1. The Court takes judicial notice of the fact that the
ratification of the Twenty-first Amendment of the Constitution,
which repealed the Eighteenth Amendment, was consummated on
December 5, 1933. P.
291 U. S.
222.
2. Upon the ratification of the Twenty-first Amendment, the
Eighteenth Amendment became inoperative, and neither the Congress
nor the courts could give it continued validity. P.
291 U. S.
222.
3. The National Prohibition Act, to the extent that its
provisions rested upon the grant of authority to Congress by the
Eighteenth Amendment, immediately fell with the withdrawal by the
people of the essential constitutional support. P.
291 U. S.
222.
4. Prosecutions for violations of the National Prohibition Act
in a state, pending when the Eighteenth Amendment was repealed,
cannot be continued. P.
291 U. S.
222.
Page 291 U. S. 218
5. In case a statute is repealed or rendered inoperative, no
further proceedings can be had to enforce it in pending
prosecutions unless competent authority has kept it alive for that
purpose. P.
291 U. S.
223.
6. Section 13 of the Revised Statutes, providing that penalties
and liabilities incurred under a statute are not to be extinguished
by its repeal unless the repealing act shall so expressly provide,
etc., is inapplicable where the statute imposing the penalties is
rendered inoperative by the power of the people exercised through a
constitutional amendment. P.
291 U. S.
223.
7. Instances in which Congress has provided for the transfer of
cases pending in territorial courts as an incident to the exercise
of its power to admit new states into the Union present no analogy
to a case in which the power of Congress over the subject matter
has been withdrawn by a constitutional amendment. P.
291 U. S.
225.
8. Prosecution for crimes is but an application or enforcement
of the law, and if the prosecution is to continue, the law must
continue to vivify it. P.
291 U. S.
226.
9. It is a continuing and vital principle that the people are
free to withdraw authority which they have conferred, and, when
withdrawn, neither Congress nor the courts can assume the right to
continue to exercise it. P.
291 U. S.
226.
5 F. Supp. 153 affirmed.
Appeal under the Criminal Appeals Act from a judgment quashing
an indictment for conspiracy to violate the National Prohibition
Act, and for possessing and transporting intoxicating liquor in
violation of that Act.
Page 291 U. S. 221
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
Clause Chambers and Byrum Gibson were indicted in the District
Court for the Middle District of North Carolina for conspiring to
violate the National Prohibition Act, and for possessing and
transporting intoxicating liquor contrary to that Act, in
Rockingham county in that state. The indictment was filed on June
5, 1933. Chambers pleaded guilty, but prayer for judgment was
continued until the December term. On December 6, 1933, the case
was called for trial as to Gibson. Chambers
Page 291 U. S. 222
then filed a plea in abatement, and Gibson filed a demurrer to
the indictment, each upon the ground that the repeal of the
Eighteenth Amendment of the Federal Constitution deprived the court
of jurisdiction to entertain further proceedings under the
indictment. The District Judge sustained the contention and
dismissed the indictment. The government appeals. 18 U.S.C. §
682.
This Court takes judicial notice of the fact that the
ratification of the Twenty-First Amendment [
Footnote 1] of the Constitution of the United States,
which repealed the Eighteenth Amendment, was consummated on
December 5, 1933.
Dillon v. Gloss, 256 U.
S. 368. Upon the ratification of the Twenty-First
Amendment, the Eighteenth Amendment at once became inoperative.
Neither the Congress nor the courts could give it continued
vitality. The National Prohibition Act, to the extent that its
provisions rested upon the grant of authority to the Congress by
the Eighteenth Amendment, immediately fell with the withdrawal by
the people of the essential constitutional support. The continuance
of the prosecution of the defendants after the repeal of the
Eighteenth Amendment, for a violation of the National Prohibition
Act alleged to have been committed in North Carolina, would involve
an attempt to continue the application of the statutory
Page 291 U. S. 223
provisions after they had been deprived of force. This
consequence is not altered by the fact that the crimes in question
were alleged to have been committed while the National Prohibition
Act was in effect. The continued prosecution necessarily depended
upon the continued life of the statute which the prosecution seeks
to apply. In case a statute is repealed or rendered inoperative, no
further proceedings can be had to enforce it in pending
prosecutions unless competent authority has kept the statute alive
for that purpose.
The decisions of this Court afford abundant illustration of this
principle. In
Yeaton v. United
States, 5 Cranch 281,
9 U. S. 283,
where the statute under which a ship had been condemned in
admiralty had expired while the case was pending on appeal, the
Court held that the cause was to be considered as if no sentence
had been pronounced. Chief Justice Marshall said that
"it has long been settled on general principles that, after the
expiration or repeal of a law, no penalty can be enforced, nor
punishment inflicted, for violations of the law committed while it
was in force unless some special provision be made for that purpose
by statute."
Chief Justice Taney observed in
Maryland
v. Baltimore & Ohio R. Co., 3 How. 534,
44 U. S. 552:
"The repeal of the law imposing the penalty is, of itself, a
remission." In
United States v.
Tynen, 11 Wall. 88,
78 U. S. 95, the
Court thus stated the principle applicable to criminal
proceedings:
"There can be no legal conviction, nor any valid judgment
pronounced upon conviction, unless the law creating the offence be
at the time in existence. By the repeal, the legislative will is
expressed that no further proceedings be had under the Act
repealed."
See also Norris v.
Crocker, 13 How. 429,
54 U. S. 440;
Gulf, Colorado & Santa Fe Ry. Co. v. Dennis,
224 U. S. 503,
224 U. S.
506.
The government endeavors to avoid the application of this
established principle by invoking the general saving provision
enacted by the Congress in relation to the
Page 291 U. S. 224
repeal of statutes. That provision is to the effect that
penalties and liabilities theretofore incurred are not to be
extinguished by the repeal of a statute "unless the repealing Act
shall so expressly provide," and to support prosecutions in such
cases, the statute is to be treated as remaining in force. R.S. §
13. [
Footnote 2] But this
provision applies, and could only apply, to the repeal of statutes
by the Congress and to the exercise by the Congress of its
undoubted authority to qualify its repeal, and thus to keep in
force its own enactments. It is a provision enacted in recognition
of the principle that, unless the statute is so continued in force
by competent authority, its repeal precludes further enforcement.
The Congress, however, is powerless to expand or extend its
constitutional authority. The Congress, while it could propose,
could not adopt the constitutional amendment or vary the terms or
effect of the amendment when adopted. The Twenty-First Amendment
contained no saving clause as to prosecutions for offenses
theretofore committed. The Congress might have proposed the
amendment with such a saving clause, but it did not. The National
Prohibition Act was not repealed by Act of Congress, but was
rendered inoperative, so far as authority to enact its provisions
was derived from the Eighteenth Amendment, by the repeal, not by
the Congress but by the people, of that amendment. The Twenty-First
Amendment gave to the Congress no power to extend the operation of
those provisions. We are of the opinion that, in such a case, the
statutory provision relating to the repeal of statutes by the
Congress has no application.
Page 291 U. S. 225
The government cites decisions involving changes from
territorial to state governments and recognizing the authority of
the Congress to provide for the transfer of pending cases from
territorial courts to the courts established within the new states.
Pickett v. United States, 216 U.
S. 456;
United States v. Baum, 74 F. 43.
Compare Moore v. United States, 85 F. 465. These decisions
present no analogy to the instant case. As the function and
jurisdiction of territorial courts would naturally terminate when a
territory becomes a state, some provision for the transfer of
pending business is necessary, and the Congress has adequate
authority to that end. The Constitution authorizes the Congress to
admit new states into the Union (Art. IV, § 3, par. 1), and also to
provide in the case of crimes not committed within any state for
trial at such place as the Congress may direct (Art. III, § 2, par.
3). The Congress, in admitting a new state, may thus transfer
"jurisdiction in respect of local matters to state courts, and
of civil and criminal business and jurisdiction arising under the
laws of the United States to courts of the United States when they
should come into existence."
Pickett v. United States, supra at
216 U. S. 459;
Forsyth v. United
States, 9 How. 571,
50 U. S.
576-577. In such cases, jurisdiction for the trial of
pending criminal actions depends upon the provisions of the
enabling act.
Id. Provision in the enabling Act for the
vote of the people of the territory, as a condition precedent to
the establishment of the new state and the adoption of its
constitution, does not alter the fact that the state is admitted to
the Union by the Congress under its constitutional authority. In
the instant case, constitutional authority is lacking. Over the
matter here in controversy power has not been granted, but has been
taken away. The creator of the Congress has denied to it the
authority it formerly possessed, and this denial, being
unqualified, necessarily defeats any legislative attempt to extend
that authority.
Page 291 U. S. 226
Finally, the argument is pressed that the rule which is invoked
is a common law rule, and is opposed to present public policy. We
are told that the rule of construction, evidenced by the saving
provision adopted by the Congress in relation to the repeal of
statutes, is firmly entrenched, and attention is directed to
corresponding statutory provisions in most of the states. But these
state statutes themselves recognize the principle which would
obtain in their absence. The question is not one of public policy
which the courts may be considered free to declare, but of the
continued efficacy of legislation in the face of controlling action
of the people, the source of the power to enact and maintain it. It
is not a question of the developing common law. It is a familiar
maxim of the common law that, when the reason of a rule ceases, the
rule also ceases.
See Funk v. United States, 290 U.
S. 371. But, in the instant case, the reason for the
rule has not ceased. Prosecution for crimes is but an application
or enforcement of the law, and, if the prosecution continues, the
law must continue to vivify it. The law here sought to be applied
was deprived of force by the people themselves as the inescapable
effect of their repeal of the Eighteenth Amendment. The principle
involved is thus not archaic, but rather is continuing and vital --
that the people are free to withdraw the authority they have
conferred, and, when withdrawn, neither the Congress nor the courts
can assume the right to continue to exercise it.
What we have said is applicable to prosecutions, including
proceedings on appeal, continued or begun after the ratification of
the Twenty-First Amendment. We are not dealing with a case where
final judgment was rendered prior to that ratification. Such a case
would present a distinct question which is not before us.
The judgment dismissing the indictment is
Affirmed.
[
Footnote 1]
Article XXI of the Amendments of the Constitution provides as
follows:
"Section 1. The eighteenth article of amendment to the
Constitution of the United States is hereby repealed."
"Sec. 2. The transportation or importation into any state,
Territory, or possession of the United States for delivery or use
therein of intoxicating liquors, in violation of the laws thereof,
is hereby prohibited."
"Sec. 3. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by conventions in
the several states, as provided in the Constitution, within seven
years from the date of the submission hereof to the states by the
Congress."
[
Footnote 2]
The text of the provision is as follows:
"The repeal of any statute shall not have the effect to release
or extinguish any penalty, forfeiture, or liability incurred under
such statute unless the repealing Act shall so expressly provide,
and such statute shall be treated as still remaining in force for
the purpose of sustaining any proper action or prosecution for the
enforcement of such penalty, forfeiture, or liability."