The opinion
On the 1st day of December, 1920, in an opinion by Judge MORROW, the application for writ of habeas corpus was denied, and relator remanded to custody, and the matter is again before us on motion for rehearing.
Relator in his motion for rehearing urges that some expressions in the former opinion do not make clear his position, and puts him in the light of contending, in effect, that "when the prohibition amendment to the Federal Constitution was adopted, the State surrendered to the Federal government the power to control the liquor traffic," when in fact he avows that such is not his contention, but he concedes *Page 540
that under Section 2 of the Amendment the States have the concurrent power to act with Congress in passing adequate legislation carrying out the intended meaning of the Eighteenth Amendment, and merely insists that when the field of legislation is occupied by the Federal Congress, that any legislation passed by the States must be consistent with and not antagonistic to the acts of Congress.
Insofar as any expression in the former opinion may have been inaccurate or unhappy in stating the correct contention of relator, we have re-written and modified the same so that such complaint cannot be urged.
Since the filing of relator's motion for rehearing we have again considered the matters urged by him, and while the question raised is one not free from difficulty, we feel that the original opinion made the proper disposition of it. No good could result from a further discussion of the questions, because it would necessarily be largely a repetition of what has already been said by Judge MORROW. In an exhaustive opinion by Chief Justice RUGG the Supreme Court of Massachusetts, in the case of Commonwealth v. Nickerson, has reached the same conclusion as expressed by us in our original opinion, and we do not think a proper construction of the opinion by the Supreme Court of the United States in Rhode Island v. Palmer, 252 U.S. 612 , discloses antagonism between that court, and the Massachusetts case and the conclusion we have reached. Whenever the Supreme Court of the United States speaks upon this question, and we should find our views contrary to the ones entertained by that high tribunal, it will be our duty to conform to the opinion of that court. We have been unable to reach the conclusion that it has already so spoken, and the motion for rehearing will be overruled. Such changes and modifications in the original opinion as will eliminate the matters complained of by counsel for relator have already been made.
Overruled.