Ex parte Crookshank

• Decision Date: 03 February 1921
• Docket Number: 319.
• Court: U.S. District Court — Southern District of California
• Parties: Ex parte CROOKSHANK.

269 F. 980

Ex parte CROOKSHANK.

No. 319.

United States District Court, S.D. California, Southern Division.

February 3, 1921

Jackson Mahon, Jr., and Emmons, Aldrich & Heck, all of Bakersfield Cal., for petitioner.

W. P Grijalva, of Bakersfield, Cal., for City of Bakersfield.

Jesse E. Stephens, City Atty., and J. H. O'Connor, Deputy City Atty., both of Los Angeles, Cal., amici curiae.

BLEDSOE District Judge.

On the 20th day of September, 1920, the council of the city of Bakersfield, operating under a freeholders' charter authorized by the Constitution of the state of California duly passed an ordinance prohibiting certain uses of intoxicating liquors. Relevant sections involved contain the following provisions:

Section 1: 'This entire ordinance shall be deemed to be an exercise of the power granted by Article Eighteen of the Constitution of the United States and of the police power of the city of Bakersfield for the protection of the public health, peace, safety, and morals of the people of said city and all of its provisions shall be liberally construed for the accomplishment of these purposes.'

Section 2: 'The words 'intoxicating liquors' or 'intoxicating liquor,' wherever used in this ordinance, shall be construed to include any distilled, malt, spirituous, vinous, fermented or alcoholic liquor, which contains more than one-half of one per cent., by volume of alcohol, and all alcoholic liquids and compounds whether proprietary, patented or not, which are potable or capable of being used as a beverage, and which contain more than one-half of one per cent. by volume of alcohol. * * *'

Section 4: 'It shall be unlawful for any person, directly or indirectly, to manufacture, receive, sell, serve, give away, transport, or otherwise dispose of any intoxicating liquor within the city of Bakersfield, or to import any such liquor into, or to export any such liquor from said city, except as provided herein.'

Section 6: 'It shall be unlawful for any person to have, keep or store any intoxicating liquor in any public or semipublic place within said city except as provided herein.'

Numerous other provisions are in the ordinance respecting the manufacture and use, under permits, of intoxicating liquor 'for nonbeverage purposes.' Section 15 provides a penalty in the following language:

Section 15: 'Any person who shall violate any of the provisions of this ordinance shall be guilty of a misdemeanor and on conviction thereof shall be punished by a fine of not less than two hundred and fifty ($250.00) dollars, nor more than five hundred ($500.00) dollars or imprisonment in the county jail for a period not to exceed one hundred eighty (180) days, or by both such fine and imprisonment.'

On the 13th day of December last, a complaint in proper form was filed in the police court of the city of Bakersfield, charging the above-named petitioner with a violation of section 6 of the ordinance above referred to, and alleging specifically that he did on the 11th day of December, 1920, within the corporate limits of the said city--

'willfully and unlawfully have, keep and store intoxicating liquor in a semipublic place known and located at 615 Kern street in the city of Bakersfield, without having a permit so to do, in violation of the provisions of section 6 of said ordinance,' etc.

Application for the writ herein is made on the ground that petitioner's present detention, pursuant to process issued upon said complaint, is illegal, in that--

'The said ordinance attempts to define and punish an offense which has been and is now solely within the jurisdiction of the United States to define and punish, saving and except as the power is declared in said amendment to lie within the state to concurrently legislate and punish for the violation of the said amendment and that the state of California has not, since the adoption of the said amendment, passed any law of any kind or nature concurrently punishing the acts referred to in the said Eighteenth Amendment.'

It is also asserted that the ordinance is invalid, in that it is in conflict with the Volstead Act, in that the minimum fine provided for by said ordinance is $250.

The contentions of the petitioner, if I understand them aright, are that 'the people of the United States, through their respective legislatures, have granted to the United States, all power that they may have had to regulate or prohibit the traffic in intoxicating liquors'; assuming that position to be unsustained, it is urged that no power exists in a municipality to enact or enforce legislation in restraint of the liquor traffic, under the Eighteenth Amendment or otherwise, until the state has, by appropriate enforcement legislation, enacted subsequently to the ratification of the amendment, actually authorized such municipality so to do. Admittedly no such 'enforcement' legislation has been enacted by the state of California per se.

In addition it is contended that the 'concurrent power' conferred upon the several states by section 2 of the amendment should be strictly construed, and that it permits of no prohibitory legislation by a state, except such as is limited to an express prohibition of the things specially mentioned in section 1 of the amendment, viz. the 'manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from,' the United States; that a state, through any instrumentality, may go no further; and that, in consequence, any legislation aimed at the mere 'possession' of intoxicating liquor is beyond the power of the state and therefore void. Finally, it is said that the provisions of the ordinance in question, assuming their validity otherwise, are in such conflict with the terms of the Volstead Law (41 Stat. 305) that they cannot stand.

The circumstances leading up to and attending upon the submission and ratification of the Eighteenth Amendment to the federal Constitution are of such recent occurrence as to require no restatement at this time. Previous to the adoption of that amendment, it was the established law that the several states possessed the amplest authority, under the police power, to regulate and even absolutely prohibit the liquor traffic in any of its various forms or occurrences. Mugler v. Kansas, 123 U.S. 623, 8 Sup.Ct. 273, 31 L.Ed. 205; Purity Extract Co. v. Lynch, 226 U.S. 192, 201, 33 Sup.Ct. 44, 57 L.Ed. 184. It may not, I think, be maintained with success that in the adoption and ratification of the Eighteenth Amendment the several states were surrendering any of the powers theretofore possessed by them, respecting their own jurisdiction to prescribe effective prohibition of that traffic. In all that was done, they were simply conferring upon the federal government the like power to prohibit, which theretofore, in virtue of its organization and the character of the powers reserved to the states, it had not possessed. Hamilton v. Distilleries Co., 251 U.S. 146, 156, 40 Sup.Ct. 106, 64 L.Ed. 194. In other words, there was a surrendering by the states of the power to permit the liquor traffic, but no diminution of their power to prohibit it; they accorded to the federal government the jurisdiction to enforce absolute prohibition of the traffic (Ruppert v. Caffey, 251 U.S. 264, 40 Sup.Ct. 141, 64 L.Ed. 260; Rhode Island v. Palmer, 253 U.S. 350, 40 Sup.Ct. 486, 588, 64 L.Ed. 946, decided June 7, 1920); but they still retained the same right to themselves (Commonwealth v. Nickerson (Mass.) 128 N.E. 273, 277).

As a consequence, in so far as Congress should fail successfully to provide for effective prohibition, the state under its retained right could legislate to accomplish that end. In addition, pursuant to the express terms of the 'concurrent power' granted, the state might, 'by appropriate legislation,' in consonance with congressional action, itself legislate in enforcement of the Eighteenth Amendment within the limits of its own territory. Such I conceive to be the general effect of the situation created.

The state of California, as a sovereign state of the Union, by its Constitution (section 11, art. 11) has heretofore conferred upon 'any county, city, town, or township' the authority to 'make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws. ' This grant of power, it has been determined by the courts of California, is a 'direct grant' (Denton v. Vann, 8 Cal.App. 677, 680, 97 P. 675), and authorizes the subordinate agencies mentioned, without permissive action on the part of the state Legislature, to exercise within their respective limits 'the entire police power of the state, subject only to the control of the general laws' (Odd Fellows' Cemetery Ass'n v. San Francisco, 140 Cal. 226, 230, 73 P. 987, 988). No general law of the state affecting the subject-matter involved herein has been called to my attention.

The charter of the city of Bakersfield, enacted pursuant to constitutional authority (section 8, art. 11, Constitution of California), and thereafter ratified by the Legislature of the state (Stats. Cal. 1915, p. 1552 et seq.), provides in section 14 of article 3 thereof that the legislative power of the city, except as reserved to the people, shall be vested in a council. Section 12 of the same article provides that the city--

'may make and enforce local police, sanitary and other regulations, and may pass such ordinances as may be expedient for maintaining and promoting the peace, good government and welfare of the city. The city shall have all powers that now are or hereafter may be granted to municipalities by the Constitution or laws of the state of California; * * * the enumeration of particular powers...