delivered the opinion of the Court.
This is а writ of error by the United States under the Criminal Appeals Act (c. 2564, 34 Stat. 1246), to reverse an order of the District Court for the Western District of Washington dismissing five counts of an indictment presented against the defendants in error April 28, 1920. The first of these charged the defendants with manufacturing intoxicating liquor, the second with transporting it, the third ivith possessing it, and t!he fourth and fifth with" having a still and material designed for its manufacture,
*379
about April 12, 1920, in violation of the National Proibition Act (c. 85, 41 Stat. 305). The defendants filed a special plea in bar setting out that on April 16, 1920, an information was filed in the Superior Court, of Whatcom County, Washington, charging the same defendants with manufacturing, transporting and having in possession the same liquor, and that on the same day a judgment was entered against each defendant for $250 for manufacturing, $250 for transporting, and $250 for haying in possession such liquor. The information was filed under a statute of Washington in. force before the going into effect of the Eighteenth Amendment, and passage of- the National Prohibition Act. (Remington’s Codes & Stats., § 6262, as amended by Session Laws 1917, c. 19, p. 46.) The Government demurred to the plea. The District Court sustained the plea and dismissed the five counts.
United States
v.
Peterson,
The Eighteenth Amendment 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 hito, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
“ Sec. 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.”
The defendаnts insist that two punishments for the same act-," one under the National Prohibition Act and the other under a state law, constitute double jeopardy under the Fifth Amendment; and in support of this position it is argued that both laws derive their force from the same *380 authority, — the second section of the Amendment, — and therefore that in principle it. is as if both punishments were in prosecutions by the United States in its courts.
Consideration of this argument requires an analysis of the reason and purpose of the second section of the Amendment. We dealt with both sections in the
National Prohibition Cases,
6. The first section of the Amendment — the one embodying the prohibition — is operative throughout the en-' tire territorial limits of the United States, binds all legislative bodies, cоurts, 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 if by appropriate means.
“ 8. The words * concurrent power ’ in that section do not mean joint power, or require that legislation there- . under by Congress, to be effective, shall be approved, or sanctioned by the severаl States or anv of them; nor do they-mean that the power to enforce, is divipted between'Congress and the several States along the lines which separate or distinguish foreign and interstate commerce '• from intrastate affairs.
“ 9. The power cоnfided to Congress by that section, while not exclusive, is territorially coexttensive with the prohibition of the fifrst section, embraces' manufacture and other intrastate transactions as well as importation, exportation and interstate traffic, and is in no wisе dependent on or affected by action or inaction on the part of the several States or any of them. ’
*381 The Amendment was adopted for the purpose of establishing prohibition as a national policy reaching every part of thе United States and affecting transactions which are essentially local or intrastate, as well as those pertaining to interstate or foreign commerce. The second section means that power to take législative measures to make thе policy effective shall exist in Congress in respect of the territorial limits of the United States and at the same time the like power of the several States within their territorial limits shall not cease to exist. Each State, as also .Congress, may exercise an independent judgment in selecting and shaping measures to enforce prohibition. Such as are adopted by Congress become laws of the United States and such as are adopted by a State become laws of that State. They may vary in many particulars, including the penalties prescribed, but this is an inseparable incident of independent legislative action in distinct jurisdictions.
To regard the Amendment as the source of the power of the States to adopt and enforce prohibition meаsures is to take a partial and erroneous view of the matter. Save-for some restrictions arising out of the Federal Constitution, chiefly the commerce clause, each State possessed that power in full measi ‘or.to the Amendment, and the рrobable purpose of declaring a concurrent power to be in the States was to negative any.possible inference that in vesting the National Government with the power of country-wide prohibition, state power would be excluded. In effect the second section of the Eighteenth Amendment put an end to restrictions upon the State’s power arising out of the Federal Constitution and left her free to enact prohibition laws applying to all transactions within her limits. To be sure,- the first section of the Amendment took-from the States all power to authorize acts falling within its prohibition, but it did not cut down or displace prior state laws not inconsistent with it. Such laws derive their force, as do all new ones consistent with
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it, not from this Amendment,, but from power originally belonging to the States, preserved to them by the Tenth Amendment, and now relieved from the restrifetion heretofore arising out of the Federal Constitutioii. This is the
ratio decidendi
of our decision in
Vigliotti
v.
Pennsylvania,
We -have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory. Each may,'without interference by the other, enact laws to secure prohibition, with.the limitation that no legislation can give validity to acts prohibited by the Amendment. Each government in determining what shall be an offense ágainst its peace and dignity is exercising its own sovereignty, not that of the other.
' It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. The Fifth Amеndment, like all the other guaranties in the first eight amendments, applies only to proceedings by the Federal Government,
Barron
v.
Baltimore,
This view of the Fifth Amendment is supported by a long line of decisions by this Court. In
Fox
v.
Ohio,
“ It is almost certain, that, in the benignant spirit in which the institutions both of the state and federal systems are administered, an offender who should have suffered the penalties dеnounced by the- one would, not be subjected a second time to punishment by the other for acts essentially the same, unless indeed this might occur in instances of peculiar enormity, or where the public safety demanded extraordinary rigor. But were a contrary course of policy and action either probable or usual, this would by no means justify the conclusion, that offences falling within the competency of different authorities to restrain or punish them would not properly be subjected to the consequences which those authorities might ordain and affix to their perpetration.”
This conclusion was affirmed in
United States
v.
Marigold,
*384
The principle was reaffirmed in
Moore
v.
Illinois,
In Southern Ry. Co. v. Railroad Commission of Indiana, supra, Mr. Justice Lamar used this language (p. 445):
“ In support of this position numerous casés are cited which, like Cross v. North Carolina,132 U. S. 131 , hold that the same act may constitute a criminal offense against two sovereignties, and that punishment by one does not prevent punishment by the other. That doctrine is thoroughly established. But, upon an analysis of the principle on which it is founded, it will be found to relate оnly to cases where the act sought to be punished is one over which both sovereignties haye jurisdiction. This concurrent jurisdiction may be éither because the nature of the act is such that at the same time it produces effects respectively within the sрhere of state and federal regulation and thus violates the laws of both; or, where there is this double effect in a matter of which one can exercise control, but an authoritative declaration that the paramount jurisdiction of one shall not exclude that of the other.”
These, last words are peculiarly appropriate to the case presented by the two sections of the Eighteenth Amend-•inent. The couri, below is the only District Court which has held conviction in a state court a bar tо prosecution for the same act under the Volstead Law.
United States
v.
Holt,
*385
Counsel for defendants in error invokes the principle that,. as between federal and state jurisdictions over the same prisoner, the one which first gets jurisdiction may-first exhaust its jurisdiction to the exclusion of the other.
Ponzi
v.
Fessenden,
If Congress sees fit to bar prosecution by the federal courts for any act when punishment for violation of state prohibition has been imposed, it can, of course, do so by proper legislative provision; but it has not done so. If a State were to punish the manufacture, transportation and sale of intoxicating liquor by small or nominal fines, the race of offenders to the courts of that State to plead guilty and secure immunity from federal prosecution for such acts would not mаke for respect for the federal statute or for its deterrent effect. But it is not for us to discuss the wisdom of legislation, it is enough for us to hold that, m the absence of special provision by Congress, conviction and punishment in a state court under a state law for making, transporting and selling intoxicating liquors is not a bar to a prosecution in a court of the United States under the federal law for the same acts.
Judgment reversed with direction to sustain the demurrer to the special plea in bar of the defendants and for further proceedings in conformity with this opinion.