129 Va. 723 | Va. | 1921
after making the foregoing statement, delivered the following opinion of the court:
. The questions sought to be raised by the second and third assignments of error are not presented by the record in this case. The law which the record discloses as enforced by the judgment under review was the State law, enacted, in the exercise of the police power of the State, prior to the going into effect of the eighteenth amendment to the Federal Constitution and prior to the enactment by the Congress of the Volstead act (41 Stat. 305).
:
1. Did the Congress, by the enactment of the Volstead act, in pursuance of the power conferred upon it by the eighteenth amendment, take possession of the entire field of prohibition legislation, State as well as Federal, so as to nullify the existing State law on the subject?
This question must be answered in the negative.
The Supreme Court decisions relied upon for the accused concerning the supremacy of the Federal power have reference to subjects concerning which the power of legislation has been, expressly or by necessary implication, granted to the Federal government by the United States Constitution, so as to lodge such power in the Federal government exclusively when it has taken possession of the field of legislation.
There are other subjects concerning which, as a well established principle, it has long been well settled that the States may exercise independent legislative power. In the case of Commonwealth v. Nickerson (Mass.), 128 N. E. 273, involving precisely the same question as we have now
“The general principle as to the right of the States to exercise the power of effective legislation concerning subjects over which Congress also has power was stated in these words (summarizing language of Mr. Justice Storey in Houston v. Moore, 5 Wheat. 1, at p. 49, 5 L. Ed. 19) ; in Gilman v. Philadelphia, 3 Wall. 713, at p. 730, 18 L. Ed. 96: ‘The States may exercise concurrent or independent power in all cases but three: 1. Where the power is lodged exclusively in the Federal Constitution; 2. Where it is given to the United States and prohibited to the States; 3. Where, from the nature and subjects of the power, it must necessarily be exercised by the National Government.’ Illustrations of the scope and application of those principles are found in numerous decisions, where they are amplified and made even more clear in the judgments rendered. In Fox v. Ohio, 5 How. 410 (12 L. Ed. 213), the plaintiff in error was indicted for ‘passing and uttering’ counterfeit coin contrary to a statute of Ohio. The United States Constitution, by article 1, section 8, confers upon Congress power to punish counterfeiting. In holding valid the conviction under the State statute, it was said at pages 434-435 of 5 How. (12 L. Ed. 213) : ‘It has been objected on behalf of the plaintiff in error, that if the States could inflict penalties for the offense of passing base coin, and the Federal government should denounce a penalty against the same act, an individual under these separate jurisdictions might be liable to be twice punished for the one and same crime, and that this would be in violation of the fifth article of the amendments to the Constitution, declaring that no person shall be subject for the same offense to be twice put in jeopardy of life and limb. Conceding for the present that Congress should undertake and could rightfully undertake to punish a cheat perpetrated between citizens of a State because
“ ‘Those which belong exclusively to the National Government.
“ ‘And those which may be exercised by the States, but only until Congress shall see fit to act upon the subject.
“ ‘The authority of the State then retires and lies in abeyance until the occasion for its exercise shall recur.’
“There is here express recognition of a field of legislation, apart from definite constitutional mandate such as is in the eighteenth amendment, over which jurisdiction may be exercised both by Congress and by the States ‘concurrently and independently.’ ”
To the same effect, see Hendrick’s Case, 5 Leigh (32 Va.) 769; Jett’s Case, 18 Gratt. (59 Va.) 933.
The eighteenth amendment aforesaid, so far as material, is as follows:
“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 the 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.”
We are of opinion that the eighteenth amendment merely created into offenses against the United States conduct consisting in “the manufacture, sale or transportation of intoxicating liquors within” the respective States “for beverage purposes;” whereas, prior to the going into effect of such amendment only the respective States could by State legislation create such conduct into offenses, and then only into offenses against the State. As the Federal Constitution stood prior to the eighteenth amendment, neither by
We think that there can be no conflict between the Federal and State legislation on the subject under consideration so long as neither State nor Federal government attempts to interdict the other from dealing with the conduct in question as Federal or State offenses, respectively, as the case may be, and where the legislation of the State is confined to punishing the conduct as State offenses and the legislation of the Federal government is confined to punishing the same conduct as Federal offenses, neither undertaking to nullify the laws of the other enacted and operating as the expression of their edict's, respectively, promulgating the provisions as to what shall be offenses against the respective sovereignties and the punishments therefor.
It is, of course, not meant to say that the- State power of legislation aforesaid may not be incidentally affected and curtailed where it comes in conflict with some Federal legislation with reference to some matter confided to the Federal government by some other provision of the Constitution of the United States than the eighteenth amendment. In such cases the supremacy or non-supremacy of the Federal legislation is to be determined by the well established rules of decision of the Supreme Court on such subject.
What we have said above concerning the State legislation on the subject of the State offenses aforesaid being unaffected by congressional legislation upon the subject of the Federal offenses, although they may consist in the same conduct of the accused, is strengthened by the consideration of the express terms of the Volstead act. There are a number of provisions in that act which we think expressly recognize the continued validity of State statutes regulating
The Supreme Court of Massachusetts, in the Nickerson Case, supra, takes a further position to the effect that the validity of an existing State statute on the subject under consideration is also to be upheld as legislation in aid of the enforcement of the eighteenth amendment in so far as its provisions can be said to be “concurrent” with and are exerted in support of the main object of the eighteenth amendment, and make contribution to the same general aim. See also the case of Jones v. Hicks (Ga.), 104 S. E. 771, which
The case will be affirmed.
Affirmed.