Ammerman v. United States

• Decision Date: 23 August 1920
• Docket Number: 5507.
• Citation: 267 F. 136
• Parties: AMMERMAN et al. v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

267 F. 136

AMMERMAN et al. v. UNITED STATES. ^[1]

No. 5507.

United States Court of Appeals, Eighth Circuit.

August 23, 1920

E. G McAdams, of Oklahoma City, Okl., for plaintiffs in error.

Herman S. Davis, Asst. U.S. Atty., of Frederick, Okl. (Herbert M Peck, U.S. Atty., of Oklahoma City, Okl., on the brief), for the United States.

Before HOOK and STONE, Circuit Judges, and JOHNSON, District Judge.

JOHNSON District Judge.

Plaintiffs in error were convicted in the court below on an indictment charging them, under section 37 of the Penal Code (Comp. St Sec. 10201), with a conspiracy to violate the Act of March 1 1895, Sec. 8, 28 Statutes at Large, 697 (Comp. St. Sec. 4136b), by introducing and carrying from without the state of Oklahoma-- to-wit, from the city of Joplin, in the state of Missouri, into that part of Oklahoma which prior to its admission as a state was Indian Territory-- intoxicating liquors, namely, whisky, etc. The indictment alleges numerous overt acts. Plaintiffs in error, whom we shall hereafter call defendants, demurred to the indictment on the ground that it failed to state a public offense. The same question was raised at the close of the trial by motion for a directed verdict.

The defendants have assigned the overruling of their demurrer and the refusal to direct a verdict in their favor at the conclusion of the trial as error. To understand the questions raised by these assignments it is necessary to have in mind certain parts of the Act of March 1, 1895, and of the Enabling Act of the state of Oklahoma. Section 8 (the part material here) of the Act of March 1, 1895, is as follows: 'Any person * * * who shall carry, or in any manner have carried into said territory (Indian) any such liquors or drinks (intoxicating), or who shall be interested in * * * carrying into said territory any of such liquors or drinks, shall, upon conviction thereof, be punished,' etc.

The Enabling Act of Oklahoma (34 Statutes at Large, 267) contains the following:

'Sec. 3. * * * And said convention shall provide in said Constitution . . .

* * * *

'That the manufacture, sale, barter, giving away, or otherwise furnishing, except as hereinafter provided, of intoxicating liquors within those parts of said state now known as the Indian Territory and the Osage Indian reservation and within any other parts of said state which existed as Indian reservations on the first day of January, nineteen hundred and six, is prohibited for a period of twenty-one years from the date of the admission of said state into the Union, and thereafter until the people of said state shall otherwise provide by amendment of said Constitution and proper state legislation. Any person, individual or corporate, who shall manufacture, sell, barter, give away, or otherwise furnish any intoxicating liquor of any kind, including beer, ale, and wine, contrary to the provisions of this section, or who shall, within the above-described portions of said state, advertise for sale or solicit the purchase of any such liquors, or who shall ship or in any way convey such liquors from other parts of said state into the portions hereinbefore described, shall be punished, on conviction thereof, by fine not less than fifty dollars and by imprisonment not less than thirty days for each offense. * * *

'Upon the admission of said state into the Union these provisions shall be immediately enforceable in the courts of said state.'

The first section of said Enabling Act, after providing that:

'The inhabitants of all that part of the area of the United States now constituting the territory of Oklahoma and the Indian Territory, as at present described, may adopt a Constitution and become the state of Oklahoma, as hereinafter provided'

-- contains this proviso:

'Provided, that nothing contained in the said Constitution shall be construed to limit or impair the rights of person or property pertaining to the Indians of said territories (so long as such rights shall remain unextinguished) or to limit or affect the authority of the government of the United States to make any law or regulation respecting such Indians, their lands, property, or other rights by treaties, agreement, law, or otherwise, which it would have been competent to make if this act had never been passed.'

The defendants state their first contention in the following language:

'The provisions of section 3 of the Oklahoma Enabling Act (34 Stat. 267), requiring the state of Oklahoma to forbid, under penalties, the introduction of intoxicating liquor from other parts of the state into the former Indian Territory, can be upheld only by construing it as repealing section 8 of the Act of March 1, 1895 (28 Stat. 697), in so far as that act dealt with such intrastate transactions. Otherwise, the provision of the Enabling Act must be held to be repugnant to article 1, section 8, Const. U.S., as an attempt to authorize the concurrent regulation of commerce which must be exclusively regulated either by state or nation. The Enabling Act is susceptible of a reasonable construction, which will avoid such conflict with the Constitution.'

Upon the question of the introduction of intoxicating liquors from other parts of the state of Oklahoma into former Indian Territory, the Supreme Court of the United states in Joplin Mercantile Co. v. United States, 236 U.S. 546, 547, 35 Sup.Ct. 291, 297 (59 L.Ed. 705), said:

'Without deciding that such control must necessarily be exclusive of coexisting federal jurisdiction over the same subject-matter, it seems to us that concurrent jurisdiction would be productive of such serious inconvenience and confusion, that, in the absence of an express declaration of a purpose to preserve it, we are constrained to hold that the active exercise of the federal authority was intended to be at least suspended pending the exertion by the state of its authority in the manner prescribed by the Enabling Act. * * * Our opinion upon this branch of the case is that, pending the continuance of state prohibition as prescribed by the Enabling Act, the provisions of the act of 1895 respecting intrastate transactions are not enforceable.'

Defendants' second contention is:

'The Act of March 1, 1895, having been superseded as to intrastate transactions by the Enabling Act, it is beyond the power of Congress to continue the former act in force as to interstate transactions.'

The contention that-- the Act of March 1, 1895, having been superseded as to intrastate transactions by the Enabling Act-- it is beyond the power of Congress to continue the Act of March 1, 1895, in force as to interstate transactions, cannot be sustained. The Supreme Court of the United States has decided otherwise. In Ex parte Webb, 225 U.S. 682, 691, 32 Sup.Ct. 776, 779 (56 L.Ed. 1248), that court said:

'In view of these considerations, and others to be mentioned, it seems to us that Congress, so far from intending by the Enabling Act to repeal so much of the act of 1895 as prohibits the carrying of intoxicating liquors into the Indian Territory from points without the state, framed the Enabling Act with a clear view of the distinction between the powers appropriate to be exercised by the new state over matters within her borders, and the powers appropriate to be exercised by the United States over traffic originating beyond the borders of the new state and extending within the Indian Territory. * * * The power of Congress to regulate commerce between the states, and with Indian tribes situate within the limits of a state, justifies Congress, when creating a new state out of territory inhabited by Indian tribes, and into which territory the introduction of intoxicating liquors is by existing laws and treaties prohibited, in so legislating as to preserve those laws and treaties in force to the extent of excluding interstate traffic in intoxicating liquors that would be inconsistent with the prohibition. Dick v. United States, 208 U.S. 340, 353. This being so, and since we find in the Oklahoma Enabling Act no repeal, express or implied, of the act of 1895 so far as pertains to the carrying of liquor from without the new state into that part of it which was the Indian Territory (saving as to liquor brought in by the state for the use of state agencies established under the provisions of the Enabling Act), it follows, upon the admitted facts, that the United States District Court has jurisdiction to punish the petitioner for the offense that he has committed.'

The third contention of the defendants, as stated by them, is:

'It cannot be sustained as an exercise of the power of Congress to regulate interstate commerce, because it discriminates against the ports of the state of Oklahoma, by forbidding transportation of liquor into Oklahoma from other states, while permitting the unrestricted transportation of liquor into the other states of the Union. It cannot be sustained as an exercise of the power of Congress to regulate commerce with the Indian tribes, because it gives a preference to the ports of the state of Oklahoma by permitting that state to regulate for itself the commerce in intoxicating liquors between the people of other parts of the state and the former Indian Territory, while denying to the people of all other states the right to engage in such commerce under penalty of fine and imprisonment.'

The contention raised by the defendants in the above proposition was argued to the Supreme Court of the United States in the Joplin Mercantile Co. Case. The question is referred to in the opinion, and in the course of the opinion it is stated:

'And it is said that this question is not foreclosed by the decision in the Webb Case sustaining the act as to interstate transactions, because-- and this is

...