Johnson v. Yellow Cab Transit Co., 2697.

Citation137 F.2d 274
Decision Date26 July 1943
Docket NumberNo. 2697.,2697.
PartiesJOHNSON v. YELLOW CAB TRANSIT CO.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Sam H. Lattimore, Asst. Atty. Gen., of Oklahoma (Mac Q. Williamson, Atty. Gen., of Oklahoma, and George Miskovsky, Co. Atty., of Oklahoma City, Okl., on the brief), for appellants.

J. B. Dudley and Duke Duvall, both of Oklahoma City, Okl. (Dudley, Duvall & Dudley, of Oklahoma City, Okl., on the brief), for appellee.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

PHILLIPS, Circuit Judge.

The F. A. S. Officers Club is an organization composed of several thousand army officers who are on duty at the United States Fort Sill Military Reservation.1 The Club is managed by a secretary who is an army officer in active service. It provides, among other things, an officers' mess, living quarters for a number of officers, lounges, reading rooms, and other recreational facilities, and renders various club services to its members.

Prior to October 24, 1942, several hundred members of the Club gave to the Club secretary their individual written orders for varying quantities of intoxicating liquor. These orders designated the brand and quantity desired and were accompanied by checks or money to pay for such intoxicating liquor. The Club secretary, acting for such officers, assembled, tabulated, totaled, and forwarded these orders to M. B. Gintz Company, at East St. Louis, Illinois. The Gintz Company accepted the orders and in fulfillment thereof, on October 24, 1942, delivered to Yellow Cab Transit Company2 at East St. Louis, on a uniform bill of lading, 225 cases of wine and spirituous liquors, consigned to F. A. S. Officers Club Mess, at the Reservation.

While such shipment was in the possession of the Transit Company as a common carrier and in the course of transit from East St. Louis to the Reservation, but while it was momentarily stopped at the terminal and dock of the Transit Company at Oklahoma City, Oklahoma, it was seized by Johnson, Commissioner of Public Safety of the State of Oklahoma, Husted, Superintendent of the Bureau of Identification and Investigation of the Department of Public Safety of Oklahoma, West and Riggs, deputies under the Superintendent, and McGrew and Kolb, deputy sheriffs of Oklahoma County, Oklahoma,3 and was transported to and placed in a vault in the county courthouse of Oklahoma County, where it is held under the claim that it is an illegal shipment of intoxicating liquor subject to confiscation and destruction.

Had the shipment been delivered at the Reservation, it would have been received by the secretary of the Club for delivery to the officers who had placed the order.

This action was commenced by the Transit Company against the state enforcement officers for a mandatory injunction requiring them to hold the shipment in status quo pending the determination of the action and requiring them to return the shipment to the Transit Company and to refrain from interfering with the Transit Company's possession and movement of such shipment in interstate commerce to its destination.

From a judgment granting the relief prayed for, the state enforcement officers have appealed.

The Reservation is located wholly within the exterior boundaries of Oklahoma. It was acquired by the United States from France long before Oklahoma became a state. Since prior to the admission of Oklahoma as a state it has been, and it now is, used exclusively for military purposes and for the performance of the functions of the War Department of the United States. In 1913, the state of Oklahoma enacted a statute ceding exclusive jurisdiction over the Reservation, with certain exceptions not here material, to the United States.4

Oklahoma has power under the Twenty-first Amendment to forbid all importations of intoxicating liquor into the state or to adopt a lesser degree of regulation than total prohibition.5 It may also require a permit for the transportation of intoxicating liquor in interstate commerce through the state as a means of establishing the identity of those who engage in such transportation and their routes and points of destination, and of enabling local officers to take appropriate measures to insure transportation without diversion.6

Oklahoma has not enacted any statutes regulating the transportation of intoxicating liquor through the state. It requires a permit for transportation of liquor into the state.7

While the Twenty-first Amendment increased the power of the state with respect to importation into the state, it did not extend the territorial jurisdiction of the state. Territorial jurisdiction over the Reservation is in the United States, a distinct sovereignty, and the Twenty-first Amendment gave the state no power to prohibit importation of intoxicating liquor into the Reservation or to regulate the transportation, possession, sale, or other disposition of such liquor within the Reservation. There was no transportation into Oklahoma for delivery or use therein. The shipment was consigned for delivery in the Reservation.8 We conclude, therefore, that the seizure by the state enforcement officers was without warrant of law and was wholly illegal.

The Assimilative Crimes Act9 provides that whoever, within the territorial limits of a state, within or upon any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, shall do any act or thing which is not made penal by any act of Congress, but which if committed within the jurisdiction of the state, by the laws thereof in force on February 1, 1940, would be penal, shall be deemed guilty of a like offense and subject to a like punishment.

The Assimilative Crimes Act adopted, for the government of the designated places under the exclusive or concurrent jurisdiction of the United States, the criminal laws in force, on the date mentioned in the Act, in the several states within which such places are situated, in so far as such laws have not been displaced by specific acts of Congress. By adoption they became Federal laws in force in the designated places.10

It is urged that the statutes of Oklahoma hereinafter referred to were put in force in the Reservation as Federal statutes by the Assimilative Crimes Act, and that by virtue thereof it is unlawful to import intoxicating liquor into the Reservation, to keep or maintain a club room in which intoxicating liquor is received, kept, or stored for distribution or division among the members of the Club, to receive intoxicating liquor from a common carrier, or to possess intoxicating liquor; and it is asserted that relief should have been denied by virtue of the maxim ex dolo malo non oritur actio. In dealing with this contention we assume, but do not decide, that the Oklahoma penal statutes relating to intoxicating liquor were put in force in the Reservation as Federal statutes by the Assimilative Crimes Act; neither do we decide that, if importation into the Reservation would violate a Federal statute, injunctive relief against the unlawful acts of the enforcement officers should be denied.11

Sec. 4, ch. 153, O.S.L.1933, 37 O.S.A. § 31, provides that it shall be unlawful for any person to have or keep in excess of one quart of intoxicating liquor "whether such liquor be intended for the personal use of the person so having and keeping the same or not." The foregoing section was originally enacted as § 4, ch. 70, O.S.L.1910-11. In Ex parte Wilson, 6 Okl.Cr. 451, 119 P. 596, it was held unconstitutional on the ground that it is not within the police power of the state to prohibit possession of intoxicating liquor for personal use.

Sec. 5, ch. 70, O.S.L.1910-11, 37 O.S.A. § 32,12 was unconstitutional for the same reason. Morse v. State, 63 Okl.Cr. 445, 77 P.2d 757, 763, which cited Ex parte Wilson, supra, with approval. See, also, Brickey v. State, 55 Okl.Cr. 451, 32 P.2d 743, 744. It was superseded by § 6, ch. 26, O.S.L.1913, as amended by § 3, ch. 153, O.S.L. 1933, 37 O.S.A. § 82.13 The last-mentioned section does not make mere possession of intoxicating liquor unlawful; it merely makes possession of in excess of one quart of intoxicating liquor prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquor; and the Oklahoma Criminal Court of Appeals has repeatedly held that mere possession of intoxicating liquor without an intent to sell, barter, or give away such liquor does not constitute an offense under the Oklahoma statutes.14 We conclude, therefore, that the possession of intoxicating liquor for personal use and not for unlawful sale or other disposition is not prohibited in Oklahoma and, therefore, is not prohibited within the Reservation by virtue of the Assimilative Crimes Act.

Sec. 1, ch. 186, O.S.L.1917, 37 O.S.A. § 38, provides that it shall be unlawful for any person to receive within Oklahoma any intoxicating liquor from a common or other carrier, or to possess in Oklahoma any intoxicating liquor received from a common or other carrier, and that its provisions shall apply to "such liquors intended for personal use, as well as otherwise, and to interstate as well as intrastate shipments or carriage." Since, under the decisions in Ex parte Wilson and Morse v. State, supra, possession of intoxicating liquor for personal use may not be prohibited, it would seem that this section is unconstitutional. If it is beyond the power of the legislature to make unlawful the possession of intoxicating liquor for personal use, it must likewise be beyond its power to make unlawful the possession of intoxicating liquor for personal use received from a common carrier.

Sec. 3610, O.R.L.1910, as amended by § 1, ch. 13, O.S.L.1927, 37 O.S.A. § 6, provides that it shall be unlawful to keep or maintain any club room where intoxicating liquor is received, kept, or stored for sale or for distribution or division among members of such club. We cannot say upon the facts here presented...

To continue reading

Request your trial
13 cases
  • Hostetter v. Idlewild Bon Voyage Liquor Corporation
    • United States
    • U.S. Supreme Court
    • June 1, 1964
    ...321 U.S. 131, 137, 64 S.Ct. 464, 468.11 See also Johnson v. Yellow Cab Co., 321 U.S. 383, 64 S.Ct. 622, 88 L.Ed. 814, aff'g, 10 Cir., 137 F.2d 274. We may assume that if in Collins California had sought to regulate or control the transportation of the liquor there involved from the time of ......
  • Idlewild Bon Voyage Liquor Corp. v. Epstein
    • United States
    • U.S. District Court — Southern District of New York
    • December 27, 1962
    ...Board of Equalization of California v. Youngs Market, 299 U.S. 59, 57 S.Ct. 77, 81 L.Ed. 38 (1936). 14 Accord, Johnson v. Yellow Cab Transit Co., 137 F.2d 274 (10th Cir. 1943), affirmed, 321 U.S. 383, 64 S.Ct. 622, 88 L.Ed. 814 15 See also Nippert v. City of Richmond, 327 U.S. 416, 425 n. 1......
  • Johnson v. Yellow Cab Transit Co
    • United States
    • U.S. Supreme Court
    • March 13, 1944
    ...officials to interfere with completion of the shipment. 48 F.Supp. 594. The Circuit Court of Appeals, one Judge dissenting, affirmed. 10 Cir., 137 F.2d 274. Questions presented in the petition for review concerning important state and federal relationships with regard to federal enclaves pr......
  • Ackerley v. Commercial Credit Co.
    • United States
    • U.S. District Court — District of New Jersey
    • April 2, 1953
    ...1943, 318 U.S. 285, 63 S.Ct. 628, 87 L.Ed. 761; Yellow Cab Transit Co. v. Johnson, D.C. W.D.Okl.1942, 48 F.Supp. 594, affirmed, 10 Cir., 1943, 137 F.2d 274, affirmed, 1944, 321 U.S. 383, 64 S.Ct. 622, 88 L.Ed. 814, and state taxation, Standard Oil Co. v. People of State of California, 1934,......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT