Committee on Economic Security (CES)

Volume VI. Social Insurance

C. Federal-State Relationships

 

(pages 215-424 missing)

 

PART III. SOME INTERRELATIONSHIPS OF FEDERAL AND STATE LAW IN THE SAME FIELDS OF ECONOMIC AND SOCIAL LEGISLATION

by
Jane Perry Clark

1. Introduction
2. Adoption of State Law by the Federal Governments
3. Adoption of Federal Law by the States
A. Adoption of existing Federal law by a State
B. Adoption of Federal Administration Regulations by a State
C. Adoption of Future Federal Law by a State
D. Summary of Types of Adoption
4. Penalties for Violation of State and Federal Law

SOME INTERRELATIONSHIPS OF FEDERAL AND STATE LAW IN
THE SAME FIELDS OF ECONOMIC AND SOCIAL LEGISLATION

1. Introduction

As the Federal Government becomes more and more interested in xxx formerly carried on by States alone, the interrelation xxx of statute and of administration between the Federal and State xxx are becoming increasingly important. Wherever there is a xxx-State relationship in legislation, whether it be such proposals xxx Wagner-Lewis bill for unemployment insurance or in legislation xxx approximately the same fields as that of the National Industrial xxx Act and State industrial recovery acts, problems of constitutional xxx of administrative cooperation occur. In such interrelationships, xxx may function as administrative agents of the Federal Government xxx the other hand, the Federal Government may be an administrative xxx of the State government or governments, but in such arrangements xxx must be taken of the provisions of both State and Federal xxx laws or administrative regulations of a State or, vice versa, the xxx may adopt in their field Federal law and administrative regulations, xxx is nothing to the contrary in the Federal or State constitutions. xxx such adoption is made, the Federal Government has in effect a delegation xxx by a State to enforce Federal law. So in certain instances: xxx officials may be delegated to enforce Federal law and Federal officials xxx delegated to enforce State law.

In the event of the adoption of such a measure as a modified Wagner-xxx for unemployment insurance, the States would adopt and enforce xxx laws and rules, the standards set down in the Federal act or xxx by the Federal administrative authority. Thus both the Federal and xxx governments would be enforcing identically the same rules. Furthermore, xxx below, in view of the fact that the courts have been generous in xxx the "delegation" of legislative power, it is probable that the xxx to have the States adopt standards and rules promulgated by the xxx administrative authority would not violate the doctrine that xxx power cannot be delegated.

2. Adoption of State Law by the Federal Government

Perhaps the simplest situation in this interrelationship is found in the xxx of State laws by the Federal Government. For instance, in its xxx legislation it has adopted the exemption and priority provisions xxx laws. Furthermore, during the days of Reconstruction the Federal xxx adopted the laws of the States in regard to elections and made xxx of these laws Federal offenses.

It has adopted and made applicable to territory subject to its jurisdiction, xxx Indian reservations and national parks, the criminal law of the respective xxx embracing such territory within their respective boundaries.

It has adopted the quarantine laws of the several States into or xxx which a ship from a foreign port might pass, in its regulation xxx commerce.

Similar situations are found when the Federal Government has not xxx adopted State laws as its own but has prohibited the movement of xxx in inter-State commerce when they were intended for possession, sale xxx contrary to the laws of the State of destination. For instance, the Reed Amendment to the Webb-Kenyon Act made it a Federal penal offense to xxx liquor to be transported in inter-State commerce into a State whose prohibited the manufacture or sale therein of intoxicating liquors. xxx original Webb-Kenyon Act had prohibited the inter-State shipment of xxx into a State when it was intended to be received, possessed, sold, xxx in violation of the laws of such State. But it did not provide xxx penalty for violation of its provisions and so was really nothing more xxx act which subjected inter-State liquor shipment to State law, like xxx earlier Wilson Act which divested "original packages" of liquor shipped inter-State commerce of their inter-State character. These various liquor xxx in their relation to State laws have been held constitutional by the Supreme Court. Similarly the Federal statute allowing a credit on the Federal estate tax for estate taxes paid under a State law has been sustained xxx the court.

A second type of similar situation is found when the Federal Government has prohibited the movement of goods in inter-State commerce when they have been procured or shipped in violation of the laws of the States where so procured or shipped. This type is illustrated by the Lacey Act relating to the Inter-State shipment of dead bodies of wild animals or birds, the xxx Bird Act relating to the inter-State shipment of birds, nests, or xxx thereof, and the act relating to the inter-State shipment of black xxx. All of these statutes make Federal criminal offenses out of the xxx of the prohibitions contained therein. They also contain xxx subjecting the inter-State shipment of these articles upon arrival xxx a State to the laws of that State. These statutes, therefore, illustrate xxx the type of Federal legislation which subjects inter-State commerce to State laws and the type which conditions a Federal law upon a State law.

In these cases, it may be more proper to say that the Federal Government xxx made the operation of its laws conditional upon the action of the States, xxx the process is essentially the same as that of adopting a State law xxx the Federal Government.

3. Adoption of Federal Law by the States

In a program of economic security, it is probable that the Federal xxx will set up standards by legislation or administrative rulings, xxx that the State governments may adopt those standards in their legislation. Therefore, for our purposes, the adoption of Federal laws by the States is more important than the possibility discussed above. A particular situation exists xxx under the constitution, Federal and State governments have concurrent xxx of enforcement, as under the XVIII amendment in regard to National xxx. There, it will be remembered, a number of States enacted State xxx statutes, which adopted part or all of the national prohibition xxx act in State law. But the constitutional questions were simpler xxx situation of concurrent jurisdiction than where, in the absence of a xxx constitutional provisions authorizing such jurisdiction, a State adopts xxx provisions of Federal law. Among the numerous examples of such adoptions xxx those by a number of States of all or part of the provisions of the xxx Bird Treaty Act and the regulations under it; the Federal narcotic xxx and administrative standards under them; the provisions of the Pure xxx and Drug Act and administrative standards; the license and bond require-xxx governing warehousemen qualifying under the Federal Warehouse Act; the standards under the Federal Grain Standards Act; Federal vegetables and fruit grading standards; the Federal aviation law and regulations; and the National Industrial Recovery Act.

Various problems are involved in such adoption. In the first place, whether a statute incorporating by reference Federal or other State legislation and administrative rulings thereunder is a constitutional delegation of legislative power is not entirely free from doubt. Do the State legislatures by adopting the Federal legislative policy and the administrative determination thereunder surrender to the Federal Government their power of legislation in violation of the constitutions of their respective States. It is clear that the adoption by a State legislature of an existing law of the Federal Government for another State does not violate the doctrine of nondelegability of legislative power but when adoption of xxx legislation of xxx the Federal Government is xxx questions arise xxx such action is a transfer of power to determine the xxx of the State to another power. However, a fair view of the xxx the conclusion that the doctrine prohibiting the xxx power is not an absolute or xxx principle of xxx law. Rather it is a flexible working rule which the courts xxx even disregard completely in xxx where considerations of xxx and necessity point to a decided xxx resulting from xxx delegation of legislative power.

A. Adoption of existing Federal Law by a State. Let us consider the simplest situation, where a State adopts the exact statutory provisions of Federal law, with no provisions for future change.

The law of Ohio which made aviation in that State as far as possible xxx to the Federal Air Commerce Act of 1926 illustrates xxx type. It xxx tested in court when an xxx was asked by residents xxx against the alleged trespasses and nuisances of an aviation company which xxx the airport. The court in the case was principally concerned with the minimum height requirements fixed by the Secretary of Commerce, but xxx said:

"While the act of Congress is very broad in scope, and attempts to xxx every phase of aviation, the act enacted by the Ohio Legislature contains only seven sections. It was passed with an intention upon the part of the Ohio Legislature that aviation in the State of Ohio should be, in so far possible, subject to regulation by the Air Commerce Act of 1926. The act xxx an intention on the part of the Legislature to take advantage of the xxx administrative machinery which had been established by the Department of Commerce under the enabling provisions of the Air Commerce Act of 1926. Pursuant to this policy, the Ohio act does not provide for a method or system for xxx licensing of persons engaged in operating aircraft in intra-State commerce. It provides that if 'a license to operate aircraft issued by the United States Government would then be required if such aviation were inter-State, ‘ an aviator to engage in intra-State aviation must procure the license required by the national act. General Code, Secs. 631-40. The act does not provide for the registration of aircraft except that aircraft within the State shall conform, with respect to design, construction and airworthiness, to standards prescribed by the United States Government with respect to aviation of aircraft subject to the jurisdiction. Sections 6310-42 General to recognize, and in express language state, that the provisions of the Federal act are adopted because the ‘public safety' requires it, and the ‘advantages of uniform regulation' make it desirable in the interest of aeronautical progress......

......"The legislation of this State pertaining to aeronautics is different from that of other States; it acquiesces in, and in a measure, adopts the legislation of Congress. It is complementary to the legislation of Congress to the end that inter-State and intra-State commerce may so far as possible under present constitutional provisions be a unit regardless of State lines. No doubt, also, the State Legislature of this State acquiesced in the view attributed to Congress that it had the power to enact and that it enacted the Air Commerce of 1925 under its express grant of power to regulate inter- State and foreign commerce."

Difficulties arise when the constitutions of States prohibit the adoption of legislation by references to laws of another jurisdictions. In the absence of such State constitutional inhibitions, a State may generally adopt and incorporate by reference a statute of another State or in the Federal Government has its own law. For instance, in upholding imprisonment for violation of a State act which enacted all the penal provisions of the Volstead Act a California Court said: "Whenever there is no constitutional provision which prohibits it, it is proper to declare that any law of the United States or of another State, shall be the law of this State."

Even where State constitutional provisions prohibit adoption of legislation xxx reference, it is possible to find those provisions construed to refer only xxx the adoption by reference of other laws of the same State. For instance, the constitution of California provides: ".....No law shall be revised or amended by reference to its title; but in such case the act revised or section amended shall be reenacted and published at length as revised....." This section has been applied only by the courts in considering California laws. Similar situations exist in other States. In some the courts have upheld State legislation by reference to a Federal act, despite the constitutional prohibition in the State constitution. For instance, the Pennsylvania constitution provides "No law shall be revised, amended, or the provisions thereof as is revised, amended, extended or conferred, by reference to its title only, but so much thereof as is revised, amended, extended or conferred shall be reenacted and published at length." Nevertheless, a State enforcement act under the XVIII Amendment to the Federal Constitution was upheld, although it incorporated Federal prohibition laws by reference only.

B. Adoption of federal administrative regulations by a State. When a Federal law, which is adopted by a State, sets up an administrative authority with power to make rules and regulations, do those rules and regulations also become part of the State law as adopted? As the number of laws calling for administrative orders increases, this question is of growing importance, particularly in a Federal-State plan for any aspect of economic security where the need for flexibility is great. If, for instance, the Federal Government sets minimum requirements in an unemployment insurance act and creates an administrative authority with power to vary those standards and to set additional ones, what is the relationship to be between those administrative determinations of standards for the States and the State laws? As the courts have conceded the adoption of orders existing at the time a State law is adopted would be sustained. The question remains, however, whether an adoption by a State of prospective administrative determinations made by a Federal administrative authority would be invalid xxx a delegation of legislative power even though the State's adoption of the existing Federal law which sets up that authority is valid? It is probable that such administrative determinations would be sustained if the adoption of future Federal laws by the State is sustained.

A number of Stated have adopted such administrative determinations whether existing or future, as for instance the Migratory Bird Act and the regulations thereunder which have been adopted by a number of States. Several of these States also require automatic conformity to Federal regulations on bag limits and possession. Mississippi and South Carolina adopt the Federal regulations in their entirety. The Mississippi statute reads: "The Federal Migratory Bird Treaty Act and Regulations thereunder as presently provided for or as amended from time to time and proclaimed by the President are hereby made a part of this Act." The South Carolina statute cited reads: "The Federal Migratory Bird Treaty Regulations, being the supreme law of the land under Article VI of the Constitution of the United States, are hereby declared to be the law of this State, and the penalty for their violation shall be punishment of not less than $10.00, nor more than $25.00 fine, or thirty days imprisonment."

The laws of a number of States provide for the automatic adoption and xxx on the part of the State of all definitions and standards xxx by the Secretary of Agriculture, and still others authorize xxx adoption of rules and regulations and provide that when definitions xxx adopted they shall be in conformity with those adopted for the enforcement of the Federal act, provided they be not contrary to State enactment. xxx in a number of States have adopted United States standards for one or more fruits or vegetables either by a specific law citing the commodity xxx, or through authority under a standardization law. That is, xxx States of Florida, Indiana, Louisiana, Montana, Ohio, Oklahoma, and North xxx have general standardization laws that provide specifically that all xxx grades established for fruits and vegetables shall be the same as those xxx by the United States Department of Agriculture, while the special xxx Laws " of Michigan, Minnesota, and North Dakota specify that the xxx grades for potatoes in these States shall conform in all respects to xxx standards established by the United States of Agriculture; the Maryland cantaloupe law and the Pennsylvania grape grading law also make the United States grades for cantaloupes and grapes official for those States.

The development in the field of aviation law illustrates the type of xxx clearly. The Air Commerce Act of 1926 makes compulsory the xxx and in consequence the rating and licensing of aircraft and airmen xxx the following classes of commercial air navigation, whether it be in foreign, inter-State, or intra-State air navigation in the United States:

1. The transportation in inter-State or foreign commerce of persons or property for hire, either in whole or in part by aircraft, whether or not the air portion of the transportation is inter-State or foreign or intra-State.

2. The inter-State and foreign navigation of aircraft in furtherance of business.

3. The inter-State or foreign navigation of aircraft from one place to another for operation in the conduct of a business.

By 1933, 34 States and territories required Federal aircraft and airman xxx for all operations within their boarders, 11 required Federal xxx State licenses for all aircraft operations. The State laws are xxx two types, the "no-option" and the "option" plans. Under the former, xxx States require aircraft subject to their jurisdiction to be licensed and registered by the Department of Commerce in the manner prescribed by the Federal rules and regulations then in force, and also require airmen xxx in navigating such aircraft to have Federal licenses of the appropriate class. Under the "optional" plan, a State requires for all civil aircraft flown and for all airmen flying within the State, either a State license or a license under the Federal law. Both plans depend on the enabling provision of the Federal law and the essential difference is one of administration. Xxx the no-option plan the Federal administrative authority in every case determines whether or not the applicant is entitled to a license and under xxx plan the State administrative authority determines whether or xxx the applicant has complied with the State adopted Federal regulations xxx the applicant asks for the alternative State license.

Particularly important illustrations are found in regard to State xxx of administrative regulations under the N.I.R.A. and State recovery xxx.

There are two broad courses open to the States in the formation of State xxx legislation, though their choice of a course is often seriously xxx by State constitutional limitations, as is seen below. The State xxx adopt an act in the form of the N.I.R.A., creating a State recovery xxx with power vested in the governor or other State administrative xxx to approve codes and agreements and to license trades and businesses xxx are purely intra-State. This policy appears in two variant forms; either xxx State may promulgate special State codes and also adopt and enforce the xxx promulgated under the Federal act, or the State may make no provisions xxx the adoption of Federal codes in the State but provide merely for the xxx and enforcement of its own State code. Laws in either of these variant xxx indicate that the State is acting independently in adopting its own xxx policy in relation to inter-State businesses. On the other hand, the xxx may adopt a law providing that all codes and agreements approved and xxx issued by the President for particular trades, businesses, or xxx include and bind all intra-State transactions. This latter device probably gives rise to fewer administrative difficulties and conflicts than the former, but it also presents more constitutional problems, primarily because of the presence in some States, as indicated below, of State constitutional provisions precluding State implementation of Federal codes by State law. The State recovery acts of such States as California, New Jersey, and Ohio, in addition to providing for State adoption and enforcement of codes, agreements, and licenses promulgated under the national act, provide for the adoption of State codes, agreements, and licenses (issued by the governor), while the laws of Utah, and Wisconsin provide for the writing and enforcement of State codes, agreements, and licenses alone and do not have any provision for the adoption of the Federal codes in the State. The "illustrative material" for the State acts presented by the recovery administration and the statutes of Colorado, New York, Virginia, Massachusetts, West Virginia, New Mexico, Pennsylvania, South Carolina, Washington, and Wyoming allow only for the adoption and use in State action of national codes, agreements, or licenses but for no State codes, agreements, or licenses as such.

Of this last group of States such States as Colorado, Virginia, and Wyoming merely provide that on adoption the Federal code shall be the standard within the State. New York, however, stipulates that a Federal code, to become the standard of fair competition for a business or industry in intra-State transactions, must be filed with the secretary of state of New York. Due filing with the secretary gives such code ipso facto the force of State law, for there is no requirement of approval by any State official or of notice or hearing to the persons affected, despite the imposition of a penalty for violation. The question is raised here of the adoption by legislature as State law of a Federal xxx which is itself adopted subsequent to the passage of the State law. xxx this a delegation of legislative power to the code-making authority of xxx Federal Government?

Although by adopting their own codes the States avoid these constitutional snares, they at least provided greater risk of administrative conflicts between Federal and State Governments. Where the States adopt the Federal xxx State codes they may also adopt purely State codes for intra-State xxx in those industries where no Federal code has as yet been planned xxx a temporary measure for industries on whose Federal codes action is xxx. What happens to the State codes when Federal codes are adopted? xxx the State code continue at least as to those of its provisions which xxx not conflict with the national code or does the latter succeed it in toto? xxx California act reads: "The provisions of this act shall apply only to xxx engaged in... any business ... for which no code ... is issued.." xxx the N.I.R.A. and furthermore, if a code is issued under the N.I.R.A. xxx "shall supersede any code or codes approved under ... this act ... xxx shall immediately become the code of fair competition provided for in xxx." The attorney general of the State has construed the words xxx supersede " to indicate that" it was intended that where a Federal code xxx approved for and industry that code, and that code only, should govern the xxx industry. Thus, at least in California, a Federal code supersedes the xxx code in its entirety, and a Federal code governing certain features xx an industry cannot coexist with a State code governing those features xxx covered by the Federal code. The Federal code may conceivably have less xxx requirements in regard to such matters as maximum hours of labor or xxx wages than were found in the State code previously in effect, but it nevertheless supersedes the State code.

In such States as Utah and Wisconsin where there is no provision for xxx subsequent adoption of Federal codes to supersede State codes, this does not apply. The Wisconsin code for the cleaning and dying industry xxx that if a national code is established, its provisions concerning xxx hours are to supersede the provisions concerning maximum hours in the State code of the same industry. If the Federal code does have a lower number of hours there is to be an automatic modification of the State code xxx no hearing before the change. Here the arrangement for modification xxx found in the code, not in the statute.

Even where the State law stipulates that the national code is to prevail xxx its entirety, provisions may be made for taking local conditions into xxx. For instance, the New Jersey Code for the Auto Rebuilding Industry xxx approved by the governor subject to deletions, additions, or modifications apparent in any code approved by the N.R.A. for the automobile building industry, but "with due regard, however, being had for local xxx and local customs." It is conceivable that such a provision xxx nullify the effect of the adoption of a federal code.

In those States where Federal codes may exist for inter-State commerce and State codes for intra-State commerce, conflict is bound to arise except in such a State as California where as indicated the Federal code supercedes the State code immediately on adoption. Such States as New Jersey, Ohio, Utah, and Wisconsin, however, present problems which vary according to whether the State codes are adopted before or after the Federal codes, xxx provisions are adopted in the codes themselves similar to that of xxx Code for the Butter Manufacturing and Distributing Industry of the State of Utah. This code states: "It is understood this code will conform with xxx national code or codes of fair competition to be approved by the President of the United States as provides in the N.I.R.A. and the A.A.A. and ... is xxx so far effective as is not inconsistent with the policies of the A.A.A. xxx determined by that administration. If a State code is adopted in these States before a Federal code which covers the same subject, and no provision is made for subsequent modifications of the State code in accordance with the Federal code, conflict is almost certain to be the outcome. Where the State xxx is adopted after the Federal code for the same industry, the situation xxx be somewhat different. Unless the State code attempts to conform to the Federal, however, difficulties may also arise between the two. Such conformity xxx secured, for instance, in the Utah Code of Fair Competition for the xxx Coal Industry making the national Code of Fair Competition for the xxx Coal Industry previously approved by the President part of the xxx State code insofar as the national code is applicable to industry in xxx State of Utah. Here again it is the code, not the statute, which adopts xxx particular Federal code, insofar as it is applicable within the State. xxx Utah Code of Fair Competition for Beauty Parlors and Beauty Parlor Operators is retroactive in that it "endorses in its entirety the national xxx as presented to date" and anticipatory in that "in further releases xxx the national code, we waive our rights in favor of the national code." xxx question again arises here as to the delegation of power to make the requirements under the State act dependent on future requirements of administrative regulations under the Federal law. The question is complicated xxx the consideration that the code is adopted by the trade, and the trade xxx the code agrees to adopt changes in the national code made in the future.

May a Federal code, even in one of those States where it succeeds in toto xxx State code for intra-State commerce, be amended by the governor or xxx State official before it becomes applicable in intra-State commerce xxx the State or after it has become so applicable? The attorney general xxx Ohio stated that the governor of that State may approve code regulations xxx the State law which amplify or add to Federal codes filed under that xxx providing such amendment is not inconsistent with national code provisions. California the chief of the division of corporations may amend any State code where such amendment is in the public interest." Would this power be applicable to national codes when they have been approved as State codes?

In States where there is no adoption in the State law of Federal codes as such the situation appears simple, for, as Wisconsin, the governor may modify, amend or terminate any State code if he has determined that that code is not effectuating the purposes of the act, and each code of the xxx must contain an express agreement to that effect. As it is the purpose of the act to cooperation with the Federal Government in effecting industrial recovery, it seems that the governor of Wisconsin, if he determines that a State code is not effecting that purpose because of its lack xxx agreement with a Federal code for the same subject matter, may modify the State code to make it accord with the Federal. In Utah the governor is xxx the power to cancel or modify "any order, approval, license, rule or regulation" but not the provisions of the codes themselves. As several xxx codes, such as the Code of the Contracting and Retail Plumbing and xxx Industry, the Electric Neon Sign Industry Code, the Retail Lumber, Lumber Products, Building Materials, Building Supplies, and Builders' xxx Code were approved before similar Federal codes had been formulated, xxx was impossible to anticipate in advance whether or not they would conflict xxx subsequently formulated Federal codes. They were later found to conflict xxx the N.I.R.A. itself, but as neither the State act nor the codes authorized any change by the governor or administrator, an impasse resulted. The N.I.R.A. administration suggested that at least the codes include a provision empowering the governor to make changes in accord with future xxx codes for the same industries were put into effect. Neither of these suggestions was adopted.

Such incorporation of administrative regulation into State law has been upheld by the courts of different jurisdictions. For instance, a State xxx of Maine which forbade the transportation of intoxicating liquors without a permit issued under authority of the National Prohibition Act of 1919 xxx upheld, and a Texas act which forbade the sale of nonintoxicating liquors in areas where sales of intoxicating liquors were prohibited in cases where it was necessary to get a license from the Internal Revenue Department of the United States as a retail liquor dealer. The court in upholding the refusal of a license by a State official under this act held:

"The fact that the sale of such liquor must be carried on under a government permit which authorizes the dealer to sell those which intoxicate as well as those which do not, is apparently the condition which makes the business offensive to old State law..... If Congress should repeal the present laws relating to the sale of malt liquors, or should so modify those laws as to no longer require the possession of a retail malt liquor dealer's license for the lawful pursuit of the business of selling those which are non-intoxicating, then the business of selling those which are non-intoxicating, then the business in which the appellant wishes to engage would not be a violation of the Texas statute. It is contended that in thus making the criminality of the business dependent upon the status of the law of another jurisdiction, the legislature has undertaken to surrender to that jurisdiction the power of suspending a state law .... If Congress should enact a law so that the business of selling non-intoxicating malt liquors might be lawfully pursued without a retail malt liquor dealer's license, a person prosecuting that business in the territory described would owe his immunity from punishment to the fact that he was not keeping a house under the particular condition denounced, and not to the suspension of the state law. By dispensing with the requirement for a federal license Congress would remove the particular ingredient which makes the business offensive in the territory where the sale of intoxicants has been prohibited. The provisions of the statute would still be enforceable against the offense which it denounces, and could not be considered as annulled or suspended." Johnson v. Elliott, 168 S. W. 968, 970 (Tex. Civ. App., 1914).

The State income tax law of South Carolina exacted payment of one-third of the amount required to be paid as income tax to the United States Department of Internal Revenue not in conflict with the State act, and conferred upon a State official the same duties and powers, including powers of making regulations, as xxx by the United States Commissioner of Internal Revenue in so far as they xxx applicable to the State act. This was upheld. The court said at page 205:
"In the absence of express constitutional inhibition, therefore, we see no reason why a federal statute and rules and regulations of the United States government having the force and effect of law cannot be made a part of the statute of this state by adequate reference thereto as fully and effectually as a pre-existing statute of the state could be so adopted."

In some States, on the other hand, State constitutions forbid the option of administrative rules and regulations of another jurisdiction. For instance, the New Jersey State constitution provides that "no act shall be used which shall provide that any existing law or any part thereof shall
be made or deemed a part of the act, or which shall enact that any existing xxx or any part thereof shall be applicable, except by inserting it in such xxx." Under that provision, it was held in 1932 that New Jersey statute requiring the State aviation commission to prescribe rules for the navigation, xxx, and identification of aircraft and to establish standards of air-worthiness for aircraft, such regulations and standards to be in accord with xxx air commerce act of 1926, its amendments and supplements, violated the constitutional provisions above. The court said that if the legislature xxx incorporated in the State act the provisions of the Federal act, "it xxx well be that it would have sufficiently fixed a standard to which an administrative commission could adhere in finding facts and enforcing regulations." But the Federal Air Commerce Act, as will be seen, does not define standards to be observed by the Secretary of Commerce in providing for the xxx of aircraft as to air-worthiness and in establishing air rules for the navigation, protection, and identification of aircraft. Consequently, xxx State act adopting the Federal rules in these matters cannot adopt by xxx the standards in the Federal legislation. Whether the New Jersey Court was aware of this fact does not appear from this decision, although the court did assume that the Federal Air Commerce Act provided standards that could have been incorporated by insertion in the New Jersey act. The effect then of the New Jersey decision is that in a State with a constitutional provision like New Jersey's there can be no adoption of prospective administrative determinations by Federal authorities under a standardless Federal statute. But in such a case it would seem preferable to put the decision holding the State statute unconstitutional on the ground that it violated the requirement of administrative law that the legislature furnish xxx standard.

"The suggestion has been made that State legislation adopting prospective Federal legislation in a given field should be construed as giving to Congress xxx administrative power to make regulations for the State... See also the dictum xxx Commonwealth v. Alderman ... that a state statute adopting prospective congressional definitions of intoxicating liquor could be sustained on the theory that the state would be merely designating a source of information or standard for the ascertainment of a fact essential to the application of the law. But this suggestion that Congress be treated as the State's administrative agent has its difficulties. In the first place the state legislature would be defining no standard for its administrative agent, and in the second place the xxx that Congress was an administrative agent would be a complete fiction xxx Congress acts in a legislative capacity. As was said by the Supreme xxx Court of Massachusetts, ‘No discussion is required to demonstrate xxx the Congress of the United States cannot be treated as a subsidiary xxx or commission by the General Court."/

C. Adoption of future Federal law by a State. The situation is more xxx when the State constitution prohibits the incorporation of future xxx and regulations of another jurisdiction in the laws of the State. For xxx, the Missouri constitution provides: "No act shall be amended by xxx that designated words thereof be stricken out, or that designated xxx be inserted, or that designated words be stricken out and others inserted xxx thereof; but the words to be stricken out, or the words to be inserted, xxx words to be stricken out and those inserted in lieu thereof, together xxx the act or section amended, shall be set forth in full as amended." In xxx of this provision, a State court held that the definition of the words xxx liquors" cannot be superseded by any change of definition by xxx. However, an act of Missouri which imposed an additional tax on the xxx of Missouri estates equal to the difference between the inheritance or xxx taxes then exacted and 80 percent of the Federal estate tax was upheld. xxx provides:

In the event that the total of the inheritance taxes imposed upon the several interests and property comprising the estate of the deceased... shall not equal eighty per centum of the amount imposed upon the value of the net estate of said decedent, under Title III of the act of Congress approved February 26, 1926, entitled ... whenever the federal estate tax is determined an additional tax shall be imposed upon the value of the net estate of said decedent as of the date of such determination equal to the difference between the total of the tax imposed by ... act of Congress." The court construed this provision as follows: "In fact there seems to have been no intention to enact the act of Congress into the Missouri law. In stating the amount of the minimum tax to be imposed, reference is made to the act of Congress by way of identifying the law under which the total federal estate tax is imposed. There is no suggestion that this law be made a part of our state law, and in a given case the total amount of the federal estate tax, 80 percent of which is to be imposed as state taxes, can only be ascertained from an examination of the proper federal return made or to be made. The above constitutional provision seems to be without application to the objection made."

In other words, the state in this situation acted not by adoption of the Federal law and standards by reference but by using the Federal standards making the violation thereof a State offense.

In some States acts may adopt by their provisions future laws of other jurisdictions as part of the valid State law. For instance, a statute of xxx provided that when taxation of foreign insurance companies doing business in the State should be at a certain rate, but that when any foreign State should exact a greater tax from Illinois corporations xxx this act imposed upon the companies fro the other State, then the companies entering to do business in Illinois from such State must pay xxx greater tax. Not only was this act upheld, but the language of xxx decision also portrayed the broad principle that such future incorporations had already been common and well recognized. In holding that xxx was no unlawful delegation of legislative power and that the operation of the statute was made merely to depend upon the determination of a xxx named in the act itself, the court said:

"Whatever the rule may be in other States, it is well settled in ... that it is competent for the legislature to pass a law the xxx operation of which may, by its own terms, be made to depend upon xxx contingency, as, upon an affirmative vote by the electors of a given xxx, or upon any other indifferent contingency the legislature in its xxx may prescribe. Where the contingency upon which the ultimate xxx of a law is made to depend, consists of a voted of the people, or the xxx of some foreign deliberative or legislative body, as is in the case here, xxx to suppose the legislature in such case abandons its own xxx functions, or delegates its powers to the people in the one case, xxx foreign deliberative or legislative body in the other. In either xxx law is complete when it comes from the hands of the legislature, xxx it would be inoperative and void, ... Indeed, we have not the slightest doubt of the validity of laws of this character, and to hold otherwise would clearly lead to the most serious consequences. Who has ever doubted the validity of that portion of our statute which declares that deeds executed without the State may be acknowledged, before any one authorized to take acknowledgments, by the laws of the State or county in which they are made? Or who has ever questioned the constitutionality of that provision of our statute which makes all wills and testaments made in a foreign State or country binding and valid here, if executed and proven agreeably to the laws and usages of such foreign State or country, although not in accordance with our general law on the subject?"

In People v. Fire Association of Philadelphia the statute referred to xxx existing or future laws" of the other State and it was upheld as not being xxx unlawful delegation. The court stated:

"It came from the hands of the legislature a complete and perfect law, having at once a binding force of its own, and dependent upon no additional consent or action for its validity and existence. The question of expediency involved in it was not delegated to any other tribunal, but settled definitely and finally by the legislature itself .... Neither the law of the expediency depended upon the legislation of another State. It remained the law and its expediency was the same, whether other States legislated or not. If they did, the contingency arose which the law stood ready to meet; if they did not, it remained none the less the law, although no fact occurred to set it in operation."

Just prior to the repeal of the Eighteenth Amendment of the Federal Constitution the State of Indiana passed a comprehensive law providing for statewide control of all alcoholic beverage businesses. The act supplied only to liquors of a low alcoholic content so long as National Prohibition remained, but after prohibition it would have a far wider application. The act was upheld and the future contingency dependent upon the Status of the Federal liquor laws not objected to by the court. The court said:

"No doubt the Alcoholic Beverages Act was enacted in anticipation of a liberalization of the laws of the United States respecting the regulation of the traffic in alcoholic beverages. But it is clear that its taking effect was not contingent upon some future event. Nor did its taking effect depend upon ‘any authority except as provided in' the Constitution of Indiana. The scope of its operating effect might change by reason of change in the law of the United States, but the act was in effect as soon as it received executive approval. Prior to the going into effect of the Collyer Act (27 U.S.C.A. Sec. 64a et seq., March 22, 1933, c. 4, 48 Stat. 17), the Indiana statute could apply only to alcoholic malt beverage having an alcoholic content of ½ of one per centum or less, for the simple reason that under the law of the United States no one could be authorized in Indiana to sell malt beverages with and alcoholic content of more that ½ of one per centum. Since at present in Indiana there is neither state nor national regulation of traffic in alcoholic malt beverages based upon per centum of alcoholic content. If some future General Assembly should prohibit traffic in alcoholic beverages having more than a named per centum of alcoholic content , the present system of control would still be in effect for alcoholic malt beverages having a lesser alcoholic content, unless expressly repealed or modified.
"Furthermore, while the scope of the operative effect of the Alcoholic Beverages Act might change as a result of conflict with the law of the United States was avoided by express provisions in section 31 that ‘the provisions of the act shall apply only to any alcoholic beverages the manufacture and/or sale of which is permitted under the laws of the United States of America.'"

In the situation discussed above of the Texas act which prohibited the xxx of nonintoxicating liquors in areas where sales of intoxicating liquors xxx prohibited in cases where it was necessary to get a license from the xxx revenue department of the United States as a retail liquor dealer, xxx court held that the future aspects of the State law being changed by xxx Federal enactments had no effect on the legality of the act.

D. Summary of types of adoption. To sum up, the effect of State courts, and so the adoption of Federal laws by a State depends on its xxx constitution and on the interpretation by the courts of that constitution in relation to the particular law. This is true whether or not the Federal law is amended or changed and where the question arises xxx to whether or not the adoption of Federal law by a State includes such changes or amendments made at some future date.

4. Penalties for Violation of State and Federal Law.

If the Federal and State laws cover the same fields, it is possible for xxx person to be subjected to the penal laws of two different authorities for xxx same offense. As far back as 1825 Congress enacted a law to provide xxx the punishment of certain crimes against the United States, expressly xxx serving the jurisdiction of the courts of the different states. There xxx numerous illustrations, as for instance the fact that offenses against xxx or counterfeiting laws may also be offenses the criminal laws xxx State. Here Congress in defining crimes against the Federal Government xxx prior State laws. However, a State may act after Congress and may make Federal law which provides punishment for its violation by the Federal Government also a law providing for punishment in similar cases by the State Government. In cases of concurrent jurisdiction this situation is of xxx occurrence. For instance, State adoption and enforcement of the xxx Prohibition Act is a well-known illustration. Others are found in xxx provisions of the Migratory Bird Treaty Act where, for instance, the law of South Carolina which provides "The Federal Migratory Bird Treaty Regulations ... are hereby declared to be the law of this State, and the penalty for their violation shall be punishment of not less than $10.00, or more than $25.00 fine or 30 days imprisonment." Similar situations are found in the State laws which make it punishable to interfere with xxx aids to navigation, the State laws which made violation of xxx Federal Espionage Act a State offense, and the recently enacted State xxx acts which provide for penalties for violation of their provisions xxx the N.I.R.A. standards. These statutes, as already indicated, are xxx different types. Many of them apply only to violations in activities in xxx rater than interstate commerce, but some, as for instance that Ohio, assume to control violations in either kind of commerce. If intra-xxx violations are incidental to interstate violations, such law as that Ohio may also punish the violators of Federal codes. However, some of xxx recovery acts merely adopt the Federal standards as the State xxx for intrastate commerce. In Federal law the violation of such xxx may incur a penalty, but the states may adopt the standards without penalty feature attached. This is different from making the violation a xxx under both Federal and State laws.

It has long been settled that provisions of State and Federal laws making xxx act a criminal offense are not a violations of the double jeopardy provisions of the Constitution. However , recently enacted Federal statutes making Federal criminal offenses of embezzlement by an officer of a company engaged in interstate commerce and of larceny of goods in interstate commerce, expressly provide that a judgment of a conviction or acquittal on the merits under the laws of a state shall be a bar to any Federal prosecution for the same act or acts.

Questions arise, however, in the relationship of interstate and intra-state as is seen under the air commerce act of 1926 and similar state acts. For instance, a large number of State laws make it a State offense not to have a Federal license for interstate noncommercial navigation within the State, and so such laws make mandatory a Federal license for a form of navigation for which Congress made such licenses merely permissive. Furthermore, interstate noncommercial air navigation is within the regulatory power of Congress even though in the Federal act, Congress did not choose to exercise that phase of its power. Do State laws that make a Federal license mandatory conflict with the act of Congress and such State laws thereby invalid as constituting an "undue burden" upon interstate commerce? Are such State laws regarded merely as supplementary, tending to make uniform regulatory control in accordance with the principles prescribed by Congress and therefore really relieve interstate commerce from the burdens and charges of unregulated interstate noncommercial navigation by air?

The States that make it a State offense to engage in interstate commercial as well as noncommercial flying without a Federal license present problems. Such State laws have the effect of making unlicenced interstate commercial flying a State crime as well as a Federal crime. Is xxx within the power of a State to make it a State crime to violate a Federal statute regulating interstate commerce and does a State statute achieving such a result constitute an "undue burden" upon interstate commerce? xxx that a State could, with the consent of Congress, legislate in the xxx of interstate commerce and provide for State prosecution of violation xxx Federal law occurring within the State, in the absence of such consent by Congress, the constitutional power of the State would at least seem doubtful. xxx reasonable to conclude that the failure of Congress to enact the xxx provisions (that the regulating and licensing requirements and the xxx traffic rules should apply to all air navigation, carried on in foreign, xxx or intrastate commerce and whether commercial or noncommercial) xxx that Congress intended Federal enforcement only and that the State xxx in question would constitute undue burdens upon interstate commerce."

APPENDIX I

STATE CONSTITUTIONAL PROVISIONS CONCERNING INCORPORATION BY REFERENCE AND INCORPORATION OF FUTURE LAWS

N.R.A.
Legal Research
October 15, 1934
Monday

MEMORANDUM

TO: Thomas C. Billing
FROM: E.A. King
RE: STATE CONSTITUTIONAL PROVISIONS CONCERNING INCORPORATION BY REFERENCE AND INCORPORATION OF FUTURE LAWS

I have made an examination of the constitutions of each of the 48 States xxx order to ascertain if there are provisions therein which might be xxx as an argument against the adoption of State recovery acts; I have xxx out only those provisions which conceivably could be construed xxx prevent the incorporation by reference to laws of another jurisdiction, and those provisions which conceivably could be construed to prevent the incorporation or adoption of future laws of another jurisdiction.

The question of the delegation of legislative authority as such has not xxx considered in this examination of the State constitutions. Every xxx constitution divides the government into three departments and, xxx course, the construction of constitutional terms dealing with this xxx has resulted in many cases (in) dealing with the separation of xxx. Only when the improper delegation of legislative power is xxx involved in the two problems here examined will cases aris-xxx the enumerated sections of the various constitutions be discussed.

Note: The designations of the numbers and articles of sections are in each case (peculiar) to the particular State constitution involved.

Alabama

Article IV, Paragraph 45. "... and no law shall be revived, amended, or provisions thereof extended or conferred, by reference to its title but so much thereof as is revised, amended, extended, or conferred, be reenacted and published at length."

This has apparently been held to apply only to Alabama laws or acts.

Article I, Paragraph 21. "That no power of suspending laws shall be xxx except by the legislature."

Arizona

Article IV, Section 14. "No act or section thereof shall be revived or by mere reference to the title of such Act, but the Act or as mended shall be set forth and published at full length."

That this provision does not prohibit adoption of an act of Congress by xxx see In re Altman, 26 Arizona 635, 229 Pac. 388 (1924).

Arkansas

Article II, Section 12. "No power of suspending or setting aside the law or laws of the State shall ever be exercised except by the General Assembly."

Article IV. Section 23. "No law shall be revived, amended or the provisions thereof extended or conferred by reference to its title only; xxx so much thereof as is revived, amended, extended, or conferred shall be reenacted and published at length."

An examination of the cases shows that the foregoing section has never dealt with the questions of its application to the laws of other jurisdictions.

California

Article IV, Section 24. "... No law shall be revised or amended by xxx to its title; but in such case the act revised or section amended shall be reenacted and published at length as revised or amended; ..."

This section has only been applied by the courts in considering California laws.

Colorado

Article V, Section 24. "No law shall be revived, or amended, or the provisions thereof extended or conferred by reference to its title only, xxx so much thereof as is revived, amended, extended or conferred, shall xxx reenacted and published at length."

This section has been applied to Colorado laws only.

Connecticut

No constitutional provisions found.

Delaware

No constitutional provisions found.

Florida

Article III, Section 16. "... and no law shall be amended or revised reference to its title only; but in such case the act as revised, or xxx, as amended, shall be reenacted and published at length, ..."

Xxx of the decisions deal with Florida laws.

Georgia

No constitutional provisions found.

Idaho

Article III, Section 18. "No act shall be revised or amended by more reference to its title, but the section as amended shall be set forth and published at full length."

This has been applied to Idaho laws; however, see Carroll v. Hartford Fire Insurance Co., 28 Idaho 466. 154 Pac. 985.

Illinois

Article IV, Section 12. "... and no law shall be revived or amended by reference to its title only, but the law revived, or the section amended, shall be inserted at length in the new act ..."

This has been applied only to Illinois laws.

Indiana

Article 1, Section 25. "No law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution."

No decisions under this section concern our problem.

Article 1, Section 26. "The operation of the laws shall never be suspended, except by the authority of the General Assembly."

No decisions under this section concern our problem.

Article 4, Section 21. "No act shall ever be revised or amended by mere reference to its title; but the act revised, or section amended, shall be set forth and published at full length."

All decisions under this section have dealt with Indiana laws.

Iowa

No constitutional provisions found.

Kansas

Article 2, Section 16. "... and no law shall be revived or amended, unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed."

The decisions under this section have dealt only with Kansas laws.

Kentucky

xxx 15. "No power shall suspend laws shall be exercised unless by the General Assembly or its authority."

No cases have been decided under this section.

Xxx 51. "... and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be reenacted xxx published at length.

Xxx cases have dealt only with Kentucky laws.

Xxx 233. "All laws which, on the first day of June, one thousand seven hundred and ninety-two, were in force in the State of Virginia, and which are of a general nature and not local to that State, and not poignant to this constitution, nor to the laws which have been enacted by the general assembly of this commonwealth, shall be in force within this State until they shall be altered or repealed by the general assembly."

Xxx the following cases: Nider v. Commonwealth, 140 Ky. 684, 131 S.W. xxx 024; Campbell v. Ritter Lumber Co., 126 Ky. 312, 131 S.W. 20; McGoodwin v. Shelby, 182 Ky.. 377, 206 S.W. 625.

Louisiana

Article III, Section 17. "No law shall be revived or amended by reference to its title, but in such cases the act revived, or section as amended, shall be reenacted and published at length."

The cases have dealt only with Louisiana laws.

Article III, Section 18. "The Legislature shall never adopt any system xxx code of laws by general reference to such system or code of laws; but in all cases shall recite at length the several provisions of the laws xxx may enact."

See the following cases:

State v. Lacombe, 12 La. Ann. 195;
State v. Gaster, 45 La. Ann. 636, 12 So. 739;
State v. DeHart, 109 La. 570, 33 So. 605;
State v. Thrift Oil Co. etc. Co., 162 La. 165, 110 So. 188;
State v. Snyder, 131 La. 145, 59 So. 44.
State v. Cossens, 42 La. Ann. 1069, 8 So. 268;
Compagna v. Baton Rouge, 165 La. 974, 116 So. 403;
State v. Copola, 157 La. 198, 102 So. 82 (Federal statute)
Shreveport v. Copola, 157 La. 102, 102 So. 83 (Federal statute);
State v. Thompson, 161 La. 296, 108 So. 543 (Federal statute);

Article XIX, Section 5, "No power of suspending laws of this State shall be exercised unless by the Legislature, or by its authority."

The cases under this section do not concern our problem.

Maine

Article I, Section 13. "The laws shall not be suspended but by the Legislature or its authority."

There are no cases under this section.

Maryland

Declaration of Rights, Art. 9. "That no power of suspending Laws or the execution lf Laws, unless by, or derived from the Legislature, out to be exercised or allowed."

There are no cases under this section.

Article III, Section 29. "... and no law, or section of law, shall be revived or amended by reference to its title or section only; ... and it shall be the duty of the General Assembly, in amending any article or section of the Code of Laws of this State, to enact the same as the said article or section would read when amended..."

These cases under this section do not concern our problems.

Massachusetts

No constitutional provisions found.

Michigan

Article V, Section 21. "... No law shall be revised, altered or amended by reference to its title only; but the act revised and the section or sections of the act altered or amended shall be reenacted and published at length..."

The cases have dealt only with Mississippi laws.

Missouri

Article V, Section 33. "No act, shall be revived or re-enacted by more reference to the title thereof, but the same shall be set forth at length, as if it were an original act."

There are no cases under this section.

Article IV, Section 34. "No act shall be amended by providing that designated words thereof be stricken out, or that designated words be inserted, or that designated words be stricken out and others inserted in lieu, thereof; but the words to be stricken out, or the words to be inserted, or the words to be stricken out and those inserted in lieu thereof, together with the act or section amended, shall be set forth in full as amended."

To the effect that the definition of the words "intoxicating liquors" can not be superseded by any change of definition by Congress in view of this section see State v. Barry, 253 S.W. 712 (Superior Ct.).

To the effect that certain provisions of the State inheritance tax can be construed by reference to the Federal inheritance tax laws see Brown v. State, 323 No. 138, 19 S.W. (2d) 12.

Montana

Article V, Section 25. "No law shall be revised or amended, or the provisions thereof extended by reference to its title only, but so much thereof as is revised, amended or extended shall be reenacted and published at length."

The cases have dealt only with Montana laws.

Nebraska

Article III, Section 14. "... and no law shall be amended unless the new Act contain the section or sections as amended and the section or sections so amended shall be repealed..."
The cases have dealt only with Nebraska laws.

Nevada

Article IV, Section 68. "... and no law shall be reviewed or amended by reference to its title only; but, in such case, the act as revised, or section as amended, shall be reenacted and published at length."

One case has arisen under another portion of the same section and decides that a statute attempting to make the provisions of the National Prohibition Act the law of Nevada was void because it did not sufficiently express the subject-matter in the title to the Act as required by the constitution of Nevada. Ex parte Mantell, 47 Nev. 95, 216 Pac. 509 xxx foregoing case is, of course, not authority for the problem we are considering, but may possibly be some indication of the court's feeling xxx regard a state recovery act.

New Hampshire

xxx First, Article 29th, "The power of suspending the laws, or the execution of them, ought never to be exercised but by the legislature, xxx by authority derived therefrom, to be exercised in such particular cases xxx as the legislature shall expressly provide for."

Xxx to this constitution have not been examined.

New Jersey

Article IV, Section VII. "... No law shall be revived or amended by reference to its title only, but the act revived, or the section or sections amended, shall be inserted at length...No act shall be xxx which shall provide that any existing law, or any part thereof, shall be made or deemed a part of the act, or which shall enact that any existing law, or any part thereof, shall be applicable, except xxx it in such act."

The cases under this section do not concern our problem.

New Mexico

Article IV, Section 18. "No law shall be revised or amended, or the provisions thereof extended by reference to its title only; but each section thereof as revised, amended or extended shall be set out in xxx."

State v. Armstrong, 31 N.M. 220, 243 Pac. 333 (1924), it was decided that a state statute attempting to adopt by reference the penal provisions of the National Prohibition Act violated this section. This decision was arrived at on a rehearing of the case which resulted in a reversal of the previous attitude of the court.

New York

Article III, S 17, "No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or part thereof, shall be applicable, except by inserting it in such act."

Xxx an incomplete and hastily prepared memorandum see Legal Research Memorandum of August 14, 1934, entitled "Memorandum on What Existing Law May Not Be Incorporated by Reference Into New York Statutes Under Section 17 of Article III of the New York Constitution."

North Carolina

Article I, Sec. 9. "All power of suspending laws, or the execution of laws, by any authority, without the consent of the representatives of the people, is injurious to their rights, and ought not be exercised."

There are no cases under this section.

In 1933 a new state constitution was proposed to be submitted to the people for ratification at the next general election. Article I, Sec. 6 of the proposed constitution is identical with the foregoing section.

North Dakota

Article 2, Sec 64. "No bill shall be revised or amended, nor the provisions thereof extended or incorporated in any other bill by reference to its title only, but so much thereof as is revised, amended or extended or so incorporated shall be reenacted and published at length."

The cases have all been concerned with North Dakota laws.

Ohio

Article I, Sec. 18. "No power of suspending laws shall ever be exercised, except by the General Assembly."

Oklahoma

Article V, Section 57. "... and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be reenacted and published at length:..."

The cases have dealt only with Oklahoma laws.

Oregon

Article I, Sec. 22. "The operation of the laws shall never be suspended except by the authority of the legislative assembly."

The cases do not concern our problem.

Article IV, Sec. 22. "No act shall ever be revised or amended by more reference to its title, but the act revised or section amended shall be set forth and published at full length."

The cases have dealt only with Oregon laws.

Pennsylvania

Article III, Section 6. "No law shall be revised, amended, or the provisions thereof extended or conferred, by reference to its title only but so much thereof as is revived, amended, extended or conferred shall be reenacted and published at length."

Xxx Commonwealth v. Spencer, 61 Pa. Super Ct. 367 (1915) (reference to standard text books for standard of enforcing a statute).

Xxx extension of Federal legislation see:

Commonwealth v. Dougherty, 39 Pa. Super Ct. 338 (1909);
Liquor Licenses, 21 Lun. 447, 2 D. & C. 281 (1922);
Commonwealth v. Lichter, 2 Wash. 100, 70 Pitts, 443, 1 D. & C 709 (1922):
Sususehanna Co.Liquor License, 1D. & C. 357 (1921):
Commonwealth v. Riderman, 275 Pa. 483, 119 A. 551 (1923);
(upholding a State enforcement act under the 18th Amendment to the Federal Constittion which incorporated Federal laws by reference only despite the foregoing constitutional provisions).

Rhode Island

No constitutional provisions found.

South Carolina

Article I, Sec. 13. "The power of suspending the laws of the execution of the laws shall only be exercised by the General Assembly or by its authority in particular cases expressly provided for by it."

No cases under this section.

South Dakota

Article VI, Sec. 21. "No power of suspending laws shall be exercised, unless by the legislature or its authority."

The cases under this section do not concern our problem.

Tennessee

Article II, Section 17. "...All acts which repeal, revive or amend former laws, shall recite in their caption of otherwise, the title or substance of the law repealed, revived or amended."

This constitutional provisions is not particularly in point concerning our problem; but it is given to illustrate the difference in wording from that of some other state constitution under which problem could conceivably arise.

Texas

Article I, Section 28. "No power of suspending laws in this State shall be exercised except by the legislature."

Article II, Section 36. "The law shall be revived or amended by reference to its title; but in such case the act revived, or the section or sections amended shall be reenacted and published a length."

The annotations under these sections have not been examined.

Utah

Article VI, Section 22. "...and no law shall be revised or amended by reference to its title only; but the act as revised, or section as amended, shall be reenacted and published at length."

The cases under this section have dealt only with Utah laws.

Vermont

No constitutional provisions found.

Virginia

Article I, Sec. 7. "That all power of suspending laws, or the execution of laws, by any authority without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised."

There are no cases under this section.

Article IV, Sec. 57. "... nor shall any law be revived or amended with reference to its title, but the set revived or the section amended shall be reenacted and published at length."

No cases have dealt only with Virginia laws.

Washington

Article II, Sec. 37. "No act shall ever be revised or amended by more xxx of its title, but the act revised or the section amended shall set forth at full length."

The cases seem to have dealt only with Washington laws.

West Virginia

Article V. "... and no law shall be revised, or amended, by reference xxx title only; but the law revived, or the section amended, shall be inserted at large in the new act..."

The annotations under this section have not been examined.

Wisconsin

No constitutional provisions found.

Wyoming

Article III, Section 26. "No law shall be revised or amended, or the provisions thereof extended by reference to its title only, but as such thereof xxx is revised, amended, or extended, shall be reenacted and published at length."

There are no cases under this section.

E.A. King
Assistant Counsel
Legal Research

PART IV
ENFORCEMENT OF STATE LAW BY FEDERAL OFFICIALS
AND OF FEDERAL LAW BY STATE OFFICIALS

TABLE OF CONTENTS

I. Introduction

II. Federal Provisions Concerning Holding of State Office or Execution of State Law by Federal Officeholders or Employees and the Holding of Federal Office or Execution of Federal Law by State Officeholders or Employees

1. Federal constitutional provisions concerning holding of State office or execution of State law by Federal officeholders or employees and the holding of Federal office or execution of Federal law by State officeholders or employees.

2. Federal statutory provision restricting the holding of State office or execution of State law by Federal officeholders or employees and the holding of Federal office or execution of Federal law by
State officeholders or employees.

3. Federal executive orders prohibiting the holding of State office or execution of State laws by Federal officeholders or employees and of Federal office or execution of Federal laws by State officeholders or employees.

4. Federal statutory provisions authorizing the holding of State office or execution of State law by Federal officeholders or employees and the holding of Federal office or execution of Federal law by State office-holders or employees.

5. Federal executive orders authorizing the holding of State office or execution of State law by Federal officeholders or employees and the holding of Federal office or execution of Federal law by State office-holders or employees.

6. Possible Federal compulsion of State officials to execute Federal law.

III. State Provisions Concerning Holding of Federal Office or Execution of Federal Law by State Officeholders or Employees and the Holding of State Office or Execution of State Law by State Officeholders or Employees.

1. State constitutional provisions concerning holding of Federal office or execution of Federal law by State officeholders or employees and the holding of State office or execution of State law by State office-holders or employees.

A. Definition of "office" and "office of trust or "profit," etc.
B. Classes to whom the prohibition extends.
C. Definition of "eligibility" for office of trust or profit.
D. Definition of holding an office of trust or profit.
E. Definition of "incompatibility" of offices.

2. State statutory and administrative provisions restricting holding of Federal office or execution of Federal law by State officeholders or employees and the holding of State office or execution of State law by Federal officeholders or employees.

C. State statutory authorization of holding of Federal office or execution of Federal law by State officeholders or employees and the holding of State office or execution of State law by Federal officeholders or employees.

4. State administrative authorization of holding of Federal office or execution of Federal law by State officeholders or employees and the holding of State office or execution of State law by Federal officeholders or employees.

IV. Illustrations of Joint Administrative Activity of Federal and State Officials.
1. Bureau of agricultural economics.
2. Food and Drug Administration.

V. Joint Activity of Federal and State Officials Each Acting Within His Own Technical Sphere

VI. Conclusions.

Select Bibliography

ENFORCEMENT OF STATE LAW BY FEDERAL OFFICIALS
AND OF FEDERAL LAW
BY STATE OFFICIALS

by
Jane Perry Clark

I. Introduction

As the Federal Government becomes more and more interested in activities originally carried on by States alone, the interrelationships in administration are becoming continually more important and continually more necessary. The adaptability of State government ot local conditions and the financial resources of the Federal Government mean that in any cooperative program for economic security the Federal Government is likely increasingly to work through the agency of the States, and they in turn are apt increasingly to turn to the National Government for aid in the administration of the cooperative aspects of the program. This is particularly true where the Federal Government adopts the law and administrative standards of a State and where a State adopts the law and administrative standards of Federal law and where the consequent interrelationships involve the action of both Federal and State officials. Furthermore, even where there is no actual adoption of the law of one jurisdiction by another, Federal and State officials often act in the same fields of administrative activity or in fields so closely similar that cooperation in activity is the inevitable result if duplication and inefficiency are to be avoided. Questions arise, therefore, in this increasingly important field, as to whether or not Federal officials may legally be delegated to enforce State law and State officials to enforce Federal law and in what the administrative aspects of this cooperative activity consist.

Federal Provisions Concerning Holding of State Office or Execution of State Law by Federal Officeholders or Employees and the Holding of Federal Office or Execution of Federal Law by State Office Holders or Employees.

1. Federal constitutional provisions concerning holding of State office or execution of State office or execution of State law by Federal officeholders or employees and the holding of Federal office or execution of Federal law by State officeholders or employees. The Federal constitution contains no prohibition against the holding of State office by Federal officials or employees or against the holding of Federal office by State officials or employees or against the performance of functions of the one jurisdiction by officials or employees of the other. There are only two sections of the constitution which ave any bearing on the subject, first in the provision that no senator or representative shall, during the time for which he is elected, be appointed to any civil office under the United States and no person holding any office under the United States shall be a member of either house during his continuance in office; second, that no senator or representative or person holding an office of trust under the United States shall be appointed an elector. In fact, each state appoints its quota of presidential electors and also prescribes the time, place and manner of holding elections for senators and representatives. Here a duty is directly imposed by the Federal constitution on the State to act cooperatively with the Federal Government in at least these aspects of interrelationships. This provision, however, is on the positive side and has nothing to do with the prohibition of Federal officers from holding State office.

2. Federal statutory provision restricting the holding of State office or execution of State law by Federal officeholders or employees and the holding of federal office or execution of Federal law by State office holders or employees. As there is no constitutional provision which forbids or restricts the holding of State office or performance of Federal function by State officeholders or employees, so there is no Federal law making such Federal officials ipso facto entirely ineligible to Federal appointment. There are, however, certain important provisions of Federal law referring to the matter of such prohibition. For instance, "No person who holds an office the salary or annual compensation attached to which amounts to the sum or two thousand five hundred dollars shall be appointed to hold any other office to which compensation is attached unless specifically heretofore or hereafter especially authorized by law." Therefore, if a Federal or State salary amounts ot more than $2500, the person receiving it may not without special authorization be appointed an officer of the other unit of Government if he is to be paid any salary by that unit.

A further Federal prohibition is found. "No person holding a commission or appointment under the United States, except postmasters, shall be a member of the legislature assembly, or shall hold any office under the government of any territory." The question is raised as to whether this provision makes such offices incompatible so as to make the appointment or a territorial officer as a
Federal agent result in vacation of the territorial office?

Mention must be made of the fact that certain Federal statutes control the actions of Federal officials in regard to the action on behalf of the States, as for instance, the Federal Civil Service Act and the Veterans' Preference Laws which offer obstacles to entire freedom in appointment of State officials as agents of the Federal Government.

3. Federal executive orders prohibiting the holding of State office or execution of State laws by Federal officeholders or employees and of Federal office or execution of Federal laws by State officeholders or employees.

a. The executive order of President Grant in 1873: The first important restriction on the exercise of Federal power by State officers occurred under President Grant. In the years immediately after the Civil War, many "carpetbagger" officeholders in the southern States had come from the north and were holding both Federal and State offices. So on January 17, 1873, Grant issued an executive order which still survives, at least in part, to the effect that "persons holding any Federal office by appointment under the Constitution and laws of the United States will be expected, while holding such office, not to accept or hold any office under any State or territorial government, or under the charter or ordinance of any municipal corporation. The order was to be applied throughout the entire Federal Government, the actual work of application being left to the heads of departments or other appointing officers. Any failure to observe the order was to be deemed to constitute a vacation of the Federal office. The order contained exceptions, such as justices of the peace, notaries public, commissioners to take acknowledgment of deeds, of bail, and of oaths, sheriffs, deputy marshals, deputy postmasters, members of boards of education and of school committees, officers of the State militia, similar, as will be seen, to the exceptions in State constitution prohibiting dual officeholding. The exceptions to this order became so numerous that, as will be seen later its effect is now practically nullified.

4. Federal statutory provisions authorizing the holding of State office or execution of State law by Federal officeholders or employees and the holding of Federal office or execution of Federal law by State officeholders or employees. The question arises concerning not merely the prohibition by Congress of the holding of State office by a Federal official but also the authorization by Congress of the performance of Federal functions by State officials or employees. Such authorization has long been recognized. Madison, for instance, assumed that the Federal Government would utilize the services of State officials or employees in the effectuation of Federal powers. Furthermore, Hamilton expressed a similar opinion when he wrote in the Federalist that the officers of the States would be rendered auxiliary to the enforcement of the laws of the union, and Pinckney expressed the same idea when he wrote that the States would be the instruments on which the union must practically depend for the execution of its powers.

Instances of such authorization are numerous and will be discussed later. For example, congress has power to call the militia of the States to execute Federal law, to suppress insurrection and to repel invasion. Congress has also exercised the important power in time of war to administer a selective Draft in cooperation with the States and at least in part through the use of state officials. There is a line of decisions to effect that certain powers may be conferred by Congress upon State officers. The court in one case stated: "It has long been held that power may be conferred upon a State officer, as such, to execute a duty imposed under an act of Congress, and the officer may execute the same unless the execution is prohibited by the Constitution or legislation of the State."

5. Federal executive orders authorizing the holding of State office or execution of State law by Federal officeholders or employees and the holding of Federal office or execution of Federal law by State officeholders or employees.

a. Exceptions to the Executive Order of President Grant: The exceptions to the executive order of President Grant became numerous in subsequent orders. For instance, the first President Roosevelt in 1907 issued an order which made it possible for the Federal forestry officials to accept appointment as State officials and President Taft issued an order which allowed Federal officials to serve as moderators of town meetings in New England and President Wilson authorized the appointment of forest reclamation and park officials to place under the State game wardens.

b. The order of President Coolidge in 1926: On May 26, 1926 President Coolidge issued an order which to a large extent reversed the principles of the Grant order of 1873, as the prohibition enforcement situation had shown the need for cooperative activity by Federal and State officials in any attempt to cope with that problem. The order permitted the commission of State officers xxx Federal agents at a nominal salary for the better enforcement of the prohibition act, and also provides that no commission should be given to any State, county, or municipal officer where the exercise of dual authority was not prohibited by the constitution or law of the State. Under this order, State officers were appointed as prohibition officers of the Treasury Department.

President Coolidge doubtless thought, in view of the fact that there is xxx express or implied prohibition in the Constitution against the holding of Federal and State office simultaneously, that his authority for the order lay in the general grant of executive power to the President. In any event, there had been no criticism of orders concerning dual office holding until then. Xxx the storm broke over his order and criticism became rampant, doubtless because of the political controversy over prohibition. The legality of his xxx was even passed on by a special sub-committee of the Senate 8
Committee xxx Judiciary, but the order was upheld as the President "was entirely within his rights and guilty of no infraction of the Constitution or the laws, either expressed or implied," and as he had not interfered with the exercise of discretion on the part of subordinate officers.

Furthermore, the Coolidge order was not automatic, as it required order had been, as it merely stated that the President no longer prohibited the appointment of State officers to enforce the Federal prohibition law. Furthermore, it was not compulsory on State officers as they might accept or decline Federal appointments as they pleased. The problem of enforcement therefore did not arise, and the only questions which could arise under the act were those concerning appointments under it.

c. The executive orders of President Roosevelt in 1934 regarding homework and apprentice training under the Codes: There are in effect 72 codes which make provision for the abolition of homework and still others provide for the gradual elimination of such work. However, these and other codes have many conflicting provisions in regard to this subject. Under codes approved, or to be approved, which contain a provision prohibiting homework in the industry or in part of the industry, and in codes which provide for gradual elimination of homework, after such complete elimination is accomplished, President Roosevelt has issued authorization for employment of home workers under certain conditions of "exceptional hardship." by this executive order of May 15, 1934 he permits the employers of industrial home workers to employ such home workers despite code provisions, if a certificate is obtained for each home from the State agency designated xxx the Federal Department of Labor, and in accordance with the instructions of that Department. One State agency, Georgia, has been removed from the xxx and the State compliance director has been substituted. A list of State authorities designated by the Department of Labor to issue certificates to home workers has been issued. Those designated State authorities may issue joint applications for the certificates permitting homework despite code provisions to the contrary on forms furnished by the United States Department of Labor. The State authority is required to verify by investigation the statements made in the home worker's application to determine whether the issuance of a permit for homework is justified under the executive order. Xxx it is established to the satisfaction of the State agency that:

1. The home worker is suffering from a physical defect, and injury or illness not of a contagious nature, which physically incapacitates such home worker from work in a factor or other regular place of business,

2. The home worker's services are absolutely essential at home to care for another person who is either bedridden or an invalid., and neither person is suffering from a contagious disease,

3. The home worker was accustomed to this method of earning a living before the code went into effect and is too old to make an adjustment to factory routine,

4. The piece work rate to be paid for such work is the same as that paid in factory
maintained by the employer.

If the requirements are met, the designated State agency may issue xxx certificate allowing homework to be done. This certificate is made in quadruplicate, one copy to be sent to the worker, one to the employer, a third to the code authority of the industry and the fourth to xxx on file in the office of the State issuing authority.

It is of note that the Federal instructions for issuance of certificates xxx more stringent state regulations affecting industrial homework, such as prohibition of certain types of work in homes, sanitary regulations, wages, xxx and fire regulations and registration of home workers and employees carrying out homework.

Difficulties arise in the issuance of certificates to handicapped workers xxx such codes as the hosiery and cigar manufacturing ones, where the employment xxx workers at less than minimum rates is permitted. It is decided that xxx authorities administering the provisions of the executive order for such home workers should have nothing to do with the certification of merely slow workers. Xxx codes provide that in the cigar and hosiery manufacturing industries, xxx number of handicapped and slow workers combined shall not exceed 5 percent o f the productive employees. The code authority assumes the responsibility of keeping the number within the prescribed limit. Therefore homework certificates may only be issued up to 5 percent. On the other hand, xxx the cigar manufacturing industry, the proportion receiving less than the minimum wage may be as high as 25 percent. But certificates of handicap xxx not be issued to 5 percent of the workers in such plants.

Has the industrial commissioner of a State acting as enforcement office xxx the presidential order power to withhold or issue homework certificates xxx the provisions of that order? Since the issuance of the executive order, xxx State Department of Labor of New York State alone has received 2,233 applications; of these it has granted 676, refused 1,064, and still has 494 applications pending; more are continuing to come in. The Attorney General xxx the State has called attention to the number of possibilities where homework may be involved in the law in that State, for there are the state labor xxx, the codes, the State recovery act and the President's executive order. Xxx thought that no exemptions under executive order repealed the State labor. Or the State recovery act and that therefore license for homework xxx prohibited by the codes should not be issued under the State recovery xxx or under the State labor law insofar as the code provisions are in agreement with that of labor law.

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State department is responsible for periodical investigations to determine whether the conditions to which certification has been made still warrant the continuance of the authorization. If any condition is found which justifies the cancellation of the certificate it is to be canceled by the State which issued it originally.

Difficulties in regard to these interstate aspects of homework have risen between such States as New York and Connecticut. The Connecticut Industrial Commission has been flooded with applications for homework including requests from New York manufacturers for home workers especially xx work on beaded bags, pocket books, etc. New York employers were denied license to employ home workers in Connecticut who applied, when the conditions under which they wished to operate were discovered. The New York State Department of Labor is attempting to cooperate in this situation by requiring manufacturers to register names of workers to whom they send work outside the xxx as well as within the State. A spot map has been constructed in that xxx showing the distribution of homework ranging as far north as Canada, xxx to the Mississippi and south to the Mexican border.

A similar executive order was issued on June 27, 1934, prescribing rules xxx regulations for the application of the codes as they may affect apprentice xxx programs in industry. Under these terms of the executive order:

1. A person may be employed as an apprentice by any member of an industry subject to a code of fair competition at a wager lower than the minimum wage or for any time in excess of the maximum hours of labor established in such code if such member shall have first obtained from an agency of the department designated or established by the Secretary of Labor, a certificate permitting such person to be employed in conformity with the training program approved by such agency, until and unless such certificate is revoked.

2. The term, "apprentice," as used herein shall mean a person at least 16 years of age who has entered into a written contract with an employer or association of employers which provides for at least 2 years of reasonably continuous employment for such person and his participation in an approved program of training as herein above provided.

3. A committee shall be established by the Secretary of Labor to advise such Secretary in the exercise of the power herein conferred and to perform such other functions as the Secretary may direct. Such Committee shall be composed of one or more representatives of Office of Education, the National Recovery Administration, and the United States Department of Labor.

On August 26, 1934, the Federal Committee on Apprentice Training was xxx up, and a series of regional conferences were held in an attempt to xxx about the speedy establishment of state agencies through State xxx. These agencies were then established in different States and xxx of representatives of the N.R.A., the United States Employment Service, state boards for vocational education, state labor departments, xxx and employees. They have the power to issue certificates which xxx apprentices from the minimum wage provisions of the codes, to approve xxx acts and to carry on the administrative work connected with the supervision of apprentice training. These agencies are composed of State officers xxx under Federal regulations issued by the Department of
Labor.

Nominations to the State committee are submitted to the Federal Committee Apprentice Training for approval by the Secretary of Labor, together with xxx statement concerning the experience of the individual members and xxx qualifications to the positions for which they are appointed. Then a xxx and a secretary are designated, and the chairman is recognized by a Federal Committee as the executive of the State committee. All plans xxx the approval of apprentice contracts and the issuance of certificates of xxx are prepared by the State committee and forwarded in turn to the Federal xxx for approval, and no authority is taken for action until the State xxx has been advised that its plans are approved.

6. Possible Federal compulsion of State officials to execute Federal Law. The question is not merely whether or not the Federal government forbid a xxx officer to perform State function and whether the Federal Government authorize a State officer to perform federal functions but also whether Federal Government may compel a State administrative officer to perform xxx functions. This problem of compulsion by the Federal Government xxx officials to perform duties in the carrying out of Federal work was first brought up by the Fugitive Slave Law of 1794. This law provided that owners of fugitive slaves seeking their slaves in another State, upon finding them, could take them before the judges of the United States or "before any magistrate of a county, city, or town corporation, wherein such seizure or arrest shall be made," and it "shall be the duty of such judge or magistrate, to give a certificate thereof to such claimant, his agent or attorney, which shall be sufficient warrant for removing the said fugitive from labor to the State or territory from which he or she fled. When the matter case before the Supreme Court, it held the law "clearly constitutional in all its leading provisions, and, indeed, with the exception of that part which confers authority xxx State magistrates, while a difference of opinion has existed, and may still exist on the point, in different States, whether State magistrates are bound xxx act under it, none is entertained by this Court, that State magistrates may, xxx they choose, exercise that authority, unless prohibited by the legislature.

The case contains at least a hint that State officers could legally refuse to exercise the authority conferred on them by the law of 1793, but in no case xxx the issue squarely put up the Supreme Court as to whether State officers xxx be compelled against heir own or the State government's wishes. The xxx of opinion seems to be that the Federal government has no power to compel such action.

Probably because of the difficulties resulting from this case, the Fugitive Slave Law of 1850 confined its enforcement entirely to Federal officers. Xxx repeated view of the duties of state officers toward the Constitution of the United States is that all state officers are under xxx to enforce the provisions of that document because of the oath they take to do so, and that this means that to some extent officers must perform federal functions. The flaw in this reason xxx consists in viewing the oath as a grant of power, when it is merely xxx for office. . . . To take an oath to support the Constitution xxx enemies threatening with destruction the system which it established is quite a different thing from taking the oath to obtain xxx grants of poser to carry on federal work. The word
"support" xxx be interpreted to mean "defend" and "adhere to" rather than to do xxx work of the national government. Any other view would make it possible to place the burden of administering federal laws on the states."

III

Provisions Concerning Holding of Federal Office or Execution of Federal Law by State Officeholders or Employees and the Holding xxx Office or Execution of State Law by State Officeholders or Employees.

1. State constitutional provisions concerning holding of federal office execution of federal law by state officeholders or employees of the xxx of state office or execution of state law by state officeholders employees. As already indicated, the federal government through its legislative, executive, and judicial arms may confer federal power upon State officers or employees, but by that action no duty is imposed upon the States to accept. In other words, the State constitution or statute may forbid acceptance or an administrative official may even be unwilling to accept the powers and perform the duties indicated.

On the other hand, States may voluntarily undertake duties neither required of them by the constitution nor imposed upon them by Congress.

A number of States have by constitutional or statutory provisions restricted or prohibited the acceptance of Federal office by a State officer, at least to the extent of providing that acceptance of an appointment to Federal office by an officer of the State operates to vacate his State office automatically. It is probable that the State cannot "cause the vacation of a Federal office upon its holders' accepting a State office." The same principle operates to prevent the State from making Federal offices forbidden xxx its own officeholders.

The State constitutions of 23 States have provisions concerned with the holding of Federal and State offices at the same time. These are Alabama, California, Delaware, Florida, Illinois, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Wisconsin, and xxx. Such provisions as those of North Carolina, Louisiana, Kentucky, California and Wisconsin illustrate the type of provision:

North Carolina
"No person, who shall hold any office or place of trust or profit under the United States, or any other State, or Government, shall hold or exercise any other office or place of trust or profit under the authority of this State, or be eligible to a seat in either house of the general assembly."

Louisiana
"No member of Congress, nor person holding or exercising any office of trust or profit under the United States or any State . . . shall be eligible as a member of the legislature, or hold or exercise any office of trust or profit under the State . . ."

Kentucky
"No member of Congress or person holding or exercising an office of trust or profit under the United States, or any of them, or under any foreign power, shall be eligible to hold or exercise any office of trust or profit under this Constitution, or the laws made in pursuance thereof."

California
"No member of Congress, nor any person holding any office of profit or trust under the United States (Postmasters excepted) or under any foreign power . . . shall be eligible to any office of trust, profit, or honor in this State."

Wisconsin
"No member of Congress, nor any person holding any office of profit or trust under the United States (Postmasters excepted) or under any foreign power . . . shall be eligible to any office of trust, profit, or honor in this State."

Twelve of the State constitutions make exceptions and allow dual holding with regard to such offices as postmaster, notary, commissioner of deeds, etc. These States are Alabama, California, Delaware, Illinois, Indiana, Mississippi, Nevada, North Carolina, Oregon, Rhode Island, South Carolina, and Wisconsin. For instance, the constitution of Nevada provides:

"No person holding any lucrative office under the Government of the United States, or any other power, shall be eligible to any civil office of profit under this State, provided that postmasters, whose compensation does not exceed $500 per annum, or commissioners of deeds, shall not be deemed as holding a lucrative office."

a. Definition of "office" and "office of trust or profit," etc: "In xxx, if not quite all, the State constitutions, the principle seems to have adopted of prohibiting those who were holding lucrative Federal offices xxx holding at the time the more important State offices." However, some of the State constitutions, such as Delaware, Florida, Rhode Island, and Utah xxx "for honor" among their prohibitions. For instance, the constitution xxx Florida States:

"No person holding or exercising the functions of any office under any foreign government, under the Government of the United States, or under any other State, shall hld any office of honor or profit under the Government of this State."

In the last analysis, the efficacy of the prohibitions in the State constitution depends on the interpretation of these terms by the courts. First xxx, what is an "office" under the State and under the United States and xxx it differ from a "place of trust or profit?"

In a North Carolina case involving interpretation of the constitutional xxx of that state, attempt was made to define the terms. There is a xxx mail carrier appointed under the authority of the Federal Government xxx also a penalty of $200 imposed for any violation of the constitutional xxx. The lower court held that a rural mail carrier was not a public official but the State Supreme Court on appeal held that "while the line xxx places of trust and profit is not clear, an office ‘office' is a public position which a portion of the sovereignty of the country attaches for the time being and which is exercised for the benefit of the public an within the constitutional provision there is no distinction between ‘offices' and places of trust or profit' with respect to the inhibition against double office-holding." Hence, a rural mail carrier was a public officer and his xxx of a State office subjected him to the statutory penalties.

b. Classes to whom the prohibition extends: However, it is not always xxx to discover that the courts determine to be a "public position to which a portion of the sovereignty of the country attaches for the time being and which is exercised for the benefit of the public" for the criterion is stale a xxx one. Thus, although an army officer is not a civil officer of the United States, he has been held to have an office for profit under the Federal Government and so is in the class of persons to whom the prohibition extends. Therefore, a State senator by accepting payment as a paymaster in the United States xxx and entering upon his duties ipso facto vacates his seat in the State xxx, as happened in the case of a man by the same of Lord in the State of Nevada. Three months after Lord had accepted the army position, a petition xxx filed to nominate a candidate for State senator to fill the unexpired term xxx which lord had been elected in the State senate. The court held that xxx acceptance of Federal office was resignation of the State office and xxx a vacancy in that office and that in such circumstances no proclamation xxx the Governor was necessary to the validity of a special election called xxx the office.

An officer of the National guard has been held to be not a civil public officer but merely a military officer. However, when the National Guard xxx assimilated to the United States Army, a member of that Guard thus entering xxx army becomes a person to whom the prohibition runs. For instance, xxx L. Feketes was elected City attorney of East St. Louis in April 1917, for two years. In July, 1917, he volunteered as a member of the Illinois National Guard and was commissioned as Captain by the Governor of Illinois, so the City Council adopted a resolution that Fekete be given a leave of absence of indefinite xxx. By proclamation of the President on July 3, 1917, immediately after Fekete's admission into the National Guard, that organization became federalized s part of the Army of the United States. Fekete served as Captain in the Army until August, 1919, after the expiration of the term for which he had been elected City Attorney. He had been paid the salary due him when he entered the army and upon his return demanded the balance of the salary for two years, and xxx the city refused to pay. The Illinois constitution provided that no person holding an office of honor or profit under the Government of the United States shall hold any office of honor or profit under the authority of Illinois. The same section of the constitution also required that appointments in the militia should not be considered lucrative. The court held in the case that Fekete was not a member of the Illinois National Guard after his appointment xxx captain in the United States Army and it was not important as to whether or not the two offices were incompatible as the prohibition extended against one man holding offices under the United States and under the State.

A judge would seem to be clearly an officer to whom the prohibition xxx. Thus, in a Kentucky case Hoglan was elected presiding judge of a county court and having acted as such refused to surrender the records pertaining to the office to Carpenter who was elected as judge. At the time of this election, Carpenter was serving as postmaster under appointment from the United States and had continued so to act even after his election as county judge. However, Carpenter stated that after Hoglan had been elected as county judge he had accepted the appointment of Federal provost marshall for the xxx county and yet acted as judge too. The court held in the case that xxx office of postmaster is incompatible with that of county judge and that xxx accepting or continuing to hold any Federal office of trust or profit under the United States the person holding such office vacates any civil office xxx the State, according to the State constitution.

A Wisconsin case involved not a judge but a court commissioner. Hazleton xxx Circuit Court Commissioner located in the State of Wisconsin and was subsequently appointed as United 23
States Commission of the State. Under the Wisconsin constitution such dual office-holding was prohibited and the court held in the case that Hazleton had vacated the State office by his acceptance of the Federal one.

Other cases show that the courts have not always followed a clear line of xxx. For instance, the director of an Illinois State Institution for the deaf and dumb, he had been appointed to that office by the Governor, was removed on the ground that subsequent to his appointment as director of the xxx, he was appointed marshall for the southern district of Illinois by the President of the United States and his removal of up-xxx by the court on the grounds of violation of the State constitutional xxx. Similarly, a member of the parish school board in Louisiana xxx held to be an officer of the State within the prohibition of the State constitution and so ineligible to hold the office of postmaster under the United States. On the other hand, a grand juror was held not to be a public officer within the meaning of the inhibition of the North Carolina constitution and the position of a deputy sherif in Alabama has been similarly decided.

Political considerations may of course enter into the determination of xxx constitutes public lucrative office, as for instance in the State of Louisiana, where Paul N. Cyr was elected Lieutenant Governor of the State xxx Huey Long was elected Governor for a 4 year term and then on November 4, xxx, Long was elected Senator. Cyr was advised that by accepting office in xxx senate, Long lost all right to hold office in the State, according to the constitutional provisions which forbids any member of Congress to hold or exercise any office of trust or profit under the State, and so Cyr took the xxx of office as Governor of Louisiana on October 13, 1931. He then wrote xxx to surrender the office with its archives but Long refused to do this and xxx intrusion into office suit was brought against him. The court xxx that it must decide whether or not it may substitute its judgement for that of the United States Senate in determining whether and under xxx conditions one who had been elected to the United States Senate actually xxx a member of that body, and called attention to the fact that each xxx under the Federal Constitution is the sole judge of the elections, xxx and qualifications of its own members. Therefore, the right of Long xxx qualify remained to be determined by the Senate, "the sole judge thereof, xxx in a judicial capacity and passing upon an unmixed Federal question." xxx court further stated that "even if it were true that the Governor had been xxx guilty of holding two offices, this would not give this court jurisdiction to entertain a suit for his removal from office," as the State constitution xxx for the impeachment by the House of Representatives and trial by the xxx.

Distinction may be made between "offices" and "lucrative offices" as in Nevada constitution discussed above. In general, however, a "lucrative xxx" is one to which any compensation whatsoever attaches. For instance, xxx officer of the militia is unpaid and so it is not considered to occupy an xxx to which the prohibition runs.

c. Definition of "eligibility" for office of trust or profit: The xxx a constitution calls attention to still another question. The provision xxx contains the word "eligible." What constitutes eligibility to office? Xxx, in 1864, G.A. Nourse was elected Attorney General of Nevada, and xxx years later, R.M. Clarke was elected to the office. Then Nourse filed xxx complaint contending that Clarke was not eligible to the office as prior xxx the November election of 1866 he had been United States district attorney xxx consequently claimed that as there was no person elected to that office, xxx was entitled to hold over until the next general election. On October 25, xxx, he wrote a conditional resignation of his office as district attorney, xxx take effect on January 1, 1867, and on November 5, 1866, 1 day before xxx action, he wrote a peremptory resignation, to take effect immediately. When xxx case was brought to court, it was held that a person holding the office xxx United States district attorney on the day of election was incapable of xxx chosen to the office of attorney general of the State because of the xxx in the State constitution. The court interpreted that prohibition apply to all officers of the State, including the attorney general. Furthermore, the court held that the attorney general had resigned on November 5 and therefore was not in office on election day, for a person holding a civil office under the United States can resign such office without the consent of xxx appointing power, or the acceptance by it of such resignation. Last of all, xxx court interpreted the word "eligible" in the State constitution and held it to mean "capable of being legally chosen and of legally holding. The word used in various State constitutions seem to justify this broader and more comprehensive interpretation."

Distinction has been attempted between "ineligibility" and "inability to xxx for an office." Thus in the Louisiana case of the members of a parish school board discussed above the court held that "one holding an office of

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