State v. Webber

• Decision Date: 17 June 1926
• Citation: 133 A. 738
• Parties: STATE v. WEBBER.
• Court: Maine Supreme Court

133 A. 738

STATE

v. WEBBER.

Supreme Judicial Court of Maine.

June 17, 1926.

[COPYRIGHT MATERIAL OMITTED.]

Exceptions from Supreme Judicial Court, Knox County, at Law.

Ralph Webber was convicted of illegally transporting intoxicating liquors without a federal permit, in violation of Pub. Laws 1925, c. 116. On exception to ruling overruling motion in arrest of judgment. Exception overruled. Judgment for the State.

Argued before WILSON, C. J., and PHILBROOK, DUNN, MORRILL, STURGIS, and BASSETT, JJ.

Leonard R. Campbell, County Atty., of Rockland, for the State.

Frank A. Tirrell, Jr., and Rodney I. Thompson, both of Rockland, for respondent.

STURGIS, J. The respondent was convicted in the municipal court on a complaint charging him with illegal transportation of intoxicating liquors without a federal permit, in violation of chapter 116, Public Laws 1925. Upon appeal, after trial and a verdict of guilty, he seasonably filed a motion in arrest of judgment on the following grounds:

"The complaint and warrant and matters therein alleged, in the manner and form in which they are therein stated, are not sufficient in law for any judgment to be rendered thereon, and the said complaint and warrant is bad because the statute on which said complaint and warrant is found is contrary to the Constitution of the State of Maine and to the Constitution of the United States."

The presiding justice overruled this mO tion, and the case is before this court upon the respondent's exception to such ruling. Exceptions taken to the admissibility of evidence during the trial are not presented by the bill of exceptions and must be considered withdrawn.

The statute under which this complaint is drawn reads:

"No person shall knowingly transport into this state or from place to place therein any intoxicating liquor, or aid any person in such transportation without being in possession of a permit therefor duly issued under authority conferred by the provisions of the national prohibition act of October twenty-eight, nineteen hundred and nineteen, and amendments thereto, providing for the enforcement of the Eighteenth Amendment to the Constitution of the United States; and in any prosecution under this section it shall not be incumbent on the state to allege and prove that the respondent did not possess such a permit."

The real question presented by the exception is the constitutionality of chapter 116, P. L. 1925.

The power of the Legislature to prohibit the transportation of intoxicating liquors into this state, or from place to place therein, knowingly and without a permit issued under the authority of the National Prohibition Act (U. S. Comp. St. Ann. Supp. 1923, § 10138 1/4 et seq.), is not challenged; but it is charged that the Legislature transcended its power in including permits issued under amendments to that act, the construction placed upon the statute by the respondent being that by the language used future amendments to the National Prohibition Act are incorporated by reference.

The prohibition against the transportation of intoxicating liquors without a federal permit was first enacted in this state as section 1 of chapter 167 of the Public Laws of 1923. It was an amendment of section 20 of chapter 127 of the Revised Statutes, that section being struck out in its entirety and the new provision inserted in place thereof. In description of the offense the 1925 act is identical with the 1923 act. The latter was approved April 4, 1923, and the former April 2, 1925. Prior to both these dates the National Prohibition Act had already been amended by an act supplemental to the National Prohibition Act, dated November 23, 1921, being chapter 134 of United States Statutes of that year (42 Stat. 222). Supplementing this fact of amendment with the common knowledge which we share that the phrase "and amendments thereto" is often appended to statutory reference in legislative draft and enactment, regardless of the fact that no amendment exists, we find little ground for assuming that future amendments were included in the legislative intention.

The presumption is to the contrary. The court is bound to assume that in the passage of this law the Legislature acted with full knowledge of all constitutional restrictions. It is said that this rule, by the uniformity of its application, finds expression in the legal maxim that, "All acts of the Legislature are presumed to be constitutional." Laughlin v. City of Portland, 111 Me. 486, 90 A. 318, 51 L. R. A. (N. S.) 1143, Ann. Cas. 1916C, 734; State v. Pooler, 105 Me. 224, 74 A. 119, 24 L. R. A. (N. S.) 408,134 Am. St. Rep. 543. It is not to be supposed that the Legislature intended to incorporate federal amendments not then made, the contents of which, as affecting permits to transport intoxicating liquors, they could have no knowledge. It is to be presumed that they enacted this law with full knowledge that incorporation by reference into our Statutes of future pharmacopceial revisions or enactments of Congress constituted an unlawful delegation of legislative power, as stated in State v. Holland, 117 Me. 288, 104 A. 159, and State v. Vino Medical Co., 121 Me. 438, 117 A. 588.

For the reasons stated, we are of the opinion that the reference in chapter 116, P. L. 1925, to amendments to the National Prohibition Act, refers only to amendments then made, and the incorporation of the same into the statute does not render it invalid.

But a further attack is made upon the validity of the statute. In enacting this amendment the Legislature struck out from chapter 167, P. L. 1923, a provision as to the evidential effect of failure of a person to exhibit a federal permit, and substituted therefor the rule of pleading and evidence that—

"In any prosecution under this section it shall not be incumbent on the state to allege and prove that the respondent did not possess such a permit."

By this provision the respondent says he is deprived of his right guaranteed by the Constitution to demand and be informed of the nature and cause of the accusation against him.

The offense described in the enacting clause of chapter 116, P. L. 1925, stripped of formal language, is the transportation of intoxicating liquors into or from place to place within the state, without being in possession of a permit therefor duly issued under authority conferred by the National Prohibition Act. The elements of the offense include the lack of possession of such a permit, and the offense itself cannot be accurately and definitely stated if the exception be omitted from the description. Such being the character of this statutory offense, we think the rules of pleading and constitutional limitations require that the state allege that the respondent did not possess a federal permit.

At common law the omission of such an allegation would be fatal to the indictment. In State v. Keen, 34 Me. 500, this court said:

"No rule of criminal pleading is better established, than that, when the enacting clause describes the offense with certain exceptions, it is necessary * * * to negative all the exceptions."

To the same effect, see State v. Godfrey, 24 Me. 232, 41 Am. Dec. 382; State v. Gurney, 37 Me. 155; Hinckley v. Penobscot, 42 Me. 89; State v. Boyington, 56 Me. 512. A more definite statement of this rule is that where a statute defining an offense contains an exception or proviso in the enacting clause which is so incorporated with the language describing and defining the offense that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted, an indictment founded on the statute must allege enough to show that the accused is not within the exception. United States...