Chapman v. Boynton
| Decision Date | 13 May 1933 |
| Docket Number | No. 1734.,1734. |
| Parties | CHAPMAN v. BOYNTON, Atty. Gen. of Kansas, et al. |
| Court | U.S. District Court — District of Kansas |
J. H. Brady, N. E. Snyder, and Frank Thompson, all of Kansas City, Kan., for plaintiff.
Roland Boynton, Atty. Gen., and Dunkin Kimble, Asst. Atty. Gen., for defendants.
This controversy involves the validity of the "Bone Dry" intoxicating liquor law of Kansas.
Plaintiff seeks a restraining order against the defendants, and asks for the assembling of a three-judge court to hear the case on application for an interlocutory injunction.
Roland Boynton, Attorney General for Kansas, has filed a motion to dismiss the bill for want of equity and lack of jurisdiction of this court to hear the cause.
The plaintiff's bill prays that the defendants be enjoined from enforcing the intoxicating liquor laws of Kansas (article 21, chapter 21, of the Revised Statutes of the state of Kansas 1923 21 — 2101 et seq.), in so far as such laws prohibit the sale of malt beverages containing not more than 3.2 per centum of alcohol by weight. Plaintiff alleges and contends that he has secured a dealer's permit in fermented liquors from the collector of internal revenue for the District of Kansas, and that, in so far as the intoxicating liquor laws of Kansas prohibit the sale of such malt beverages, they are unconstitutional and void, being repugnant to the Fourteenth Amendment and to clause 2 of article 6 of the Constitution of the United States.
Plaintiff's bill shows that all of the parties to the action are residents and citizens of the state of Kansas.
The defendants contend that the plaintiff's bill fails to present a substantial federal question, and, since there is no diversity of citizenship shown on the face of the bill, the court is without jurisdiction to hear the cause, and, such being the case, the District Judge may rule on the motion to dismiss the plaintiff's bill without convening a three-judge court for that purpose.
Does the plaintiff's bill on its face disclose a lack of jurisdiction? And, if there is a failure of jurisdiction, is it necessary to convene a three-judge court for the purpose of dismissing it?
It appears plain, there being an absence of diversity of citizenship, that, if the bill fails to present a substantial federal question, this court is without jurisdiction, and the bill must fall of its own weight. There is, therefore, but one question before this court, Does the plaintiff's attack upon the constitutionality of the intoxicating liquor laws of the state of Kansas present a substantial federal question in view of the previous decisions and construction of the intoxicating liquor laws of the state of Kansas and of the Federal Prohibitory Act? This, I think, must be answered in the negative.
The constitutionality of the intoxicating liquor laws of the state of Kansas has been determined by her Supreme Court and by the Supreme Court of the United States. In Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 205, it was held:
"It belongs to the legislative department to exert what are known as the police powers of the State, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety — subject to the power of the courts to adjudge whether any particular law is an invasion of rights secured by the Constitution." Syl. pars. 1 and 3.
See, also, State v. Sherman, 81 Kan. 874, 107 P. 33, 135 Am. St. Rep. 403. Also appendix attached to this opinion, giving digest of territorial and state laws of Kansas.
The fact that Congress has seen fit to liberalize the federal prohibitory liquor laws authorized by the Eighteenth Amendment to the Constitution by allowing an increased alcoholic content of beer does not, in my opinion, affect the existing liquor laws of the several states. The National Prohibition Act (27 USCA § 1 et seq.) passed by Congress in 1919 provided that intoxicating liquors within the meaning of the act were such liquors that contained in excess of one-half of 1 per cent. of alcohol by volume. That act was held to be constitutional. The states have concurrent jurisdiction with the federal government to enforce the Eighteenth Amendment to the Constitution by appropriate legislation.
The Eighteenth Amendment specifically provided that: "The Congress and the several States shall have concurrent power to enforce this Article by appropriate Legislation."
The constitutionality or validity of a state's statute is not affected by the mere fact that it has a broader scope than the provisions of the National Prohibition Act upon the same subject. Van Oster v. Kansas, 272 U. S. 465, 47 S. Ct. 133, 71 L. Ed. 354, 47 A. L. R. 1044.
A similar question was under consideration in McCormick & Co. v. Brown, 286 U. S. 131, 52 S. Ct. 522, 527, 76 L. Ed. 1017, in which the court quoted from United States v. Lanza, 260 U. S. 377, 43 S. Ct. 141, 67 L. Ed. 314, as follows:
The McCormick Case, supra, also laid at rest the plaintiff's claim that his right to sell malt beverages in Kansas in opposition to the Kansas intoxicating liquor laws has been strengthened by the fact that he has obtained from the collector of internal revenue for the District of Kansas a retail dealer's permit in fermented liquors. It was there held that the fact a federal permit had been issued for the sale of certain preparations containing alcohol did not prevent the state from placing additional restriction upon the sale of such preparations.
The intoxicating liquor law of Kansas provides that:
"It shall be unlawful for any person to directly or indirectly manufacture, sell, barter, or give away, furnish or keep or have in his possession for personal use or otherwise, any spirituous, malt, vinous, fermented or other intoxicating liquors. * * *" R. S. 21 — 2101, Laws 1917, ch. 215, § 1.
"All liquors mentioned in Laws of 1917, ch. 215, sec. 1, as amended, shall be construed and held to be intoxicating liquors within the meaning of this act." R. S. 21 — 2109.
Malt and fermented liquors being specifically mentioned in the section, beer containing 3.2 per cent. alcohol must necessarily fall within the statutory definition of intoxicating liquors.
In City of Topeka v. Heberling, 134 Kan. 330, 5 P.(2d) 816, an instruction that, as a matter of law, "home brew," "when containing three or more per cent. of alcohol, would be considered as intoxicating," was upheld by the Kansas Supreme Court. The same court has held that beer is presumed to be intoxicating under the Kansas prohibitory liquor law. State v. May, 52 Kan. 53, 34 P. 407.
The right to regulate the use, or to prohibit the use, manufacture, or sale, of liquor within a state, is a valid exercise of the police power of that state, the exercise of which is reserved to the several states by the Constitution of the United States. The exercise of a valid police power by a state violates none of the property rights secured under the Fourteenth Amendment to the Constitution of the United States. These propositions are so well settled that citations of authority are hardly necessary. However, see McCormick & Co. v. Brown, 286 U. S. 131, 52 S. Ct. 522, 76 L. Ed. 1017; Crane v. Campbell, 245 U. S. 304, 38 S. Ct. 98, 62 L. Ed. 304; Butler v. Perry, 240 U. S. 328, 36 S. Ct. 258, 60 L. Ed. 672; Eberle v. Michigan, 232 U. S. 700, 707, 34 S. Ct. 464, 58 L. Ed. 806; Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192, 201, 33 S. Ct. 44, 57 L. Ed. 187; and Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549, 568, 31 S. Ct. 259, 55 L. Ed. 339.
The plaintiff seeks to raise a federal question by alleging that the "Bone Dry Law" of Kansas is unconstitutional. It is argued in this connection that the Kansas law is in conflict with the National Prohibition Act and the recent Revenue Act removing from the operation of the National Prohibition Act the sale of 3.2 per cent. beer. But plaintiff apparently overlooks the rule clearly stated in Colonial Drug & Sales Co. v. Western Products Co. (C. C. A.) 54 F. (2d) 216. There it was said that this question has been so often decided that it has ceased to be a federal question. That rule is applicable and controlling in the instant case. The identical question has been decided many times by the United States Supreme Court; that is to say, a state may legislate against intoxicating liquors as strictly as it reasonably desires. The fact that it goes farther than the acts of Congress makes no legal difference. Congress may legislate as it desires within its own field, and the state may legislate as it desires within its...
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United States v. Robason, 6908.
...laws of Kansas from 1855 to 1933, together with citations pertaining thereto, in a note or appendix to the opinion in Chapman v. Boynton, D.C., 4 F.Supp. 43, 47, from which it appears that prohibition of the beverage liquor traffic has had a progressive development in Kansas from regulation......