well be instructed by the Association to analyse the reasons for the evil all recognize and to make suggestions of a remedy. Business in America is largely interstate and international. The manufacturer or the farmer seldom sells his whole output in the state in which it is produced, but depends on consumption by persons living under the jurisdictions of a great many differing state governments. There is a growing tendency to fix legal standards of purity and quality of articles produced in quantity and sold to the general public, usually through middlemen. These standards serve two objects. Some, like the requirements that fertilizers be marked with their ingredients, are planned to protect the customers of the great manufacturers; others, like the statutory grain standards, have the primary purpose of safeguarding the farmer who sells to the warehouseman, although they also are thought to facilitate the flow of the "current of commerce," by making transactions easier through uniform grading. If these standards are necessary to protect the public, it is an advantage to have them established by the federal government and copied by the states, so that uniformity will be assured. The federal laws for the last session show that Congress has not abandoned its activities in this field. Once the federal standard has been fixed, it is almost inevitable that the states themselves will follow suit and apply to transactions in interstate commerce the same rules which Congress has laid down for interstate transactions. In the field of interstate commerce there is no conflict between federal and state laws in the sense that either may apply to a particular transaction. If a transaction is interstate commerce the states are excluded, at least where Congress has acted, while if it is intrastate commerce, Congress has no authority and the state is sole sovereign. Another situation arises in the regulatory legislation under the 18th Amendment and in cases where Congress, through the use of the taxing power, has enacted what is in effect a police law regulating a particular business. Where the federal tax is prohibitory, as was the case in respect to oleomargarine and white phosphorus matches, although the state, by its silence, or expressly by a licensing law, permits the use of the taxed article, the conflict is theoretical rather than practical, since there will be nothing left for the state laws to operate on if the federal statute accomplishes its purpose by levying a tax high enough to stop production or sale. Conversely, when liquor was a legitimate article of commerce in the eyes of Congress, and was taxed to support the federal government, state prohibition laws within their jurisdiction made the federal tax acts totally ineffective. But in cases such as arise under the Harrison Narcotic act, where the tax is low and where the purpose of the act is not to stop but to regulate transactions. in narcotic drugs a different situation is presented. The act of Congress in no way affects the rights of the states to act for the regulation of the traffic in narcotic drugs, and the same transaction may be an offense against both state and federal laws. Here the interest of business and professional men affected by the legislation clearly demands the greatest possible uniformity and the acceptance by the states of the precautions taken by the federal government in the way of orders and prescriptions as a sufficient satisfaction of their own requirements for limitation of trade to the proper channels. The same situation results from the prohibition amendment. Both state and nation are empowered to pass laws to carry out the amendment, and under the Lanza decision (U. S. vs. Lanza et al., 43 Sup. Ct. 141, decided Dec. 11, 1922), each is entitled to enforce its own idea of how the object of the amendment should be effected. The easiest solution of the problem of concurrent power, that the states should withhold their hands and allow the federal government to grapple with the problem alone, has not been accepted in practice. President Harding has recently stated his conviction that the states should put their judicial and administrative systems at work as the federal government has not the "police organizations and judicial establishment adequate to deal" with the problem of enforcement. If this be so, the simplest thing for each state to do would be to adopt the federal act and to provide that future amendments to that act shall become the law of the state as they are enacted by Congress. The regulations under both these acts, furthermore, are such an important part of their administration that they also must become part of the law of the state if uniformity is to be attained. So the act of Congress and the regulations made in connection therewith must become the law of the state both in praesenti and in futuro. Constitutional objections to this course are evident and practical difficulties also are apparent. The principal constitutional difficulty is that the adoption of federal statutes in futuro is a delegation of state legislative power to Congress. For this reason the Massachusetts legislature was advised by the State Supreme Court not to pass a bill making the Volstead Act the law of the state with its amendments as they came along. The states have met this difficulty by passing statutes of their own closely modeled on the federal prototype. The same course has also been followed generally in respect to narcotics. The advocates of unitary legislation, however, have presented the issue squarely by the California Act adopting the penal provisions of the federal law itself in one section and by a subsequent section providing that the amendments shall become the law of the state as they become the law of the United States. Nevada at the last session, over the veto of the Governor, repealed its prohibition enforcement act and substituted a similar statute. If the Volstead Act is repealed and a new act passed, the new act will be the law of Nevada, if the legislature has its way. Washington in its new narcotic law in part applies the federal narcotic law, but not its future amendments. It goes further in regard to regulations. Existing regulations and those made in the future are accepted as an essential part of the state system of narcotic control. There is no doubt that the states may adopt the federal law as it stands, but it seems contrary to the course of judicial opinion that these statutes will be upheld, so far as they adopt subsequent amendments. Yet, if this is not so it is evident that nothing is gained by adopting the Volstead Act instead of adapting it, and there is great danger of confusion in the minds of those who are not constitutional lawyers as to what is the law in the state after the Volstead Law, modified by many amendments, has become substantially different from that act as it stood when the state statute was adopted. Even more serious will be the result if regulations made by the federal authority after the passage of the state act cannot be incorporated into the law of the state. The act itself is the bare bones and sinew of the law, the regulations are its flesh and muscle. Whatever unity there may be in the words of the laws, state and national, that unity will only cover diversity if there are different regulations. Another difficulty will arise if the Supreme Court sustains the recent decision of the District Court in New York holding unconstitutional that clause of the Volstead Act which limits the right of physicians to prescribe liquor. One ground for that decision will not necessarily apply to the states. The court held that the 18th Amendment only permitted Congress to limit the liquor trade in intrastate trade where the liquor was for beverage purposes. The Congress has no police power on the subject except that granted by the amendment, but the states under their general police power would certainly seem able to limit the use of liquor by physicians if the limitation could be upheld as reasonable in the interest of public health, security or morals. It might, therefore, well happen that a particular section of the Volstead Act where it has become by adoption the law of a state, would be invalid as federal, but valid as state legislation. Nevada, at the very session at which the Volstead Act was adopted, found it necessary to go further than Congress and regulated the sale of liquor in pharmacies for medical purposes in a separate act. Therefore, a Nevadan cannot rely on his knowledge of the federal statute to help him out of trouble with the state authorities. Even though complete uniformity cannot be accomplished by adoption of the federal law as the law of the states, nevertheless. in these instances of regulation, as well as in those under the commerce clause, adaptation of a federal prototype to state needs is bringing about a degree of uniformity on important subjects of legislation. Respectfully submitted, JOSEPH P. CHAMBERLAIN, Chairman, WELLINGTON D. RANKIN, BRUCE W. SANBORN. NOTE. The committee has prepared a review of legislation of the last session of Congress, which was printed and distributed to the members of the Association in the advance pamphlet of Committee Reports, pages 60 to 77, inclusive. Since the submission of its report at the annual meeting, the committee has completed its digest of state legislation, and this digest is now in print, but owing to the length of the digest, it is impossible to include it in this volume. A separate pamphlet containing the report of the committee and the review of federal legislation and the digest of state legislation, has been printed and copies thereof may be obtained by application to the chairman of the committee, Joseph P. Chamberlain, Esq., 510 Kent Hall, Columbia University, New York City, or to the Secretary of the Association. NAME. Alabama State Bar As- R. B. Evins, PRESIDENT. SECRETARY. Alexander Troy, Greensboro. Montgomery. J. E. Nelson, Phoenix. Phoenix. Roscoe R. Lynn, Marianna. Little Rock. sociation. Arizona Bar Associa- James R. Molott, tion. Bar Association of Ar- C. E. Daggett, kansas. California Bar Asso- Jefferson P. Chandler, T. W. Robinson, ciation. Los Angeles. Los Angeles. Colorado Bar Associa- George C. Manley, Robert G. Bosworth, tion. State Bar Association William H. Boardman, James E. Wheeler, of Connecticut. ciation. Georgia Bar Associa- William M. Howard, Harry S. Strozier, Jacksonville. Jacksonville. |