the subject of concurrent power, the Supreme Court of the United States in an early case said:
"Why may not the same offense be made punishable both under the laws of the States and of the United States? Every citizen of a State owes a double allegiance; he enjoys the protection and participates in the government of both the State and the United States. It is obvious that in those cases in which the United States may exercise the right of exclusive legislation it will rest with Congress to determine whether the general government shall exercise the right of punishing exclusively, or leave the States at liberty to exercise their own discretion. But where the United States cannot assume, or where they have not assumed, this exclusive exercise of power, I cannot imagine a reason why the States may not also, if they feel themselves injured by the same offense, assert their right of inflicting punishment also. In cases affecting life or member, there is an express restraint upon the exercise of the punishing power. But it is a
restriction which operates equally upon both governments and according to a very familiar principle of construction, this exception would seem to establish the existence of the general right. The actual exercise of this concurrent right of punishing is familiar to every day's practice. The laws of the United States have made many offenses punishable in their courts which were and still continue punishable under the laws of States. Witness the case of counterfeiting the current coin of the United States, under the act of April 21, 1806, in which the State right of punishing is expressly recognized and preserved. Witness also the crime of robbing the mail on the highway, which is unquestionably cognizable as highway-robbery under the State laws, although made punishable under those of the United States." Houston v. Moore, 5 Wheaton, 1, 5 Law Edition, 33. There are other cases sustaining State laws condemning an act made punishable by Congress under a power conferred by the Constitution. Fox v. Ohio, 5 Howard, 410; Ex parte Siebold,100 U.S. 390; Cross v. North Carolina, 132 U.S. 139; Martin v. State, 18 Texas Crim. App., 234; Stroube v. State, 40 Tex. Crim. 583.
We have found nothing in the meaning of the term "Concurrent," as defined in the reported cases or the dictionaries which leads us to conclude that as used in the amendment to the Constitution it was intended that the right of the States to pass appropriate legislation to enforce the prohibition should be more restrictive than the power conferred upon Congress to effect the same result, save that the laws of Congress should affect all the people in the United States, while the laws of the State should affect only those within its boundaries. In the case of Commonwealth v. Nickerson, the Supreme Court of Massachusetts upheld a law in practically the same terms, so far as it relates to the difference of punishment and the definition of intoxicants, as the one attacked in the instant case. Therein it is said:
"The States need not denounce every act committed within their boundaries which is included within the Volstead Act, nor provide the same penalties therefor. It is conceivable also that a State may forbid under penalty acts not prohibited by the acts of Congress. The concurrent power of the States may differ in means adopted, provided it is directed to the enforcement of the Amendment. The fact that Congress has enacted legislation covering in general the field of National prohibition, does not exclude the operation of appropriate State legislation directed to the enforcement by different means of prohibition within the territory of the State."
In our judgment, the presumption obtaining in favor of the validity of an Act of the Legislature is not overcome, either by the reasons advanced or the precedents cited in the forceful and able brief and argument presented by counsel for the relator. In the Dean law are found numerous acts relating to the traffic in intoxicating liquors condemned as offenses. Among them is the unlawful transportation of such liquors, and this is embodied in the indictment. The examination
of the other provisions is not necessary in the disposition of this application for writ of habeas corpus. They have not, therefore, been considered, but we have confined our inquiry mainly to the question of the power of the State to enact laws providing penalties against the traffic in intoxicating liquors.
Satisfied that the State may punish the unlawful transportation of intoxicating liquors; as in this instance defined by the state; that in the Act in question it has furnished the means of doing so; and that the indictment charges the relator with the violation of law, his application for writ of habeas corpus is denied, and we order that he be remanded to custody.
Relator remanded to custody.