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Argument for the United States.

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456, 459. Since it is merely a rule of construction, it should yield to another, if legal principles permit.

Decisions interpreting the Eleventh Amendment are not applicable, Hollingsworth v. Virginia, 3 Dall. 378, due to the marked precision with which the Eleventh Amendment was framed.

In transferring power from the United States to the States, the Twenty-first Amendment brought about a situation comparable to that which arose when Territories which had been subject to federal control entered the Union as States. For that reason, United States v. Baum, 74 Fed. 43, is much like the case at bar. Pickett v. United States, 216 U.S. 456, 459. Distinguishing: Moore v. United States, 85 Fed. 465; Sonora v. Curtin, 137 Cal. 583, 589.

The court below should not have applied the common law rule to the Twenty-first Amendment, as such rule is opposed to present public policy, but it should have applied the principles of the statutory rule. The Constitution must be “interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.United States v. Wong Kim Ark, 169 U.S. 649, 654. Since the first ten Amendments embody guarantees and immunities inherited from our English ancestors, they are to be interpreted in a like manner. Cf. Robertson v. Baldwin, 165 U.S. 275, 281. Clearly, this Court has always sought and applied those principles of law which were familiar and controlling at the time when the constitutional provision, or Amendment, in question was adopted.

What principle of law governing the effect of repeals was most familiar and most controlling throughout the United States in 1933 when the Twenty-first Amendment was adopted?

After United States v. Tynen, 11 Wall. 88, Congress had promptly passed “An Act prescribing the form of the

Argument for the United States.

291 U.S.

enacting and resolving clauses of Acts and Resolutions of Congress, and rules for the construction thereof,” (February 25, 1871, c. 71, 16 Stat. 431) which is now $ 13 of the Revised Statutes, changing the common law rule of construction.

It was a salutary change, United States v. Barr, 4 Sawyer 254, and has stood for sixty-two years as the rule of federal jurisprudence and policy.

Why should the courts be powerless to punish for crimes committed under a valid criminal law, merely because for satisfactory reasons the statute has been repealed?

There is no difference in principle between repeal by statute and by a constitutional amendment. The one is passed by Congress while the other is proposed by Congress and adopted by three-fourths of the States. The intent of the framers is in both cases the same. If the courts have power to punish for offenses committed before the repeal when the repeal is by statutory enactment, the courts have equal power to punish for like offenses when the repeal is by constitutional provision.

It is only necessary that the old statute be repealed in order to make effective § 13, Rev. Stats., unless otherwise provided in the repealing Act. The repeal may be express by statute, or it may be by implication by the enactment of a statute inconsistent with the old one; or it may be a repeal by implication by a constitutional amendment inconsistent with the old statute, or by withdrawing from the legislative arm of the Government the power to enact the old statute, as in this case; or it may be by an enactment creating a new State whereby the authority of Congress to make acts criminal in the jurisdiction of the new State is taken away.

See Great Northern Ry. Co. v. United States, 208 U.S. 452, 465.

The rule of construction contained in R.S. $ 13 has become firmly entrenched. Hertz v. Woodman, 218 U.S.


Opinion of the Court.


205. Had Congress intended to reverse this long-established policy, it would have framed the Amendment accordingly.

Canada and England and many of the States have provisions similar to § 13 R.S. In the year 1933, when the Twenty-first Amendment was proposed and adopted, the almost universal rule throughout the United States was that the repeal of a criminal law did not debar prosecution for crimes committed before its adoption.

This Court, in Funk v. United States, 290 U.S. 371, rejected an aged rule of the common law on the competency of witnesses, even though it had not been changed by Congress. The reasoning is pertinent here.

If the old rule of construction should be applied in this case, then the spectacle would be presented of some joint offenders escaping punishment while the others are serving terms or have paid fines for the same offense.

See Levitt, “Repeal of Penal Statutes and Effect on Pending Prosecutions,” Am. Bar. Assn. Jour., Nov., 1923, pp. 715_721.

Messrs. Z. I. Walser and William M. Hendren, with whom Messrs. Don A. Walser and Leland Stanford were on the brief, for appellees.

MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.

Claude 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. Cham

Opinion of the Court.

291 U.S.

bers 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 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

* 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.”

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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, 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, 552: “The repeal of the law imposing the penalty, is of itself a remission.” In United States v. Tynen, 11 Wall. 88, 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, 440; Gulf, C. & S. F. Ry. Co. v. Dennis, 224 U.S. 503, 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

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