State v. Tachin

Decision Date17 November 1919
Docket NumberNo. 21.,21.
Citation108 A. 318
PartiesSTATE v. TACHIN et al.
CourtNew Jersey Supreme Court
Dissenting Opinion by Judge Kalisch, Dec. 6, 1919.

Error to Supreme Court.

Fred Fedodoff and Tony Tachin were convicted of willfuily, knowingly, and unlawfully attempting by speech to incite, abet, promote, and encourage hostility and opposition to the government of the United States, and they bring error. Affirmed.

Otto A. Stiefel, of Newark, for plaintiffs in error.

Pierre P. Garven, of Bayonne, for the State.

PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Swayze in the Supreme Court. 92 N. J. Law, 269, 106 Atl. 145.

MINTURN, J. (dissenting). The unconstitutional character of the legislation sub judice is properly before us, both on the motion to acquit and the exception to the charge. In any event the question is jurisdictional and may be considered here. State v. Shupe, 88 N. J. Law, 610, 97 Atl. 271.

The statute (chapter 44, Laws 1918) under which these defendants were jointly indicted and convicted is a replica of a statute passed by the Congress of the United States over a year prior to the act sub judice, and in that fact inheres the constitutional infirmity of the state legislation. The rule is settled that the legislation of Congress upon a subject within the limitations of the Constitution supersedes all state legislation, and by necessary implication prohibits it. Prigg v. Pennsylvania, 16 Pet. 539, 10 L. Ed. 1060; Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23.

It is not the mere existence of the power of Congress to legislate, where the power is not exclusive, but the fact that Congress has exercised the power, which makes the exercise of the same pow, er by the state incompatible with the exercise of the federal power, and the power of the state to enact similar legislation is thereby suspended until the repeal of the federal act. Sturges v. Crowninshield, 4 Wheat. 122, 4 L. Ed. 529; Davis v. Beason, 133 U. S. 333, 10 Sup. Ct. 299, 33 L. Ed. 637. In Houston v. Moore, 5 Wheat. 1, 5 L. Ed. 19, Washington, J., declared, at a formative period of our constitutional law, the states cannot legislate upon a subject concerning which Congress has already legislated under constitutional authority. And in Texas v. White, 7 Wall. 700, 19 L. Ed. 227, it was declared that tlie preservation of the states and the maintenance of their governments are as much within the design and care of the Constitution of the United States as the preservation of the Union and the maintenance of the national government.

Were the rule otherwise, it is manifest that a citizen could be twice indicted and tried for the same offense in the federal and state jurisdictions, respectively, contrary to the constitutional inhibition, which provides that he shall not be twice put in jeopardy for the same offense. Article 5, Const. Amendments. The rule is unquestionable that each government, state and federal, is supreme Within its own sphere, and therefore a conviction or acquittal in the state jurisdiction could not be pleaded in bar to a similar indictment in the federal jurisdiction. Dodge v. Woolsey, 18 How. 331, 15 L. Ed. 401; Ableman v. Booth, 21 How. 506, 16 L. Ed. 169; United States v. Tarble, 13 Wall. 397, 20 L. Ed. 597.

The cases cited in the Supreme Court, as a basis for sustaining this enactment, upon examination will be found not to conflict with this principle, and it will be observed that they apply solely to situations where the state legislated in the absence of congresssional legislation, or where by the federal act the right of the state to legislate concurrently was expressly conceded. Thus in the earliest case cited (Fox v. Ohio, 5 How. 410, 12 L. Ed. 213) the federal legislation conceded to the states concurrent jurisdiction over counterfeiting. In United States v. Marigold, 9 How. 560, 13 L. Ed. 257, state legislation was not involved, and the court dealt only with an act of Congress.

In Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717, the question was as to the enforcement of federal election laws by state officials, by which legislation the latter were created by Congress pro hac vice federal officers in the elections concerning members of Congress. The same question was presented in Ex parte Clarke, 100 U. S. 399, 25 L. Ed. 715. In Re Loney, 134 U. S. 373, 10 Sup. Ct. 584, 33 L. Ed. 949, the power of the federal courts to punish for perjury a person who falsely swore to his right to vote, before a state notary, in a congressional election, was presented, and it was again held that pro hac vice the notary was performing a federal function.

In Sexton v. California, 189 U. S. 319, 23 Sup. Ct. 543, 47 L. Ed. 833, the extortion act, passed by Congress to prevent frauds in the internal revenue, expressly conceded to the states the power to pass similar legislation, thus impliedly denying the right to the states in the absence of such concession. In Halter v. Nebraska, 205 U. S. 34, 27 Sup. Ct. 419, 51 L. Ed. 696, 10 Ann. Cas. 525, no federal question involving state jurisdiction was involved. The only inquiry was as to the constitutionality under the Fourteenth Amendment, in the absence of congressional legislation, of an act of Nebraska prohibiting the use of the United States flag for advertising purposes in certain lines of trade and not in others.

None of these cases, it will be observed militates against the fundamental constitutional rule, which was evolved when the settled construction of the Constitution was in the making, and which by repeated adjudications has been emphasized since that day, notably so in the recent Employers' Liability Cases, involving the right of the state to legislate upon that subject, in the absence of federal legislation dealing with interstate commerce. Such was the status in the recent case of New York Cent. R. R. v. Winfield, 244 TJ. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1139, in which it is said:

"When Congress acts upon the subject, all state laws covering the same field are necessarily superseded by reason of the supremacy of the national authority."

The second and third sections of the act sub judice are subject to further condemnation. They characterize as illegal, not only an appeal to subvert the government by force, but also any attempt—

"by speech, writing, printing or in any other way whatsoever to incite or abet, promote or encourage hostility or opposition to the government of the United States, or of the state of New Jersey."

The third section of the act provides that—

"Any person who shall become a member of any organization, society or order organized or formed, or attend any meeting, or counsel or solicit others so to do, for the purpose of inciting, abetting, promoting or encouraging hostility or opposition to the government of the United States, or of the state of New Jersey, or who in any manner shall aid, abet or encourage any such organization, society, order or meeting in the propagation or advocacy of such a purpose, shall be guilty of a high misdemeanor."

These provisions, prohibitive of the right of free speech, freedom of the press, and of free assembly, are in direct conflict with the guaranties of free speech and free assembly contained in the federal and state Constitutions. The First Amendment to the federal Constitution provides that—

"Congress shall make no law * * * abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

The state Constitution (article 1, § 5) provides that—

"Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press."

The principle of free speech and freedom to assemble constitutes the corner stone of American liberty, and when the right to exercise those fundamentals without the advocacy of force is quiescently suppressed, "the lamp which guides our destiny" (to quote the trial court) will be as effectually extinguished as the lamp that shone at the shrine of Isis. "The right of the people," says the United States Supreme Court, "peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the national government," and "existed long before the adoption of the federal Constitution." United States v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588; Presser v. Illinois, 116 U. S. 266, 6 Sup. Ct. 580, 29 L. Ed. 615.

Change of the fundamental law by constitutional and legal methods is not condemned, either by the Constitution or the public policy of the nation or states. George v. Braddock, 45 N. J. Eq. 757, 18 Atl. 881, 6 L. R. A. 511, 14 Am. St. Rep. 754. The right to effect a change or alteration of the organic law by lawful methods is the basic doctrine of popular rights, contained in the Declaration of Independence; and in pursuance of that declared policy, party organizations have been created since the inception of our system of government, and as a result of that basic declaration no less than 18 amendments have been added to the federal Constitution, many of them presenting radical changes in methods and structure of our government, as originally conceived and ordained.

This fundamental conception of party government, involving alteration and change by the recognized and prescribed constitutional methods, is set at naught, and substantially subverted, by the legislation under consideration. The sole prototype of this legislation in American constitutional history is found in the Alien and Sedition Acts of the Adams administration, under the obloquy of which the Federal party went into extinction and oblivion. Speaking of those enactments, the...

To continue reading

Request your trial
16 cases
  • State v. W. U. Tel. Co.
    • United States
    • New Jersey County Court
    • April 2, 1951
    ...as constituting the offense must be taken as true. State v. Tachin, 92 N.J.L. 269, 106 A. 145 (Sup.Ct. 1919), affirmed 93 N.J.L. 485, 108 A. 318 (E. & A. 1919): writ of error dismissed. Tachin v. State of New Jersey, 254 U.S. 662, 41 S.Ct. 61, 65 L.Ed. 463 (1920); 42 C.J.S., Indictments and......
  • Imbrie v. Marsh
    • United States
    • New Jersey Supreme Court
    • January 9, 1950
    ...N.J.S.A. These and similar statutes have been held constitutional. State v. Tachin, 92 N.J.L. 269, 106 A. 145 (Sup.Ct. 1919), affd. 93 N.J.L. 485, 108 A. 318, error dismissed 254 U.S. 662, 41 S.Ct. 61, 65 L.Ed. 463; Gitlow v. New York, 268 U.S. 652, 665, 45 S.Ct. 625, 69 L.Ed. 1138. Cf. Sta......
  • Taylor v. State
    • United States
    • Mississippi Supreme Court
    • January 25, 1943
    ...423, 64 N.E. 175, 58 L.R.A. 509; State v. Gibson, 189 Iowa 1212, 174 N.W. 34; State v. Tachin, 92 N.J.L. 269, 106 A. 145, affirmed 93 N.J.L. 485, 108 A. 318; State v. Gabriel, N.J.L. 337, 112 A. 611; People v. Gitlow, 195 A.D. 773, 187 N.Y.S. 783; Ex parte Moriarity, 44 Nev. 164, 191 P. 360......
  • State v. Tansimore
    • United States
    • New Jersey Supreme Court
    • January 23, 1950
    ...of a sensible construction to determine its legal worth. State v. Tachin, 92 N.J.L. 269, 106 A. 145 (Sup.Ct.1919), affirmed 93 N.J.L. 485, 108 A. 318 (E. & A. 1919). Although certain sentences in a charge taken alone may need some amplification to render them accurate, yet if such amplifica......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT