126 Misc. 574 | New York City Magistrates' Court | 1926
At about ten p. m. on January 22, 1926, two members of the New York city police force rang the bell of premises 44 West Fifty-fifth street, New York city. The door was opened and they were admitted by the defendant into the ground floor. The premises were a so-called “ Speak Easy,” a recent coinage denoting a place where intoxicants are sold. The defendant was in charge. Besides, there was another attendant. There were two rooms on this floor — the front for the service of patrons at tables, and the rear equipped with a bar over which whiskys, cocktails and beer were openly sold to and consumed by standing customers. At the tables, besides the police officers, were about twelve persons, including women attended and unattended by men — some drinking, others merely smoking and idling and bent on mission other than refreshment. Two of the latter solicited the policemen for unlawful purposes. Their conduct, and that of the defendant in harboring them, is not here involved. On entering the premises the officers took a seat at one of the tables and ordered from and were served by the defendant with two drinks of Scotch whisky, and later two drinks more, for which the defendant collected two dollars and twenty cents. “ The defendant was walking up and down taking orders and serving
Do these facts establish the offense of disorderly conduct on the part of the defendant?
On January 16, 1919, the Eighteenth, so-called Prohibition Amendment, was added to the Constitution of the United States. It went into effect by its terms one year later, January 16, 1920. The Legislatures of three-fourths of the States, including New York, Pennsylvania, Ohio, Illinois, Massachusetts and New Jersey, had ratified it. Its constitutionality has been sustained by the Supreme Court of the United States. (See Dillon v. Gloss, 256 U. S. 368.)
Ours is a government by the people. Sovereignty is in them alone. They adopted their own Constitution, conferred certain powers on the United States, gave others to the States and reserved the rest themselves. The Constitution is thus the creature and will of the people themselves. We pride ourselves that we are bound by the will of the majority. It is written in our National Constitution that it can be amended only upon congressional or State legislative proposal, and ratification by the Legislatures of or conventions in three-fourths of all of the States; in that way have the people said that their organic law may be changed. The Eighteenth Amendment is thus the will of the people, expressed in precisely the way that they have decreed it. We have not in the past tolerated nullification, in particular sections or by special classes, of the will of the majority of the people thus expressed. In plain words, the Eighteenth Amendment prohibits the manufacture, sale or transportation of intoxicating liquors for beverage purposes, everywhere within the United States and territory subject to its jurisdiction. Its prohibition cannot be avoided save by further amendment. Intoxicating liquor is not defined. Possibly the rigor of the amendment may be lessened by its definition in relation to alcoholic content. That is subject to congressional enactment or possibly to State regulation upon congressional inaction or express delegation. At present it is fixed by Congress at one-half per cent alcohol. The amendment provides that Congress and the several States may concurrently enforce it. Neither may void it. This concurrent power was undoubtedly expressly granted, to remove question as to the power of certain of the States to continue prohibition policies, in force long before the amendment, because of the settled rule that Congress’ power is exclusive when related to matters of national character or requiring uniform regulation.
The Constitution of the United States itself is, by its own terms,
For reasons too patent to require statement, the United States Department of Justice and the United States courts find themselves unable to adequately cope with a situation of law ignorement brought about by this amendment. Its enforcement and that of the Volstead Act is feeble in many of the States, including the State of New York. The excuse is, that this amendment is an unwarranted invasion upon the private rights of our citizens and repellant to those concepts of liberty upon which our government is grounded. The amendment is branded unpopular. All classes, statesman, scholar, merchant and workman, have joined without cover or concealment in its violation.
The masses of our people cannot be expected to differentiate between those laws which may be ignored and those which must be obeyed. Traffic in the contraband has reached large proportion; the poor following the example, but without the means, of the rich, are cheated and served with what is more poison than intoxicant. At public banquets and in public places it is served without restraint and with apparent public approval. Following the precept of his elders, the youth carries it on the hip, consumes it himself and shares it with the other sex. These practices are fast working a corruption of the body and morals of the transgressors, but far more important, it is destroying respect for organized government and obedience to law, without which no civilization can endure. To believe in government is to believe in law enforcement. In organized society the remedy for bad laws is repeal, not resistance or nullification.
The court is not concerned with the wisdom or the political, social or economic aspect of prohibition. Whether or no the Eighteenth Amendment should be repealed, or by amendment of either the Constitution or the Volstead Act, or by the delegated exercise of legislative powers by the several States, a more liberal definition of intoxicant shall be permitted, is entirely aside the question. The Eighteenth Amendment is the supreme law of the land. There is some popular misconception as to its force in the State of New York. This State in 1921 adopted an enforcement act, the Mullan-Gage Law (Laws of 1921, chaps. 155, 156). In
Prohibition being the supreme law of the land, and all judges in all of the States being bound by oath to support it, are the courts of this State free from responsibility to punish its flouters, and is the law of New York inadequate, with its multifarious provisions for all character of transgression, to vindicate the dignity of the government of the whole people of the United States and its organic law? Those are the questions presented here. For the purposes of determination of these questions it may be even assumed that Congress had remained inactive after the ratification of the Eighteenth Amendment and that the Volstead Act had never been adopted. Under such circumstances would public defiance to the Constitution of the United States and open effrontery to our Federal government and this disrespect to its Constitution, be beyond the pale of the laws of the State of New York? Careful consideration leads this court to the following conclusions:
First. That regardless of any enforcement law? Federal or State, a violation of the United States Constitution is a violation of law, which must be enforced in the several States to the extent that the laws of such States permit punishment for unclassified public offenses against law and order.
Second. That the courts of the several States and the judges thereof, under the Constitution of the United States, are oath-bound, to the extent that the laws of the State permit, to assist in the enforcement of the Eighteenth Amendment and the Volstead Act, and to punish violators of the same. It has accordingly been held that rights conferred by Congress may be asserted and must be recognized in State courts (See Second Employers’ Liability Cases, 223 U. S. 1,57,58), and that the United States may secure an injunction in a State court for the purpose of closing a place wherein there is illegal traffic in liquor. (See United States of America v. Sumner, 125 Misc. 658.)
Third. That the act charged in a State prosecution may also
Fourth. That persons violating the Eighteenth Amendment of the United States Constitution and the Volstead Act may in certain circumstances be prosecuted in the courts of the State of New York, notwithstanding that the State of New York has not adopted an act to enforce the Eighteenth Amendment of the United States Constitution.
Fifth. Section 722 of the Penal Law of the State of New York (as amd. by Laws of 1924, chap. 476), so far as applicable here, reads as follows:
“ In cities of five hundred thousand inhabitants or over any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct:
“ 2. Acts in such a manner as to annoy, disturb, interfere with, obstruct or be offensive to others; ”
The transportation of intoxicating liquors into hotels or other public places, or the public sale thereof anywhere within the State, or dispensation or consumption thereof in public places, and any other course of conduct indicating a similar open or public defiance to the United States Constitution, constitutes an affront to the government of the United States and is a resistance to and attempted nullification of its organic law, and tends to place the administration of government and law in disrepute and contempt, is annoying, disturbing and offensive to the law abiding, and tends towards a breach of the peace, and all who by their acts or acquiescence participata in such conduct, are guilty of disorderly conduct under section 722 of the Penal Law of the State of New York. So too, a place in which such practices are conducted or permitted “ offends public decency ” and is a public nuisance (Penal Law, § 1530), and may be abated, and those who conduct or permit such use are guilty of a misdemeanor. (Penal Law, § 1532.)
I accordingly find the defendant guilty of disorderly conduct under section 722 of the Penal Law of the State of New York.
