Hayes v. United States

• Decision Date: 15 May 1940
• Docket Number: No. 2055.,2055.
• Citation: 112 F.2d 417
• Parties: HAYES et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

112 F.2d 417 (1940)

HAYES et al. v. UNITED STATES.

No. 2055.

Circuit Court of Appeals, Tenth Circuit.

May 15, 1940.

Earl Pruet, of Oklahoma City, Okl. (Hayes, Richardson, Shartel & Gilliland and Stewart W. Mark, all of Oklahoma City, Okl., on the brief), for appellants.

Whit Y. Mauzy, U. S. Atty., and Wm. Knight Powers, Asst. U. S. Atty., both of Tulsa, Okl., for the United States.

Jim Barnett, of Oklahoma City, Okl., and John Wade Tyree, of Lawton, Okl., amici curiæ.

Wils Davis, of Memphis, Tenn., and Frank Hickman, of Tulsa, Okl., amici curiæ.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

PHILLIPS, Circuit Judge, delivered the opinion of the court.

The United States brought this proceeding under 27 U.S.C.A. § 224 for the forfeiture of a 1939 Ford De Luxe Coupe and 150 gallons of tax-paid intoxicating liquor. Hayes, Vose, and Turner¹ filed a petition in intervention wherein they set up that they were holders of a chattel mortgage upon the coupe and prayed for a decree awarding them possession thereof. From a judgment of forfeiture, they have appealed.

On August 8, 1939, one Blythe used the coupe to transport 150 gallons of tax-paid intoxicating liquor, containing more than four per cent of alcohol by volume, from Sulphur Springs, Arkansas, to a point in Mayes County, Oklahoma, where he was arrested and the coupe and the liquor were seized. The interveners are the owners of a valid and subsisting chattel mortgage upon the coupe given to secure a debt of $316.50.

The interveners assert that ch. 16, O.S. L.1939, 37 Okl.St.Ann. § 41 et seq., is unconstitutional and, therefore, the Liquor Enforcement Act of 1936, 27 U.S.C.A. ch. 9, §§ 221-228, is inapplicable to Oklahoma. See Dunn v. United States, 10 Cir., 98 F. 2d 119, 117 A.L.R. 1302.

Section 1 of chapter 16, supra, makes it unlawful to import, bring, transport, or cause to be brought or transported into Oklahoma any intoxicating liquor, containing more than four per cent of alcohol by volume, without a permit first secured as provided in the Act.

Section 2 provides that a permit may be issued for the importation and transportation into Oklahoma of alcohol by scientific institutions, universities, and colleges, for scientific or mechanical purposes, of alcohol by hospitals, sanitariums, apothecaries, druggists, pharmacists, and manufacturing agencies for medicinal use, and of wine for sacramental purposes. It further provides that no permit shall be issued to any person for the importation of any intoxicating liquor, except as therein provided. Section 3 provides for the issuance of the permit by the Tax Commission of the state of Oklahoma, and requires that such permit shall accompany such intoxicating liquor at all times while being imported, brought into, and transported into Oklahoma, shall be in the possession of the person or carrier transporting the same, and upon demand, shall be exhibited to a state or federal officer; and, when such intoxicating liquor shall have reached its destination, that such permit shall be returned to the Tax Commission and by it marked "cancelled." Section 4 provides for the application for the permit. Section 5 provides for the form and terms of the permit. Section 6 provides that any person violating any of the provisions of the Act shall be punished by a fine of not less than $50 nor more than $2000, and by imprisonment for not less than 30 days in the county jail nor more than five years in the state penitentiary.

I

Section 57 of Art. 5 of the Constitution of Oklahoma, Okl.St.Ann., in part reads:

"Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, * * *."

The title to chapter 16, supra, reads as follows:

"An Act creating and providing for a permit system for the importation and transportation of intoxicating liquor, containing more than four per cent of alcohol by volume, into the State of Oklahoma for scientific, sacramental, medicinal, or mechanical purposes; forbidding importation of such liquor without permit; fixing fees; providing penalties; repealing Sections 2597 and 2598, Oklahoma Statutes, 1931; and declaring an emergency."

It is urged that, since chapter 16, supra, provides for the issuance of permits for the importation of intoxicating liquor only for certain limited and specified purposes and section one prohibits the importation of liquor without a permit, section one in effect prohibits the importation of liquor for all other purposes and the title does not embrace such latter prohibition.

To render an act invalid the insufficiency of the title must be clear and any doubt should be resolved in favor of the validity of the act. The title should be liberally construed; the court should not resort to critical or technical construction; and if the language of the title is reasonably susceptible to a construction which covers the provisions of the act, that construction should be adopted and the act sustained.²

In Oklahoma City v. Grigsby, 171 Okl. 23, 41 P.2d 697, 699, the court said:

"The best-considered cases, however, appear to have established the following propositions: That the clause is mandatory; that its requirements are not to be exactingly enforced, or in such a technical manner as to cripple legislation; that the title of a bill may be very general, and need not contain an abstract of the contents of the bill, or specify every clause therein, it being sufficient if they are all referable and cognate to the subject expressed. Everything which is necessary to make a complete enactment, or to result as a complement of the thought therein contained, is included in and authorized by such title expressed in general terms."

One clause of the title reads: "forbidding importation of such liquor without permit." The language of the title permits of a construction making the phrase "such liquor" referable to intoxicating liquor containing more than four per cent of alcohol by volume, regardless of the purpose for which it is imported. We are of the opinion that in the light of the principles above stated, the title should be so construed. It follows that it embraces the prohibition provided in section 1 of the Act.

Furthermore, the purpose of the Act being to provide for the importation of intoxicating liquor, containing more than four per cent of alcohol by volume, under a permit system, for certain limited and specified purposes only, we think a prohibition against the importation of intoxicating liquor, without a permit, for other purposes was essential to make the Act effective, and that section one complements section two, makes the Act complete, and is referable and cognate to the subject expressed in the title.

II

It is urged that the penalty imposed by the Act violates Section 9 of Art. 2 of the Oklahoma Constitution, Okl.St.Ann., which reads as follows:

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted."

In Ex parte Meyers, 55 Okl.Cr. 75, 24 P.2d 1011, 1012, the court quoted with approval from McMahon v. State, 70 Neb. 722, 97 N.W. 1035, as follows:

"A large discretion is vested in the Legislature in the fixing of penalties designed to prevent the commission of certain prohibited acts; and a penalty imposed by statute will not be held unconstitutional as excessive, unless it is so excessive as to shock the sense of mankind."

The fixing of penalties for crimes is a legislative function. What constitutes an adequate penalty is a matter of legislative judgment and discretion, and the courts will not interfere therewith unless the penalty prescribed is clearly and manifestly cruel and unusual.³

We cannot say that the punishment imposed by the Act is so excessive as to shock the sense of mankind or that it is manifestly cruel and unusual.

III

It is urged that because § 2618, 1934 Supp., O.S.1931, 37 Okl.St.Ann. § 1, makes the transportation of intoxicating liquor, containing more than 3.2 per cent of alcohol, within the state a misdemeanor, punishable by a fine of not less than $50 nor more than $500, and by imprisonment for not less than 30 days nor more than six months, the more severe penalty provision of chapter 16, supra, violates the equal protection clause of the Fourteenth Amendment.

The equal protection clause does not prohibit legislative classification, but the classification must be reasonable, not arbitrary, and must be based upon a difference having a fair and substantial relation to the object of the legislation.⁴

If any state of facts reasonably can be conceived that would sustain the classification, there is a presumption that such state of facts exists, and one who assails the classification must show by a resort to common knowledge or other matters which may be judicially noticed, or by evidence, that the action is arbitrary.⁵ The interveners have not carried that burden of proof.

Moreover, it is obvious that importation or transportation of intoxicating liquor into Oklahoma from states where the manufacture and transportation of intoxicating liquor is legal and where it is manufactured in large quantities, differs substantially from the transportation of intoxicating liquor wholly within the state where its manufacture is prohibited and is limited to illicit distilling.

We conclude there is a reasonable basis for the classification and that it bears a fair and substantial relation to the object sought to be attained by the Act.

Furthermore, under the Twenty-First Amendment a state may wholly prohibit the transportation or importation of intoxicating liquors thereinto, or it may forbid all importations which do not comply with the conditions which it prescribes, regardless of how it may deal with or regulate the transportation of the intoxicating liquor within its boundaries, without violating the equal protection clause of the Fourteenth Amendment. "A classification recognized by the Twenty-First Amendment cannot be...