Waliski v. State, 24213.

• Decision Date: 16 May 1923
• Docket Number: No. 24213.,24213.
• Citation: 139 N.E. 363,193 Ind. 232
• Parties: WALISKI et al. v. STATE.
• Court: Indiana Supreme Court

193 Ind. 232

139 N.E. 363

WALISKI et al.

v.STATE.

No. 24213.

Supreme Court of Indiana.

May 16, 1923.

Appeal from Circuit Court, Vigo County; John P. Jeffries, Judge.

Peter Waliski and another were convicted of maintaining a common nuisance and unlawfully keeping intoxicating liquors with intent to sell, and they appealed. Affirmed.

J. T. Walker and Gerdink & Gerdink, all of Terre Haute, for appellants.

U. S. Lesh, Atty. Gen., and Mrs. Edward Franklin White, Deputy Atty. Gen., for the State.

MYERS, J.

Appellants were prosecuted upon an indictment in two counts. The first count charged appellants with maintaining a common nuisance by keeping a public building where intoxicating liquors were kept for sale, in violation of section 20, Acts 1917, pp. 15, 25 (section 8356t, Burns' Supp. 1921). The second count charged appellants with unlawfully keeping intoxicating liquors with intent to sell, in violation of section 4, Acts 1917, p. 15, as amended, section 1, Acts 1921, p. 736 (section 8356d, Burns' Supp. 1921). From a judgment assessing a fine against appellant Anna Waliski, and a fine and imprisonment against appellant Peter Waliski, they prosecuted this appeal, assigning as errors the overruling of their separate and several motion for a new trial, the overruling of their separate and several motion in arrest of judgment, and that the indictment failed to state facts sufficient to constitute a public offense.

[1] In support of the motion for a new trial, appellants earnestly insist that the decision of the court was contrary to law, for the reason that the Eighteenth Amendment to the federal Constitution had the effect of nullifying all state laws making it unlawful to manufacture or sell intoxicating liquors. They say that the prohibition law of 1917 (Acts 1917, p. 15; section 8356a et seq., Burns' Supp. 1921) was the exercise of inherent power, and the vesting of that power in the federal government by the states exhausted their power over the particular subject, except in so far as section 2 of the amendment granted special power to the states. The question thus submitted by appellants was before this court in the case of Palmer v. State (Ind. Sup.) 133 N. E. 388. In the consideration of this case we have reexamined the Palmer Case, with the result that we are still satisfied with the conclusion therein reached. We may add, the first section of the amendment by article 6 of the federal Constitution is made a part of the supreme law of the land, “and of its own force invalidates every legislative act- whether by Congress, by a state Legislature, or by a territorial assembly-which authorizes or sanctions what the section prohibits.” National Prohibition Cases, 253 U. S. 350, 387, 40 Sup. Ct. 486, 488 (64 L. Ed. 946). That is to say, it prohibits these various legislative bodies from enacting laws authorizing “the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territories subject to the jurisdiction thereof for beverage purposes.” It is a grant of power from the states, and it is national in scope; but in connection therewith is section 2, which provides that “the Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.” It has been said that “a concurrent power excludes the idea of a dependent power.” Passenger Cases, 7 How. 283, 399, 12 L. Ed. 702. Much has been and more may be said relative to a correct definition which may be assigned to the words “concurrent power” found in section 2. Considering the connection in which these words are used, and the object to be attained, they would seem to suggest the thought of harmony of action or concurrence of action between the federal and state governments, each acting within its own sphere, but with one commonpurpose in view. This would be a practical, although it may be considered a forced construction of these words to meet the exigencies of the matter in hand. We are well aware that good, logical reasoning may be offered tending to support the conclusion that to thus define the words “concurrent power” would not quite harmonize with the settled distribution of powers long recognized between our federal and state governments. Justice McKenna, in his dissenting opinion in the National Prohibition Cases, supra, 253 U. S. at page 399, 40 Sup. Ct. at page 486, 64 L. Ed. 946, aptly points out the considerations which led to the true dividing line between national and state sovereignty, thereafter given the seal of approval by the Supreme Court of the United States. The distribution of powers thus approved was:

“(1) Powers that were exclusive in the states-reserved to them; (2) powers that were exclusive in Congress, conferred upon it; (3) powers that were not exclusive in either, and hence said to be ‘concurrent.’ And it was decided that, when exercised by Congress, they were supreme-‘The authority of the states then retires' to inaction.”

In the National Prohibition Cases, supra, the majority of the court concurred in eleven general conclusions without giving any reasons for the results thus reached, but from these conclusions the deduction must follow that the states are not precluded by the Eighteenth Amendment from enacting laws in aid of national prohibition. The...