Commonwealth v. Nickerson

• Decision Date: 17 September 1920
• Citation: 128 N.E. 273,236 Mass. 281
• Parties: COMMONWEALTH v. NICKERSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 281

128 N.E. 273

COMMONWEALTH

v.NICKERSON.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 17, 1920.

Report from Superior Court, Suffolk County; Hugo A. Dubuque, Judge.

Florence Nickerson was convicted in the municipal court of the city of Boston of selling intoxicating liquors without license and contrary to law, and she appealed to the superior court, which reported the case to the Supreme Judicial Court. Verdict ordered to stand in accordance with the terms of the report.Daniel M. Lyons, Asst. Dist. Atty., of Boston, for the commonwealth.

Adolphus M. Burroughs, of Boston, for defendant.

RUGG, C. J.

The defendant is charged with having sold intoxicating liquor without a license and contrary to law at Boston on February 12, 1920. The complaint is framed under R. L. c. 100, §§ 1 and 53, in two counts for two separate sales. The only evidence offered at the trial tended to show that the defendant on the date alleged made two distinct sales of whisky containing 47 per cent. of alcohol by volume at 60 degrees Fahrenheit. The defendant offered no evidence. It is not contended that she was authorized to make the sales either by federal or state law. The single question raised on the record and argued at the bar is whether the statute of this commonwealth prohibiting such sales without a license and providing penalty for the violation thereof is valid and enforceable since the adoption of the Eighteenth Amendment to the Constitution of the United States and the enactment of the National Prohibition Law.

The Eighteenth Amendment was proclaimed as having been ratified and thus became a part of the fundamental law of the land, on January 29, 1919. 40 U. S. Stats. at Large, 1941. Its first two sections, being the ones here pertinent, are in these words:

‘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.

‘Sec. 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.’

Congress, pursuant to the power conferred upon it by the second section of the Eighteenth Amendment ‘to enforce this article by appropriate legislation,’ has enacted the National ProhibitionLaw, being Act of October 28, 1919, c. 85, Acts Sixty-Sixth Congress, 41 U. S. Stats. at Large, 305, known as the Volstead Act.

Confessedly both the Eighteenth Amendment and the Volstead Act were in force and effect on the date named in the complaint and at the time of the sales involved in the case at bar.

By title II, § 1, of the Volstead Act it is provided that ‘the word ‘liquor’ or the phrase ‘intoxicating liquor’ shall be construed to include alcohol, brandy, whisky, rum, gin, beer, ale, porter, and wine, and in addition thereto any spirituous, vinous, malt, or fermented liquor, liquids, and compounds, whether medicated, proprietary, patented, or not, and by whatever name called, containing one-half of 1 per centum or more of alcohol by volume which are fit for use for beverage purposes,' with exceptions not here material. By section 3 of the same title it is provided that--

‘No person shall on or after the date when the Eighteenth Amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this act, and all the provisions of this act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented.’

By section 29 the penalty for a sale of liquor in violation of title II is for a first offense a fine of not more than $1,000 or imprisonment not exceeding 6 months, and for a second or subsequent offense a fine of not less than $200 nor more than $2,000 and imprisonment for not less than one month nor more than five years.

1. The construction given by the Supreme Court or the United States to the Eighteenth Amendment and to the Volstead Act is binding upon this court. The only decision of that court throwing light upon the pending question is Rhode Island v. Palmer, 253 U. S. 350, 40 Sup. Ct. 486, 588, 64 L. Ed. --, decided on the 7th of last June. Although one aspect of the Eighteenth Amendment was adjudged in Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U. S. 146, 163, 164, 40 Sup. Ct. 106, 64 L. Ed. 194, it is not relevant to the contentions raised in the case at bar. It was held in substance in the first five conclusions of the opinion in Rhode Island v. Palmer, concerning the Eighteenth Amendment, that (1) the resolution of Congress proposing it was sufficient in form; (2) it was lawfully proposed by Congress to the Legislatures;(3) ratification thereof by the Legislature was not subject to referendum provisions of state Constitutions and statutes; (4) its subject-matter was within the power of amendment reserved in the Constitution; (5) it has become a part of the Constitution of the United States. The next four conclusions are in these words:

‘6. The first section of the amendment-the one embodying the prohibition-is operative throughout the entire territorial limits of the United States, binds all legislative bodies, courts, public officers and individuals within those limits, and of its own force invalidates every legislative act-whether by Congress, by a state Legislature, or by a territorial assembly-which authorizes or sanctions what the section prohibits.

‘7. The second section of the amendment-the one declaring, ‘The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation’-does not enable Congress or the several states to defeat or thwart the prohibition, but only to enforce it by appropriate means.

‘8. The words ‘concurrent power’ in that section do not mean joint power, or require that legislation thereunder by Congress, to be effective, shall be approved or sanctioned by the several states or any of them; nor do they mean that the power to enforce is divided between Congress and the several states along the lines which separate or distinguish foreign and interstate commerece from intrastate affairs.

‘9. The power confided to Congress by that section, while not exclusive, is territorially coextensive with the prohibition of the first section, embraces manufacture and other intrastate transactions as well as importation, exportation and interstate traffic, and is in no wise dependent on or affected by action or inaction on the part of the several states, or any of them.’

By conclusion 10 the Volstead Act is declared applicable indifferently to the disposal for beverage of liquors manufactured before and after the Eighteenth Amendment became effective, and by conclusion 11 the declaration of that act that liquors containing as much as one-half of 1 per cent. of alcohol by volume and fit for use for beverage shall be treated as intoxicating was held to be within the scope of the Eighteenth Amendment.

2. It thus is apparent that the words ‘concurrent power’ as used in the Eighteenth Amendment have not yet been authoritatively and explicitly defined with reference to circumstances like those disclosed in the case at bar. It becomes necessary for us to consider the meaning of those words so far as necessary to the present decision.

The word ‘concurrent,’ like most other words, has different meanings dependent upon the connection in which it occurs and the end to be accomplished by its use. It is a common word found in many different associations. There are numerous decisions in which the word has been defined or used in a specific sense. It was said in Nielson v. Oregon, 212 U. S. 315, at page 319, 29 Sup. Ct. 383, at page 384 (53 L. Ed. 528):

‘In Wedding v. Meyler, 192 U. S. 573, 584, construing the term ‘concurrent jurisdiction,’ as given to Kentucky and Indiana over the Ohio river, this court * * * said: ‘Concurrent jurisdiction, properly so called, on rivers is familiar to our legislation, and means the jurisdiction of two powers over one and the same place. There is no reason to give an unusual meaning to the phrase.’' Nicoulin v, O'Brien, 248 U. S. 113, 39 Sup. Ct. 23, 63 L. Ed. 155.

The result of this kind of grant of power to two different states is that, while one may legislate effectively over the entire river in the absence of conflicting statutes by another state having like power, it cannot punish one for doing within the territory of another state acts authorized by its laws. It seems to us obvious, from Rhode Island v. Palmer that the concurrent power of the Eighteenth Amendment cannot be of this nature as to both Congress and the states. The decisions of state and inferior federal courts have been somewhat divergent concerning the meaning of the word ‘concurrent’ in the same connection as before the court in Nielson v. Oregon. Compare State v. Moyers, 155 Iowa, 678, 136 N. W. 896,41 L. R. A. (N. S.) 366;Roberts v. Fullerton, 117 Wis. 222, 93 N. W. 1111,65 L. R. A. 953;State v. Faudre, 54 W. Va. 122, 46 S. E. 269,63 L. R. A. 877, 102 Am. St. Rep. 927,1 Ann. Cas. 104, and decisions collected in Nielson v. Oregon, supra.

There are several other instances where the word ‘concurrent’ has been explained or defined in the judgments or opinions of justices of the United States Supreme Court. In Fox v. Ohio, 5 How. 410, at page 418 (12 L. Ed. 213), it is said respecting the powers of the general government and the states:

‘It very clearly appears * * * that there may be an exercise of concurrent jurisdiction in the case of a granted power; that the mere grant works no exclusion of state sovereignty, even where concurrentexercise may lead to occasional interference in the policy of either government, and that nothing short of absolute and total...