VIGLIOTTI v. COMMONWEALTH OF PENNSYLVANIA.

In the court of quarter sessions of Fayette county, Pa., Vigliotti was found guilty of selling, during the spring of 1920, spirituous liquor without a license, in violation of section 15 of the Act of May 13, 1887 (P. L. 108), known as the Brooks Law (Pa. St. 1920, § 14007). The liquor so sold was a preparation called 'Jamaica ginger,' containing 88 per cent. of alcohol. The defendant claimed seasonably that the state law as applied deprived him of rights guaranteed by the federal Constitution, because the sales complained of had been made after January 16, 1920, when the Eighteenth Amendment became effective, after which the Volstead Act was the only law applicable to sales of intoxicating liquors. This claim was overruled by the trial court; the defendant was sentenced; the judgment was affirmed by both the Superior Court (75 Pa. Sup. Ct. 366) and the Supreme Court of the state (271 Pa. 10, 115 Atl. 20), and the case comes here on writ of error under section 237 of the Judicial Code as amended (Comp. St. § 1214). The question presented for our decision is whether the provision of the Brooks Law here applied had been superseded by the Eighteenth Amendment and the Volstead Act (41 Stat. 305).

The Brooks Law, as construed by the courts of the state. prohibits every sale of spirituous liquor without a license, excepting only such sales as are made by druggists, and these are forbidden to sell intoxicating liquors except on prescription of a regular physician. The law applies, however small the percentage of alcohol, and although the liquor is not intoxicating. It applies to liquor sold solely for industrial uses. It does not purport to confer upon any one anywhere the right to a license, nor does it authorize the sale of liquor in any city or county having a special prohibitory law. It merely grants to the appropriate officials, where such authority exists, discretion to give or to withhold the license under the conditions prescribed. In case of an indictment for selling without a license, a sale is presumed to be unlawful, and the burden is on the defendant to show the authority on which he acted. It is thus primarily a prohibitory law, and its prohibitory features are not so dependent upon those respecting license as to be swept away by the Eighteenth Amendment and the Volstead Act. The Supreme Court declared further that:

'The Brooks Law still survives as Pennsylvania's own police power method of officially listing and adequately controlling the customary sources of general supply and distribution, to the peoples within her borders, of those kinds of liquors among which intoxicating beverages are usually found, and she may thus assist in prohibiting their illegal use as such.' 271 Pa. 10, 115 Atl. 22.

We, of course, accept as controlling the construction given to the statute by the highest court of the state. The question before us is whether, so construed, the statute violates the federal Constitution.

The Brooks Law as thus construed does not purport to authorize or sanction anything which the Eighteenth Amendment or the Volstead Act prohibits. And there is nothing in it which conflicts with any provision of either. It is merely an additional instrument which the state supplies in the effort to make prohibition effective. That the state may by appropriate legislation exercise its police power to that end was expressly provided in section 2 of the amendment which declares that 'Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.' National Prohibition Cases, 253 U. S. 350, 387, 40 Sup. Ct. 486, 588, 64 L. Ed. 946. That the Brooks Law, as construed, is appropriate legislation, is likewise clear. To prohibit every sale of spirituous liquors, except by licensed persons, may certainly aid in preventing sales for beverages purposes of liquor containing as much as one-half of 1 per cent. of alcohol, and that is what the Volstead Act prohibits. If the Brooks Law as construed had been enacted the day after the adoption of the amendment, it would obviously have been 'appropriate legislation.' It is not less so because it was already in existence.

Affirmed.

Mr. Justice DAY and Mr. Justice McREYNOLDS dissent.