State v. Fahey

• Decision Date: 05 February 1924
• Citation: 32 Del. 504,126 A. 730
• Court: Court of General Sessions of Delaware
• Parties: STATE v. EDWARD J. FAHEY

126 A. 730

32 Del. 504

STATE v. EDWARD J. FAHEY

Court of General Sessions of Delaware, New Castle County

February 5, 1924

Court of General Sessions, New Castle County, January Term, 1924.

Motion to quash indictment found under Chapter 10, Volume 29, Laws of Delaware, for illegal possession in New Castle County on the twelfth day of December, 1923, of more than one quart of spirituous liquor; said indictment being No. 29, January term, 1924.

The State admitted that the alleged offense was committed in that portion of New Castle County located within the limits of the City of Wilmington. The defendant moved to quash the indictment on four grounds: (1) That the Loose Law (chapter 10, vol. 29, Laws of Delaware) was repealed by the Klair Law (chapter 239, vol. 30, Laws of Delaware). (2) That even if it were not so repealed it did not then and does not apply to the City of Wilmington. (3) That the Loose Law was and is repugnant to the provisions of the Eighteenth Amendment to the Federal Constitution and is therefore void. (4) That the possession clause of the Loose Law (paragraph 2, § 1) was and is inconsistent with the act of Congress known as the Volstead Act and therefore cannot be enforced.

The defendant's motion to quash the indictment is refused.

Clarence A. Southerland and Leonard G. Hagner, Deputy Attorneys-General, for the State.

James Saulsbury and Aaron Finger for defendant.

PENNEWILL C. J., HARRINGTON and RODNEY, J. J., sitting.

OPINION

HARRINGTON, J.

Chapter 10 of Volume 29, Laws of Delaware,, known as the Loose Law, under which this indictment was found, was passed by the Legislature at the 1917 session and was approved by the Governor February 27 of that year. Paragraph 2 of Section 1 of this act provides:

"It shall be unlawful for any person * * * living, residing or staying in those portions of the State of Delaware where the sale of liquors is prohibited by law * * * to have in his * * * possession, at any one time, more than one quart of spirituous liquors * * * and any one guilty * * * shall be subject to the same fines and penalties provided for the unlawful sale of liquors in that territory. * * *"

Paragraph 4 of the same section prohibits the transportation or delivery of liquor to any person or at any place within the State of Delaware where the sale of liquor is prohibited by law.

What is known as the Klair Law (Chapter 239, vol. 30, Laws of Delaware) was passed at the legislative session of 1919 and was approved by the Governor March 21 1919. That it does not in express language repeal the Loose Law is admitted. The defendant contends, however, that it was intended to cover the whole subject-matter of prohibition and that the Loose Law is therefore by implication absolutely repealed by it. In support of this contention the defendant cites State v. Verderamo, 29 Del. 72, 6 Boyce 72, 96 A. 758, and quotes the following paragraph from it:

"It will not be questioned that where a later act embraces the subjectmatter of an earlier act, and covers the same fully and completely, the earlier act is repealed even though it is not expressly and specifically repealed by the later act. The later expression of the legislative will supersedes the earlier one and works an implied repeal."

The correctness of the general rule contended for by him cannot be denied. Husbands v. Talley, 19 Del. 88, 3 Penne 88, 47 A. 1009; State of Delaware, upon the relation of the Mayor, etc., of Middletown v. Peverly et al., 2 W. W. Harr. (32 Del.) 443, 125 A. 421.

Whether this rule is applicable to this case is another question. Repeals by implication are never favored, and unless it is expressly so provided one act does not ordinarily repeal another, if both, in whole or in part, can be construed together as consistent acts. Husbands v. Talley, supra; State, etc., v. Peverly et al., supra. In order to determine this question it is necessary to compare and analyze the two acts. Two of the important sections of the Loose Law have already been referred to.

An analysis of the Klair Law shows that Section 3 of that act prohibits the manufacture of intoxicating liquors. It also prohibits the sale, bartering or furnishing of liquors to any person.

Section 4 relates to the duties of a person having alcohol in his possession for medical, mechanical, scientific, industrial or other permitted purposes.

Sections 6 to 12, inclusive, regulate the sale and the possession for the purposes of sale, by druggists, of wine and of certain other kinds of alcohol for certain specified purposes.

Section 12 prevents the possession or sale of any preparations or compounds from which beer or intoxicating liquor, which can be used as a beverage, may be made.

Section 24 provides that on complaint that a person is or has been intoxicated, or that liquor is being "kept" in any hotel, store, public building, etc., a subpoena shall issue to compel such "person found intoxicated or other persons aforesaid * * * to testify in regard to the person or persons of whom, and the time when, and the place where, and the manner in which the liquor, producing his intoxication was procured, or other violations complained of," etc.

None of the other sections, with the exception of Sections 17 and 24, which will be considered hereafter, need be considered.

It, therefore, appears that the Klair Law prohibits the manufacture, bartering, sale or furnishing of intoxicating liquors while the Loose Law merely prohibits its transportation or delivery, and the possession of more than specified quantities at any one time.

These provisions of the two acts certainly are in no sense inconsistent. It is true that Section 4 and Sections 6 to 12, inclusive, of the Klair Law relate to the possession of wine and other kinds of alcohol by druggists and other persons for medical, mechanical, sacramental, scientific and industrial purposes, but there is nothing to indicate any intent to legislate with respect to the legality of the possession of alcoholic liquors outside of the limited class covered by those particular sections.

While the Loose Law also contains certain provisions under which the possession of liquors for manufacturing and scientific purposes may be legal, the prohibition as to the possession of more than one quart for any other purposes in Paragraph 2 of Section 1 of that act is general.

It may be true that the clause of the Loose Law, covering the possession of liquors for manufacturing and scientific purposes, is repealed by the corresponding clause in the Klair Law, but that in no way affects the question before us. That the Klair Law was not intended to cover and does not cover the whole subject of prohibition legislation in this State, therefore, seems clear.

Any other conclusion would seem to make the provisions of Section 16 of the Klair Law useless, if no more.

It will be remembered that this section prohibits the possession of "preparations or compounds" from which intoxicating liquors, which could be used as beverages, could be made.

If the Legislature had intended to repeal Paragraph 2 of Section 1, the possession clause of the Loose Law, and thereby to permit any one to have any amount of intoxicating liquor in his possession, why was Section 16 incorporated in the Klair Law?

Under the construction of the Klair Law, contended for by the defendant, the provisions of Section 24 of this act would also seem to fall far short of their apparent purposes.

Section 17 of the Klair Law also makes it unlawful for any person to cause or induce any carrier or other person, etc., to carry, transport, or ship any package, trunk or valise containing liquors, without notice as to the true nature of such shipment. It also provides that "failure to notify such carrier shall not be a defense for illegal transportation of such liquor."

If the Legislature intended by the Klair Law to repeal the Loose Law in its entirety, why was this provision inserted, as the only statute of the State of Delaware under which there could possibly be a prosecution for the transportation of liquor is the Loose Law?

But it is contended that, even if the Loose Law is not repealed, it does not apply to the City of Wilmington. The defendant contends that this is clear from Paragraph 2 of Section 1 of that act. He bases this contention on the fact that this paragraph makes possession of more than certain quantities unlawful "in those portions of the State * * * where the sale of liquors is prohibited by law," and in effect argues that the words "is prohibited" were used by the Legislature in the sense of "is now prohibited." He also contends that this contention is strengthened by the clause providing that any one guilty "shall be subject to the same fines and penalties provided for the unlawful sale of liquors in that territory. * * *"

In ascertaining the intention of the Legislature with respect to this question, it is helpful to consider the situation with respect to liquor legislation in this State, both before and after the Loose Law was enacted. Lewis' Sutherland on Stat. Constr. § 471.

Section 1 of Article 13 of the Constitution of 1897 provides:

"The General Assembly may from time to time provide by law for the submission to the vote of the qualified electors of the several districts of the State, or any of them, mentioned in Section 2 of this article, the question whether the manufacture and sale of intoxicating liquors shall be licensed or prohibited within the limits thereof; and in every district in which there is a majority against license no person, firm or corporation shall thereafter manufacture or sell spirituous, vinous or malt liquors, except for medicinal or sacramental purposes, within said district, until at a subsequent...