The American issue. [volume] (Westerville, Ohio) 1912-19??, 1920-06-18

! iiiAoNiNdtiht iquoIe anu AhaA iNidtiit
to concurrent power the chief justice
said.
at is contended that the result OF
these provisions is 10 require con-
current action of Congress and the
states in enforcing the Prohibition
of the first section and hence that in
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 pur
pose of the first section 10 apply and
make efficacious the Prohibition, and
of the second, TO deal with the
methods OF carrying out that purpose
cannot accept this Interpretation
since it would result simply in de-
claring that the provisions of the
second section, avowedly enacted to
provide means for carrying out the
first, must be so interpreted as
practically to nullify the first
u. S. Authority Paramount
Under the Constitution the au-
thority of Congress in enforcing the
Constitution is paramount. When
state legislation and congressional ac-
ton conflict the state legislation
yields to the action of Congress as
controlling. But as the power Of
both Congress and the states in this
instance is given by the Constitu-
ton in one and the same provision,
| again find myself unable to accept
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 max
ing one paramount over the other.
"The proposition is that the con-
current powers conferred upon Con-
gress and the states are not subject to
conflict because their exertion is au
thorized within different areas that
is, by Congress within the fields Of
federal authority, and by the states
within the sphere of state power,
hence leaving the states free within
their jurisdiction to determine sepa-
rately for themselves, what, within
reasonable limits, is an Intoxicating
liquor, and to Congress the same
right within the sphere of its juris-
diction.
Sections are Conflicting
"But the unsoundness of fhis more
plausible contention seems to me at
once exposed by directing attention to
the fact that in case where no state
legislation was enacted there would
be no Prohibition, thus again frus-
trating the first section by a con-
struction affixed to the second.
"Comprehensively looking at all
these contentious, the confusion and
contradiction to which they lead,
serves in my Judgment to make it
certain that it can not possibly be
that Congress and the states entered
into the great and important business
of amending the Constitution in a
matter so vitality concerning all the
people, solely in order to render gov
ernmental action impossible, or, if
10 IaH
to cause it to be productive of no re-
suit and to Illustrate the obvious in
tent and general purpose contem-
plated"
Says States Have Power
Justice McKenna took the position
that by the term Concurrent power"
equality of power between the states
and federal government was given to
enforce National Prohibition
THE Eighteenth Amendment" he
said SIS part of the Constitution as
potent as any other part of it. Sec
ton two therefore. is new provision
of power, power to the state as we'll
as to Congress, and it is contradic-
ton to saN that a power constitution
ally concurrent in Congress and the
states in some way becomes consti-
tutionally subordinate in the states to
Congress.
at is, however, urged that to re-
quire such concurrence is to nullfy
practically the prohibition of the
amendment, for without legislation its
prohibition would be Intellectual, and
that it is impossible to secure the
concurrence of Congress and the
states i'll legislation. can not as
sent to the proposition. The convic-
ton of the evils of ntemperance-the
eager and ardent sentiment that i'm
PEELED the amendment-will impel its
execution through Congress and the
states"
"The decision of the United States
Supreme Court sustaining the Eight
zenith Amendment and the Prohibition
Code, kills the beverage liquor traffic