The New Jersey Law Journal, Volume XLV, No. 2, February, 1922

by Various

In the habeas corpus proceeding of Jones v. Hicks, decided by the Georgia Supreme Court and reported in 104 Southeastern Reporter, 771, portions of the statement of facts and opinion of the Court by Judge Gilbert are as follows:

"Jones was arrested under a bench warrant issued by the Judge of the city court of Macon, based upon an accusation charging him with violating the prohibition law of this State on January 21, 1920. He filed a petition for the writ of habeas corpus, based upon the ground that the Eighteenth Amendment to the Constitution of the United States, which was ratified on January 16, 1920, and the 'National Prohibition Act' known as the Volstead Act (41 Stat. 305), superseded and abrogated all State laws on the subject covered by said Eighteenth Amendment, and that therefore, at the time this defendant is alleged to have committed the criminal offense charged in the accusation, there was no valid State law in existence. The court refused to release the petitioner, and that judgment is excepted to....

"The second section of the amendment as proposed to the States and ratified, provides that 'The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.'

"Three views as to the proper construction of the second section have been generally discussed: (1) That concurrent power means joint power; (2) That the power is given to each, the legislation of either Congress or the States being of equal force with the other; and (3) that the power is in each, but that the legislation of Congress, as the supreme law of the land, will supersede any inconsistent State legislation....

"The Supreme Court of the United States having adversely disposed of the contention that 'concurrent power' means joint power [State of Rhode Island v. Palmer, 40 Sup. Ct. 486], there remain two other views to be considered. Similar, but not identical, questions have been discussed heretofore by Courts of several States and by the Supreme Court of the United States. None of these involved construction of delegated powers to be exercised concurrently. They are cited here for comparison, and not as controlling....

"The sphere in which the Congress, under the Eighteenth Amendment, may legislate for the enforcement of prohibition, is limited to the precise terms stated in the amendment, to wit, 'concurrent enforcement....' From a consideration of the question as above presented, we reject the view that the legislation of Congress will supersede and abrogate the laws of the State which are appropriate for the enforcement of the amendment. We conclude that the power of Congress and of the State is equal and may be exercised by the several States for the purpose of enforcement concurrently within their legitimate constitutional spheres. Ex parte Guerra (Vt.) 110 Atl. 224, and authorities cited. The first section of the amendment is in no way affected or qualified by the words 'concurrent power,' found in the second section."

Killing Cows By Automobile.

An automobilist, driving his car at an excessive rate of speed along an improved country road in the night-time, struck and killed two cows being driven along the highway. The animals were walking, one behind the other, in or near the wheel track on the side of the road on which they belonged. The machine, after striking the leading animal, skidded and struck the other cow, killing her instantly and casting her dead body, a distance of 57 feet. The driver admitted he was going "about" 25 miles an hour; and the Court comments: "The result of the catastrophe indicate rather strongly that he underestimated his speed."

The Vermont case of Bombard v. Newton, 111 Atl. 510, is based on this occurrence, and was instituted by the owner of the animals to recover damages for their negligent killing. The Court held that the right to drive an automobile along a public highway is not superior to that to drive cows along the highway. "The parties," states the opinion, "had equal and reciprocal rights to the use of the road, and each owed the other the duty of so exercising his own right as not to interfere with that of another.

The fact that it was in the night-time affected the rights of the parties only as it bore upon the amount of vigilance each was bound to exercise. The fact that the defendant was operating an automobile, an instrumentality whose capacity for harm is well exemplified by the results in this case, and the fact that the plaintiff was driving cows, animals whose viatic vagaries have come to be known of all automobile drivers, were conditions affecting merely the degree of care required of the parties respectively."