Amendment 21
Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
Section 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.
Section 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.
Effect of Repeal
The operative effect of section 1, repealing the Eighteenth Amendment, is considered under the latter amendment.
Scope of the Regulatory Power Conferred Upon the States
DISCRIMINATION AS BETWEEN DOMESTIC AND IMPORTED PRODUCTS
In a series of interpretive decisions rendered shortly after ratification of this amendment, the Court established the proposition that States are competent to adopt legislation discriminating against imported intoxicating liquors in favor of those of domestic origin and that such discrimination offends neither the commerce clause of article I nor the equal protection and due process clauses of the Fourteenth Amendment. Thus, in State Board of Equalization v. Young's Market Co.[1] a California statute was upheld which exacted a $500 annual license fee for the privilege of importing beer from other States and a $750 fee for the privilege of manufacturing beer; and in Mahoney v. Triner Corp.[2] a Minnesota statute was sustained which prohibited a licensed manufacturer or wholesaler from importing any brand of intoxicating liquor containing more than 25% of alcohol by volume and ready for sale without further processing, unless such brand was registered in the United States Patent Office. Also validated in Indianapolis Brewing Co. v. Liquor Commission[3] and Finch & Co. v. McKittrick[4] were retaliation laws enacted by Michigan and Missouri, respectively, by the terms of which sales in each of these States of beer manufactured in a State already discriminating against beer produced in Michigan or Missouri were rendered unlawful.
Conceding, in State Board of Equalization v. Young's Market Co.,[5] that "prior to the Twenty-first Amendment it would obviously have been unconstitutional to have imposed any fee for * * * the privilege of importation * * * even if the State had exacted an equal fee for the privilege of transporting domestic beer from its place of manufacture to the [seller's] place of business," the Court proclaimed that this amendment "abrogated the right to import free, so far as concerns intoxicating liquors." Inasmuch as the States were viewed as having acquired therefrom an unconditioned authority to prohibit totally the importation of intoxicating beverages, it logically followed that any discriminatory restriction falling short of total exclusion was equally valid, notwithstanding the absence of any connection between such restriction and public health, safety or morals. As to the contention that the unequal treatment of imported beer would contravene the equal protection clause, the Court succinctly observed that a "classification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth."[6]
REGULATION OF TRANSPORTATION AND "THROUGH" SHIPMENTS
Lately, however, when passing upon the constitutionality of legislation regulating the carriage of liquor interstate, a majority of the Justices have been disposed to by-pass the Twenty-first Amendment and to resolve the issue exclusively in terms of the commerce clause and State police power. This trend toward devaluation of the Twenty-first Amendment was set in motion by Ziffrin, Inc. v. Reeves[7] wherein a Kentucky statute, forbidding the transportation of intoxicating liquors by carriers other than licensed common carriers, was enforced as to an Indiana corporation, engaged in delivering liquor obtained from Kentucky distillers to consignees in Illinois; but licensed only as a contract carrier under the Federal Motor Carriers Act. After acknowledging that "the Twenty-first Amendment sanctions the right of a State to legislate concerning intoxicating liquors brought from without, unfettered by the Commerce Clause,"[8] the Court then proceeded to found its ruling largely upon decisions antedating the amendment which sustained similar State regulations as a legitimate exercise of the police power not unduly burdening interstate commerce. In the light of the cases enumerated in the preceding paragraph, wherein the Twenty-first Amendment was construed as according a plenary power to the States, such extended emphasis on the police power and the commerce clause would seem to have been unnecessary. Thereafter, a total eclipse of the Twenty-first Amendment was recorded in Duckworth v. Arkansas[9] and Carter v. Virginia[10] wherein, without even considering that amendment, a majority of the Court upheld, as not contravening the commerce clause, statutes regulating the transport through the State of liquor cargoes originating and ending outside the regulating State's boundaries.[11]
REGULATION OF IMPORTS DESTINED FOR A FEDERAL AREA
Intoxicating beverages brought into a State for ultimate delivery at a National Park located therein but over which the United States retained exclusive jurisdiction has been construed as not constituting "transportation * * * into [a] State for delivery and use therein" within the meaning of section 2 of this amendment. The importation having had as its objective delivery and use in a federal area over which the State retained no jurisdiction, the increased powers which the latter acquired from the Twenty-first Amendment were declared to be inapplicable. California therefore could not extend the importation license and other regulatory requirements of its Alcoholic Beverage Control Act to a retail liquor dealer doing business in the Park.[12]
Effect on Federal Regulation
The Twenty-first Amendment of itself did not, it was held, bar a prosecution under the federal Sherman Antitrust Law of producers, wholesalers, and retailers charged with conspiring to fix and maintain retail prices of alcoholic beverages in Colorado.[13] In a concurring opinion, supported by Justice Roberts, Justice Frankfurter took the position that if the State of Colorado had in fact "* * * authorized the transactions here complained of, the Sherman Law could not override such exercise of state power. * * * [Since] the Sherman Law, * * *, can have no greater potency than the Commerce Clause itself, it must equally yield to state power drawn from the Twenty-first Amendment."[14] All other efforts to invoke the Twenty-first Amendment as a limitation upon the constitutional powers of the National Government, notably to invalidate the imposition, pursuant to the war power, of federal price controls on retail sales of liquors, have been equally abortive.[15]
Notes
[1] 299 U.S. 59 (1936).
[2] 304 U.S. 401 (1938).
[3] 305 U.S. 391 (1939).
[4] 305 U.S. 395 (1939).
[5] 299 U.S. 59, 62 (1936).
[6] Ibid 63-64. In the three decisions rendered subsequently, the Court merely restated these conclusions. The contention that discriminatory regulation of imported liquors violated the due process clause was summarily rejected in Indianapolis Brewing Co. v. Liquor Commission, 305 U.S. 391, 394 (1939).
[7] 308 U.S. 132 (1939).
[8] Ibid. 138.
[9] 314 U.S. 390 (1941).
[10] 321 U.S. 131 (1944). See also Cartlidge v. Rainey, 168 F. (2d) 841 (1948); certiorari denied, 335 U.S. 885 (1948).
[11] Arkansas required a permit for the transportation of liquor across its territory, but granted the same upon application and payment of a nominal fee. Virginia required carriers engaged in similar through-shipments to use the most direct route, carry a bill of lading describing that route, and post a $1000 bond conditioned on lawful transportation; and also stipulated that the true consignee be named in the bill of lading and be one having the legal right to receive the shipment at destination.
[12] Collins v. Yosemite Park, 304 U.S. 518, 537-538 (1938).
[13] United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 297-299 (1945).
[14] Ibid. 301-302.
[15] Jatros v. Bowles, 143 F. (2d) 453, 455 (1944); Barnett v. Bowles, 151 F. (2d) 77, 79 (1945), certiorari denied, 326 U.S. 766 (1945); Dowling Bros. Distilling Co. v. United States, 153 F. (2d) 353, 357 (1946), certiorari denied, (Gould et al. v. United States) 328 U.S. 848 (1946); rehearing denied, 329 U.S. 820 (1946).
Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.
Section 2. This Article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.
1. Act of September 24, 1789 (1 Stat. 81, sec. 13, in part).
Provision that "* * * [the Supreme Court] shall have power to issue * * * writs of mandamus, in cases warranted by the principles and usages of law, to any * * * persons holding office, under authority of the United States" as applied to the issue of mandamus to the Secretary of State requiring him to deliver to plaintiff a commission (duly signed by the President) as justice of the peace in the District of Columbia, held an attempt to enlarge the original jurisdiction of the Supreme Court, fixed by article III, section 2.
Marbury v. Madison, 1 Cr. 137 (February 24, 1803).
2. Act of February 20, 1812 (2 Stat. 677, ch. 22).
Provisions authorizing land officers to examine into "validity of claims to land * * * which are derived from confirmations made * * * by the governors of the Northwest * * * territory", held not to authorize annulment of title confirmed by Governor St. Clair in 1799, nor to validate a subsequent sale and patent by the United States. (See Fifth Amendment.)
Reichert v. Felps, 6 Wallace 160 (March 16, 1868).
3. Act of March 6, 1820 (3 Stat. 548, sec. 8, proviso).
The Missouri Compromise, prohibiting slavery within the Louisiana Territory north of 36° 30', except Missouri, held not warranted as a regulation of Territory belonging to the United States under article IV, section 3, clause 2 (and see Fifth Amendment).
Dred Scott v. Sandford, 19 Howard 393 (March 6, 1857).
4. Act of February 25, 1862 (12 Stat. 345, sec. 1); July 11, 1862 (12 Stat. 532, sec. 1); March 3, 1863 (12 Stat. 711, sec. 3), each in part only.
"Legal tender clauses", making noninterest-bearing United States notes legal tender in payment of "all debts, public and private", so far as applied to debts contracted before passage of the act, held not within express or implied powers of Congress under article I, section 8, and inconsistent with article I, section 10, and Fifth Amendment.
Hepburn v. Griswold, 8 Wallace 603 (February 7, 1870); overruled in Knox v. Lee (Legal Tender cases), 12 Wallace 457 (May 1, 1871).
5. Act of March 3, 1863 (12 Stat. 756, ch. 81, sec. 5).
"So much of the fifth section * * * as provides for the removal of a judgment in a State court, and in which the cause was tried by a jury to the circuit court of the United States for a retrial on the facts and law, is not in pursuance of the Constitution, and is void" under the Seventh Amendment.
The Justices v. Murray, 9 Wallace 274 (March 14, 1870).
6. Act of March 3, 1863 (12 Stat. 766, ch. 92, sec. 5).
Provision for an appeal from the Court of Claims to the Supreme Court—there being, at the time, a further provision (sec. 14) requiring an estimate by the Secretary of the Treasury before payment of final judgments, held to contravene the judicial finality intended by the Constitution, article III.
Gordon v. United States, 2 Wallace 561 (March 10, 1865). (Case was dismissed without opinion; the grounds upon which this decision was made were stated in a posthumous opinion by Chief Justice Taney printed in the appendix to volume 117 of the U.S. Reports at p. 697.)
7. Act of June 30, 1864 (13 Stat. 311, ch. 174, sec. 13).
Provision that "any prize cause now pending in any circuit court shall, on the application of all parties in interest * * * be transferred by that court to the Supreme Court * * *", as applied in a case where no action had been taken in the Circuit Court on the appeal from the District Court, held to propose an appeal procedure not within article III, section 2.
The "Alicia", 7 Wallace 571 (January 25, 1869).
8. Act of January 24, 1865 (13 Stat. 424, ch. 20).
Requirement of a test oath (disavowing actions in hostility to the United States) before admission to appear as attorney in a Federal court by virtue of any previous admission, held invalid as applied to an attorney who had been pardoned by the President for all offenses during the Rebellion—as ex post facto (art. I, sec. 9, clause 3) and an interference with the pardoning power (art. II, sec. 2, clause 1).
Ex parte Garland, 4 Wallace 333 (January 14, 1867).
9. Act of July 13, 1866 (14 Stat. 138), amending act of June 30, 1864 (13 Stat. 284, ch. 173, sec. 122).
Tax on indebtedness of railroads, "* * * to whatsoever party or person the same may be payable", as applied to railroad bonds held by a municipal corporation under authority of the State, held an infringement of reserved State sovereignty.
United States v. Baltimore & O.R. Co., 17 Wallace 322 (April 3, 1873).
10. Act of March 2, 1867 (14 Stat. 477, ch. 169, sec. 13), amending act of June 30, 1864 (13 Stat. 281, sec. 116).
Tax on income of "* * * every person residing in the United States * * * whether derived from * * * salaries * * * or from any source whatever * * *", as applied to income of State judges, held an interference with reserved powers of State. (See Tenth Amendment.)
The Collector v. Day, 11 Wallace 113 (April 3, 1871).
11. Act of March 2, 1867 (14 Stat. 484, ch. 169, sec. 29).
General prohibition on sale of naphtha, etc., for illuminating purposes, if inflammable at less temperature than 110° F., held invalid "except so far as the section named operates within the United States, but without the limits of any State," as being a mere police regulation.
United States v. Dewitt, 9 Wallace 41 (February 21, 1870).
12. Act of May 31, 1870 (16 Stat. 140, ch. 114, sees. 3, 4).
Provisions penalizing (1) refusal of local election officials to permit voting by persons offering to qualify under State laws, applicable to any citizens; and (2) hindering of any person from qualifying or voting, held invalid under Fifteenth Amendment.
United States v. Reese et al., 92 U.S. 214 (March 27, 1876).
13. Act of July 12, 1870 (16 Stat. 235, ch. 251).
Provision making Presidential pardons inadmissible in evidence in Court of Claims, prohibiting their use by that court in deciding claims or appeals, and requiring dismissal of appeals by the Supreme Court in cases where proof of loyalty had been made otherwise than as prescribed by law, held an interference with judicial power under article III, section 1, and with the pardoning power under article II, section 2, clause 1.
United States v. Klein, 13 Wallace 128 (January 29, 1872).
14. Act of June 22, 1874 (18 Stat. 187, sec. 5).
Provision authorizing Federal courts to require production of documents in proceedings, other than criminal, under the revenue laws (the allegations expected to be proved thereby to be taken as proved, on failure to produce such documents), held as applied to a suit for forfeiture under the customs laws, to constitute unreasonable search in violation of the Fourth Amendment.
Boyd v. United States, 116 U.S. 616 (February 1, 1886).
15. Revised Statutes 1977 (act of May 31, 1870, 16 Stat. 144).
Provision that "all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts * * * as is enjoyed by white citizens * * *," held invalid under the Thirteenth Amendment.
Hodges v. United States, 203 U.S. 1 (May 28, 1906).
16. Revised Statutes 4937-4947 (act of July 8, 1870, 16 Stat. 210), and act of August 14, 1876 (19 Stat. 141).
Original trademark law, applying to marks "for exclusive use within the United States," and a penal act designed solely for the protection of rights defined in the earlier measure, held not supportable by article I, section 8, clause 8 (copyright clause), nor article I, section 8, clause 3 (interstate commerce).
Trade-Mark Cases, 100 U.S. 82 (November 17, 1879).
17. Revised Statutes 5132, subdivision 9 (act of March 2, 1867, 14 Stat. 539).
Provision penalizing "any person respecting whom bankruptcy proceedings are commenced * * * who, within 3 months before the commencement of proceedings in bankruptcy, under the false color and pretense of carrying on business and dealing in the ordinary course of trade, obtains on credit from any person any goods or chattels with intent to defraud * * *," held a police regulation not within the bankruptcy power (art. I, sec. 8, clause 4).
United States v. Fox, 95 U.S. 670 (January 7, 1878).
18. Revised Statutes 5507 (act of May 31, 1870, 16 Stat. 141, sec. 4).
Provision penalizing "every person who prevents, hinders, controls, or intimidates another from exercising * * * the right of suffrage, to whom that right is guaranteed by the Fifteenth Amendment to the Constitution of the United States, by means of bribery * * *," held not authorized by the said Fifteenth Amendment.
James v. Bowman, 190 U.S. 127 (May 4, 1903).
19. Revised Statutes 5519 (act of April 20, 1871, 17 Stat. 13, ch. 22, sec. 2).
Section providing punishment in case "two or more persons in any State * * * conspire * * * for the purpose of depriving * * * any person * * * of the equal protection of the laws * * * or for the purpose of preventing or hindering the constituted authorities of any State * * * from giving or securing to all persons within such State * * * the equal protection of the laws * * *," held invalid for punishment of conspiracy within a State—as not supported by the Thirteenth to Fifteenth Amendments.
United States v. Harris, 106 U.S. 629 (January 22, 1883).
In Baldwin v.. Franks, 120 U.S. 678 (March 7, 1887), an attempt was made to distinguish the Harris case, and apply it to conspiracy against aliens, though within a State, and held, the provision was not separable in such case.
20. Revised Statutes of the District of Columbia, section 1064 (act of June 17, 1870, 16 Stat. 154, ch. 133, sec. 3).
Provision that "prosecutions in the police court [of the District of Columbia] shall be by information under oath, without indictment by grand jury or trial by petit jury," as applied to punishment for conspiracy, held to Contravene article III, section 2, clause 3, requiring jury trial of all crimes.
Callan v. Wilson, 127 U.S. 540 (May 14, 1888).
21. Act of March 1, 1875 (18 Stat. 336, secs. 1, 2).
Provision "That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations * * * of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude"—subject to penalty, held not to be supported by the Thirteenth or Fourteenth Amendments.
Civil Rights Cases, 109 U.S. 3 (October 15, 1883), as to operation within States.
Butts v. Merchants and Miners Transportation Co., 230 U.S. 126 (June 16, 1913) as to operation outside the States.
22. Act of March 3, 1875 (18 Stat. 479, ch. 144, sec. 2).
Provision that "if the party [i.e., a person stealing property from the United States] has been convicted, then the judgment against him shall be conclusive evidence in the prosecution against [the] receiver that the property of the United States therein described has been embezzled, stolen, or purloined," held to contravene the Sixth Amendment.
Kirby v. United States, 174 U.S. 47 (April 11, 1899).
23. Act of July 12, 1876 (19 Stat. 80, sec. 6, in part).
Provision that "postmasters of the first, second, and third classes * * * may be removed by the President by and with the advice and consent of the Senate," held to infringe the executive power under article II, section 1, clause 1.
Myers v. United States, 272 U.S. 52 (October 25, 1926).
24. Act of August 14, 1876 (19 Stat. 141, trademark act), see Revised Statutes 4937.
25. Act of August 11, 1888 (25 Stat. 411).
Clause, in a provision for the purchase or condemnation of a certain lock and dam in the Monongahela River, that "* * * in estimating the sum to be paid by the United States, the franchise of said corporation to collect tolls shall not be considered or estimated * * *," held to contravene the Fifth Amendment.
Monongahela Navigation Co. v. United States, 148 U.S. 312 (March 27, 1893).
26. Act of May 5, 1892 (27 Stat. 25, ch. 60, sec. 4).
Provision of a Chinese exclusion act, that Chinese persons "convicted and adjudged to be not lawfully entitled to be or remain in the United States shall be imprisoned at hard labor for a period not exceeding 1 year and thereafter removed from the United States * * *" (such conviction and judgment being had before a justice, judge, or commissioner upon a summary hearing), held to contravene the Fifth and Sixth Amendments.
Wong Wing v. United States, 163 U.S. 228 (May 18, 1896).
27. Joint Resolution of August 4, 1894 (28 Stat. 1018, No. 41).
Provision authorizing the Secretary of the Interior to approve a second lease of certain land by an Indian chief in Minnesota (granted to lessor's ancestor by art. 9 of a treaty with the Chippewa Indians), held an interference with judicial interpretation of treaties under article III, section 2, clause 1 (and repugnant to the Fifth Amendment).
Jones v. Meehan, 175 U.S. 1 (October 30, 1899).
28. Act of August 27, 1894 (28 Stat. 553-560, secs. 27-37).
Income tax provisions of the tariff act of 1894. "The tax imposed by sections 27 and 37, inclusive * * * so far as it falls on the income of real estate and of personal property, being a direct tax within the meaning of the Constitution, and, therefore, unconstitutional and void because not apportioned according to representation [art. I, sec. 2, clause 3], all those sections, constituting one entire scheme of taxation, are necessarily invalid" (158 U.S. 601, 637).
Pollock v. Farmers' Loan and Trust Co., 157 U.S. 429 (April 8, 1895) and rehearing, 158 U.S. 601 (May 20, 1895).
29. Act of January 30, 1897 (29 Stat. 506, ch. 109).
Prohibition on sale of liquor "* * * to any Indian to whom allotment of land has been made while the title to the same shall be held in trust by the Government * * *," held a police regulation infringing State powers, and not warranted by the commerce clause, article I, section 8, clause 3.
Matter of Heff, 197 U.S. 488 (April 10, 1905) overruled in United States v. Nice, 241 U.S. 591 (1916).
30. Act of June 1, 1898 (30 Stat. 428).
Section 10, penalizing "any employer subject to the provisions of this act" who should "threaten any employee with loss of employment * * * because of his membership in * * * a labor corporation, association, or organization" (the act being applicable "to any common carrier * * * engaged in the transportation of passengers, or property * * * from one State * * * to another State * * *," etc.), held an infringement of the Fifth Amendment, not supported by the commerce clause.
Adair v. United States, 208 U.S. 161 (January 27, 1908).
31. Act of June 13, 1898 (30 Stat. 451, 459).
Stamp tax on foreign bills of lading, held a tax on exports in violation of article I, section 9.
Fairbank v. United States, 181 U.S. 283 (April 15, 1901).
32. Same (30 Stat. 451, 460).
Tax on charter parties, as applied to shipments exclusively from ports in United States to foreign ports, held a tax on exports in violation of article I, section 9.
United States v. Hvoslef, 237 U.S. 1 (March 22, 1915).
33. Same (30 Stat. 451, 461).
Tax on policies of marine insurance, as applied to insurance during voyage to foreign ports, held a tax on exports in violation of article I, section 9.
Thames and Mersey Marine Insurance Co. v. United States, 237 U.S. 19 (April 5, 1915).
34. Act of June 6, 1900 (31 Stat. 359, sec. 171).
Section of the Alaska Code providing for a six-person jury in trials for misdemeanors, held repugnant to the Sixth Amendment, requiring "jury" trial of crimes.
Rassmussen v. United States, 197 U.S. 516 (April 10, 1905).
35. Act of March 3, 1901 (31 Stat. 1341, sec. 935).
Section of the District of Columbia Code granting the same right of appeal, in criminal cases, to the United States or the District of Columbia as to the defendant, but providing that a verdict was not to be set aside for error found in rulings during trial, held an attempt to take an advisory opinion, contrary to article III, section 2.
United States v. Evans, 213 U.S. 297 (April 19, 1909).
36. Act of June 11, 1906 (34 Stat. 232, ch. 3073).
Act providing that "every common carrier engaged in trade or commerce in the District of Columbia * * * or between the several States * * * shall be liable to any of its employees * * * for all damages which may result from the negligence of any of its officers * * * or by reason of any defect * * * due to its negligence in its cars, engines * * * roadbed", etc., held not supportable under article I, section 8, clause 3 as applied to employees engaged in moving trains in interstate commerce.
Employers' Liability Cases, 207 U.S. 463 (January 6, 1908). [The act was upheld as to the District of Columbia in Hyde v. Southern R. Co., 31 App. D.C. 466 [1908]; and as to Territories, in El Paso and Northeastern R. Co. v. Gutierrez, 215 U.S. 87 [1909].]
37. Act of June 16, 1906 (34 Stat. 269, sec. 2).
Provision of Oklahoma Enabling Act restricting relocation of the State capital prior to 1913, held not supportable by article IV, section 3, authorizing admission of new States.
Coyle v. Oklahoma (Smith), 221 U.S. 559 (May 29, 1911).
38. Act of February 20, 1907 (34 Stat. 899, sec. 3).
Provision in the Immigration Act of 1907 penalizing "whoever * * * shall keep, maintain, control, support, or harbor in any house or other place, for the purpose of prostitution * * * any alien woman or girl, within 3 years after she shall have entered the United States," held an exercise of police power not within the control of Congress over immigration (whether drawn from the commerce clause or based on inherent sovereignty).
Keller v. United States, 213 U.S. 138 (April 5, 1909).
39. Act of March 1, 1907 (34 Stat. 1028).
Provisions authorizing certain Indians "to institute their suits in the Court of Claims to determine the validity of any acts of Congress passed since * * * 1902, insofar as said acts * * * attempt to increase or extend the restrictions upon alienation * * * of allotments of lands of Cherokee citizens * * *," and giving a right of appeal to the Supreme Court, held an attempt to enlarge the judicial power restricted by article III, section 2, to cases and controversies.
Muskrat v. United States and Brown and Gritts v. United States, 219 U.S. 346 (January 23, 1911).
40. Act of May 27, 1908 (35 Stat. 313, sec. 4).
Provision making locally taxable "all land [of Indians of the Five Civilized Tribes] from which restrictions have been or shall be removed," held a violation of the Fifth Amendment, in view of the Atoka Agreement, embodied in the Curtis Act of June 28, 1898, providing tax-exemption for allotted lands while title in original allottee, not exceeding 21 years.
Choate v. Trapp, 224 U.S. 665 (May 13, 1912).
41. Act of August 19, 1911 (37 Stat. 28).
A proviso in section 8 of the Federal Corrupt Practices Act fixing a maximum authorized expenditure by a candidate for Senator "in any campaign for his nomination and election," as applied to a primary election, held not supported by article I, section 4, giving Congress power to regulate the manner of holding elections for Senators and Representatives.
Newberry v. United States, 256 U.S. 232 (May 2, 1921).
42. Act of June 18, 1912 (37 Stat. 136, sec. 8).
Part of section 8 giving the Juvenile Court of the District of Columbia (proceeding upon information) concurrent jurisdiction of desertion cases (which were, by law, misdemeanors punishable by fine or imprisonment in the workhouse at hard labor for 1 year), held invalid under the Fifth Amendment, which gives right to presentment by a grand jury in case of infamous crimes.
United States v. Moreland, 258 U.S. 433 (April 17, 1922).
43. Act of March 4, 1913 (37 Stat. 988, part of par. 64).
Provision of the District of Columbia Public Utility Commission Act authorizing appeal to the United States Supreme Court from decrees of the District of Columbia Court of Appeals modifying valuation decisions of the Utilities Commission, held an attempt to extend the appellate jurisdiction of the Supreme Court to cases not strictly judicial within the meaning of article III, section 2.
Keller v. Potomac Electric Power Co. et al., 261 U.S. 428 (April 9, 1923).
44. Act of September 1, 1916 (39 Stat. 675, ch. 432, entire).
The original Child Labor Law, providing "that no producer * * * shall ship * * * in interstate commerce * * * any article or commodity the product of any mill * * * in which within 30 days prior to the removal of such product therefrom children under the age of 14 years have been employed or permitted to work more than 8 hours in any day, or more than 6 days in any week * * *," held not within the commerce power of Congress.
Hammer v. Dagenhart, 247 U.S. 251 (June 3, 1918).
45. Act of September 8, 1916 (39 Stat. 757, sec. 2(a) in part).
Provision of the income-tax law of 1916, that a "stock dividend shall be considered income, to the amount of its cash value," held invalid (in spite of the Sixteenth Amendment) as an attempt to tax something not actually income, without regard to apportionment under article I, section 2, clause 3.
Eisner v. Macomber, 252 U.S. 189 (March 8, 1920).
46. Act of October 3, 1917 (40 Stat. 302, secs. 4, 303, secs. 201 and 333, sec. 1206 (amending 39 Stat. 765, sec. 10)); and
Act of February 24, 1919 (40 Stat. 1075, secs. 230 and 1088, sec. 301).
Income and excess-profits taxes on income of "every corporation," as applied to income of an oil corporation from leases of land granted by the United States to a State, for the support of common schools, etc., held an interference with State governmental functions. (See Tenth Amendment.)
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 (April 11, 1932).
47. Same (40 Stat. 316, sec. 600 (f)).
The tax "upon all tennis rackets, golf clubs, baseball bats * * * balls of all kinds, including baseballs * * * sold by the manufacturer, producer, or importer * * *" as applied to articles sold by a manufacturer to a commission merchant for exportation, held a tax on exports within the prohibition of article I, section 9.
Spalding & Bros. v. Edwards, 262 U.S. 66 (April 23, 1923).
48. Act of October 6, 1917 (40 Stat. 395, ch. 97, in part).
The amendment of sections 24 and 256 of the Judicial Code (which prescribe the jurisdiction of district courts) "saving * * * to claimants the rights and remedies under the workmen's compensation law of any State," held an attempt to transfer legislative power to the States—the Constitution, by article III, section 2, and article I, section 8, having adopted rules of general maritime law.
Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (May 17, 1920).
49. Act of September 19, 1918 (40 Stat. 960, ch. 174).
Specifically, that part of the Minimum Wage Law of the District of Columbia which authorized the Wage Board "to ascertain and declare * * * (a) Standards of minimum wages for women in any occupation within the District of Columbia, and what wages are inadequate to supply the necessary cost of living to any such women workers to maintain them in good health and to protect their morals * * *," held to interfere with freedom of contract under the Fifth Amendment.
Adkins et al. v. Children's Hospital and Adkins et al. v. Lyons, 261 U.S. 525 (April 9, 1923)—overruled in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (March 29, 1937).
50. Act of February 24, 1919 (40 Stat. 1065, ch. 18, sec. 213, in part).
That part of section 213 of the Revenue Act of 1918 which provided that "* * * for the purposes of this title * * * the term 'gross income' * * * includes gains, profits, and income derived from salaries, wages, or compensation for personal service (including in the case of * * * judges of the Supreme and inferior courts of the United States * * * the compensation received as such) * * *" as applied to a judge in office when the act was passed, held a violation of the guaranty of judges' salaries, in article III, section 1.
Evans v. Gore, 253 U.S. 245 (June 1, 1920).
Miles v. Graham (268 U.S. 501, June 1, 1925), held it invalid as applied to a judge taking office subsequent to the date of the act.
51. Act of February 24, 1919 (40 Stat. 1097, sec. 402 (c)).
That part of the estate tax providing that "gross estate" of a decedent should include value of all property "to the extent of any interest therein of which the decedent has at any time made a transfer or with respect to which he had at any time created a trust, in contemplation of or intended to take effect in possession or enjoyment at or after his death (whether such transfer or trust is made or created before or after the passage of this act), except in case of a bona fide sale * * *" as applied to a transfer of property made prior to the act and intended to take effect "in possession or enjoyment" at death of grantor, but not in fact testamentary or designed to evade taxation, held confiscatory, contrary to Fifth Amendment.
Nichols, Collector v. Coolidge et al., Executors, 274 U.S. 531 (May 31, 1927).
52. Act of February 24, 1919, title XII (40 Stat. 1138, entire title).
The Child Labor Tax Act, providing that "every person * * * operating * * * any * * * factory [etc.] * * * in which children under the age of 14 years have been employed or permitted to work * * * shall pay * * * in addition to all other taxes imposed by law, an excise tax equivalent to 10 percent of the entire net profits received * * * for such year from the sale * * * of the product of such * * * factory * * *," held beyond the taxing power under article I, section 8, clause 1, and an infringement of State authority.
Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20 (May 15, 1922).
53. Act of October 22, 1919 (41 Stat. 298, sec. 2), amending act of August 10, 1917 (40 Stat. 277, sec. 4).
Section 4 of the Lever Act, providing in part "that it is hereby made unlawful for any person willfully * * * to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries * * *" and fixing a penalty, held invalid to support an indictment for charging an unreasonable price on sale—as not setting up an ascertainable standard of guilt within the requirement of the Sixth Amendment.
United States v. Cohen Grocery Co., 255 U.S. 81 (February 28, 1921).
54. Same.
That provision of section 4 making it unlawful "to conspire, combine, agree, or arrange with any other person to * * * exact excessive prices for any necessaries" and fixing a penalty, held invalid to support an indictment, on the reasoning of the Cohen case.
Weeds, Inc., v. United States, 255 U.S. 109 (February 28, 1921)
55. Act of August 24, 1921 (42 Stat. 187, ch. 86, Future Trading Act).
(a) Section 4 (and interwoven regulations) providing a "tax of 20 cents a bushel on every bushel involved therein, upon each contract of sale of grain for future delivery, except * * * where such contracts are made by or through a member of a board of trade which has been designated by the Secretary of Agriculture as a 'contract market' * * *," held not within the taxing power under article I, section 8.
Hill v. Wallace, 259 U.S. 44 (May 15, 1922).
(b) Section 3, providing "That in addition to the taxes now imposed by law there is hereby levied a tax amounting to 20 cents per bushel on each bushel involved therein, whether the actual commodity is intended to be delivered or only nominally referred to, upon each * * * option for a contract either of purchase or sale of grain * * *", held invalid on the same reasoning.
Trusler v. Crooks, 269 U.S. 475 (Jan. 11, 1926).
56. Act of November 23, 1921 (42 Stat. 261, sec. 245, part).
Provision of Revenue Act of 1921 abating the deduction (4 percent of mean reserves) allowed from taxable income of life-insurance companies in general by the amount of interest on their tax-exempts, and so according no relative advantage to the owners of the tax-exempt securities, held to destroy a guaranteed exemption. (See Fifth Amendment.)
National Life Insurance Co. v. United States, 277 U.S. 508 (June 4, 1928).
57. Act of June 10, 1922 (42 Stat. 634, ch. 216).
A second attempt to amend sections 24 and 256 of the Judicial Code, relating to jurisdiction of district courts, by saving "to claimants for compensation for injuries to or death of persons other than the master or members of the crew of a vessel, their rights and remedies under the workmen's compensation law of any State * * *" held invalid on authority of Knickerbocker Ice Co. v. Stewart.
Industrial Accident Commission of California v. Rolph et al., and Washington v. Dawson & Co., 264 U.S. 219 (February 25, 1924).
58. Act of June 2, 1924 (43 Stat. 313).
The gift tax provisions of the Revenue Act of 1924, held invalid under the Fifth Amendment as applied to bona fide gifts made before passage of the act.
Untermeyer v. Anderson, 276 U.S. 440 (April 9, 1928).
59. Revenue Act of June 2, 1924 (43 Stat. 322, sec. 600, in part).
Excise tax on certain articles "sold or leased by the manufacturer", measured by sale price [specifically, "(2) * * * motorcycles * * * 5 per centum"]—as applied to sale of motorcycle to a municipality for police use, held an infringement of State immunity under the principle of Collector v. Day.
Indian Motorcycle Co. v. United States, 283 U.S. 570 (May 25, 1931).
60. Act of February 26, 1926 (44 Stat. 9, ch. 27, in part).
(a). Section 302 in part (44 Stat. 70).
Second sentence, defining, for purposes of the estate tax, the term "made in contemplation of death" as including the value, over $5,000, of property transferred by a decedent, by trust, etc., without full consideration in money or money's worth, "within 2 years prior to his death but after the enactment of this act", although "not admitted or shown to have been made in contemplation of or intended to take effect in possession or enjoyment at or after his death", held as applied to a transfer completed wholly between the living, spoliation without due process of law under the Fifth Amendment.
Heiner v. Donnan, 285 U.S. 312 (March 21, 1932).
(b). Section 701 in part (44 Stat. 95).
Provision imposing a special excise tax of $1,000 on liquor dealers in States where such business is illegal, held a penalty, without constitutional support following repeal of the Eighteenth Amendment.
United States v. Constantine, 296 U.S. 287 (December 9, 1935).
61. Act of March 20, 1933 (48 Stat. 11, sec. 17, in part).
Clause in the Economy Act of 1933 providing "* * * all laws granting or pertaining to yearly renewable term insurance are hereby repealed", held invalid to abrogate an outstanding contract of insurance, which is a vested right protected by the Fifth Amendment.
Lynch v. United States, 292 U.S. 571 (June 4, 1934).
62. Act of May 12, 1933 (48 Stat. 31).
Agricultural Adjustment Act providing for processing taxes on agricultural commodities and benefit payments therefrom to farmers, held not within the taxing power under article I, section 8, clause 1.
United States v. Wm. M. Butler et al., Receivers of Hoosac Mills Corp., 297 U.S. 1 (January 6, 1936).
63. Joint Resolution of June 5, 1933 (48 Stat. 113, sec. 1).
Abrogation of gold clause in Government obligations, held a repudiation of the pledge implicit in the power to borrow money (art. I, sec. 8, clause 2), and within the prohibition of the Fourteenth Amendment, against questioning the validity of the public debt. [The majority of the Court, however, held plaintiff not entitled to recover under the circumstances.]
Perry v. U.S., 294 U.S. 330 (February 18, 1935).
64. Act of June 16, 1933 (48 Stat. 195, ch. 90, the National Industrial Recovery Act).
A. Title I, except section 9.
Provisions relating to codes of fair competition, authorized to be approved by the President in his discretion "to effectuate the policy" of the act, held invalid as a grant of legislative power (see art. I, sec. 1) and not within the commerce power.
Schechter Poultry Corp. v. United States, 295 U.S. 495 (May 27, 1935).
B. Section 9 (c).
Clause of the oil regulation section authorizing the President "to prohibit the transportation in interstate * * * commerce of petroleum * * * produced or withdrawn from storage in excess of the amount permitted * * * by any State law * * *" and prescribing a penalty for violation of orders issued thereunder, held invalid as a grant of legislative power.
Panama Refining Co. et al. v. Ryan et al. and Amazon Petroleum Corp., et al. v. Ryan et al., 293 U.S. 388 (January 7, 1935).
65. Act of June 16, 1933 (48 Stat. 307, sec. 13).
Temporary reduction of 15 percent in retired pay of "judges (whose compensation, prior to retirement or resignation, could not, under the Constitution, have been diminished)", as applied to circuit or district judges retired from active service, but still subject to perform judicial duties under the act of March 1, 1929 (45 Stat. 1422), held a violation of the guaranty of judges' salaries under article III, section 1.
Booth v. United States (together with Amidon v. United States), 291 U.S. 339 (February 5, 1934).
66. Act of April 27, 1934 (48 Stat. 646, sec. 6), amending section 5 (i) of Home Owners' Loan Act of 1933.
Provision for conversion of State building and loan associations into federal associations, upon vote of 51 percent of the votes cast at a meeting of stockholders called to consider such action, held an encroachment on reserved powers of State.
Hopkins Federal Savings & Loan Association v. Cleary, 296 U.S. 315 (December 9, 1935).
67. Act of May 24, 1934 (48 Stat. 798, ch. 345).
Provision for readjustment of municipal indebtedness, held invalid, though "adequately related" to the bankruptcy power, as an interference with State sovereignty.
Ashton v. Cameron County Water Improvement District No. 1, 298 U.S. 513 (May 25, 1936).
68. Act of June 27, 1934 (48 Stat. 1283, ch. 868 entire).
The Railroad Retirement Act, establishing a detailed compulsory retirement system for employees of carriers subject to the Interstate Commerce Act, held, not a regulation of commerce within the meaning of article I, section 8, clause 3.
Railroad Retirement Board v. Alton R.R. et al., 295 U.S. 330 (May 6, 1935).
69. Act of June 28, 1934 (48 Stat. 1289, ch. 869).
The Frazier-Lemke Act, adding subsection (s) to section 75 of the Bankruptcy Act, designed to preserve to mortgagors the ownership and enjoyment of their farm property and providing specifically, in paragraph 7, that a bankrupt left in possession has the option at any time within 5 years of buying at the appraised value—subject meanwhile to no monetary obligation other than payment of reasonable rental, held a violation of property rights, under the Fifth Amendment.
Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (May 27, 1935).
70. Act of August 24, 1935 (49 Stat. 750, ch. 641, title I).
Agricultural Adjustment Act amendments, held not within the taxing power.
Rickert Rice Mills v. Fontenot, 297 U.S. 110 (January 13, 1936).
71. Act of August 30, 1935 (49 Stat. 991, ch. 824).
Bituminous Coal Conservation Act of 1935, held to impose not a tax within article I, section 8, but a penalty not sustained by the commerce clause.
Carter v. Carter Coal Co., 298 U.S. 238 (May 18, 1936).
72. Act of June 30, 1938 (52 Stat. 1251, ch. 850, sec. 2 (f)).
Federal Firearms Act, section 2 (f), establishing a presumption of guilt based on a prior conviction and present possession of a firearm, held to violate the test of due process under the Fifth Amendment.
Tot v. United States, 319 U.S. 463 (June 7, 1943).
73. Act of November 15, 1943 (57 Stat. 450, ch. 218, sec. 304).
Urgent Deficiency Appropriation Act of 1943, section 304, providing that no salary should be paid to certain, named Federal employees out of moneys appropriated, held to violate article I, section 9, clause 3, forbidding enactment of bill of attainder or ex post facto law.
United States v. Lovett, 328 U.S. 303 (June 3, 1946).