(40 Sup.Ct.) May 17, 1920. See, also, 258 Fed. 520. Mr. (253 U. S. 474) (253 U. S. 488) No. 860. The BECKWITH COMPANY (formerly the estate of P. D. Beckwith, Inc.), petitioner, v. MINNESOTA STOVE COMPANY. May 17, 1920. For opinion below, see 264 Fed. 337. Petition for a writ of certiorari to the United States Circuit Court of No. 437. The COUNTY OF DOUGLAS, in the STATE OF NEBRASKA, plaintiff in error, v. George Warner SMITH. May 17, 1920. In error to the United States Circuit Court of Appeals for the Eighth Circuit. For opinion below, see 254 Fed. 244, 165 C. C. A. 532. | Appeals for the Eighth Circuit denied. Mr. William C. Lambert, of Omaha, Neb., for petitioner. PER CURIAM. Dismissed for the want of jurisdiction upon the authority of (1) section 128 of the Judicial Code (Comp. St. § 1120); Shulthis v. McDougal, 225 U. S. 561, 568, 32 Sup. Ct. 704, 56 L. Ed. 1205; Hull v. Burr. 234 U. S. 712, 720, 34 Sup. Ct. 892, 58 L. Ed. 1557; Louisville & Nashville R. R. Co. v. Western Union Tel. Co., 237 U. S. 300, 302, 35 Sup. Ct. 598, 59 L. Ed. 965; Delaware, Lackawanna & Western R. R. Co. v. Yurkonis, 238 U. S. 439, 444, 35 Sup. Ct. 902, 59 L. Ed. 1397; (2) Brown v. Alton Water Co., 222 U. S. 325, 332, 333, 32 Sup. Ct. 156, 56 L. Ed. 221; Alaska Pacific Fisheries v. Alaska, 249 U. S. 53, 61, 39 Sup. Ct. 208, 63 L. Ed. 474. (253 U. S. 475) No. 633. Fred W. WEITZEL, plaintiff in error, v. The UNITED STATES. May 17, 1920. In error to the District Court of the United States for the Eastern District of Kentucky. (253 U. S. 488) No. 861. Richard C. MINOR, as trustee, etc., et al. Jeannette W. LEE, petitioner, v. May 17, 1920. For opinion below, see 263 Fed. 507; 260 Fed. 700. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit denied. (253 U. S. 488) No. 865. COMMERCIAL CREDIT COMPANY et al., petitioners, v. CONTINENTAL TRUST COMPANY. May 17, 1920. For opinion below, see 263 Fed. 873. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. (253 U. S. 489) No. 868. The CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, petitioner, v. Mrs. Minnie OWENS, administratrix, etc. May 17, 1920. For opinion below, see 186 Pac. 1092. Petition for a writ of certiorari to the Supreme Court of the State of Oklahoma de PER CURIAM. Dismissed for want of jurisdiction upon the authority of (1) Equitable Life Assurance Society v. Brown, 187 U. S.nied. 308, 314, 23 Sup. Ct. 123, 47 L. Ed. 190; Consolidated Turnpike Co. v. Norfolk, etc., Ry. Co., 228 U. S. 596, 600, 33 Sup. Ct. 605, 57 L. Ed. 982; Contributors to the Pennsylvania Hospital v. City of Philadelphia, 245 U. S. 20, 24, 38 Sup. Ct. 35, 62 L. Ed. 124; (2) Lamar v. United States, 240 U. S. 60, 36 Sup. Ct. 255, 60 L. Ed. 526; Lamar v. United States, 241 U. S. 103, 36 Sup. Ct. 535, 60 L. Ed. 912. (253 U. S. 489) No. 869. ATLANTIC COAST LINE RAILROAD COMPANY, petitioner, v. The STATE OF ALABAMA. May 17, 1920. For opinion below, see 81 South. 60. Mr. Richard V. Lindabury, of Newark, N. J., for petitioner. Mr. J. Q. Smith, Atty. Gen., and L. E. Brown, Sp. Asst. Atty. Gen., for the State of Alabama. Petition for a writ of certiorari to the Supreme Court of the State of Alabama denied. (253 U. S. 350) erage purposes, is within the power to amend STATE OF RHODE ISLAND v. PALMER, reserved by article 5. Atty. Gen., et al. No. 29, Original. STATE OF NEW JERSEY v. SAME. No. 30, Original. 5. CONSTITUTIONAL LAW 10-PROHIBITION AMENDMENT HELD LAWFULLY PROPOSED AND RATIFIED. Const. Amend. 18, prohibiting the manufacture, sale, etc., of intoxicating liquors for beverage purposes, has become, by lawful proposal DEMPSEY V. BOYNTON, U. S. Atty., et al. and ratification, a part of the Constitution. 2. CONSTITUTIONAL LAW 10 "TWO-THIRDS The "two-thirds vote" in each house, which is required in proposing an amendment to the Constitution, is a vote of two-thirds of the members present, assuming the presence of a quorum, and not a vote of two-thirds of the entire membership. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, TwoThirds Vote.] 6. INTOXICATING LIQUORS 13- STATUTES AUTHORIZING WHAT PROHIBITION AMENDMENT PROHIBITS ARE INVALIDATED. Const. Amend. 18, § 1, prohibiting the manufacture, sale, etc., of intoxicating liquors for beverage purposes, is operative throughout the entire territorial limits of the United States and of its own force invalidates every legislative act of Congress, state Legislatures, or territorial assemblies, authorizing or sanctioning what it prohibits. 7. INTOXICATING LIQUORS 13 — PROHIBI TION AMENDMENT ONLY AUTHORIZES STAT- Const. Amend. 18, § 2, giving Congress and The words "concurrent power," in Const. Amend. 18, § 2, giving concurrent power to Congress and the states to enforce that amendment, do not mean a 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. 9. INTOXICATING LIQUORS 13-POWER OF CONGRESS ΝΟΤ LIMITED ΤΟ INTERSTATE TRANSACTIONS. Const. Amend. 18, § 2, does not divide the power to enforce such amendment between Congress and the states along lines which separate or distinguish foreign and interstate commerce from intrastate affairs, but confides to Congress power territorially coextensive with the prohibition of the first section and embracing manufacture and other intrastate transactions as well as importation, exportation, and interstate traffic. 3. CONSTITUTIONAL LAW 10-REFERENDUM 10. INTOXICATING LIQUORS 13—Power of PROVISIONS CANNOT BE APPLIED TO ADOP- The referendum provisions of state Constitutions and statutes cannot be applied, consistently with the Constitution of the United States, in the ratification or rejection of amendments to that Constitution. 4. CONSTITUTIONAL LAW 10-PROHIBITION AMENDMENT WITHIN POWER TO AMEND CONFERRED BY CONSTITUTION. Const. Amend. 18, prohibiting the manufacture, sale, etc., of intoxicating liquors for bev CONGRESS NOT DEPENDENT ON ACTION OF MAY PROHIBIT DISPOSAL OF LIQUORS MANU- Under Const. Amend. 18, Congress may prohibit the disposal, for beverage purposes, of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (40 Sup.Ct.) liquors manufactured before such amendment No. 30. Argued March 29, 1920: became effective. 12. INTOXICATING LIQUORS 13-NATIONAL PROHIBITION ACT IS WITHIN POWERS OF CONGRESS. The National Prohibition Act, which treats liquors containing one-half of 1 per cent. of alcohol by volume and fit for use for beverage purposes as within the powers of enforcement conferred on Congress by Const. Amend. 18, does not transcend the powers so conferred. Mr. Justice McKenna and Mr. Justice Clarke dissenting in part. No. 696: Appeal from the District Court of the United States for the District of Massachusetts. No. 752: Appeal from the District Court of the United States for the Western District of Kentucky. No. 788: Appeal from the District Court of the United States for the District of New Jersey. Mr. Thomas F. McCran, of Paterson, N. J., for complainant. Mr. Assistant Attorney General Frierson, for respondents. No. 696. Argued March 9, 1920: Mr. Patrick Henry Kelley, of Boston, Mass., for appellant. Mr. Assistant Attorney General Frierson, for appellees. No. 752. Argued March 9 and 10, 1920: Mr. Solicitor General King and Mr. Assistant Attorney General Frierson, for appellees. No. 788. Argued March 29 and 30, 1920: Messrs. Elihu Root and William D. Guthrie, both of New York City, for appellant. Mr. Solicitor General King and Mr. Assistant Attorney General Frierson, for appellees. No. 794: Appeal from the District Court No. 794. Argued March 30, 1920: of the United States for the Eastern District of Wisconsin. No. 837: Appeal from the District Court of the United States for the Eastern District of Missouri. Original suits by the State of Rhode Island and by the State of New Jersey against A. Mitchell Palmer, Attorney General, and others. Suits dismissed. Suits by George C. Dempsey against Thomas J. Boynton, as United States Attorney, and others, by the Kentucky Distilleries & Warehouse Company against W. V. Gregory, as United States Attorney, and others, by Christian Feigenspan, a corporation, against Joseph L. Bodine, as United States attorney, and others, by the Manitowoc Products Company against Hiram A. Sawyer, as United States Attorney, and others, and by the St. Louis Brewing Association against George H. Moore, Collector, and others. From a decree in favor of plaintiff in the suit by the Manitowoc Products Company, defendants appeal, and from decrees for the defendants in the other suits, the plaintiffs appeal. Decree in the suit by the Manitowoc Products Company reversed, and decrees in the other suits affirmed. Mr. Solicitor General King and Mr. Assistant Attorney General Frierson, for appellants. Mr. Ralph W. Jackman, of Madison, Wis., for appellee. No. 837. Submitted March 29, 1920: Messrs. Charles A. Houts, John T. Fitzsimmons, and Edward C. Crow, all of St. Louis, Mo., for appellant. Mr. Solicitor General King and Mr. Assistant Attorney General Frierson, for appellees. *384 *Mr. Justice VAN DEVANTER announced the conclusions of the Court. Power to amend the Constitution was reserved by article 5, which reads: "The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the *385 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 For opinion below in Christian Feigenspan thereof, as the one or the other Mode of Ratifiv. Bodine, see 264 Fed. 186. See, also, State of Rhode Island v. Palmer, 40 Sup. Ct. 179, 64 L. Ed. -; State of New Jersey v. Palmer, 252 U. S. 570, 40 Sup. Ct. 345, 64 L. Ed. No. 29. Argued March 8 and 9, 1920: *353 *Mr. Herbert A. Rice, of Providence, R. I., for complainant. Mr. Solicitor General King and Mr. Assistart Attorney General Frierson, for respondents. cation 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." The text of the Eighteenth Amendment, proposed by Congress in 1917 and proclaimed as ratified in 1919 (40 Stat. 1050, 1941), is as follows: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "Section 1. After one year from the ratifica-erative throughout the entire territorial limtion of this article the manufacture, sale, or its of the United States, binds all legislative transportation of intoxicating liquors within, bodies, courts, public officers and individuals the importation thereof into, or the exporta- within those limits, and of its own force intion 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." #387 validates every legislative act, whether by Congress, by a state Legislature, or by a territorial assembly, which authorizes or sanctions what the section prohibits. [7] 7. The second section of the amendment-the one declaring "The Congress and We here are concerned with seven cases the several states shall have concurrent powinvolving the validity of that amendment er to enforce this article by appropriate legand of certain general features of the Na-islation"-does not enable Congress or the tional Prohibition Law, known as the Vol- several states to defeat or thwart the prostead Act, c. 85, Acts 66th Cong., 1st Sess. hibition, but only to enforce it by appro(41 Stat. 305), which was adopted to enforce priate means. the amendment. The relief sought in each case is an injunction against the execution of that act. Two of the cases-Nos. 29 and 30, original,-were brought in this court, and the others in District Courts. Nos. 696, 752, 788, and 837 are here on appeals from decrees refusing injunctions, and No. 794 from a decree granting an injunction. The cases have been elaborately argued at the *386 bar and in *printed briefs; and the arguments have been attentively considered, with the result that we reach and announce the following conclusions on the questions involved: [1] 1. The adoption by both houses of Congress, each by a two-thirds vote, of a joint resolution proposing an amendment to the Constitution sufficiently shows that the proposal was deemed necessary by all who voted for it. An express declaration that they regarded it as necessary is not essential. None of the resolutions whereby prior amendments were proposed contained such a declaration. [2] 2. The two-thirds vote in each house which is required in proposing an amendment is a vote of two-thirds of the members present―assuming the presence of a quorum -and not a vote of two-thirds of the entire membership, present and absent. Missouri Pacific Ry. Co. v. Kansas, 248 U. S. 276, 39 Sup. Ct. 93, 63 L. Ed. 239, 2 A. L. R. 1589. [3] 3. The referendum provisions of state Constitutions and statutes cannot be applied, consistently with the Constitution of the United States, in the ratification or rejection of amendments to it. Hawke v. Smith, 253 U. S. 221, 40 Sup. Ct. 495, 64 L. Ed. decided June 1, 1920. [8-10] 8. The words "concurrent power," in that section, do not mean joint power, or require that legislation thereunder by Con gress, 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] 10. That power may be exerted against the disposal for beverage purposes of liquors manufactured before the amendment became effective just as it may be against subsequent manufacture for those purposes. In either case it is a constitutional mandate or prohibition that is being en forced. [12] 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 2, § 1), wherein liquors containing as much as one-half of 1 per cent. of alcohol by volume and fit for use for beverage *purposes are treated as within that power. Jacob Ruppert v. Caffey, 251 U. S. 264, 40 Sup. Ct. 141, 64 L. Ed. — #388 [4] 4. The prohibition of the manufacture, Giving effect to these conclusions, we dissale, transportation, importation and expor-pose of the cases as follows: tation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amend reserved by article 5 of the Constitution. [5] 5. That amendment, by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument. [6] 6. The first section of the amendment -the one embodying the prohibition-is op In Nos. 29 and 30, original, the bills are dismissed. In No. 794, the decree is reversed. In Nos. 696, 752, 788 and 837, the decrees are affirmed. Mr. Chief Justice WHITE concurring. I profoundly regret that in a case of this magnitude, affecting as it does an amendment to the Constitution dealing with the powers and duties of the national and state (40 Sup.Ct.) I appreciate the difficulties which a solution of the cases involve and the solicitude with which the court has approached them, but it seems to my mind that the greater the perplexities the greater the duty devolving upon me to express the reasons which have led me to the conclusion that the amendment accomplishes and was intended to accomplish the purposes now attributed to it in the propositions concerning that subject which the court has just announced and in which I concur. Primarily in doing this I notice various contentions made concerning the proper construction of the provisions of the amendment which I have been unable to accept, in order that by contrast they may add cogency to the statement of the understanding I have of the amendment. $390 governments, and intimately concerning the controlling. But as the power of both Conwelfare of the whole people, the court has gress and the states in this instance is given deemed it proper to state only ultimate con- by the Constitution in one and the same proclusions without an exposition of the rea- vision, I again find myself unable to accept soning by which they have been reached. the view urged because it ostensibly accepts the constitutional mandate as to the concurrence of the two powers and proceeds immediately by way of interpretation to destroy it by making one paramount over the other. 3. The proposition is that the concurrent powers con*ferred upon Congress and the states are not subject to conflict because their exertion is authorized within different areas, that is, by Congress within the field of federal authority, and by the states within the sphere of state power, hence leaving the states free within their jurisdiction to determine separately for themselves what, within reasonable limits, is an intoxicating liquor, and to Congress the same right within the sphere of its jurisdiction. But the unsoundness of this more plausible contention seems to me at once exposed by directing attention to the fact that in a case where no state legislation was enacted there would be no prohibition, thus again frustrating the first section by a construction affixed to the second. It is no answer to suggest that a regulation by Congress would in such event be operative in such a state, since the basis of the distinction upon which the argument rests is that the concurrent power conferred upon Congress is confined to the area of its jurisdiction and therefore is not operative within a state. The amendment, which is reproduced in the announcement for the court, contains three numbered paragraphs or sections, two of which only need be noticed. The first prohibits #389 "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 is as follows: "Sec. 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation." 1. It is contended that the result of these provisions is to require concurrent action of Congress and the states in enforcing the prohibition of the first section and hence that in the absence of such concurrent action by Congress and the states no enforcing legislation can exist, and therefore until this takes place the prohibition of the first section is a dead letter. But in view of the manifest purpose of the first section to apply and make efficacious the prohibition, and of the second to deal with the methods of carrying out that pur pose, I cannot accept this interpretation, since it would result simply in declaring that the provisions of the second section, avowedly enacted to provide means for carrying out the first, must be so interpreted as to practically nullify the first. Comprehensively looking at all these contentions, the confusion and contradiction to which they lead, serve in my judgment to make it certain that it cannot possibly be that Congress and the states entered into the great and important business of amending the Constitution in a matter so vitally concerning all the people solely in order to render governmental action impossible, or, if possible, to so define and limit it as to cause it to be productive of no results and to frustrate the obvious intent and general purpose contemplated. It is true indeed that the mere words of the second section tend to these results, but if they be read in the light of the cardinal rule which compels a consideration of the context in view of the situation and the subject with which the amendment dealt and the purpose which it was intended to accomplish, the confusion will be seen to be only apparent. *391 In the first place, it is indisputable, as I 2. It is said, conceding that the concurrent power given to Congress and to the states have stated, *that the first section imposes a does not as a prerequisite exact the concur- general prohibition which it was the purpose rent action of both, it nevertheless contem- to make universally and uniformly operative plates the possibility of action by Congress and efficacious. In the second place, as the and by the states and makes each action ef- prohibition did not define the intoxicating fective, but as under the Constitution the au- beverages which it prohibited, in the absence thority of Congress in enforcing the Consti- of anything to the contrary, it clearly, from tution is paramount, when state legislation the very fact of its adoption, cast upon Conand congressional action conflict the state legislation yields to the action of Congress as gress the duty, not only of defining the prohibited beverages, but also of enacting such |