State v. Ceriani

• Decision Date: 20 April 1921
• Citation: 96 Conn. 130,113 A. 316
• Court: Connecticut Supreme Court
• Parties: STATE v. CERIANI.

113 A. 316

96 Conn. 130

STATE v. CERIANI.

Supreme Court of Errors of Connecticut.

April 20, 1921

Appeal from Criminal Court of Common Pleas, New Haven County; Robert L. Munger, Acting Judge.

Walter J. Walsh, David M. Reilly, and Stanley Dunn, all of New Haven, for appellant.

Edwin S. Pickett, Pros. Atty., of New Haven, for the State.

WHEELER, C.J.

The accused was informed against, tried, and found guilty of a violation of section 2790, General Statutes Rev. 1918. By the undisputed facts he had sold without a license intoxicating liquor whose alcoholic contents exceeded one-half of 1 per cent. His defense was that prior to the first Monday of November, 1919, he was a licensed dealer to sell intoxicating liquor, and on October 28, 1919, he had made due application to the county commissioners for a renewal of such license and therefore, by virtue of section 2792, General Statutes Rev. 1918, he could not be found guilty of a violation of section 2790. On the date of these sales the county commissioners had not passed upon the accused's application. The state conceded the facts supporting this defense. The overruling of the demurrer, the denying of the motion in arrest of judgment the refusal of the requests to charge, and the charge as complained of each contain the two points which form the basis of the appeal as pressed here: (1) That at the time of the offense alleged section 2790, providing that a sale of intoxicating liquor without a license should subject the violator to the penalties provided by section 2814, was not in force; and (2) that if the accused were found to have been a licensed dealer, and had filed his application for a renewal of his license, he would be justified in making the sale as charged, by virtue of section 2792, prior to the issue of the renewal.

The claim of the accused is that section 2790 is superseded by the National Prohibition Act (41 U.S. Stat. at Large 305) and hence he cannot be found guilty of violating its provisions. This act was passed by Congress as appropriate legislation to enforce the prohibitions of the Eighteenth Amendment under the second section thereof. It comprehends the entire range of criminal liability for the manufacture sale, and possession of intoxicating liquor except as authorized by the act. It covers the greater part of the field covered by our statutory law upon the same subject.

There is this difference between the federal and state acts: The purpose of the federal is the enforcement of the purpose of the amendment that all liquor treated by the act as intoxicating should be banished. Its purpose is prohibition. The purpose of our state act is the restriction and regulation of the traffic in intoxicating liquor.

In the enforcement of the powers conferred by the Eighteenth Amendment Congress may invade the field of the police power of the state, and its legislation may accomplish the same or similar purposes theretofore accomplished by State legislation. This results, not because the police power of the state is superseded, but because the exercise of the constitutional power has taken Congress into the field formerly occupied exclusively by state legislation. This does not mean that the police power of the state, in whole or in part, has been taken from the state, nor that the police power has been vested in the United States. The United States may not exercise the police power as such within the state, for it " lacks the police power." This was reserved to the states by the Tenth Amendment; the state does not act under the police power upon an implied authority to exercise a power delegated to Congress until such time as Congress shall see fit to act. Hamilton v. Ky. Distilleries Co., 251 U.S. 147, 40 Sup.Ct. 106, 64 L.Ed. 194; Ex parte Guerra (Vt.) 110 A. 224. The National Prohibition Act has not deprived our state of its right to exercise its police power in the regulation and restriction of the liquor traffic.

Section 1 of the Eighteenth Amendment " invalidates every legislative act-whether by Congress, by a state legislature, or by a territorial assembly-which authorizes or sanctions what the sections prohibit." National Prohibition Cases, 253 U.S. 350, 40 Sup.Ct. 486, 588, 64 L.Ed. 946. Unless the state's exercise of that power conflicts with the constitutional grant or with the act of Congress passed in enforcement of the grant, its authority to act within its police power is supreme.

" 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." Const. U.S. Amend. 18.

All of the various provisions of the several chapters of our statute regulative of intoxicating liquors, which sanction what the Eighteenth Amendment prohibits, are necessarily invalid; and all which are repugnant to or in conflict with the National Act are by force of the act invalidated.

The first section of the amendment imposes a general prohibition against the manufacture, sale, or transportation of intoxicating liquors for beverage purposes.

The second section unites national and state legislation in giving effect to the amendment by appropriate legislation, and thus joins together all national and state administrative agencies for the common end, the enforcement of the prohibition of the first section. The second section provides the means for carrying into effect the first. Concurring opinion of Chief Justice White in National Prohibition Cases, supra.

What " concurrent power" in section 2 means has occasioned very considerable discussion. Three constructions have been suggested, and each is a possible construction. (1) That it means joint power to Congress and the several states; (2) that it means a separate and independent power vested in each; (3) that it means a separate and independent power in each, but that such parts of the state act as conflict with the act of Congress must fall, since the National Act is the supreme law of the land. No additional construction of this term has been suggested, and no other seems permissible.

The United States Supreme Court, in National Prohibition Cases, 253 U.S. 350, 40 Sup.Ct. 486, 588, 64 L.Ed. 946, have decided that-

" Concurrent power" does " not mean joint power, or require that legislation *** by Congress, to be effective, shall be approved or sanctioned by the several states or any of them; nor *** that the power *** is divided between" them " along the lines which separate or distinguish foreign and interstate commerce from intrastate affairs."

While the court has not gone further and expressly defined the meaning of " concurrent power" we think it necessarily follows from the decision that this power is not joint; that it is a separate and independent power which the Congress and the several states exercise in the enforcement of this amendment. Each has the right to act separately and independently in aid of the amendment. But neither can act in repugnance to it.

Concurrent power as used in this section, and when read in the light of the context and the purpose of the amendment, must be held to mean a conferred power by this amendment existing continuously in federal and state Legislature, and equal in each, and co-operating for the enforcement through appropriate legislation of the prohibitions of the Eighteenth Amendment. Commonwealth v. Nickerson, 236 Mass. 281, 128 N.E. 273.

Between the two points of view that the power is separate and independent, or that it is separate and independent, but that the federal act will supersede any state legislation inconsistent with it, we think the latter to be the better, and, indeed, the necessary view.

Article 6 of the federal Constitution must be construed in harmony with all parts of the Eighteenth Amendment. Section 2 of the Eighteenth Amendment gives to Congress and the several states equal authority to enforce this amendment. But when the federal and state acts conflict, then article 6, which provides that " the Constitution and the laws *** which shall be made in pursuance thereof *** shall be the supreme law of the land," makes the Federal Act supreme in those particulars in which there is conflict. The Eighteenth Amendment and article 6 can be, and hence must be, construed in harmonious relation. Warren v. Mayor of Charlestown, 2 Gray (Mass.) 84, 99. The rest of the state act remains in force. State v. District Court (Mont.) 194 P. 308, 310.

Perhaps the difference in results would not be of great practical importance if either view prevailed. If the first view be...