267 F. 706 | S.D.N.Y. | 1920
The complainant is the lessee of certain rooms within a storage warehouse operated by the defendant Lincoln Safe Deposit Company, in the Second internal revenue collection district of New York. Among the goods stored by the complainant in the leased rooms is a quantity of lawfully acquired wines and liquors. The defendant Porter is an agent of the Commissioner of Internal Revenue, and is charged with the enforcement of the provisions of the National Prohibition Law, commonly known as the Volstead Act, within the said collection district.
It is alleged that the wines and liquors owned by the complainant are intended for consumption by himself and the members of his family, or his bona fide guests. The complaint then proceeds to aver that Porter, with the approval of the Commissioner of Internal Revenue, has claimed, publicly stated, and threatened that after January 16, 1920, the date upon which the Eighteenth Amendment to the federal Constitution goes into effect, the aforesaid possession of said wines and liquors by the complainant, in the said storage warehouse, will be unlawful by reason of the said amendment and the provisions of the National Prohibition Act, and that the continued possession thereof will subject both the complainant and the Deposit Company to the penalties of the act. The complaint further avers that, by reason of such threats and fear of prosecution, the Deposit Company has notified complainant to remove the said wines and liquors from its premises, and that, unless complainant does so remove them, the Deposit Company threatens and intends to remove the liquors from the rooms in which they are now stored and possessed, and deliver them to the defendant Porter, who will seize and hold the same as outlawed goods, to be dealt with as such under the provisions of the National Prohibition Act.
It is alleged that the attitude of the defendants arises from an erroneous belief and construction of law upon their part, and it is claimed that the possession of the wines and liquors situated as aforesaid is now and will be lawful after January 16, 1920, and that, if the amendment and the Enforcement Act be construed to the contrary, such construction would render the statute unconstitutional. There is said to be no adequate remedy at law, and injunctive relief is prayed.
Upon the filing of the bill a temporary restraining order was issued against the Deposit Company, and thé matter now comes before me upon an order to show cause why the outstanding restraint should not be continued, and the defendant Porter included within it.
It is the contention of the complainant that the power delegated to the federal government by the Eighteenth Amendment to the Constitution is a subtraction from the general police power of the several states, and is limited to so much thereof as is comprehended within the specific subjects to be dealt with by Congress and essential for appropriate legislation thereon. The Eighteenth Amendment reads as follows:
“Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
“See. 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.”
In pursuance of the provisions of section 2, Congress has enacted title II of the Volstead Act as embodying its conception of appropriate legislation. It will thus be seen that nothing is said in the amendment as to the possession, as such, of intoxicating liquors, nor is there any prohibition against the consumption of intoxicating liquors; and it is urged by reason of this that it is therefore lawful for a person situated as is the complainant to have a supply of liquors intended for personal use, in a storage warehouse, upon which supply he may draw as desired; and, incidental to such possession, it is further claimed that the complainant may transport such liquors from their place of storage to his residence, that he may carry liquors on his person and consume them when and where he pleases, and it is to these propositions that I shall direct attention.
“Congress also takes into consideration the fact that the legislation in question operates upon the most lawless and scheming traffic with which the government deals. Both the courts and legislative bodies recognize this and their judgments are rightly influenced by it.”
In this connection the report calls attention to what was said by Mr. Justice McReynolds in delivering the judgment of the Supreme Court in Crane v. Campbell, 245 U. S. 304, 38 Sup. Ct. 98, 62 L. Ed. 304, to wit:
“And, considering the notorious difficulties always attendant upon efforts to suppress traffic in liquors, we are unable to say that the challenged inhibition of their possession was arbitrary and unreasonable or without i>roper relation to the legitimate legislative purpose.”
“After February 1, 1920, the possession of liquors by any person not legally permitted under this title to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this title. Every person legally permitted under this title to have liquor shall report to the commissioner within ten days after the date when the Eighteenth Amendment of tlie Constitution of the United States goes into effect, the kind and amount of intoxicating liquors in his possession. Hi it it shall not be mu-lawful to possess liquors in one’s private dwellmg while Ihe same is occupied and used by him as Ms dwellmg only and such liquor need not be repoiied, provided such liquors are for use only for the personal consumption of the owner thereof and his family residing in such dwelling and of Ms bona fide guests tvhen enlertmned by him, therein; and ihe burden of proof shall be upon the possessor in any aetion concerning the same to prove that such liquor was lawfully acquired, possessed, and used.”
It is suggested that there is no reason why the abuse of such incidental transportation might not be prevented by a system of permits. Without attempting to conclude why Congress did n,ot cover the situation in the manner suggested, I may say that, to my mind, a system of permits for the promiscuous transportation of liquor for beverage purposes would be highly impractical.
It may be said — indeed, it is said — that inasmuch as the complainant here lives but a short distance from the warehouse where his liquors are stored, transportation would play such a small part in their removal as to be negligible. Notwithstanding, their removal would involve some degree of transportation; and if what the complainant desires to do be held lawful, I can see no reason why a resident of a distant city might not have a store of liquors in the same warehouse and be permitted to transport, them to his home, even though such transportation involved a movement by car, wagon, train, or boat. The answer is, I think, that under this statute transportation, other than as specifically provided for, cannot be a matter of degree. As to liquors for beverage purposes, the definite limits of their transportation are within the confines of the dwelling of their owner. It is my judgment that any other construction of tire act would result in its emasculation. The sure defense of the purveyor and the bootlegger, found with a flask of liquor in his pocket, would be that he possessed the same for his personal use.
So, under the Eighteenth Amendment, I am satisfied that Congress, under the police power delegated thereby, had the right to prohibit any transportation of liquors, and in order to reduce the necessity for transportation to a minimum it had the power to legislate as to the places where liquor might lawfully be possessed. It seems to me that in doing so Congress cannot fairly be said to have overstepped the boundaries of appropriate legislation.
The limitation of the places where liquors may lawfully be possessed is- but a corollary to the prohibition against their transportation, and, under the authority of Crane v. Campbell, supra, I do not think the inhibitions as to the places of possession are “arbitrary and unreasonable, or without proper relation to the legitimate legislative purpose.”
Upon the subject as to whether the carriage of liquor upon the person comes within the act. it is argued that the facts present in United States v. Hill, 248 U. S. 420, 39 Sup. Ct. 143, 63 L. Ed. 337, are not applicable, owing to the fact that the prosecution in the Hill Case was based upon the Reed Amendment (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 8739a, 10387a-10387c) and that the court merely held that—
“The transportation of liquor upon tlie person of one being eai'ried, in interstate commerce is within the well-established meaning- of the words ‘inter-state commerce.’. ”
That is quite true,-but it must be remembered that the only jurisdiction of Congress to enact the prohibitory law then under discussion was based upon the interstate commerce clause of the Constitution,
In view of the foregoing, and without regard to the technical objection urged against the complaint, I cannot do otherwise than to dismiss complainant’s bill.
This opinion expresses my views of the situation as it existed upon the date when I filed my former memorandum herein, in which I said that I would dismiss complainant’s bill and would file my reasons therefor at a later date.