Endleman v. United States

• Decision Date: 28 February 1898
• Docket Number: 357.
• Citation: 86 F. 456
• Parties: ENDLEMAN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

86 F. 456

ENDLEMAN et al. v. UNITED STATES.

No. 357.

United States Court of Appeals, Ninth Circuit.

February 28, 1898

Crews &amp Hannum and C. S. Blackett (W. E. Crews, of counsel), for plaintiffs in error.

Burton E. Bennett (H. S. Foote, of counsel), U.S. Dist Atty.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge.

It is enacted, in section 14 of the act of May 17, 1884, providing a civil government for Alaska (23 Stat. 24, 28), that 'the importation, manufacture, and sale of intoxicating liquors in said district except for medical, mechanical and scientific purposes is hereby prohibited under the penalties which are provided in section nineteen hundred and fifty five of the Revised Statutes for the wrongful importation of distilled spirits. And the president of the United States shall make such regulations as are necessary to carry out the provisions of this section. ' By section 1955 of the Revised Statutes the president is given 'power to restrict and regulate, or to prohibit, the importation and use * * * of distilled spirits into and within the territory of Alaska. * * * And any person willfully violating such regulations shall be fined not more than $500, or imprisoned not more than six months. ' By the executive order of May 4, 1887, the landing of intoxicating liquors at any port or place in the territory of Alaska is prohibited except upon a permit of the chief officer of the customs at such port or place, to be issued upon evidence satisfactory to such officer that the liquors are imported and are to be used solely for sacramental, medicinal, mechanical, or scientific purposes. By the executive order of March 12, 1892, the sale of intoxicating liquors for medicinal, mechanical, and scientific purposes can be made only by such persons in the territory as shall have obtained a special permit from the governor of the territory to sell intoxicating liquors therein upon certain specified conditions.

The appellant and one Edward Lord were indicted by the grand jury in the district court of the United States for the district of Alaska, in December, 1896, for selling intoxicating liquors within said district. The indictment charges that:

'The said Max Endleman and Edward Lord, at or near juneau within the said district of Alaska, * * * on or about the 7th day of December, 1896, and at divers other times before, did unlawfully and willfully sell to John Doe and Richard Roe and to divers other persons, whose real names are to the grand jurors unknown, as intoxicating liquor, called whisky, to wit, one glass, pint, quart, gallon, of said liquor (the real quantity is to the grand jurors unknown), without having first complies with the law concerning the sale of intoxicating liquors in the district of Alaska.'

The defendants moved to quash this indictment upon the grounds (1) that two or more offenses were charged in the same count and same indictment; (2) that the indictment was fatally defective for duplicity; (3) that two or more offenses were charged in the same indictment in the same count against two defendants, without segregating the offenses committed by each defendant; (4) that the indictment was too vague, indefinite, and uncertain to afford the accused proper notice of the crime charged against them to enable them to properly plead or prepare their defense. The motion to quash the indictment was denied, and thereupon the defendants interposed a demurrer on the grounds: (1) That the court had no jurisdiction over the subject-matter of the action; (2) that more than one crime is charged in the indictment against the defendants in the same count; (3) that the facts stated in the indictment do not constitute a crime, or any crime, against the defendants, or either of them. The demurrer was overruled, and the defendants plead not guilty. At the trial the defendants moved the court to require the district attorney to elect upon what particular sale set forth in the indictment he would rely for a conviction, which motion was denied. Upon the first trial the jury was unable to agree. Upon the second trial the jury found the defendant Max Endleman guilty as charged in the indictment, and Edward Lord not guilty. The defendant Endleman moved in arrest of judgment and for a new trial, and these motions were denied.

The errors assigned, 16 in number, relate to the sufficiency of the indictment as against the objections that were raised by the motion to quash, by the demurrer, and by the motion in arrest of judgment; errors occurring during the progress of the trial, to which exceptions were taken; and errors in the instructions of the court to the jury. The objections raised by the motion to quash the indictment may be dismissed with the observation that a motion to quash an indictment is ordinarily addressed to the discretion of the court, and therefore a refusal to quash cannot generally be assigned as error. U.S. v. Rosenburgh, 7 Wall. 580; U.S. v. Hamilton, 109 U.S. 63, 3 Sup.Ct. 9; Logan v. U.S., 144 U.S. 263, 12 Sup.Ct. 617; Durland v. U.S., 161 U.S. 306, 16 Sup.Ct. 508.

In support of the first ground of demurrer, it is contended that the law upon which the prosecution is based is unconstitutional, because, among other things, the government of the United States can exercise only those specific powers conferred upon it by the constitution; that the constitution guaranties to the citizens the right to own, hold, and acquire property, and makes no distinction as to the character of the property' that intoxicating liquors are property, and are subjects of exchange, barter, and traffic like any other commodity in which a right of property exists; that, inasmuch as the power to regulate commerce was committed to congress to relieve it from all restrictions, congress cannot itself impose restrictions upon commerce by prohibiting the sale of a particular commodity; that, if congress has the power to regulate the sale of intoxicating liquors within the territories as a police regulation, it can only enact laws applicable to all the territories alike. The answer to these and other like objections urged in the brief of counsel for defendant is found in the now well-established doctrine that the territories of the United States are entirely subject to the legislative authority of congress. They are not organized under the constitution, nor subject to its complex distribution of the powers of government as the organic law, but are the creation, exclusively, of the legislative department, and subject to its supervision and control. Benner v. Porter, 9 How. 235, 242. The United States, having rightfully acquired the territory, and being the only government which can impose laws upon them, has the entire dominion and sovereignty, national and municipal, federal and state. Insurance Co. v. Canter, 1 Pet. 511, 542; Cross v. Harrison, 16 How. 164, 193; National Bank v. Yankton Co., 101 U.S. 129, 133; Murphy v. Ramsey, 114 U.S. 15, 44, 5 Sup.Ct. 747; Late Corporation of Church of Jesus Christ of Latter-Day Saints v. U.S., 136 U.S. 1, 42, 43, 10 Sup.Ct. 792; McAllister v. U.S., 141 U.S. 174, 181, 11 Sup.Ct. 949; Shively v. Bowlby, 152 U.S. 1, 48, 14 Sup.Ct. 548. Under this full and comprehensive authority, congress has unquestionably the power to exclude intoxicating liquors from any or all of its territories, or limit their sale under such regulations as it may prescribe. It may legislate in accordance with the special needs of each locality, and vary its regulations to meet the conditions and circumstances of the people. Whether the subject elsewhere would be a matter of local police regulation, or within state control under some other power, it is immaterial to consider. In a territory all the functions of the government are within the legislative jurisdiction of congress, and may be exercised through a local government, or directly by such legislation as we have now under consideration.

The contention that the law is in restraint of trade and commerce, and therefore in conflict with the doctrine declared by the supreme court in Leisy v. Hardin, 135 U.S. 100, 10 Sup.Ct. 681, is also without merit. It was determined in that case that the law of a state prohibiting the sale of intoxicating liquors except for pharmaceutical, medical, chemical, or sacramental purposes, and under a license from a county court of the state, was, as applied to a sale by the importer, and in the original packages or kegs, of liquors manufactured and brought from another state, unconstitutional and void, as repugnant to the clause of the constitution granting to congress the power to regulate commerce with foreign nations and among the several states. In pursuance of this decision, and in recognition of the conditions in certain localities, congress provided, in the act of August 8, 1890, (26 Stat. 313):

'That all fermented, distilled, or other intoxicating liquors or liquids transported into any state or territory or remaining for use, consumption, sale or storage therein, shall upon arrival in such state or territory be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers to the same extent and in the same manner as though such liquids or liquors had been produced in such state

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