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Central Law Journal.

ST. LOUIS, MO., JULY 2, 1920.



All the wealth of learning and zeal of argument consumed in the last year in discussions of the validity of the Eighteenth Amendment and the constitutionality of the Volstead Act have at least led up to a decision by the Supreme Court which firmly establishes the validity and constitutionality of both the Amendment and the Act passed in conformity therewith.

But the denouement is an anti-climax. Instead of the great opinion which everyone expected and which everyone believed would take its place beside Marbury v. Madison, Gibbons v. Ogden, and other great cases, we are furnished with no argument at all but a mere catalogue of conclusions, much on the order of the Roman Pandects. The opinion, if such it can be called, is written by Justice Van Devanter and is two pages in length.

The opinion itself, aside from the result reached, constitutes a radical departure from customs hitherto observed by the Supreme Court. Chief Justice White was astounded and expressed "profound 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 governments, and intimately concerning the welfare of the whole people, the court has deemed it proper to state only ultimate conclusions without an exposition of the reasoning by which they have been reached.” Justice McKenna, who objects to the conclusions as well as to the form of the Court's opinion, declares that it is difficult to dissent to an opinion where no reasons are given. "The instance may be a wise one,” said Justice McKenna, "establishing a precedent now, hereafter wisely to be imitated." Is this

a threat that the majority may be in the minority some day and will be forced to puzzle their brains over similar cryptic expressions of judicial findings. Dich a form of opinion writing, declares Justice McKenna, sarcastically, “will undoubtedly decrease the literature of the Court if it does not increase its lucidity.'

There are eleven "conclusions" stated in the Court's opinion, only three of which are sanctioned by the citation of authority. These eleven conclusions are as follows:

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. 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.

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,

U.S. -, decided June 1, 1920. 4. The prohibition of the manufacture, sale, transportation, importation and exportation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amend reserved by Article V of the Constitution.

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. The first section of the Amendment --the one embodying the prohibition is operative throughout the entire territorial limits of the United States, binds all legislative bodies, courts, public officers and individuals within those limits, and of its own

force invalidates -eyeri legislative act-- a new principle or construes a new statwhether by Congress, by a state legislature, ute, it shall give reasons for its decision. or by a territorial, assembly—which authorizes or sanctions what the section prohibits.

In this very opinion we find no objection to

but are delighted with the short form of 7. The second section of the Amendment

opinion writing with respect to declara-the drie declaring “The Congress and the several States shall have concurrent power

tions 1 to 6, inclusive. These points are to enforce this article by appropriate legis

either self-evident or have been settled by lation does not enable Congress or the recent authority which fully gives the reaseveral states to defeat or thwart the Pro

sons for the Court's decision. There is no hibition, but only to enforce it by appropri- justification for a repetition of these reaate means.

sons. But with respect to the important 8. The words, "concurrent power," in that section do not mean joint power, or

question of the meaning of the words "conrequire that legislation thereunder by Con- current power," discussed in declarations gress, to be effective, shall be approved or 7, 8 and 9 and with respect to the proper sanctioned by the several States or any of construction of the word "intoxicating" in them; nor do they mean that the power to

declaration number 11, we believe that not enforce is divided between Congress and

only the parties to the case, but the people the several States along the lines which separate or distinguish foreign and inter- themselves, are entitled to know the reastate commerce from intrastate affairs. sons which impelled the Court to the con

9. The power confided to Congress by clusions which it announces. that section, while not exclusive, is terri

Fortunately, Chief Justice White distorially coextensive with the prohibition of

cusses quite fully the question of the "conthe first section, embraces manufacture and

current power” of Congress and the states other intrastate transactions as well as im

under the Eighteenth Amendment. He portation, exportation and interstate traffic, and is in no Wise dependent on or affected sets out the various contentions of counsel by action or inaction on the part of the and admits that on the surface the words, several States or any of them.

'concurrent power," seem to imply a veto 10. The power may be exerted against

power in the states with regard to the the disposal for beverage purposes of liquor

enforcement of the amendment. "It is manufactured before the Amendment became effective, just as it may be against

true," says the Chief Justice, “that the subsequent manufacture for those purposes.

mere words of the second section tend In either case it is a constitutional mandate to these results, but if they be read in or prohibition that is being enforced. the light of the cardinal rule which com11. While recognizing that there are

pels a consideration of the context in view limits beyond which Congress cannot go in

of the situation and the subject with which treating beverages as within its power of

the amendment dealt and the purpose whic' enforcement, we think those limits are not transcended by the provision of the Vol

it was intended to accomplish, the confustead Act, wherein liquors containing as

sion will be seen to be only apparent." much as one-half of 1 per cent of alcohol The Chief Justice then argues that the by volume and fit for use for beverage pur- second section of the Fighteenth Amendposes are treated as within that power.

ment "clearly manifests a purpose to adJacob Ruppert v. Caffey, 251 U. S. 264.

just, as far as possible, the exercise of the Those who favor short opinions will re

new powers cast upon Congress by the joice over the precedent set by the Su- Amendment to the dual system of governpreme Court in this opinion; but we call

ment existing under the Constitution. In attention to the fact that one can rejoice other words, dealing with the new prohibiover short opinions, where short opinions tion created by the Constitution, operating are called for, and still insist, as the Chief

throughout the length and breadth of the Justice does, that when the Court declares

United States, without reference to state

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lines or the distinctions between State and I

power to Congress and the States to give Federal power, and contemplating the ex- effect to, that is, to carry out or enforce, ercise by Congress of the duty cast upon it

the Amendment as defined and sanctioned to make the prohibition efficacious, it was

by Congress, should be interpreted to de

prive Congress of the power to create, by sought by the second section to unite Na

definition and sanction, an enforceable tional and State administrative agencies in

amendment.” giving effect to the Amendment and the

All the questions connected with the legislation of Congress enacted to make it

Eighteenth Amendment are not settled. If completely operative.”

the states have concurrent power to enThis argument, it appears to us, to be force the Amendment what will result when very weak. It was not necessary to "unite

as in the northern peninsula of Michigan, national and state administrative agencies the state officer takes jurisdiction and nolle in giving effect to the Amendment." State

prosses a case? May the Federal Court executives were already pledged by their

try the same offense de noi'o? Moreover, oath of office to support the Constitution

suppose Congress should raise the percentand laws of the United States. The pro

age of alcohol to three or four per cent. hibition leaders stated very clearly their Would this violate the terms of the Amendpurpose in placing the second clause in the

ment? In other words, does the Supreme Eighteenth Amendment to be to give the

Court give Congress the absolute power to dry states the power, independent of Con

define the word "intoxicating" or is there gress, to enforce the Amendment by suit

a string tied to this concession to Congress? able legislation. It was in fact a grant of

We shall soon see. power to the legislatures of the several states to legislate on this subject at least, so far as the promoters of this legislation intended, to the extent of providing for its NOTES OF IMPORTANT DECISIONS. . enforcement if Congress failed to act.

The real solution of the problem is to be ACCEPTANCE OF BID BY RECEIVER found, as Chief Justice White has found NOT BINDING UNTIL CONFIRMED BY THE it, in the fact that the first section of the COURT.-No question seems to puzzle lawAmendment is absolute, self-executing and

yers more than the obligation of the seller at

a judicial sale. The question is not so difficult applicable to every State in the Union and

where the sale is at public auction, but where not merely to such states which adopt it or

the Court has previously given its officer, a reapprove it, and that the second section gives

ceiver, trustee, etc., authority to sell at private concurrent power to the states and to Con- sale for not less than a certain amount and t? gress, not to nullify the Amendment, but to receiver enters into a written contract accept

ing a certain offer, the offeror, being bound, enforce it. On this point the Chief Justice

seems to think the receiver should be bound said:

also. It must be borne in mind, however, that “Limiting the concurrent power to en- the ultimate contract in such cases is with force given by the second section to the the Court and not with the receiver. This purposes which I have attributed to it, that

principle is forcibly illustrated by the recent is, to the subjects appropriate to execute case of Saunders v. Stults, 177 N. W. 516, where the Amendment as defined and sanctioned the Supreme Court of Iowa held that where by Congress, I assume that it will not be a receiver was directed to sell 700 acres of denied that the effect of the grant of au- land of parties to a joint adventure and the thority was to confer upon both Congress receiver agreed in writing to sell to a purand the States power to do things which chaser who had submitted a bid of $102,700, otherwise there would be no right to do. $10,000 in hand, the remainder in deferred This being true, I submit that no reasor payments with assumption of mortgages, and exists for saying that a grant of concurren- a second mortgage of $27,000, and subsequent



ly, but before the sale was confirmed by the court, a third party submitted a cash bid of $12,000 more, it was within the power of the court to reject the first bid and accept the second, on the ground that no acceptance by receiver of any bid was binding until confirmed by the Court.

In Terry v. Cole's Ex'r, 80 Va. 695, the Su. preme Court of Virginia said:


"Confirmation is the judicial sanction of the court. Until then the bargain is incomplete. * * * Until confirmed by the court, the sale confers no rights. Until then it is a sale only in a popular and not in a judicial or legal

The chancellor has a broad discretion in the approval or disapproval of such sales. The accepted bidder acquires, by the acceptance of his bid, no independent right, as in the case of a purchaser at a sale under execution, to have his purchase completed, but is merely a preferred proposer, until confirmation by the court of the sale, as agreed to by its ministerial agent. In the exercise of this discretion a proper regard is had to the interests of the parties and the stability of judicial sales. By sanctioning a sale, the courts make it their own. There is a difference between such sales, and ordinary auction sales, and sales by private agreement. In case of sales before a master, the purchaser is not considered as entitled to the benefit of his contract till the master's report of the purchaser's bidding is absolutely confirmed.”

In Davis V. Stuart, 4 Tex. 226, the Court said:

1-Interests Involved in Domestic Relations and the Marriage Status.-If all men, like mules, were sterile, organized society would have little interest in the procreative instinct. But sexual intercourse leads naturally to the birth of children, and because of this the State is vitally interested in throwing safeguards around the sex instinct and the living together of men and women in the marriage relation. This for two reasons. The first is that the State does not wish to have children born unless there is someone responsible for their care and nurture. The second reason is, that the history of civilized nations has shown that children are best brought up by those who are their natural parents. Thus the interests of the State are best furthered by developing the home and home life, for within the home the best citizens of the State are trained and developed.

Marriage is the institution which the State sanctions as the proper one within which the sex instinct may be gratified. The law will protect such gratification within the institution and will try to prevent its functioning without the institution. Suits for the restitution of conjugal rights are permitted while adultery and fornication are punished. The family is protected from external interference and pressure is brought to bear upon the heads of families to maintain discipline among and control the activities of, the members of the family.

The Christian churches, in varying degrees, look upon marriage as a sacrament. It has a sanctity over and above that which

from natural relationships or is granted by law. It is above the law and cannot be dissolved, or should not be dissolved, by the State. The church only. as the representative of the Divine power. can separate man and wife. "Whom God hath brought together, let no man put asunder.” But in the eve of the law mar

"It will be seen that much discretion is left to the judge; if he should believe that the sale was not fair, or that it was not made in conformity with law, it would be his duty to set it aside, and order it to be sold again. He is not required to place upon the record the reasons by which he is governed either in confirming or rejecting a sale.

* * * The purchaser could not be injured; when he bid for the land he was aware that he was purchasing subject to the confirmation or rejection of the sale by the probate judge."

In State v. Quintard, 80 Fed. 829, the Court said:


"The cases, both federal and state, fully establish the rule that Quintard's bid for the property at the special master's sale was only an offer to take the property at that price, and that the acceptance or rejection of the offer was within the sound legal discretion of the court, to be exercised with due regard to the special circumstances of the case. ACceptance of his offer could only have been manifested by an order confirming the sale, and, until that was done, he acquired no title, and there was in his position at the time this petition was filed no element of an innocent purchaser."

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