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Volume VI. Social Insurance
PART III. SOME INTERRELATIONSHIPS OF FEDERAL AND STATE LAW IN THE SAME FIELDS OF ECONOMIC AND SOCIAL LEGISLATION by
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...... 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. 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. 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 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
"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. 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
MEMORANDUM TO: Thomas C. Billing
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." 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." 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." 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; ..." 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." 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, ..." 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." 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 ..." 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." 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." Kentucky xxx 15. "No power shall suspend laws shall be exercised unless by
the General Assembly or its authority." 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." Maine Article I, Section 13. "The laws shall not be suspended but by the
Legislature or its authority." 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." 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..." 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." 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." 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..." 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." 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." 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." 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." 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." 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." 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." 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." 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." 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."
South Dakota Article VI, Sec. 21. "No power of suspending laws shall be exercised,
unless by the legislature or its authority." 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." Texas Article I, Section 28. "No power of suspending laws in this State
shall be exercised except by the legislature." 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." 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." 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." 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..." 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." E.A. King
PART IV
Select Bibliography
ENFORCEMENT OF STATE LAW BY FEDERAL OFFICIALS
I. Introduction
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 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. 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 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 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. (page 485 missing)
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 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
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. 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 Louisiana Kentucky California Wisconsin 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: 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 |