Alexander v. State

• Decision Date: 09 May 1921
• Docket Number: 321
• Citation: 230 S.W. 548,148 Ark. 491
• Parties: ALEXANDER v. STATE DECKER v. STATE BLOUNT v. STATE
• Court: Arkansas Supreme Court

230 S.W. 548

148 Ark. 491

ALEXANDER v. STATE

DECKER v. STATE

BLOUNT v. STATE

No. 321

Supreme Court of Arkansas

May 9, 1921

Appeal from Garland Circuit Court; Scott Wood, Judge; affirmed.

Appeals from Randolph Circuit Court; John B. Baker, Judge; affirmed.

Judgment of conviction affirmed.

Arthur Cobb and Jerry Mulloy, for appellants.

The demurrer to the indicment should have been sustained, as the Volstead act supersedes the State law, as the laws are irreconcilable, and the State law must give way as the United States law is supreme. 5 R. C. L., p. 912, § 6; 5 L. R A. 78. The United States courts have exclusive jurisdiction and the demurrer should have been sustained. 12 Cyc. 137, 4; 32 Ark. 117; 99 Am. Dec. 360; 34 Conn. 280; 4 Blackf. 146; 116 Mass. 1; 161 Id. 204; 12 Metc. 387; 8 Id. 313; 41 Am. Dec. 509; 15 N.H. 83; 3 Park., Crim 358; 2 Am. Dec. 645; 5 How. 410; 2 Wood 428.

A court created by a State Legislature has no jurisdiction, and Congress can not confer upon a State court jurisdiction of offenses against the Federal law. 12 Cyc. 200, 4; 34 Conn. 280; 7 Id. 244; 7 Id. 239; 17 Johns 4; 3 Park., Crim. 358; 11 Johns 459; 53 Pa.St. 112; Rice 400; 2 Va. Cases 34; 1 Id. 321; 1 Wheat. 304.

The United States law is supreme, and the State laws are abrogated. 220 U.S. 151; 233 Id. 492; 238 Id. 456; 134 Id. 55; 80 U. S. (20 Law. Ed.) 597; 209 U. S. (52 Law. Ed.) 670; 140 S.W. 746; 214 U.S. 218; Const. U.S. art. 1, § 6; Ib. art. 6; 12 Cyc. 137, 4 and 200, 4; 264 F. 376.

J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.

There is no conflict between the United States and our State laws, and both the United States and State courts have jurisdiction, and an offense may be against both laws. 5 Howard 432; 9 Id. 560; 134 U.S. 372; 14 How. 13; 205 U.S. 34; 132 Id. 131; 22 P. 190; 22 F. 285; 9 Am. Dec. 196; 75 Am. Dec. 554. The State law is not excluded unless the act of Congress makes the United States juridiction exclusive and thus supersedes the State law. Bishop on Cr. Law, § 173; 52 P. 986; 90 N.E. 337; 28 Fed. Cases 522; 18 Tex.App. 224; 110 A. 224; 175 N.W. 683-5. See, also, as sustaining the doctrine, 4 Fed. Cas. 1203; 36 N.E. 328; 6 Ind. 436; 2 Ore. 221; 59 Va. 933; 1 Wash.Terr. 263; 121 N.W. 1052; 206 U.S. 333; 148 Id. 197; 32 P. 134; 168 F. 991; 22 F. 285, 190.

A person living under two governments or jurisdictions may commit two crimes-- one against the State and one against the United States. 22 F. 285; 9 Am. Dec. 196; 14 How. 13; 75 Am. Dec. 554; Bishop, Cr. Law, § 173. See, also, 28 Fed. Cases 522; 18 Tex.App. 224; 110 A. 224; 175 N.W. 683; 175 N.W. 685; 148 U.S. 197; 168 F. 991.

OPINION

SMITH, J.

Appellants were each convicted, in separate trials, of selling intoxicating liquors, and a reversal is asked in each case upon the ground that the law of this State on the subject of the sale of intoxicating liquors has been superseded and annulled by the Federal statute commonly known as the Volstead act (c. 85, Acts 66th Congress, 41st U.S. Stat. at Large, 305), enacted to enforce the 18th Amendment to the Federal Constitution.

This amendment reads as follows:

"Section 1. After one year from the ratification of this article, the manufacture, sale or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from, the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

"Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation."

The question here presented has already been considered by the courts of last resort in several of the States.

The first of these opinions was that of the Supreme Judicial Court of Massachusetts in the case of Commonwealth v. Nickerson, 128 N.E. 273. The subject was considered by that court in the most exhaustive manner, and the opinion of the court by Rugg, C. J., is one of great erudition. He leaves but little to be added to the discussion, and other courts which have since been called upon to decide the same question have followed the lead of that court. Other cases on the subject are: Allen v. Commonwealth (Supreme Court of Appeals of Virginia), 105 S.E. 589; State v. Fore (Supreme Court of North Carolina), 105 S.E. 334; Jones v. Hicks (Supreme Court of Georgia), 104 S.E. 771; Scroggs v. State (Supreme Court of Georgia), 105 S.E. 363; Edwards v. State (Supreme Court of Georgia), 105 S.E. 363; Smith v. State (Supreme Court of Georgia), 105 S.E. 364; Meriwether v. State (Supreme Court of Mississippi, en banc), 87 So. 411; Kyzar v. State (Supreme Court of Mississippi, Division B), 87 So. 415; Jones v. Cutting (Supreme Judicial Court of Massachusetts), 130 N.E. 271; Franklin v. State (Court of Criminal Appeals of Texas), 227 S.W. 486; Ex parte Gilmore (Court of Criminal Appeals of Texas), 228 S.W. 199; State ex rel. v. District Court (Supreme Court of Montana), 194 P. 308; Russell v. State (Court of Criminal Appeals of Texas), 228 S.W. 948.

The Supreme Court of Massachusetts considered all the objections offered to the existing laws of that State on the subject of the illegal sale of liquor which have been made here against our own laws on that subject, and held that none of the objections made were well taken.

It is pointed out in the opinion of Chief Justice Rugg that the Eighteenth Amendment is the only instance to be found in the Constitution of the United States, or any of its amendments, where there is a definite declaration that both Congress and the several States have "concurrent power" to enforce any constitutional mandate by appropriate legislation.

The Supreme Court of Georgia, in the case of Jones v. Hicks, supra, says the use of the word "several" before the word States is significant in determining the meaning and intent of the amendment. Joint enforcement was not intended. The suppression of the liquor traffic and the establishment of prohibition was the thing aimed at, and the purpose of the amendment was to invoke the aid of the Congress and that of the several States in accomplishing that purpose. To that end each of these governmental agencies was enjoined to contribute by the enactment of appropriate legislation. As was said in the case of Commonwealth v. Nickerson, supra: "The force and effect of the words of the Eighteenth Amendment, while possibly enlarging the permissible scope of State legislation respecting importation and exportation of intoxicating liquors, leaves open to State legislation the same field theretofore existing for the exercise of the police power concerning intoxicating liquors subject only to the limitations arising from the conferring of like power upon Congress with its accompanying implications, whatever they may be.

"Having regard only to the words of the Eighteenth Amendment, the Congress and the several States are placed upon an equality as to legislative power. It is only when the amendment is placed in its context with other parts of the Constitution that the supremacy of the act of Congress if in direct conflict with State legislation becomes manifest."

Counsel for the appellants cite the case of Hickman v. Parlin, 88 Ark. 519, 115 S.W. 371, in which this court held that the State Insolvency Act of June 26, 1897, was superseded by the Bankruptcy Act of Congress of July 1, 1898, in so far as they relate to the same subject-matter and affect the same persons, and argue that the effect of that decision is to put our liquor laws in abeyance.

This point was also considered in the Nickerson case, where it was said: "There is a group of cases which hold that, while the general power to deal with some subjects is vested in Congress by the Constitution, yet in the absence of action by Congress, if the power is not denied to the States, legislation by them touching the subject is valid and enforceable. By article 1, section 8, clause 4, of the Constitution, Congress is given power 'to establish * * * uniform laws on the subject of bankruptcy throughout the United States.' There are no words in the Constitution as to the power of States over bankruptcies. Until Congress has acted by passing a general bankrupt law, the several States may enact laws of that nature, which are suspended when Congress acts upon the subject. See, for example, Sturges v. Crowninshield, 4 Wheat. 122, 193, 4 L.Ed. 529; Ogden v. Saunders, 12 Wheat. 213, 6 L.Ed. 606; Griswold v. Pratt, 9 Met. 16. Those decisions rest on the principle that a uniform law on bankruptcies throughout the United States can not readily coexist as operative legislation with various State laws covering the same field. That principle in our opinion is not applicable to the subject-matter of the Eighteenth Amendment. There is no inherent or necessary incompatibility between the contemporaneous existence and enforcement of both Federal and State laws designed to enforce prohibition. Therefore it is manifest to us that the explicit words of section 2 vesting 'concurrent power' to enforce prohibition both in Congress and in the States mean something more than the 'concurrent power' to which reference is made in Sturges v. Crowninshield, 4 Wheat. 122, 193, 4 L.Ed. 529, as existing without express words."

It is here argued, for the reversal of the judgments in each of the appeals before us, that, if the respective States may enact and enforce its own legislation on the subject, authority is found only for legislation enacted subsequent to the adoption by the States of the Eighteenth Amendment, and that, as the appellants here were each convicted under legislation enacted prior to the adoption of that amendment, a reversal must be ordered on that account.

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