Burrows v. Moran

• Citation: 89 So. 111,81 Fla. 662
• Parties: BURROWS v. MORAN, Sheriff.
• Decision Date: 03 May 1921
• Court: Florida Supreme Court

89 So. 111

81 Fla. 662

BURROWS v. MORAN, Sheriff.

Florida Supreme Court

May 3, 1921

Error to Circuit Court, Dade County; H. Pierre Branning, Judge.

Application of Timothy Burrows for writ of habeas corpus against D. W Moran, Sheriff of Dade county, Fla. Writ denied, and relator brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Eighteenth Amendment the supreme law of both United States and state governments. The Eighteenth Amendment is the supreme law of both the United States and the state governments. It specifically commands stated prohibitions, and likewise commands that 'the Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.'

Eighteenth Amendment, § 2, confers upon Congress and states separate power of enforcement. The second section of the Eighteenth Amendment confers upon the Congress and the several states each within its jurisdiction, power by its own enactments and procedure to separately enforce the commanded prohibitions such power in particular cases to be exercised by either one but by only one of the two sovereignties, to the end that violations of the specified organic prohibitions shall be redressed by one if the other fails to act, or by the first one to attain jurisdiction in any case.

Incidental power to make effective Eighteenth Amendment is subject to constitutional provisions not controlled thereby. While the Congress and the states may have implied or incidental power to define and enforce other propositions to make effective the organic mandate of the Eighteenth Amendment, yet such incidental power is to be exercised subject to other provisions of the federal Constitution that are not controlled in their operation by the commands of the Eighteenth Amendment.

Statutory exceptions need not be alleged in charging offense. Where a statute in one section defines an offense and in another section states exceptions to the definition, such exceptions are defensive matters and need not be alleged in charging the offense.

No discharge where judgment has legal basis in valid statute. Where a judgment has legal basis in a valid statute, and the judgment is not for other reasons illegal or void, the defendant will not be discharged on habeas corpus.

COUNSEL

Bart A. Riley and R. B. Gautier, both of Miami, for plaintiff in error.

Van C. Swearingen, Atty. Gen., and D. Stuart Gillis and Worth W. Trammell, Asst. Attys. Gen., for defendant in error.

OPINION

WHITFIELD. J.

By information filed in the criminal court of record for Dade county, Timothy Burrows was charged with having in his possession on June 15, 1920, in Dade county, Fla 'certain alcoholic and intoxicating liquors, to wit, 40 quarts of whisky commonly known as Canadian Club,' contrary to the state statute. The defendant was arraigned in open court and pleaded guilty. Thereupon the court rendered the following judgment and sentence:

'It is the sentence of the law and the judgment of the court that you, Timothy Burrows, having pleaded guilty to possession of liquor, be confined at hard labor in the county jail for a term of three months.'

In habeas corpus proceedings the defendant was remanded to custody. Writ of error was allowed and taken.

Section 3 of chapter 7736, Acts of 1918, is as follows:

'That it shall be unlawful for any person, association of persons, or corporation, or any agent or employee of any person, association of persons, or corporation, to have in his, her, their, or its, possession, custody or control, in this state, any alcoholic or intoxicating liquors or beverages except as is hereinafter provided.'

Section 5 of the act, as amended by chapter 7890, Acts of 1919, contains the following:

'And nothing contained in this act shall be construed to make it unlawful for any person over the age of twenty-one years to possess, have in custody, or control, in such person's bona fide residence for the personal use of himself or herself and family, and not to be disposed of to any other person in any way, not exceeding four quarts of distilled alcoholic or intoxicating liquors or beverages and twenty quarts of malt or fermented alcoholic or intoxicating liquors or beverages, either or both; provided, however, that such person obtained and had in his possession said liquors before this act became a law, but this shall not be construed to permit any such person to possess, have in custody or control more than the maximum quantity of the particular class of liquors herein mentioned.'

Since January 16, 1920, the Eighteenth amendment to the federal Constitution is the paramount law on the subject of the manufacture of, and traffic in, intoxicating liquors for beverage purposes.

Section 1 of the amendment prohibits the production of and traffic in intoxicating liquors for beverage purposes, without reference to previous state and federal powers. The second section expressly commands that----

'The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.'

The principle of concurrent power in two sovereignties is not new. Under its dominant power to regulate interstate and foreign commerce Congress has conferred upon the state and federal courts concurrent jurisdiction. Walsh v. New York, N.H. & H. R. Co., 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L. R. A. (N. S.) 44; Pennsylvania R. Co. v. Puritan Coal Min. Co., 237 U.S. 121, 35 S.Ct. 484, 59 L.Ed. 867. Such jurisdiction is not dominant or dependent in either court, though the law being enforced is dominant. The power is concurrent or co-ordinate, equal, complete, and separate jurisdiction in each court to enforce a federal law that is dominant in either court. Rickey Land & Cattle Co. v. Wood, 218 U.S. 258, 31 S.Ct. 11, 54 L.Ed. 1032.

Under its commerce power, Congress may confer upon adjoining acquiescing states 'concurrent jurisdiction' or power to enforce their respective appropriate law on the waters of a boundary river without reference to the exact territorial boundary line on the land under the waters. This particular concurrent jurisdiction or power is separate, equal, co-ordinate power of adjoining sovereignties to enforce their respective laws, not the laws of a paramount authority. It has reference to a sovereignty's authority beyond its territorial limits and to matters not peculiarly within the province of another sovereignty. The compact between the states with the consent of Congress controls the nature and extent of the concurrent jurisdiction. State v. Conningham, 102 Miss. 237, 59 So. 76, Ann. Cas. 1914D, 182; Wedding v. Meyler, 192 U.S. 573, 24 S.Ct. 322, 48 L.Ed. 570, 66 L. R. A. 833; Nielsen v. State of Oregon, 212 U.S. 315, 29 S.Ct. 383, 53 L.Ed. 528; Sanders v. St. Louis & N. O. Anchor Line, 97 Mo. 26, 10 S.W. 595, 3 L. R. A. 390; Roberts v. Fullerton. 117 Wis. 222, 93 N.W. 1111, 65 L. R. A. 953, 7 R. C. L. 1066; Nicoulin v. O'Brien, 248 U.S. 113, 39 S.Ct. 23, 63 L.Ed. 155; Nicoulin v. O'Brien, 172 Ky. 473, 189 S.W. 724; J. S. Keator Lumber Co. v. St. Croix Corp., 72 Wis. 62, 38 N.W. 529, 7 Am. St. Rep. 837. See, also, Olin v. Kitzmiller (C. C. A.) 268 F. 348.

The Eighteenth Amendment is the supreme law of both the United States and the state governments. It specifically commands stated prohibitions and likewise commands that 'the Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.'

This express concurrent power is not controlled within its field of operation by other organic provisions, but that field is expressly limited to the enforcement of the paramount organic prohibitions 'by appropriate legislation.' There is thus conferred upon two distinct sovereignties, each within its jurisdiction, power by its own enactments and procedure, to separately enforce the commanded prohibitions, such power in particular cases to be exercised by either one, but by only one of the two sovereignties, to the end that violations of the specified prohibitions shall be redressed by one if the other fails to act, or by the first one to attain jurisdiction in any case. This construction gives harmonious, natural, and logical effect to every word of the Eighteenth Amendment, and makes effective enforcement of the paramount prohibitions practicable and universal in every portion of the United States, without conflicting with any provision or principle of organic law except as is designed to be done by the adoption of the Eighteenth Amendment.

The 'appropriate legislation' to enforce the organic prohibitions of the Eighteenth Amendment must conform to applicable provisions of organic law relative to property and liberty that are not modified by the Eighteenth Amendment as to the particular subjects.

While the Congress and the states may have implied or incidental power to define and enforce other prohibitions to make effective the organic mandate of the Eighteenth Amendment, yet such incidental power is to be exercised subject to other provisions of the federal Constitution that are not controlled in their operation by the commands of the Eighteenth Amendment. See Baender v. Barnett, 254 U.S. ----, 41 S.Ct. 271, 65 L.Ed. 597, February 28, 1921.

In order to redress...