(236 Mass. 281) (128 N.E.) COMMONWEALTH v. NICKERSON. (Supreme Judicial Court of Massachusetts. Suffolk. Sept. 17, 1920.) and contributing to the general aim according to the needs of the state, though Congress also has exercised its power in the premises, so that legislation by the states need not be identical with that of Congress, though it cannot authorize that which is forbidden by Congress; the states not being required to denounce every 1. Courts 97(5)-Federal court's construc-act committed within their boundaries included tion of Eighteenth Amendment and Volstead within the inhibition of congressional legislaAct binding on state court. tion, nor to provide identical penalties therefor. The construction given by the Supreme Court of the United States to the Eighteenth Amendment to the federal Constitution, prohibiting the manufacture and sale of intoxicating liquors, and to the Volstead Act, adopted by Congress to enforce the amendment, is binding upon the Supreme Judicial Court of Massachu setts. 2. Intoxicating liquors 13-Meaning of amendment must be determined from context, purpose, and decisions. The meaning of "concurrent power," as used in the Eighteenth Amendment to the federal Constitution, prohibiting the manufacture and sale of intoxicating liquors, and giving the United States and the several states concurrent power to enforce it, must be determined from its context, the purpose to be accomplished, and a consideration of authoritative adjudications involving kindred constitutional problems. 3. States 4-Exercise by Congress of exclusive jurisdiction abrogates state legislation. In cases where Congress, under the federal Constitution, has the right of exclusive jurisdiction and legislation, and puts forth its power to cover the particular field involved, state legislation on such subject-matter ceases to have efficacy. 4. Intoxicating liquors 6-Regulation within jurisdiction of states before Eighteenth Amendment and war prohibition. The prohibition or regulation of the manufacture and sale of intoxicating liquors, prior to the ratification of the Eighteenth Amendment to the federal Constitution, and prior to federal war prohibition legislation, was within the exclusive jurisdiction of the states, in the exercise of their police power, a power generally denied the United States, except as incidental to some other power conferred upon it by the Constitution, and reserved to the states by the Tenth Amendment. 5. United States 5-Express power of federal government same as implied power. The scope and incidents of an express power of the federal government are the same as those of an implied power. 6. Intoxicating liquors 13-"Concurrent power" of state and United States defined. 7. Intoxicating liquors 13-State licensing act abrogated by Eighteenth Amendment. Since the adoption of the Eighteenth Amendment to the federal Constitution, the provisions of the state licensing act (Rev. Laws, c. 100), so far as they authorize under any circumstances whatsoever sales of intoxicating liquors for beverage purposes, are inoperative. 8. Intoxicating liquors 132-State licensing act abrogated by Volstead Act. The implied authority conferred by the state licensing act (Rev. Laws, c. 100, §§ 1, 2) to sell liquor containing alcohol in excess of one-half of 1 per cent. and less than 1 per cent., inferable from the failure of such licensing statute to prohibit such sales, is no longer operative, in view of the Volstead Act, passed by Congress pursuant to the Eighteenth Amendment to the federal Constitution. 9. Intoxicating liquors 134-Alcohol, brandy, whisky, rum, gin, and any spirituous liquor are "distilled spirits." The words "alcohol, brandy, whisky, rum, gin, and * * * * * any spirituous liquor," of the Volstead Act, passed by Congress to enforce the Eighteenth Amendment to the federal Constitution, are included within the more compendious phrase, "distilled spirits," of the Massachusetts licensing statute (Rev. Laws, c. 100, § 2). [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Distilled Spirits.] 10. Intoxicating liquors 132-Definition of "intoxicating liquor" operative, despite Eighteenth Amendment and Volstead Act. The Massachusetts licensing statute (Rev. Laws, c. 100, § 2) defining "intoxicating liquor," is still operative, despite the subsequent adoption of the Eighteenth Amendment to the federal Constitution, prohibiting the manufacture and sale of intoxicating liquors, and the Volstead Act, passed by Congress to enforce the amendment. 11. Intoxicating liquors 132-Certain provisions of stato licensing act remain operative, despite Eighteenth Amendment and Volstead Act. The words "concurrent power," in the Eighteenth Amendment to the Constitution of the United States, prohibiting the manufacture and sale of intoxicating liquors, and giving Congress and the several states concurrent power to enforce it, mean a power continuously existing for efficacious ends, to be exerted in support of the main object of the amendment, enforce the amendment. The Massachusetts licensing act (Rev. Laws, c. 100, §§ 64, 65, 72–79, 81-87), and Rev. Laws, c. 219, § 7, remain operative, despite the subsequent adoption of the Eighteenth Amendment to the federal Constitution, prohibiting the manufacture and sale of intoxicating liquors, and the Volstead Act, passed by Congress to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 12. Intoxicating liquors 224-Defendant, re- | 17. Criminal law lying on license to justify sale complained of, 13. Intoxicating liquors 132-Prohibitory features of state licensing act not abrogated by Eighteenth Amendment and Volstead Act. The general purpose and plan of the Massachusetts licensing act (Rev. Laws, c. 100), be ing to regulate the sale of intoxicants, and to prohibit such sale except on license, its prohibitory features are not so dependent upon those respecting license as to be swept away when the features as to license are stricken down by the Eighteenth Amendment to the federal Constitution, prohibiting the manufacture and sale of intoxicating liquors, and the Volstead Act, passed by Congress to enforce the amendment. 14. Intoxicating liquors 6-Prior state licensing act may be "appropriate legislation," within Eighteenth Amendment. The circumstance that the Massachusetts licensing act (Rev. Laws, c. 100) was enacted prior to the adoption of the Eighteenth Amendment to the federal Constitution, prohibiting the manufacture and sale of intoxicating liquors, does not prevent it from being "appropriate legislation" to enforce the amendment, as authorized on the part of the states by the amendment. [Ed. Note. For other definitions, see Words and Phrases, Appropriate Legislation.] 15. Intoxicating liquors 216-Complaint un der state licensing statute good, though definition of intoxicating liquors superseded. Complaint charging that defendant, without license and contrary to law, sold whisky containing 47 per cent. of alcohol by volume at 60° Fahrenheit, in violation of the Massachusetts licensing statute (Rev. Laws, c. 100), after the adoption of the Eighteenth Amendment to the federal Constitution, and the passage of the Volstead Act, was not defective, even if the part of the definition of intoxicating liquors in section 2 of the licensing statute, which fixed more than 1 per cent. of alcohol as the test in the absence of any other, has been superseded by the provisions of the Volstead Act. 16. Intoxicating liquors 238 (3)-Whether liquor intoxicating a question of fact, in prosecution under licensing act after abrogation of definition. 304 (20)—Whisky intox icating liquor, as matter of common knowledge. Whisky is an intoxicating liquor, as matter of common knowledge. Report from Superior Court, Suffolk County; Hugo A. Dubuque, Judge. Florence Nickerson was convicted in the municipal court of the city of Boston of selling intoxicating liquors without license and contrary to law, and she appealed to the superior court, which reported the case to the Verdict ordered Supreme Judicial Court. to stand in accordance with the terms of the report. Daniel M. Lyons, Asst. Dist. Atty., of Boston, for the Commonwealth. Adolphus M. Burroughs, of Boston, for defendant. RUGG, C. J. The defendant is charged with having sold intoxicating liquor without a license and contrary to law at Boston on February 12, 1920. The complaint is framed under R. L. c. 100, §§ 1 and 53, in two counts for two separate sales. The only evidence offered at the trial tended to show that the defendant on the date alleged made two distinct sales of whisky containing 47 per cent. of alcohol by volume at 60 degrees Fahrenheit. The defendant offered no evidence. It is not contended that she was authorized to make the sales either by federal or state law. The single question raised on the record and argued at the bar is whether the statute of this commonwealth prohibiting such sales without a license and providing penalty for the violation thereof is valid and enforceable since the adoption of the Eighteenth Amendment to the Constitution of the United States and the enactment of the National Prohibi tion Law. The Eighteenth Amendment was proclaimed as having been ratified and thus became a part of the fundamental law of the land, on January 29, 1919. 40 U. S. Stats. at Large, 1941. Its first two sections, being the ones here pertinent, are in these words: "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. "Sec. 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation." On trial of a complaint under the state licensing statute (Rev. Laws, c. 100) for a sale of intoxicating liquors, without statutory defiCongress, pursuant to the power conferred nition of what such liquor is, because the definition of section 2 has been superseded by fed-upon it by the second section of the Eighteral legislation, it would be an issuable fact eenth Amendment "to enforce this article whether or not the particular liquor sold as a by appropriate legislation," has enacted the beverage was intoxicating. National Prohibition Law, being Act of Oc For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (128 N.E.) tober 28, 1919, c. 85, Acts Sixty-Sixth Con- "6. The first section of the amendment-the gress, 41 U. S. Stats. at Large, 305, known as one embodying the prohibition-is operative the Volstead Act. 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 a state Legislature, or by a territorial assembly every legislative act-whether by Congress, by -which authorizes or sanctions what the section prohibits. Confessedly both the Eighteenth Amendment and the Volstead Act were in force and effect on the date named in the complaint and at the time of the sales involved in the case at bar. By title II, § 1, of the Volstead Act it is provided that "the word 'liquor' or the phrase 'intoxicating liquor' shall be construed to include alcohol, brandy, whisky, rum, gin, beer, ale, porter, and wine, and in addition thereto any spirituous, vinous, malt, or fermented liquor, liquids, and compounds, whether medicated, proprietary, patented, or not, and by whatever name called, containing one-half of 1 per centum or more of alcohol by volume which are fit for use for beverage purposes," with exceptions not here material. By section 3 of the same title it is provided that "No person shall on or after the date when the Eighteenth Amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this act, and all the provisions of this act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented." By section 29 the penalty for a sale of liquor in violation of title II is for a first offense a fine of not more than $1,000 or imprisonment not exceeding 6 months, and for a second or subsequent offense a fine of not less than $200 nor more than $2,000 and imprisonment for not less than one month nor more than five years. [1] 1. The construction given by the Supreme Court or the United States to the Eighteenth Amendment and to the Volstead Act is binding upon this court. The only decision of that court throwing light upon the pending question is Rhode Island v. Palmer, 253 U. S. 350, 40 Sup. Ct. 486, 588, 64 L. Ed. decided on the 7th of last June. Although one aspect of the Eighteenth Amendment was adjudged in Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U. S. 146, 163, 164, 40 Sup. Ct. 106, 64 L. Ed., it is not relevant to the contentions raised in the case at bar. It was held in substance in the first five conclusions of the opinion in Rhode Island v. Palmer, concerning the Eighteenth Amendment, that (1) the resolution of Congress proposing it was sufficient in form; (2) it was lawfully proposed by Congress to the Legislatures; (3) ratification thereof by the Legislature was not subject to referendum provisions of state Constitutions and statutes; (4) its subject-matter was within the power of amendment reserved in the Constitution; (5) it has become a part of the Constitution of the United States. The next four conclusions are in these words: "7. The second section of the amendmentthe one declaring, "The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation'does not enable Congress or the several states to defeat or thwart the prohibition, but only to enforce it by appropriate means. "8. The words 'concurrent power' in that section do not mean joint power, or require that legislation thereunder by Congress, to be effective, shall be approved or sanctioned by the several states or any of them; nor do they mean that the power to enforce is divided between Congress and the several states along the lines which separate or distinguish foreign and interstate commerece from intrastate affairs. "9. The power confided to Congress by that section, while not exclusive, is territorially coextensive with the prohibition of the first section, embraces manufacture and other intrastate transactions as well as importation, exportation and interstate traffic, and is in no wise dependent on or affected by action or inaction on the part of the several states, or any of them." By conclusion 10 the Volstead Act is declared applicable indifferently to the disposal for beverage of liquors manufactured before and after the Eighteenth Amendment became effective, and by conclusion 11 the declaration of that act that liquors containing as much as one-half of 1 per cent. of alcohol by volume and fit for use for beverage shall be treated as intoxicating was held to be within the scope of the Eighteenth Amendment. 2. It thus is apparent that the words "concurrent power" as used in the Eighteenth Amendment have not yet been authoritatively and explicitly defined with reference to circumstances like those disclosed in the case at bar. It becomes necessary for us to consider the meaning of those words so far as necessary to the present decision. The word "concurrent," like most other words, has different meanings dependent upon the connection in which it occurs and the end to be accomplished by its use. It is a common word found in many different associations. There are numerous decisions in which the word has been defined or used in a specific sense. It was said in Nielsen, v. Oregon, 212 U. S. 315, at page 319, 29 Sup. Ct. 383, at page 384 (53 L. Ed. 528): "In Wedding v. Meyler, 192 U. S. 573, 584, construing the term 'concurrent jurisdiction," as given to Kentucky and Indiana over the Ohio river, this court said: 'Concurrent The result of this kind of grant of power to two different states is that, while one may legislate effectively over the entire river in the absence of conflicting statutes by another state having like power, it cannot punish one for doing within the territory of another state acts authorized by its laws. It seems to us obvious, from Rhode Island v. Palmer that the concurrent power of the Eighteenth Amendment cannot be of this nature as to both Congress and the states. The decisions of state and inferior federal courts have been somewhat divergent concerning the meaning of the word "concurrent" in the same connection as before the court in Nielson v. Oregon. Compare State v. Moyers, 155 Iowa, 678, 136 N. W. 896, 41 L. R. A. (N. S.) 366; Roberts v. Fullerton, 117 Wis. 222, 93 N. W. 1111, 65 L. R. A. 953; State v. Faudre, 54 W. Va. 122, 46 S. E. 269, 63 L. R. A. 877, 102 Am. St. Rep. 927, 1 Ann. Cas. 104, and decisions collected in Nielsen v. Oregon, supra. There are several other instances where the word "concurrent" has been explained or defined in the judgments or opinions of justices of the United States Supreme Court. In Fox v. Ohio, 5 How. 410, at page 418 (12 L. Ed. 213), it is said respecting the powers of the general government and the states: "It very clearly appears * that there may be an exercise of concurrent jurisdiction in the case of a granted power; that the mere grant works no exclusion of state sovereignty, even where concurrent exercise may lead to occasional interference in the policy of either government, and that nothing short of absolute and total repugnancy will suffice." In Houston v. Moore, 5 Wheat. 1, at page 49 (5 L. Ed. 19), Mr. Justice Story, after enumerating three classes of cases of exclusive powers vested in Congress, used this language. "Whether the power of legislation upon this subject [fugitive slaves] is exclusive in the national government, or concurrent in the states, until it is exercised by Congress. In our opinion, it is exclusive." In Gibbons v. Ogden, 9 Wheat. 1, at page 209 (6 L. Ed. 23), it was said that the proposition could not be established that "The states possess, concurrently with the Legislature of the Union, the power to regulate commerce with foreign nations and among the states." "Within the second class of cases-those of what may be termed concurrent jurisdictionare embraced laws for the regulation of pilots, Cooley v. Philadelphia Board of Wardens, 12 How. 299; Steamship Company v. Joliffe, 2 Wall. 450; Ex parte McNiel, 13 Wall. 236; Wilson v. McNamee, 102 U. S. 572; quarantine and inspection laws and the policing of harbors, Gibbons v. Ogden, 9 Wheat. 1, 203; City of New York v. Miln, 11 Pet. 102; Turner v. Mary"In all other cases not falling within the land, 107 U. S. 38; Morgan Steamship Co. v. classes already mentioned, it seems unques-Louisiana, 118 U. S. 455; the improvement of tionable that the states retain concurrent authority with Congress, not only upon the letter and spirit of the Eleventh Amendment of the Constitution, but upon the soundest principles of general reasoning. There is this reserve, however, that in cases of concurrent authority, where the laws of the states and of the Union are in direct and manifest collision on the same subject, those of the Union, being 'the supreme law of the land,' are of paramount authority, and the state laws, so far, and so far only, as such incompatibility exists, must necessarily yield." In the Passenger Cases, 7 How. 283, at page 396 (12 L. Ed. 702), it was said by Mr. Justice McLean: navigable channels, County of Mobile v. Kimball, 102 U. S. 691; Escanaba Co. v. Chicago, 107 U. S. 678; Huse v. Glover, 119 U. S. 543; the regulation of wharfs, piers, and docks, Cannon v. New Orleans, 20 Wall. 577; Packet Company v. Keokuk, 95 U. S. 80; Packet Company v. St. Louis, 100 U. S. 423; Packet Company v. Catlettsburg, 105 U. S. 559; Transportation Company v. Parkersburg, 107 U. S. 691; Ouachita Packet Co. v. Aiken, 121 U. S. 444; the construction of dams and bridges across the navigable waters of a state, Willson v. Blackbird Creek Marsh Co., 2 Pet. 245; Cardwell v. American Bridge Co., 113 U. S. 205; Pound v. Turck, 95 U. S. 459; and the establishment of ferries, Conway v. Taylor's Executors, 1 Black, 603. (128 N.E.) "Of this class of cases it was said by Mr. | instances Congress alone is given power "to Justice Curtis in Cooley v. Board of Wardens, enforce" "by appropriate legislation." Here 12 How. 299, 318: 'If it were admitted that the the several states are joined with the Conexistence of this power in Congress, like the gress as depositories of concurrent legislative power of taxation, is compatible with the exist-power. It is reasonable to presume that this ence of a similar power in the states, then it would be in conformity with the contemporary exposition of the Constitution (Federalist, No. 32), and with the judicial construction, given from time to time by this court, after the most deliberate consideration, to hold that the mere grant of such a power to Congress did not imply a prohibition on the states to exercise the same power; that it is not the mere existence of such a power, but its exercise by Congress, which may be incompatible with the exercise of the same power by the states, and that the states may legislate in the absence of congressional regulations.'" [2] We are unable to deduce from these decisions a universal definition of "concurrent," or one so well settled as to lead to the conviction that it was employed in the Eighteenth Amendment in reliance upon a judicially established meaning. Its meaning as used in that amendment must be determined from its context, the purpose to be accomplished and a consideration of authoritative adjudications where the discussion of kindred constitutional problems has been involved. The Eighteenth Amendment was framed by Congress and by it submitted to the Legislatures of the several states. The debates of Congress concerning the amendment, to which resort might be had in appropriate instances, do not appear to us to throw light upon the meaning of the word "concurrent." We do not pause to review what there was said. See, however, remarks of the author of the Volstead Act, 59 Congressional Record, March 23, 1920, pp. 5146, 5148. change in phraseology was adopted understandingly and imports an intention to effect a change in substance and in scope of the power. Slaughterhouse Cases, 16 Wall. 36, 74, 21 L. Ed. 394. It is hardly likely that in an instrument of such transcendent importance as an amendment to the Constitution, the conjoining of Congress and the separate states as severally possessors of legislative power for enforcement of prohibition should under any circumstances be a barren grant or confer merely an insubstantial shadow upon either. The difference between the phraseology of the Eighteenth Amendment and that of the Thirteenth, Fourteenth and Fifteenth Amendments in this particular, according to the common and approved usage of language, expresses a purpose to repose in the states a substantial power capable of some measure of effective exercise under all circumstances. The words of the amendment declare a complete possession of power by the states of which they cannot be deprived by Congress. The force and effect of the words of the Eighteenth Amendment, while possibly enlarging the permissible scope of state legislation respecting importation and exportation of intoxicating liquors, leaves open to state legislation the same field theretofore existing for the exercise of the police power concerning intoxicating liquors subject only to the limitations arising from the conferring of like power upon Congress with its accompanying implications, whatever they may be. Having regard only to the words of the several states are placed upon an equality as Eighteenth Amendment the Congress and the to legislative power. It is only when the amendment is placed in its context with other parts of the Constitution that the supremacy of the act of Congress if in direct conflict with state legislation becomes manifest. This is the only instance to be found in the Constitution or any of its amendments where there is a definite declaration that both Congress and the several states have "concurrent power to enforce" any constitutional mandate or power "by appropriate legislation." Certain powers are reserved to the states. Article 1, section 8; article 10 of the while the general power to deal with some There is a group of cases which hold that, Amendments. Certain powers are prohibited subjects is vested in Congress by the Constito the states and certain other powers can be tution, yet in the absence of action by Conexercised by the states only by consent of Congress. Article 1, section 10. But in the gress, if the power is not denied to the states, Eighteenth Amendment alone is there ex-valid and enforceable. By article 1, section legislation by them touching the subject is press establishment of the existence of concurrent power in Congress and the several states to enforce by legislation its provisions. The words of the second section of the Eighteenth Amendment are specific to the point that "The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation." 8, clause 4, of the Constitution, Congress is uniform the United States." There are no words in the Constitution as to the power of states over bankruptcies. Until Congress has acted by passing a general bankrupt law the several states may enact laws of that nature, which are suspended when Congress acts upon the subject. See, for example, Sturges v. CrownThis phrase is significantly different from inshield, 4 Wheat. 122, 193, 4 L. Ed. 529; that found in corresponding sections of Ogden v. Saunders, 12 Wheat. 213, 6 L. Ed. Amendments 13, 14, and 15. In those three 606; Griswold v. Pratt, 9 Metc. 16. Those |