Allen v. Commonwealth

• Decision Date: 20 January 1921
• Citation: 105 S.E. 589
• Court: Virginia Supreme Court
• Parties: ALLEN. v. COMMONWEALTH.

105 S.E. 589

ALLEN.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 20, 1921.

Error to Corporation Court of Newport News.

Edward Allen was convicted of unlawfully manufacturing, etc., ardent spirits, and he brings error. Affirmed.

The indictment in this case was found on January 14, 1920, and charged that the accused, "within one year next prior to the finding of this indictment, in the * * * city of Newport News, did unlawfully manufacture, sell, offer, keep, store, and expose for sale, transport, dispense, solicit, advertise, receive orders for, and aid others in procuring ardent spirits, against the peace and dignity of the commonwealth of Virginia."

The accused on March 27, 1920, demurred to the indictment. The demurrer was overruled. Whereupon the accused pleaded guilty, the plea being tendered in person and with the consent of the attorney for the commonwealth and was entered of record; and thereupon the court below proceeded to hear and determine the case without the intervention of a jury; and, the evidence and argument of counsel having been fully heard, the said court found the accused guilty as charged in the indictment, and ascertained and fixed his punishment to be imprisonment in the jail of said city for the term of three months and assessed a fine against him of $300, and entered judgment accordingly.

Neither the evidence nor the facts proved on the trial appear from the record.

The assignments of error before us are as follows:

"Assignments of Error.

"First. The indictment was bad on demurrer. There is no valid statute in Virginia regulating the sale, possession, etc., of intoxicating liquor. When Congress passed the Volstead Act, which became effective January 16, 1920, cotemporaneously with the Eighteenth Amendment, the Mapp Act and all state statutes regulating intoxicating liquors became void.

"Second. The court was without jurisdiction to enforce a federal statute.

"Third. If it be conceded that the several states have 'concurrent power by appropriate legislation' to enforce the Eighteenth Amendment, Virginia has not, through the General Assembly, undertaken to do so.

"Fourth. The Mapp Act conflicts with the Volstead Act, and the laws of the states must yield to the acts of Congress passed in execution of the power conferred upon it by the federal Constitution.

"Fifth. The Eighteenth Amendment went into effect on the 16th day of January, 1920. It was proposed to put petitioner on trial March 27, 1920, at which time the federal law had rendered of no force and effect the state law."

The position taken for the accused on the subject of the first, fourth, and fifth assignments of error is thus summarized and stated in the petition for the writ of error in this case:

"There is in these * * * matters no such thing as a divided sovereignty. Jurisdiction is vested entirely in either the state or the nation and is not divided between the two" —-quoting from the opinion of the Supreme Court in Re Heff, 197 U. S. 505, 25 Sup. Ct. 511, 49 L. Ed. 855.

This position is further elaborated in the petition and other Supreme Court decisions are cited and relied on as follows:

"The state legislation must not create independent duties, but must conform to the federal law. As was said in Re Heff: 'If, by national law, a sale to or by an Indian was punished solely by imprisonment, and by state law solely by fine, how could both laws be enforced in respect to the same sale?'

"Upon examination of the Volstead Act it is found that a sale may be punished by fine alone, or by imprisonment, or both. The Mapp Act makes it obligatory that both fine and imprisonment be imposed. Under the Mapp Act one may have his quart a month. The Volstead Act denies this so-called privilege. The many inequalities go to show that the Mapp Act can no longer be the law. One may keep within the Mapp Act and run counter to the Volstead Act, or, observing the Volstead Act, bring on himself the condemnation of the state law.

"It is perceived that there can be no state and federal law, only when the laws occupy different planes. The police power, by the Eighteenth Amendment, for the regulation of intoxicating liquors the several states have now vested in the federal government wholly, and thereby have wholly divested themselves of the power; the federal government thus occupying the whole field to the exclusion of the states.

"But it is said by the provisions of the amendment the several states have, with Congress, 'concurrent power by appropriate legislation' to enforce the amendment.

"It was in contemplation of those who framed the amendment that, while it might be adopted by three-fourths of the states that a Congress might be reluctant to pass legislation to enforce it, should this happen, then the several states were empowered to pass enforcement statutes.

"But Congress has acted. It was the first to exercise 'concurrent power, ' and, having acted, occupies the whole field. This act applies uniformly to the whole country.

"There was a time when the states might pass laws affecting interstate commerce. This was when the United States, having the right under the commerce clause, had not legislated. It had the power, but had not spoken.

"In the case of Southern Ry. Co. v. Reid, 222 U. S. 436, 32 Sup. Ct. 142, 56 L. Ed. 260, Mr. Justice McKenna said:

" 'It is well settled that, if the state and Congress have a concurrent power, that of the state is superseded when the power of Congress is exercised.'

"When Congress acts with reference to a matter confided to it by the Constitution of the United States, then the federal statute displaces all conflicting local legislation touching that matter. Lake Shore, etc., R. Co. v. Ohio, 173 U. S. 297, 19 Sup. Ct. 465, 43 L. Ed. 702.

"Even though an act of Congress does not go into effect until a certain time following its passage, state legislation is immediately superseded upon the federal statute becoming effective. Northern Pac. R. R. Co. v. Washington, 222 U. S. 370, 32 Sup. Ct. 160, 56 L. Ed. 237.

"There can be in reality no such thing as concurrent power to perform an act, certainly in two sovereignties. We have many instances of what is termed concurrent jurisdiction; yet it is a well-established principle of law that the court first obtaining jurisdiction of the person or subject-matter will retain this jurisdiction to the exclusion of another court having in the first instance a concurrent jurisdiction.

"A concurrent power in two distinct sovereignties to regulate the same thing is inconsistent, as it is impracticable in action. It involves a moral and physical impossibility. A joint action is not supposed, and two independent wills cannot do the same thing. The action of one must necessarily precede the action of the other, and that which is first, being competent, must establish the rule. If the power be equal, as must be the case, both being sovereign, one may undo what the other does, and this must be the result of their action. Smith v. Turner, 7 How. 396, 12 L. Ed. 702."

Allan D. Jones, of Newport News, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

SIMS, J., (after stating the facts as above). The questions sought to be raised by the second and third assignments of error are not presented by the record in this case. The law which the record discloses as enforced by the judgment under review was the state law, enacted, in the exercise of the police power of the state, prior to the going into effect of the Eighteenth Amendment to the federal Constitution and prior to the enactment by the Congress of the Volstead Act (41 Stat. 305).

The question presented for our decision by the remaining assignments of error, based upon the record before us, is the following:

(1) Did the Congress, by the enactment of the Volstead Act, in pursuance of the power conferred upon it by the Eighteenth Amendment, take possession of the entire field of prohibition legislation, state as well as federal, so as to nullify the existing state law on the subject?

This question must be answered in the negative.

The Supreme Court decisions relied upon for the accused concerning the supremacy of the federal power have reference to subjects concerning which the power of legislation has been, expressly or by necessary implication, granted to the federal government by the United States Constitution, so as to lodge such power in the federal government exclusively when it has taken possession of the field of legislation.

There are other subjects concerning which, as a well-established principle, it has long been well settled that the states may exercise independent legislative power. In the case of Commonwealth v. Nickerson (Mass.) 128 N. E. 273, involving precisely the same question as we have now before us, this is said by the Supreme Court of Massachusetts:

"The general principle as to the right of the states to exercise the power of effective legislation concerning subjects over which Congress also has power was stated in these words (summarizing language of Mr. Justice Storey in Houston v. Moore, 5 Wheat. 1, at page 49, 5 L. Ed. 19) in Gilman v. Philadelphia, 3 Wall. 713, at page 730, 18 L. Ed. 96: 'The states may exercise concurrent or independent power in all cases but three: (1) Where the power is lodged exclusively in the federal Constitution. (2) Where it is given to the United States and prohibited to the states. (3) Where, from the nature and subjects of the power, it must necessarily be exercised by the national government.' Illustrations of the scope and application of those principles are found in numerous decisions, where they are amplified and made even more clear in the judgments rendered.

"In Fox v. Ohio, 5 How. 410 (12 L. Ed. 213) the plaintiff in error was indicted for 'passingand uttering' counterfeit coin contrary to a statute of Ohio. The United States Constitution, by article 1, § 8, confers upon Congress power to punish counterfeiting. In holding valid...