United States v. Berkeness/Opinion of the Court
The Attorney General and Mrs. Mabel Walker Willebrandt, Asst. Atty. Gen., for the United States.

Mr. Justice McREYNOLDS delivered the opinion of the Court. $This proceeding was begun by the United States attorney in the District Court for Alaska to enjoin and abate a nuisance said to be maintained in Berkeness' private dwelling at Fairbanks.

The complaint alleges: That on the 5th day of May, 1925, the defendant 'had in his possession at and in said premises intoxicating liquor, to wit, beer and wine, and was engaged therein in manufacturing intoxicating liquor, to wit, beer, which said liquor was kept and stored in said premises and was being manufactured therein by said defendant, in violation of the provisions of the Act of Congress approved February 14, 1917, commonly known as the Alaska Dry Law, and particularly in violation of sections 19 and 20 of said act. That said defendant has for a long time prior to the 5th day of May, 1925, kept and maintained said premises as a common and public nuisance, and has, during said time, kept intoxicating liquor in his possession, and stored in said premises.' It was dismissed because unsupported by competent evidence.

A warrant issued May 5, 1925, by the United States commissioner at Fairbanks commanded the marshal to search the premises then occupied by Berkeness as a private dwelling for intoxicating liquors, alleged there to be kept, possessed, and stored by him contrary to the Act of Congress approved February 14, 1917. The preceding affidavits did not charge the use of the dwelling for unlawful sale of intoxicants or for any business purpose. The trial court declared the warrant invalid, and rejected all evidence obtained thereby. This action met approval by the Circuit Court of Appeals.

An act of Congress 'to prohibit the manufacture or sale of alcoholic liquors in the territory of Alaska,' etc., approved February 14, 1917, c. 53, 39 Stat. 903 (48 USCA §§ 261, 274, 278 (Comp. St. §§ 3643b, 3643h, 3643j)), provides:

'Section 1. That on and after the first day of January, anno      Domini nineteen hundred and eighteen, it shall be unlawful      for any person, house, association, firm, company, club, or      corporation, his, its, or their agents, officers, clerks, or      servants, to manufacture, sell, give, or otherwise dispose of      any intoxicating liquor or alcohol of any kind in the      territory of Alaska, or to have in his or its possession or      to transport any intoxicating liquor or alcohol in the      territory of Alaska unless the same was procured and is so      possessed and transported as hereinafter provided.'

'Sec. 13. That it shall be unlawful for any person owning,      leasing, or occupying or in possession or control of any      premises, building, vehicle, car, or boat to knowingly permit      thereon or therein the manufacture, transportation, disposal,      or the keeping of intoxicating liquor with intent to      manufacture, transport, or dispose of the same in violation      of the provisions of this act.'

'Sec. 17. That if one or more persons who are competent      witnesses shall charge, on oath or affirmation, before the      district attorney or any of his deputies duly authorized to      act for him, presenting that any person, company,      copartnership, association, club, or corporation has or have      violated or is violating the provisions of this act by      manufacturing, storing, or depositing, offering for sale,      keeping for sale or use, trafficking in, bartering, exchanging for goods, giving away, or otherwise, furnishing      alcoholic liquor, shall request said district attorney or any      of his assistants duly authorized to act for him to cause to      be issued a warrant, said attorney or any of his assistants      shall cause to be issued such warrant, in which warrant the      room, house, building, or other place in which the violation      is alleged to have occurred or is occurring shall be      specifically described. * * *'

'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 forbidden by the Eighteenth Amendment.

The National Prohibition Act of October 28, 1919, 'to prohibit intoxicating beverages,' etc., c. 85, title 2, 41 Stat. 307 (27 USCA §§ 12, 33, 34, 39, 50, 52), provides:

'Sec. 3. 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. * * *'

'Sec. 21. Any room, house, building, boat, vehicle,      structure, or place where intoxicating liquor is      manufactured, sold, kept, or bartered in violation of this      title, and all intoxicating liquor and property kept and used      in maintaining the same, is hereby declared to be a common      nuisance, and any person who maintains such a common nuisance      shall be guilty of a misdemeanor and upon conviction thereof      shall be fined not more than $1,000 or be imprisoned for not      more than one year, or both. * * *'

'Sec. 22. An action to enjoin any nuisance defined in this      title may be brought in the name of the United States by the      Attorney General of the United States or by any United States attorney or any prosecuting attorney of      any state or any subdivision thereof or by the commissioner      or his deputies or assistants. * * *'

'Sec. 25. It shall be unlawful to have or possess any liquor      or property designed for the manufacture of liquor intended      for use in violating this title or which has been so used,      and no property rights shall exist in any such liquor or      property. A search warrant may issue as provided in title XI      of public law numbered 24 of the Sixty-Fifth Congress,      approved June 15, 1917, and such liquor, the containers      thereof, and such property so seized shall be subject to such      disposition as the court may make thereof. If it is found      that such liquor or property was so unlawfully held or      possessed, or had been so unlawful used, the liquor, and all      property designed for the unlawful manufacture of liquor,      shall be destroyed, unless the court shall otherwise order.      No search warrant shall issue to search any private dwelling      occupied as such unless it is being used for the unlawful      sale of intoxicating liquor, or unless it is in part used for      some business purpose such as a store, shop, saloon,      restaurant, hotel, or boarding house. * * *'

'Sec. 33. 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. * * * But it shall not be      unlawful to possess liquors in one's private dwelling while      the same is occupied and used by him as his dwelling only and      such liquor need not be reported, provided such liquors are      for use only for the personal consumption of the owner      thereof and his family residing in such dwelling and of his      bona fide guests when entertained by him therein; 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.'

'Sec. 35. All provisions of law that are inconsistent with      this act are repealed only to the extent of such      inconsistency and the regulations herein provided for the      manufacture or traffic in intoxicating liquor shall be      construed as in addition to existing laws. * * *'

Chapter 134, 'An act supplemental to the National Prohibition Act,' approved November 23, 1921, 42 Stat. 222 (27 USCA §§ 2, 3 and 18 USCA § 53), declares:

'Sec. 3. That this act and the National Prohibition Act shall      apply not only to the United States but to all territory      subject to its jurisdiction, including the territory of      Hawaii and the Virgin Islands; and jurisdiction is conferred      on the courts of the territory of Hawaii and the Virgin      Islands to enforce this act, and the National Prohibition Act      in such territory and islands.' islands.'

'Sec. 5. That all laws in regard to the manufacture and      taxation of and traffic in intoxicating liquor, and all      penalties for violations of such laws that were in force when      the National Prohibition Act was enacted, shall be and      continue in force, as to both beverage and nonbeverage      liquor, except such provisions of such laws as are directly      in conflict with any provision of the National Prohibition      Act or of this act; but if any act is a violation of any of      such laws and also of the National Prohibition Act or of this      act, a conviction for such act or offense under one shall be      a bar to prosecution therefor under the other. * * *

'Sec. 6. That any officer, agent, or employee of the United      States engaged in the enforcement of this act, or the      National Prohibition Act, or any other law of the United      States, who shall search any private dwelling as defined in      the National Prohibition Act, and occupied as such dwelling,      without a warrant directing such search, or who while so      engaged shall without a search warrant maliciously and without reasonable cause search any other      building or property, shall be guilty of a misdemeanor and      upon conviction thereof shall be fined for a first offense      not more than $1,000, and for a subsequent offense not more      than $1,000 or imprisoned not more than one year, or both      such fine and imprisonment.'

The court below held that, by the legislation subsequent to the Act of February 14, 1917, Congress imposed 'a limitation on the right to search a private dwelling, which is available to residents of Alaska equally with those in other portions of the United States'; and we approve that conclusion.

Notwithstanding known difficulties attending enforcement of prohibition legislation, Congress was careful to declare in the National Prohibition Act that mere possession of liquor in one's home 'shall not be unlawful,' and to forbid procurement of evidence through warrants directing search of dwellings strictly private, not alleged to be used for unlawful sale. The definite intention to protect the home was further emphasized by section 6, Act of 1921.

It is argued that both the act of 1917 and the later general act are in full effect within Alaska-one a special act for that territory, and the other a general law for the United States and all territory subject to their jurisdiction. But the emphatic declaration that no private dwelling shall be searched except under specified circumstances discloses a general policy to protect the home against intrusion through the use of search warrants. Certainly no adequate reason has been suggested for withholding from those who reside in Alaska the safeguards deemed essential in all other territory subject to the jurisdiction of the United States. The provision of the earlier special act is hostile to the later declaration of Congress and must give way.

Our conclusion is entirely consistent with established canons of construction, stated and exemplified by Henderson's Tobacco, 11 Wall. 652, 20 L. Ed. 235; State v. Stoll, 17 Wall. 425, 431, 21 L. Ed. 650; Rodgers v. United States, 185 U.S. 83, 87, 22 S.C.t. 582, 46 L. Ed. 816; Washington v. Miller, 235 U.S. 422, 35 S.C.t. 119, 59 L. Ed. 295; and similar cases.

Affirmed. 

Notes