State v. Gauthier

• Decision Date: 06 October 1922
• Citation: 118 A. 380
• Parties: STATE v. GAUTHIER.
• Court: Maine Supreme Court

118 A. 380

STATE

v. GAUTHIER.

Supreme Judicial Court of Maine.

Oct. 6, 1922.

Report from Supreme Judicial Court, York County, at Law.

Arthur Cauthier was convicted of having illegal possession of intoxicating liquor, and he appealed to the Supreme Judicial Court, where the case was reported to the law court. Respondent adjudged guilty, and liquor forfeited.

Argued before CORNISH, C. J., and SPEAR, HANSON, DUNN, MORRILL, WILSON, and DEASY, JJ.

Edward S. Titcomb, Co. Atty., of Sanford, for the State.

Francis J. Carney, of Boston, Mass., and Lucius B. Swett, of Sanford, for respondent.

DEASY, J. The respondent was arraigned in the Sanford municipal court and adjudged guilty of the illegal possession of intoxicating liquor. The case was brought to the Supreme Judicial Court by appeal, and to the law court on report.

The Issue.

It is undisputed that the respondent had in bis possession, intended for sale in Maine, a quantity of Bosak's Horke Vino, a so-called medicinal preparation containing more than 18 per cent of alcohol. Whether Bosak's Horke Vino is an intoxicating liquor, within the purview of the Maine law, is the point in controversy.

There is no valid Maine statute defining the term "intoxicating liquor." Chapter 235 of the Laws of 1919, which, if fully effectual, would adopt as a part of the state law the definition contained in the subsequently enacted Volstead Act (41 Stat. 305), is in its attempt to accomplish this result unconstitutional, in that it undertakes to delegate general legislative power. State v. Int. Liquor, Vino Co., Claimant, 121 Me. 438, 117 Atl. 588.

The problem before us involves consideration of the Eighteenth Amendment, the so-called Volstead Act, and the prohibitory statutes of Maine, excluding chapter 235 of Laws of 1919, which has been held unconstitutional.

The Eighteenth Amendment.

The amendment omitting formal parts is 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 controversy in this case relates to the construction of the second section of the amendment, especially the words "concurrent power" and "appropriate legislation."

The Volstead Act.

This law (41 Stat. 305, Fed. Stat. Ann. 1919, p. 202) was enacted by Congress under the authority of the Eighteenth Amendment. It was intended to be concurrent with legislation by the states. The act comprises three titles. We are concerned only with the second. This title has 39 sections.

Section 3 prohibits traffic in intoxicating liquors. Section 29 provides penalties. Section 1 defines the phrase intoxicating liquor, "when used in title II and title III of this act" It does not undertake to define the term when used in concurrent legislation by states. By this definition intoxicating liquor includes certain specified liquors, "and in addition thereto any spirituous, vinous, malt, or fermented liquor, liquids and compounds * * * containing one-half of one per centum or more of alcohol by volume which are fit for use for beverage purposes." The other sections prescribe procedure and various details, including the granting of permits for keeping and selling liquor for non-beverage purposes.

United States Supreme Court Cases.

The Supreme Court of the United States has final jurisdiction in all matters involved in this case. In the case of Rhode Island v. Palmer, 253 U. S. 350, 40 Sup. Ct. 486, 588, 64 L. Ed. 946, important principles are established. The Volstead Law is held not to transcend the powers granted to Congress by the Eighteenth Amendment. It finally disposes of the theory that concurrent means joint, and the further theory that the word "concurrent" implies a division of powers along lines separating interstate from intrastate fields. It decides that an act to be appropriate must be consistent with prohibition and must not tend to defeat or thwart it. But neither the case of Rhode Island v. Palmer, nor the later case of Vigliotti v. Pennsylvania, 258 U. S. —, 42 Sup. Ct. 330, 66 L. Ed. 389, passes upon the questions involved in this opinion.

It is contended that the state prohibitory law has been invalidated by the amendment and the federal law, or, if not invalidated, then in part superseded or modified, by having read into it the definition of intoxicating liquor contained in the Volstead Law, to wit, liquor "containing one-half of one per cent. or more of alcohol by volume." State Statute Hot Affected by Volstead Act.

It is too plain to require extended discussion that the Maine statute has not been abrogated in whole or in part by the amendment or the federal act Our statute is consistent with prohibition. It does not tend to defeat or thwart it. It is appropriate legislation. The authorities hereinafter cited under another branch of the case support this view.

More plausible is the contention that the definition of intoxicating liquor contained in the Volstead Act reads itself into the Maine statute, and, without valid state legislation, becomes in effect a part of the statute.

The other and better supported theory is that Congress, having in this field, not supreme, but concurrent, power, has no authority to control the concurrent legislation of the state, and further that the definition contained in the Volstead Act purports to apply to prosecutions only under that act, and not to prosecutions in the state courts understate statutes. In the leading and frequently cited case of Commonwealth v. Nickerson, 236 Mass. 307, 128 N. E. 284, 10 A. L. R. 1568, Chief Justice Rugg says:

"We assume that the definition of intoxicating liquors contained in the Volstead Act cannot be imported into our statute without legislative action."

We believe that this assumption is well grounded. Congress, having merely concurrent power to legislate on this subject, cannot control the legislation of states having like concurrent power. Moreover, the definition contained in the Volstead Act purports to relate only to that act, and not to state legislation.

However, the theory that a state court, in construing a state statute, is bound by the Volstead definition, has the support of respectable authority, and we have given it careful consideration.

Article 6 of Constitution-Supreme Law.

It is urged that Congress has the exclusive power of defining the term "intoxicating liquor," as employed in the Eighteenth Amendment by reason of article 6 of the Constitution, which reads as follows:

"This Constitution, and the laws of the United States which shall be passed in pursuance thereof, * * * shall be the supreme law of the land."

But the Eighteenth Amendment is as much a part of the Constitution as article 6. The amendment is also the supreme law of the land. It enacts what in effect is a modification of that part of article 6 which makes congressional legislation supreme. It grants to Congress power to enact appropriate intrastate legislation, but makes that power, not paramount, supreme, or exclusive, but concurrent with the power of the states. Against this if is contended that the concurrent power granted by the amendment relates to enforcement, as distinguished from the power to define.

Theory that Congress has Exclusive Power of Defining.

It is urged that the Eighteenth Amendment gives to or leaves with the states concurrent power to enforce prohibition, by providing for the purpose courts, officers, and penalties, but that the power of defining the subject of it, as distinguished from the power of enforcing it, remains exclusively In Congress, not under the amendment, but under article 6, making constitutional acts of Congress supreme. Johnson v. State, 81 Fla. 783, 89 South. 117; Wood v. Whitaker, 81 Fla. 653, 89 South. 119.

We think that this theory is unsound—(1) If the state may penalize and prosecute the manufacture and sale of only such liquor as Congress may declare to be intoxicating, the power of the state is in no true sense concurrent; but it is rather ancillary and subordinate-indeed, is hardly more than an "insubstantial shadow." Commonwealth v. Nickerson, 236 Mass. 295, 128 N. E. 273, 10 A. L. R. 1568.

(2) The term "intoxicating liquor" does not need statutory definition. In the absence of such definition, it is for courts and juries to determine as a fact whether liquor is intoxicating. The Legislature of Maine has never found it necessary to define the term, whether as liquor having a specified alcoholic content or otherwise. Further specific definition is for the purpose of aiding enforcement. In our opinion, Congress adopted the definition for no purpose, except to facilitate enforcement.

(3) The Eighteenth Amendment prohibits the sale, etc., of intoxicating liquor. Congress has no power to prohibit traffic in nonintoxicating liquor within states. Had it undertaken to forbid traffic in intoxicating liquor, and also in nonintoxicating liquor containing one-half of 1 per centum or more of alcohol, such act would undoubtedly be held unconstitutional, so far as it relates to nonintoxicating liquor. What the Volstead Act does, we think, is to create a conclusive presumption that liquor containing alcohol in the proportion specified is intoxicating. Such a presumption applied to prosecutions in the federal courts for violation of the Volstead Act. It is a corollary of the power of enforcing.

(4) Congress derives its power to enact intrastate prohibitory legislation exclusively from the Eighteenth Amendment. The almost unlimited police power of the states antedates the Constitution. The states' police power is not taken away expressly. The grant of concurrent power to Congress does not...