Powell v. State

• Decision Date: 05 April 1921
• Docket Number: 8 Div. 780
• Parties: POWELL v. STATE.
• Court: Alabama Court of Appeals

90 So. 138

18 Ala.App. 101

POWELL v. STATE.

8 Div. 780

Court of Appeals of Alabama

April 5, 1921

Appeal from Circuit Court, Madison County; Robert C. Brickell Judge.

Wesley Powell was convicted of violating the prohibition law, and he appeals. Affirmed.

R.E Smith, of Huntsville, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

BRICKEN P.J.

This appellant was convicted for violating the prohibition law the specific charge being that he had in his possession since the 25th day of January, 1919, spirituous, vinous or malt liquors contrary to law. The evidence disclosed without dispute that on the 22d day of August, 1920, in Madison county, Ala., the defendant had in his possession two gallons of whisky.

There are in effect two questions raised on this appeal; the first being, Has the adoption of the Eighteenth Amendment to the federal Constitution and the subsequent passage of the National Prohibition Law by Congress (the law known as the Volstead Act [41 Stat. 305] superseded the legislation of the state for the suppression of the evils of intemperance?

Should this question be answered in the affirmative, the effect of such holding would be that the state courts would have no authority to try offenders for any violation of the prohibition laws, and that the jurisdiction has been vested solely in the federal courts. However, this question has been many times decided adversely to the contention of the defendant, not only in this state, but in the courts of practically every state in the Union and by the Supreme Court of the United States. Andrew Jones v. State (8 Div. 824) 90 So. 135; Robert Ewing v. State, 90 So. 136; Will Ricketts v. State, 90 So. 137. In the Jones Case, supra, the court said:

"There is no merit whatever in the contention of the defendant that the circuit court of Franklin county was without jurisdiction to try this case, and that the federal courts alone, since the adoption of the prohibition amendment to the federal Constitution and the passage of the National Prohibition Act, commonly known and called the Volstead Act, had sole jurisdiction. Without elaboration of the question, it is sufficient to say that since the adoption of the amendment and the act in question both the federal and state courts have jurisdiction in cases of this character; the power in said courts being 'a concurrent power' as is expressly provided."

See, also, Rhode Island v. Palmer, 253 U.S. 350, 40 Sup.Ct. 486, 588, 64 L.Ed. 946; Com. v. Nickerson, 236 Mass. 281, 128 N.E. 273, 10 A.L.R. 1568; Ex parte Ramsey (D.C.) 265 F. 950; State v. Hosmer, 144 Minn. 342, 175 N.W. 683; City of Shreveport v. Marx, 148 La. 31, 86 So. 602.

The words "concurrent power," as used in the constitutional amendment giving such power of enforcement to Congress and the states, is held by the United States Supreme Court, in Rhode Island v. Palmer, supra, to not mean a joint power, nor to require that congressional legislation thereunder shall be approved or sanctioned by individual states before becoming effective, nor to authorize Congress or the states to defeat or quash the prohibition contained in section 1, but only to provide appropriate means for its enforcement.

In the case of Com. v. Nickerson, supra, the Supreme Court of Massachusetts, in discussing what is meant by "concurrent power," said:

"We are of the opinion that the word 'concurrent' in this connection means a power continuously existing for efficacious ends to be exerted in support of the main object of the amendment and making contribution to the same general aim according to the needs of the state, even though Congress also has exerted the power reposed in it by the amendment by enacting and enforcing legislation operative throughout the extent of its territory."

It therefore clearly appears that unless the state legislation is in direct conflict to that of the federal legislation, on the same subject, it is not superseded or repealed by federal legislation. In other words, the well-established rule is that a state law enacted under any of the reserved powers is not to be set aside as inconsistent with an act of Congress unless there is actual repugnancy or a...