Page v. United States

• Decision Date: 16 January 1922
• Docket Number: 3677.
• Citation: 278 F. 41
• Parties: PAGE et al. v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

278 F. 41

PAGE et al. v. UNITED STATES. ^[1]

No. 3677.

United States Court of Appeals, Ninth Circuit.

January 16, 1922

Frank J. Murphy and Oscar Hudson, both of San Francisco, Cal., for plaintiffs in error.

Robert O'Connor, U.S. Atty., and Mark L. Herron, Asst. U.S Atty., both of Los Angeles, Cal.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge.

The appellants were charged, by an information filed November 10 1920, with violating sections 3 and 21 of title 2 of the act commonly known as the 'National Prohibition Act.' The information contained two counts. The first count charged:

'That one William Page, Ernest Burr, Milton Brown, and William Finley, whose full and true names, other than as herein stated, are to affiant unknown, late of the Northern division of the Southern district of California heretofore, to wit, on or about the 30th day of October, A.D. 1920, at a certain place commonly known as 'Douglas Club,' No. 1211 F. street, in the city of Fresno, county of Fresno, within the Northern division of the Southern district of California, and within the Jurisdiction of this honorable court, did knowingly, willfully, and unlawfully have in their possession, and did knowingly, willfully, and unlawfully aid, assist, and abet each other to have in their possession, for beverage purposes certain intoxicating liquor, to wit, one pint bottle of jackass brandy, containing alcohol in excess of one-half of one per cent. by volume, in violation of section 3, title 2, of the Act of October 28, 1919, commonly known as the National Prohibition Act.'

The second count charged that the defendants--

'on or about the 30th day of October, A.D. 1920, did knowingly, willfully, and unlawfully maintain a common nuisance, that is to say, a room and place, and did knowingly, willfully, and unlawfully aid, assist, and abet each other to unlawfully maintain a common nuisance, that is to say, a room and place at what is commonly known as Douglas Club, No. 1211 F street, in the city of Fresno, county of Fresno, in the state and Northern division of the Southern district of California, and within the jurisdiction of this honorable court, where intoxicating liquor, to wit, one pint bottle of jackass brandy. containing alcohol in excess of one-half of one per cent. by volume, was sold, kept, and bartered, in violation of section 21, title 2, Act of October 28, 1919, commonly known as the National Prohibition Act.' Upon the trial of the cause all of the defendants were convicted. Judgment was entered accordingly, and from this judgment appellants prosecute this writ.

It is contended in behalf of the appellant Ernest Burr that there is no evidence in the record to support the judgment against him on either of the counts in the information. William Page, one of the defendants, testified:

'Mr. Burr was connected with this club, but not now. He used to sell soft drinks there, and the same situation existed in regard to Mr. Brown. * * * Mr. William Finley was vice president. I recall the night the officers went in there. * * * All four of us had the management of the bar, or anybody else in the club. Mr. Burr, Brown and Finley and I stayed behind the bar more than anybody else, but anybody could stay behind there. All these members were club members and they are now.'

Harry Erickson, city license collector, testified that the license of the Fred Douglas Club was issued to Burr and Finley as owners. Mr. Burr admits that he was present at the club the night of the raid and that he was at that time a member of the club. He admitted that he and another person originally leased the building where the club was conducted. If the jury believed this testimony, the court is of the opinion that it was sufficient, with the natural and reasonable inferences to be drawn therefrom, to warrant the verdict of the jury.

It is next contended that the Eighteenth Amendment to the Constitution of the United States confers no power upon Congress to legislate against the possession of intoxicating liquor, the manufacture, sale, and transportation being the only things prohibited, and that therefore section 3 of title 2 of the National Prohibition Act (41 Stat. 305, 308), under which the prosecution upon the first count in the information is based, is invalid and unconstitutional.

The Eighteenth Amendment to the Constitution of the United States provides as follows:

'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.'

The Act of October 28, 1919 (41 Stat. 305), provides, in title 2, section 3, page 308, that--

'No person shall on and after the date when the Eighteenth Amendment * * * goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this act, and all the provisions of this act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented.'

The objection that a statute is unconstitutional which is not authorized by the express letter of the Constitution is not new. Article 1, Sec. 8, cl. 18, of the Constitution provides that Congress shall have power--

'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States or in any department or officer thereof.'

In McCulloch v. Maryland, 4 Wheat. 316, 420, 4 L.Ed. 579, Marshall, the great Chief Justice, commenting upon the power of Congress to provide the means for carrying into effect a constitutional provision, declared a rule of construction which has been followed since. He said:

'We think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with * * * the Constitution, are constitutional.'

This rule is applicable to the construction of the section of the National Prohibition Act under consideration. If, in order to enforce the constitutional amendment, it is necessary to restrict the possession of intoxicating liquor to those having permits to possess the same and to private houses when intended for the sole use of the owner and...