Woods v. City of Seattle, 228.

• Decision Date: 15 January 1921
• Docket Number: 228.
• Court: U.S. District Court — Western District of Washington
• Parties: WOODS v. CITY OF SEATTLE et al.

270 F. 315

WOODS v. CITY OF SEATTLE et al.

No. 228.

United States District Court, W.D. Washington, Northern Division.

January 15, 1921

John F Dore, of Seattle, Wash., for plaintiff.

Walter F. Meier, Thomas J. L. Kennedy, and Charles T. Donworth, all of Seattle, Wash., for defendants.

NETERER District Judge.

The plaintiff seeks to enjoin the defendant from interfering in the sale of Jamaica ginger to consumers without prescription in quantities not to exceed one or two ounces at a time, and from causing the plaintiff's arrest for making such sales, alleging that he is the owner of a retail drug store and is a registered druggist under the laws of the state that under National Prohibition Act, Sec. 1, tit. 2(7), 41 Stat. 305, the term 'regulation' shall mean any regulation prescribed by the commission with approval of the Secretary of the Treasury for carrying out the provisions of the act, and the Commissioner is authorized to make such regulation, and sets out the regulation, and that it is provided that Jamaica ginger must not be sold by retail druggists to consumers in quantities not exceeding one or two ounces at one time, etc.; that the regulation has the force and effect of statutory enactments, and that by reason of the regulation the plaintiff is entitled as a retail druggist to sell Jamaica ginger to consumers in quantities as stated that under Ordinance 36,242, amended by Ordinance 41,733, and become operative on the 22d day of December, 1920, the selling of Jamaica ginger in the manner above set forth is prohibited; that on the 28th of December, 1920, an employee of the plaintiff was arrested by the defendant city and punished for selling a one-ounce bottle of Jamaica ginger to a consumer, and that defendants have threatened that he or his employees would be arrested upon each like sale; that Jamaica ginger is a common medicinal preparation and for years has been a 'common household remedy'; that, unless injunction is granted, the plaintiff's rights will be infringed, and he will be harassed and forced to expend large sums of money in defending himself in the criminal courts, and that his 'business will be destroyed' and his damage will exceed $10,000; that the ordinance and amendment, supra, contravene the Constitution.

The defendant resists the injunction and moves to dismiss the action. The plaintiff, in substance, contends that article 18 is a grant, and that by this amendment the state has surrendered to the national government its police power with relation to traffic in intoxicating liquor, while the contention of the defendant is that the state reserved its police power, limited only by the amendment and the National Prohibition Act, enacted pursuant thereto, and has full power to legislate with relation to the drink evil, not inconsistent with Article 18 or the Prohibition Act, supra. In United States v. Peterson (D.C.) 268 F. 864, this court said:

'Section 2, article 18, and section 2, article 6, must have harmonious relation, since no express declaration in the amendment was made, nor are the provisions necessarily inconsistent. The national legislation, therefore, is paramount, and the state laws when in conflict must yield.'

The plaintiff asserts that article 18, supra, and the National Prohibition Act, grant him a right to do except that which is prohibited, and that this right overrides all police power of the state with relation to intoxicants. In this the plaintiff is in error. Instead of granting a right, the amendment and the Volstead Acts are limitations upon privilege. The Supreme Court in Rhode Island v. Palmer, 253 U.S. 350, 40 Sup.Ct. 486, 64 L.Ed. 946, said:

'6. The first section of the amendment * * * is operative throughout the entire territorial limits of the United States, binds all legislative bodies, courts, public officers and individuals within those limits, 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. * * * '

It is therefore apparent that the only legislation referred to is that 'which authorizes or sanctions what the section prohibits. ' It was said in United States v. Peterson, supra:

'Neither article 18 nor the Congress sought to destroy any existing remedies by a state to curb the drink evil.'

Section 11, c. 19, Laws of Washington 1917:

' * * * And it shall be unlawful for any person, other than a regularly ordained clergyman, priest or rabbi actually engaged in ministering to a religious congregation, to have in his possession any intoxicating liquor other than alcohol.' Section 1 of the same act:

' * * * And it shall be unlawful for any druggist or pharmacist * * * to dilute or adulterate alcohol or compound it with any other substance in such proportions that it shall be capable of being used as a beverage, and sell, barter, exchange, give away, furnish or otherwise dispose of the same, or to permit any alcohol to be diluted or adulterated or compounded with any other substance and drunk on the premises where sold. * * * '

This is known as the Washington 'Bone Dry Law.' The National Prohibition Act does not reach into this zone,...