#### STATE OF NORTH DAKOTA, Respondent, v. GUNDER LIGAARDEN, Appellant.

(70 A.L.R. 126, 230 N. W. 729).

*476Opinion filed April 24, 1930.

*Olaf Braaielien,*for appellant.

*James Morris,*Attorney General, and *B. J. Mcllrcdth,*State’s Attorney, for respondent.

ChbistiaNSON, *J.*

Tbe defendant was convicted of tbe crime of engaging in tbe liquor traffic as a second offense and appeals from tbe judgment of conviction. Tbe sole question presented for determination is whether chapter 268, Laws 1923 (Supp. §§ 10145bl, et seq.), insofar as it makes it a crime for a person to possess intoxicating liquor, is violative of tbe constitutional rights of tbe defendant.

*477The statute in question provides:

> “See. 1. The following liquors are hereby declared to be intoxicating and their intoxicating quality shall, by the Courts, be presumed, viz: alcohol, brandy, whiskey, rum, gin, beer, ale; porter and wine in addition thereto any spiritous, 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; . . .”

> “See. IB. Any person who shall, within this state, manufacture, sell, barter, transport, import, export, deliver, furnish or possess, any intoxicating liquor, shall be guilty of the crime of engaging in the liquor trafile.”

> “Sec. 2. No person within this state shall manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor, except as provided in this Chapter. . . .”

> “Sec. 2H. It shall not be unlawful to possess liquor acquired prior to February 1, 1920 in one’s private dwelling while the same is occupied and used by him as his dwelling only, provided such liquors are for use only for the personal consumption of the owner thereof and his family residing in such dwelling; and the burden of proof shall be upon the possessor in any action concerning the same to prove that such liquor was lawfully acquired, possessed and used.”

The information in this case charged that the defendant committed the crime of engaging in the liquor traffic in the following manner, to-wit: “That at said time and place the said G-under Ligaarden did wilfully, unlawfully and feloniously possess and have in his possession a large quantity of intoxicating liquor commonly known as whiskey, wine and beer; which said intoxicating liquors contained more than one-half of one per centum of alcohol by volume, and was then and there fit for use as a beverage.” There was a further averment that the defendant previously had been convicted of engaging in the liquor traffic in the district court of Divide county. Defendant assailed the information in the court below on the sole ground that the statute of this state defining the crime of engaging in the liquor traffic is unconstitutional insofar as it purports to make the mere possession of intoxicating liquor a public offense; that neither § 217 of article 20 of the Constitution of North Dakota or the 18th Amendment to the Constitution of *478the United States, authorize the legislative assembly to make the mere possession of intoxicating liquor a public offense.

It is elementary that all legislative enactments are presumed to have been enacted within the limits of the constitutional powers of the lawmakers ; that every statute must be held to be constitutional unless it is clearly violative of some constitutional provision, and any person who claims that some right, guaranteed to him hy the constitution, is contravened by a statute, must be able to point to the specific constitutional provision or provisions that are contravened. State ex rel. Linde v. Taylor, 33 N. D. 76, L.R.A.1918B, 156, 156 N. W. 561, Ann. Cas. 1918A, 583; State ex rel. Kaufman v. Davis, ante, 191, 229 N. W. 108. There is no claim by the appellant that the statute in question contravenes any provision of either the state or the Federal constitution except the two relating to the prohibition of the liquor traffic. In short, the only claim of the appellant is that the legislative enactment in question here, insofar as it makes it a public offense to possess intoxicating liquors, is violative of § 217 of the Constitution of the State of North Dakota and of the 18th Amendment to the Constitution of the United States of America.

Section 217 of the Constitution of North Dakota reads as follows:

> “No person, association or corporation shall within this state, manufacture for sale or gift, any intoxicating liquors, and no persons, association or corporation shall import any of the same for sale or gift, or keep or sell or offer the same for sale, or gift, barter or trade as a beverage. The legislative assembly shall by law prescribe regulations for the enforcement of the provisions of this article and shall thereby provide suitable penalties for the violation thereof.”

The 18th Amendment to the Constitution of the United States provides :

> “Sec. 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.

> Sec. 3. This article shall be inoperative unless it shall have been *479ratified as an amendment to tbe Constitution by tbe Legislatures of tbe several states, as provided in tbe Constitution, witbin seven years from tbe date of tbe submission hereof to tbe States by Congress.”

■ It seems to be tbe contention of tbe appellant that inasmuch as neither of these constitutional provisions in terms prohibits tbe possession of intoxicating liquors, tbe legislative assembly of this state was and is without power to prohibit such possession.

We find it wholly unnecessary to determine whether the eighteenth amendment to the Constitution of the United States of America authorizes the lawmakers of the state or nation to prohibit the possession of intoxicating liquors, for the 18th amendment did not abrogate or repeal § 211 of the Constitution of the State of North Dakota or any then existing valid legislation of this state, nor did it inhibit the legislature of this state from enacting laws dealing with the liquor question, — except insofar as the same might conflict with the 18th amendment. United States v. Lanza, 260 U. S. 377, 67 L. ed. 315, 43 S. Ct. 141; 33 C. J. 503, 504. The 18th amendment does not inhibit the legislators of the various states from legislating more rigorously or from forbidding or providing penalties for acts not prohibited by Congress. 33 C. J. 505; State v. Severin, 58 N. D. 792, 228 N. W. 199; Van Oster v. Kansas, 272 U. S. 465, 71 L. ed. 357, 47 A.L.R. 1044, 47 S. Ct. 133.

In State v. Severin, 58 N. D. 792, 228 N. W. 201, supra, it was contended by the defendant that inasmuch as the national prohibitory law, commonly known as the Volstead Act, did not make mere possession of liquor a crime, the state statute (for reasons there urged) should be construed so as to bring it in harmony with the Federal law. In considering and disposing of the contentions thus advanced this court said:

> “The appellant does not point out any portion of our state law which conflicts with the federal statute. Our law supplements it. Possibly it is more drastic. The right of the state to pass a law controlling the liquor traffic is not dependent upon the 18th Amendment of the Constitution of the United States nor any laws that Congress may make to carry such amendment into execution. Neither is the state required to keep within the limits deemed wise by Congress.”

In United States v. Lanza, 260 U. S. 377, 67 L. ed. 315, 43 S. Ct. 141, supra, the Supreme Court of the United States was required to *480■consider what effect the 18th amendment had upon the power of the several states to enact legislation prohibiting the liquor traffic. The Court, speaking through Chief Justice Taft, said:

> “The Amendment was adopted for the purpose of establishing prohibition as a national policy, reaching every part of the United States, and affecting transactions which are essentially local or intrastate, as well as those pertaining to interstate or foreign commerce. The 2d section means that power to take legislative measures to make the policy effective shall exist in Congress in respect of the territorial limits of the United States, and at the same time the like power of the several states within their territorial limits shall not cease to exist. Each state, as also Congress, may exercise an independent judgment in select' ing and shaping measures to enforce prohibition. Such as are adopted by Congress become laws of the United States, and such as are adopted by a state become laws of that state. They may vary in many particulars, including the penalties prescribed, but’this is an inseparable incident of the independent legislative action in distinct jurisdictions.

To regard the Amendment as the source of the power of the state to adopt and enforce prohibition measures is to take a partial and erroneous view of the matter. Save for some restrictions arising out of the Federal Constitution, chiefly the commerce clause, each state possessed that power in full measure prior to the Amendment, and the probable purpose of declaring a concurrent power to be in the states was to negative any possible inference that, in vesting the national government with the power of country-wide prohibition, state power would be excluded. In effect the 2d section of the 18th Amendment put an end to restrictions upon the state’s power arising out of the Federal Constitution, and left her free to enact prohibition laws applying to all transactions within her limits. To be sure, the 1st section of the Amendment took from the states all power to authorize acts falling within its prohibition, but it did not cut down or displace prior state laws not inconsistent with it. Such laws derive their force, as do all new ones consistent with it, not from this Amendment, but from power originally belonging to the states, preserved to them by the 10th Amendment, and now relieved from the restriction heretofore arising out of the Federal Constitution. This is the ratio decidendi of our decision *481in Vigliotti v. Pennsylvania, 258 U. S. 403, 66 L. ed. 686, 42 S. Ct. 330.

We have bere two sovereignties, deriving power from different-sources, capable of dealing witb tbe same subject-matter witbin tbe same territory. Each may, without interference by tbe other, enact laws to secure prohibition, witb tbe limitation that no legislation can give validity to acts prohibited by tbe Amendment. Each government, in determining what shall be an offense against its peace and dignity, is exercising its own sovereignty, not that of tbe other.”

Section 217 of tbe state constitution was not intended to be a grant of legislative power, it was a command that tbe legislative power should be exercised to prohibit tbe liquor traffic. Tbe provision was not self-executing. It required legislative action to carry tbe constitutional mandate into effect. State ex rel. Ohlquist v. Swan, 1 N. D. 5, 44 N. W. 492. If § *217*bad never been adopted tbe legislative assembly would still have bad unquestioned power to prohibit tbe importation, manufacture, transportation, sale or possession of intoxicating liquors. Crane v. Campbell, 245 U. S. 304, 62 L. ed. 304, 38 S. Ct. 98; Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192, *57*L. ed. 184, 33 S. Ct. 44. See also State ex rel. Germain v. Ross, 39 N. D. 630, 170 N. W. 121.

In State ex rel. Germain v. Ross, supra, this court bad occasion to consider tbe purpose and effect of § 217 of tbe state constitution. In that case it was claimed, as it is bere, that section 217 of tbe constitution is a limitation upon legislative power. In disposing of that contention this court used tbe following language which is equally pertinent bere:

> “This section is a declaration of constitutional policy. Tbe purpose and spirit of tbe provision is manifest. Tbe section is not intended to confer any power on tbe legislature, but constitutes a command on tbe part of tbe people to tbe legislature to enact certain legislation to carry into effect tbe policy declared in tbe section. Clearly tbe statute under consideration does not violate any express inhibition contained in tbe section. Tbe relator, however, asserts that § 217 merely prohibits tbe manufacture, sale, or gift of intoxicants, and contains no prohibition or restriction on tbe right to purchase or acquire tbe same. And it is contended that tbe express mention of tbe acts to be prohibited must be *482deemed to evince an intent to exclude all acts not enumerated, and to restrict legislative action to those specifically enumerated. It is well to remember'that tbe principle invoked by tbe relator is merely a rule of construction. And that tbe great fundamental purpose of, and rule in, construing all *constitutional*provisions, is to ascertain and give effect to tbe intent of tbe framers and of tbe people who adopted it. Keeping in mind tbe object sought to be accomplished, and tbe evils, if any, sought to be remedied or prevented, by its adoption, tbe court should aim to give effect to tbe purpose indicated by a fair interpretation of tbe language used. 12 C. J. 100 — Y02.

Tbe Constitution recognized tbe liquor traffic as an existing evil, and that public morality and welfare required that it be prohibited within tbe state. It ought not to be assumed that those who framed and adopted this provision intended to place any restriction upon the powers of tbe legislature to enact laws for tbe purpose of carrying into effect tbe very policy solemnly proclaimed in tbe provision. On tbe contrary, we must assume, in absence of clear evidence to tbe contrary, that they intended that tbe legislature should bave the power to enact suitable laws to prevent tbe evil sought to be prevented and carry into effect tbe constitutional policy declared.”

In Purity Extract *&*Tonic Co. v. Lynch, 226 U. S. 192, *57*L. ed. 184, 33 S. Ct. 44, supra, tbe supreme court of tbe United States was called upon to determine fhe validity of a statute of the state of Mississippi which made it unlawful to sell malt liquors within that state, whether- intoxicating or not. Tbe statute was upheld in an opinion by tbe then Justice (now Chief Justice) Hughes. In tbe opinion in that case1 tbe court said:

> “That tbe state, in tbe exercise of its police power, may prohibit tbe selling of intoxicating liquors, is undoubted. . . . It is also well established that, when a state exerting its recognized authority undertakes to suppress what it is free to regard as a public evil, it may adopt such measures having reasonable relation to that end as it may deem necessary in order to make its action effective. It does not follow that because a transaction, separately considered, is innocuous, it may' not be included in a prohibition tbe scope of which is regarded as essential in tbe legislative judgment to accomplish a purpose within the admitted power of tbe government. . . . With tbe wisdom of tbe exercise *483of that judgment the court has no concern; and unless it clearly appears that the enactment has no substantial relation to a proper purpose, it cannot be said that the limit of legislative power has been transcended. To hold otherwise would be to substitute judicial opinion of expediency for the will of the Legislature — a notion foreign to our constitutional system.”

In Crane v. Campbell, 245 U. S. 307, 62 L. ed. 309, 38 S. Ct. 98, supra, the Supreme Court of the United States had under consideration a statute of the state of'Idaho, making it unlawful for a person to possess intoxicating liquors. It was claimed that the right to possess such liquors was one which the state could not abridge without violating the guarantees of the 14th Amendment. In disposing of such contention the Court said:

> “As the State has the power above indicated to prohibit, it may adopt such measures as are reasonably appropriate or needful to render exercise of that power effective . . . [Citation of Authorities]. 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 proper relation to the legitimate legislative purpose.”

We are wholly agreed that the statute of this state making it an offense for a person to have in his possession intoxicating liquors (except in the manner and for the purposes stated therein) does not operate to deny to the defendant any rights guaranteed to him either by § 217 of the Constitution of this state or the 18th Amendment of the Constitution of the United States.

Judgment affirmed.

Bueke, Oh. J., and Biedzell, Nuessle and Buee, JJ., concur.