1. The second section of the Eighteenth Amendment, declaring
"[t]he Congress and the several states shall have concurrent power
to enforce this article by appropriate legislation," means that
power to take legislative measures to make the policy of the
amendment effective shall exist in Congress in respect of the
territorial limits of the United States, and that, at the same
time, the like power of the several states within their territorial
limits shall not cease to exist. P. 260 U. S.
Page 260 U. S. 378
2. The Amendment did not displace or cut down state laws
consistent with it. P. 260 U. S.
3. The Amendment is not, properly speaking, the source of the
state prohibitory power, but rather, its effect is to put an end to
restrictions on the state's power arising from the federal
Constitution, and to leave the state free to enact prohibition laws
applying to all transactions within her limits. P. 260 U. S.
4. When the same act is an offense against both state and
federal governments, its prosecution and punishment by the latter,
after prosecution and punishment by the former, is not double
jeopardy within the Fifth Amendment. P. 260 U. S.
5. In the absence of special provision by Congress to the
contrary, 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 National Prohibition Law for the same acts. P. 260 U. S.
268 F. 864 reversed.
Error to an order of the district court sustaining a special
plea in bar and dismissing five counts of an indictment.
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This is a 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 with possessing it, and the fourth and
fifth with having a still and material designed for its
Page 260 U. S. 379
about April 12, 1920, in violation of the National Prohibition
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 having 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 Code, § 6262-1
as amended by Sess.Laws 1917, p. 46. The
government demurred to the plea. The district court sustained the
plea and dismissed the five counts. United States v.
268 F. 864. No point is made by the government in
the assignments of error that Counts 4 and 5, for having a still
and material in possession, were not covered by the information and
judgment by the state court.
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 into, or the exportation
thereof from, the United States and all territory subject to the
jurisdiction thereof, for beverage purposes, is hereby
"Sec. 2. The Congress and the several states shall have
concurrent power to enforce this article by appropriate
The defendants 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
Page 260 U. S. 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,
253 U. S. 350
conclusions of the Court relevant here are Nos. 6, 7, 8, and 9.
"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 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 to thwart the
prohibition, but only to enforce it by appropriate means."
"8. 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
"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. "
Page 260 U. S. 381
The amendment was adopted for the purpose of establishing
prohibition as a national policy reaching every part of the 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 legislative
measures to make the 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
To regard the amendment as the source of the power of the states
to adopt and enforce prohibition measures 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 measure prior to the amendment,
and the probable 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 countrywide 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
Page 260 U. S. 382
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 restriction heretofore arising out of the federal
Constitution. This is the ratio decidendi
of our decision
in Vigliotti v. Pennsylvania, 258 U.
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 against its
peace and dignity, is exercising its own sovereignty, not that of
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 Amendment, like all
the other guaranties in the first eight amendments, applies only to
proceedings by the federal government, Barron v.
City of Baltimore,
7 Pet. 243, and the double
jeopardy therein forbidden is a second prosecution under authority
of the federal government after a first trial for the same offense
under the same authority. Here, the same act was an offense against
the state of Washington, because a violation of its law, and also
an offense against the United States under the National Prohibition
Act. The defendants thus committed two different offenses by the
same act, and a conviction by a court of Washington of the offense
against that state is not a conviction of the different offense
against the United States, and so is not double jeopardy.
This view of the Fifth Amendment is supported by a long line of
decisions by this Court. In Fox v. Ohio,
How. 410, a judgment of the Supreme Court of Ohio was under review.
It affirmed a conviction under a state law
Page 260 U. S. 383
punishing the uttering of a false United States silver dollar.
The law was attacked as beyond the power of the state. One ground
urged was that, as the coinage of the dollar was entrusted by the
Constitution to Congress, it had authority to protect it against
false coins by prohibiting not only the act of making them, but
also the act of uttering them. It was contended that, if the state
could denounce the uttering, there would be concurrent jurisdiction
in the United States and the state, a conviction in the state court
would be a bar to prosecution in a federal court, and thus a state
might confuse or embarrass the federal government in the exercise
of its power to protect its lawful coinage. Answering this
argument, Mr. Justice Daniel, for the Court, said (p. 46 U. S.
"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
denounced 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 offenses 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,
9 How. 560, 50 U. S. 569
where the same justice said that
"the same act might, as to its character and tendencies and the
consequences it involved, constitute an offense against both the
state and federal governments, and might draw to its commission the
penalties denounced by either as appropriate to its character in
reference to each. "
Page 260 U. S. 384
The principle was reaffirmed in Moore v.
14 How. 13, in United States v.
Cruikshank, 92 U. S. 542
92 U. S.
-551, in Ex Parte Siebold, 100 U.
, 100 U. S. 389
390-391, in Cross v. North Carolina, 132 U.
, 132 U. S. 139
in Pettibone v. United States, 148 U.
, 148 U. S. 209
in Crossley v. California, 168 U.
, 168 U. S. 641
in Southern Ry. Co. v. R. Comm'n of Indiana, 236 U.
, in Gilbert v. Minnesota, 254 U.
, 254 U. S. 330
and, finally, in McKelvey v. United States, ante,
260 U. S. 353
In Southern Ry. Co. v. Railroad Comm'n of Indiana,
Mr. Justice Lamar used this language (p. 236 U. S.
"In support of this position, numerous cases are cited, which,
like Cross v. North Carolina, 132 U. S.
, 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 only to cases where the act
sought to be punished is one over which both sovereignties have
jurisdiction. This concurrent jurisdiction may be either because
the nature of the act is such that, at the same time, it produces
effects respectively within the sphere 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 Amendment. The
court below is the only district court which has held conviction in
a state court a bar to prosecution for the same act under the
Volstead Law. United States v. Holt,
270 F. 639;
United States v. Bostow,
273 F. 535; United States v.
273 F. 727; United States v. Ratagczak,
Page 260 U. S. 385
Counsel for defendants in error invoke 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, 258 U. S. 254
This is beside the point, and has no application. The effect of the
ruling of the court below was to exclude the United States from
jurisdiction to punish the defendants after the state court had
exhausted its jurisdiction, and when there was no conflict of
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 make 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, in 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
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.