Jones v. Hicks, (No. 1904.)

• Decision Date: 11 November 1920
• Docket Number: (No. 1904.)
• Citation: 150 Ga. 657,104 S.E. 771
• Parties: JONES. v. HICKS, Sheriff, et al.
• Court: Georgia Supreme Court

150 Ga. 657

104 S.E. 771

JONES.

v.HICKS, Sheriff, et al.

(No. 1904.)

Supreme Court of Georgia.

Nov. 11, 1920.

(Syllabus by the Court.)

Error from City Court of Macon; Du Pont Guerry, Judge.

Habeas corpus by J. R. Jones against J. R. Hicks, Jr., Sheriff, and others. From a judgment refusing to release petitioner, he brings error. Affirmed.

Early W. Butler, of Macon, for plaintiff in error.

Will Gunn, of Macon, for defendants in error.

GILBERT, J. Jones was arrested under a bench warrant issued by the judge of the city court of Macon, based upon an accusa tion charging him with violating the prohibition law of this state on January 21, 1920. He filed a petition for the writ of habeas corpus, based upon the ground that the eighteenth amendment to the Constitution of the United States, which was ratified on January 16, 1920, and the "national prohibition act" known as the Volstead Act (41 Stat. 305), superseded and abrogated all state laws on the subject covered by said eighteenth amendment, and that therefore, at the time this defendant is alleged to have committed the criminal offense charged in the accusation, there was no valid state prohibition law in existence. The court refused to release the petitioner, and that judgment is excepted to.

The first section of the eighteenth amendment to the federal Constitution prohibits "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." The second section of that amendment, as proposed to the states and ratified, provides that—

"The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation."

Three views as to the proper construction of the second section have been generally discussed: (1) That concurrent power means joint power; (2) that the power is given to each, the legislation of either Congress or the states being of equal force with the other; and (3) that the power is in each, but that the legislation of Congress, as the supreme law of the land, will supersede any inconsistent state legislation.

"Concurrent power" does not mean "concurrent legislation, " and concurrent "power" to enforce is quite a different thing from "concurrent enforcement." "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." "Appropriate legislation" by the Congress or the states, as employed in section 2, must be "to enforce, " and not to "defeat or thwart." State of Rhode Island v. Palmer, 253 U. S. 350, 40 Sup. Ct. 488, 64 L. Ed.——. The use of the word "several" before the word "states, " and the nonuse of the word "joint, " would seem to be significant in determining the intent. Had "joint" enforcement been desired, the simple and effective method would have been to specifically provide that the Congress and the states shallhave power to "jointly enforce" this article by appropriate legislation.

The Supreme Court of the United States having adversely disposed of the contention that "concurrent power" means joint power, there remain two other views to be considered. Similar, but not identical, questions have been discussed heretofore by courts of several states and by the Supreme Court of the United States. None of these involve construction of delegated powers to be exercised concurrently. They are cited here for comparison, and not as controlling. Among the questions involved were whether the states possessed the power, under the United States Constitution, of punishing persons guilty of counterfeiting; whether the United States was vested with exclusive judisdiction over land ceded to it for public purposes; whether state laws in regard to the reclamation of fugitive slaves were in contravention of the Constitution of the United States; and whether under the Constitution the United States had the power to incorporate a bank, and the like. As early as 1843 it was said by the Supreme Court of Michigan:

"In the eighty-second number of the Federalist, it is stated that the state governments would clearly retain all their original rights of sovereignty, which were not, by that Constitution, exclusively delegated to the Union. The alienation of state power or sovereignty, would exist only in three cases: First, when the Constitution in express terms granted an exclusive authority to the Union; secondly, when it granted in one instance an authority to the Union, and in another prohibited the states from exercising the like authority; and, thirdly, when it granted an authority to the Union to which a similar authority in the states would be absolutely and totally contradictory and repugnant. This early exposition of the Constitution has been repeatedly and uniformly approved, by subsequent writers on the subject of constitutional law. 1 Kent's Com. 387; Colden v. Bull, 3 Dall. R. 386; Sturgess v. Crowningshield, 4 Wheat. 193; Houston v. Moore, 5 Wheat. 1; 3 Story on Const. 619; Serg. Const. Law, 275. And it is affirmed, by the same authorities, that a mere grant of power in affirmative terms, does not, per se, transfer an exclusive sovereignty on such subjects to the Union. In all cases not falling within either of the classes already mentioned, the states retain either the sole power, or a power which they may exercise concurrently with Congress. This results not only from the general principles on which the Union is founded, but is within the letter of the tenth article of the amendments to the Constitution, which declares that '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.' " Harlan v. People, 1 Doug. (Mich.) 211.

In this case it was held that the several states, concurrently with Congress, may exercise the power of punishing counterfeiting of the current coin of the United States. The ruling has been followed In a number of other cases. State v. Pitman, 1 Brev. (S. C.)

32, 2 Am. Dec. 645; State v. Antonio, 3 Brev. (S. C.) 562; In re Truman, 44 Mo. 181, where in an earlier decision to the contrary, Mat-tison v. State, 3 Mo. 421, was overruled; Fo-4 v. Ohio, 5 How. 410, 12 L. Ed. 213; Cross v. N. C, 132 U. S. 131, 10 Sup. Ct. 47, 33 L. Ed. 287; contra, Rouse v. State, 4 Ga. 136; State v. Brown, 2 Or. 221. It has been held that a state ceding to the United States exclusive jurisdiction over a tract of land within its limits reserves to itself the right to take private property therein; if the United States do not dissent, their acceptance of the grant with the reservation will be presumed. Ft. Leavenworth R. Co. v. Lowe, 114 U. S. 525, 5 Sup. Ct. 995, 29 L. Ed. 264. It is not unusual for states to cede territory within their limits to the United States, reserving concurrent jurisdiction over such territory to enforce the criminal laws of the states. An interesting discussion of the relative powers of the states and the federal government will be found in Prigg v. Pennsylvania, 16 Pet 611, 662, 663 (10 L. Ed. 1060), and Moore v. People, 14 How. 13, 14 L. Ed. 306. In the former case, which Involves the construction of the federal Constitution in regard to the reclamation of fugitive slaves, and whether that provision was exclusive or concurrent with the states, Mr. Justice McLean, in dissenting, said:

"How a power exercised by one sovereignty can be called concurrent, which may be abrogated by another, I cannot comprehend; a concurrent power, from its nature, I had supposed must be equal. If the federal government, by legislating on the subject, annuls all state legislation on the same subject, it must follow, that the power is in the federal government and not in the state. Taxation is a power common to a state and the general government, and it is exercised by each, independently of the other; and this must be the character of all concurrent powers. * * * The powers which belong to a state are exercised independently; in its sphere of sovereignty, it stands on an equality with the federal government, and is not subject to its control. It would be as dangerous, as humiliating, to the rights of a state, to hold, that its legislative powers were exercised, to any extent and under any circumstances, subject to the paramount action of Congress; such a doctrine would lead to serious and dangerous conflicts of power."

The expression is also credited to this learned jurist that "concurrent power excludes the idea of a dependent power."

In the case of McCulloch v. Maryland, 4 Wheat 405, 406, 410, 429 (4 L. Ed. 579), where the court was discussing the power of the Congress to incorporate a bank and the power of a state to tax the same, it was said by Chief Justice Marshall:

"If any one proposition could command the universal assent of mankind, we might expectit would be tins—that the government of the Union, 'though limited in its powers, is supreme within its sphere of action." "The...