Ex Parte Gilmore

• Decision Date: 01 December 1920
• Docket Number: (No. 5891.)
• Citation: 228 S.W. 199
• Parties: Ex parte GILMORE.
• Court: Texas Court of Criminal Appeals

228 S.W. 199

Ex parte GILMORE.

(No. 5891.)

Court of Criminal Appeals of Texas.

December 1, 1920.

Rehearing Denied February 23, 1921.

Original application by J. W. Gilmore for a writ of habeas corpus. Application denied, and petitioner remanded to custody.

Williams, Dougherty & Muse, of Dallas, for appellant.

W. L. Dean, of Mineral Wells, and Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, J.

The relator is under indictment charging, among other things, the unlawful transportation of intoxicating liquors in this state, in violation of the act of the Thirty-Sixth Legislature, c. 78 (Second Called Session), known as the "Dean Law."

He seeks release upon the assertion that in passing the act the state exceeded its power. He contends that the Eighteenth Amendment to the Constitution of the United States must be construed in connection with the clause of the Constitution making it and the laws of Congress passed thereunder paramount, and that, so construed, the act of the Legislature in prescribing a definition of intoxicating liquor, and a penalty different from those prescribed by Congress, is inoperative. We quote the first and second sections of the amendment:

"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."

Before its adoption the states possessed the exclusive power to prohibit traffic in intoxicating liquors and to punish those who disobeyed. It was within the police power of the state. Beyond doubt, the amendment establishes prohibition throughout the country. It is appellant's view that the power to enforce obedience to this amendment rests in Congress, and that when this power is exerted the state is excluded from the field of legislation covered by the act of Congress. In one of the articles of the United States Constitution it is said:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." U. S. Const. Amend. 10.

Prior to the adoption of the Eighteenth Amendment, from the discussion by the Supreme Court of the United States of the powers of government, they have been divided into those which belong exclusively to the states, those which belong exclusively to the national government, those which may be exercised concurrently and independently by both, and those which may be exercised by the states, but only until Congress shall see fit to act upon the subject. Ex parte McNiel, 13 Wall. 236, 20 L. Ed. 624; Port Richmond v. Board of Freeholders, 234 U. S. 330, 34 Sup. Ct. 821, 58 L. Ed. 1330; Simpson v. Shephard, 230 U. S. 400, 33 Sup. Ct. 729, 57 L. Ed. 1511, 48 L. R. A. (N. S.) 1151, Ann. Cas. 1916A, 18; and numerous cases cited in Rose's Notes on U. S. Reports (Revised Edition) vol. 7, p. 589.

The relator maintains that by the first section of the Eighteenth Amendment the subject covered is made national in character, and admits and requires uniformity of regulation, affecting alike all the states; and that, in consequence of this character, the rules of construction applied to the clause of the Constitution of the United States conferring upon Congress the power to regulate commerce between the several states govern; and that under this construction this field of legislation is not open to the states, it having been covered by the act of Congress known as the Volstead Act. See chapter 85, Acts Sixty-Sixth Congress, First Session (41 Stat. 305). In support of this view, many decisions of the Supreme Court of the United States are referred to, in which state laws have been held inoperative upon the ground that under the Constitution the nature of the power conferred upon the Congress was such that when exercised it was exclusive, and ipso facto superseded the existing state legislation on the subject. See Southern Ry. v. Ry. Commission of Indiana, 236 U. S. 446, 35 Sup. Ct. 304, 59 L. Ed. 661; Chicago v. Hardwick E. Co., 226 U. S. 426, 33 Sup. Ct. 174, 57 L. Ed. 284, 46 L. R. A. (N. S.) 203; Erie Ry. Co. v. N. Y., 233 U. S. 683, 34 Sup. Ct. 756, 58 L. Ed. 1149, 52 L. R. A. (N. S.) 266, Ann. Cas. 1915D, 138.

The force of these decisions, and others in the same line, upon the subject in hand, is dependent upon the analogy of the power conferred upon Congress by the Eighteenth Amendment and that relating to its authority over interstate commerce. If the premises were conceded, the invalidity of the state law would not necessarily follow. Many instances are found in which state statutes which affected the subject of interstate commerce have been upheld, notwithstanding Congress had passed laws upon the same subject. Gilman v. Philadelphia, 3 Wall. 713, 18 L. Ed. 96; Mobile v. Kimball, 102 U. S. 691, 26 L. Ed. 238; Cardwell v. River Bridge Co., 113 U. S. 205, 5 Sup. Ct. 423, 28 L. Ed. 959; Gloucester Co. v. Penn., 114 U. S. 196, 5 Sup. Ct. 826, 29 L. Ed. 158; Chicago v. Arkansas, 219 U. S. 451, 31 Sup. Ct. 275, 55 L. Ed. 290. And the police power of the state has been permitted to operate where it incidentally affected interstate commerce. Sherlock v. Alling, 93 U. S. 99, 23 L. Ed. 819; N. Y., N. H. & H. R. R. v. People, 165 U. S. 628, 17 Sup. Ct. 418, 41 L. Ed. 853. In those cases the rule is observed that the state laws must not burden or trammel the interstate commerce, or trench upon the exclusive power of Congress to regulate it, and they must yield to the federal power in case of conflict which is so direct and positive that the two acts cannot be reconciled or consistently stand together. Ruling Case Law, vol. 5, p. 702, § 15; Silz v. Hesterberg, 211 U. S. 31, 29 Sup. Ct. 10, 53 L. Ed. 75; Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 18 Sup. Ct. 488, 42 L. Ed. 878; Atlantic Coast Lines v. Wharton, 207 U. S. 328, 28 Sup. Ct. 121, 52 L. Ed. 230; Savage v. Jones, 225 U. S. 501, 32 Sup. Ct. 715, 56 L. Ed. 1182.

Though there be no conflict, the federal law in a given case may exclude the state law. It is the intent of Congress which prevails, and this the courts must determine. But we have been able to discern no fixed rule by which in all cases this may be decided; and in a case in which the state's exclusion from a field of legislation is determined by the repugnancy of its laws to those of the federal government there is likewise an absence of a definite rule. In an early case it was said:

"`It is no objection to distinct substantive powers that they may be exercised upon the same subject.' It is not possible to fix definitely their respective boundaries." Gilman v. Phila., supra.

See Manigault v. Springs, 199 U. S. 478, 26 Sup. Ct. 127, 50 L. Ed. 274; Chicago v. Illinois, 200 U. S. 592, 26 Sup. Ct. 341, 50 L. Ed. 596, 4 Ann. Cas. 1175.

The soundness of relator's claim that the power of Congress under the commerce clause of the Constitution and that under the prohibition amendment are analogous, and the power of the states subject to the same limitations, is, in view of the second section of the Eighteenth Amendment, open to serious question. The only expressions of the United States Supreme Court concerning the Amendment, of which we are aware, are those found in Rhode Island v. Palmer, 253 U. S. 350, 40 Sup. Ct. 486, 588, 64 L. Ed. 946. In that case it was shown that the state of Rhode Island had enacted a law defining intoxicating liquors as those containing 2 per cent. or more of alcohol. In the Volstead Act the percentage allowed was not exceeding one-half of 1 per cent. An injunction was sought against the officers of the United States, restrainng them from enforcing the Volstead Act, on the ground, as we understand it, that the definition fixed in the state law protected its citizens against prosecution for the traffic in intoxicating liquor which did not fall within that definition. This construction was not sanctioned by the Supreme Court. In denying the injunction the court stated certain conclusions, which are relied on by both the relator and the state as supporting their conflicting interpretations of the prohibition amendment to the Constitution. The following quotations are taken from the opinion:

"(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 affective, 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 commerce 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...