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In re Marriage Licenses.
AffidaritNotary Public -Orphans' Court in Another County.

A notary public of one county has no authority to take the affidavits of applicants for a marriage license to be issued by the clerk of the Orphans' Court of another county.

OFFICE OF THE ATTORNEY GENERAL,
Harrisburg, Pa.

December 31, 1919.
Hon. William C. Sproul,
Governor of Pennsylvania,

Harrisburg, Pa.

Sir:

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There was duly received your communication of the twenty-third instant asking to be advised whether a notary public residing in one county has authority under the laws of the Commonwealth to take the affidavits of applicants desiring marriage licenses to be issued by the Clerk of the Orphans' Court of another county in which the ceremony is to be performed.

The Act of June 18, 1895, P. L. 202, Section 1, provides that:

"No person within this Commonwealth shall be joined in marriage until a license shall have been obtained for that purpose from the Clerk of the Orphans' Court in the county wherein either of the contracting parties resides or in the county where the marriage is performed.”

This Act which regulates the issuance of licenses is limited to the county in which either of the parties resides or the county in which the ceremony is to be performed.

Prior to the passage of the Act of March 24, 1905, P. L. 58, parties intending marriage were required to appear in person before the Clerk of the Orphans' Court of the proper county as fixed by the Act of 1895, supra. Section 1 of the Act of 1905 amended the Act of 1895 in its 3d Section by providing, inter alia:

or, the parties intending marriage may, either separately or together, appear before any magistrate, alderman, notary public or justice of the peace of the township. ward or county, wherein neither of the contracting parties resides, and in the county where the license is desired, who may, and is hereby authorized, to inquire of them touching the legality of their contemplated marriage, the age of the parties, the consent of parents or guardians when required, and such prior marriage and dissolution thereof; and such inquiries, and the answers thereto having been subscribed and sworn to by the parties before such officer may be forwarded to the Clerk of the Court, who, if satisfied, after an examination thereof that the same is genuine and that no legal objection to the contemplated marriage exists, shall grant a license therefor.”

This Act merely changes the procedure in securing a marriage license by relieving applicants from going before the Clerk of the Orphans' Court of the proper county and by permitting them in certain cases to appear before a notary or certain other persons qualified to administer oaths or affirmations for the purpose of swearing to the application. Manifestly this provision of the Act was passed to relieve applicants of the inconvenience of journeying to the county seat in every case. It does not change the law of 1895 which fixes the counties which the license may be issued as the county in which either of the parties resides or the county of the performance of the ceremony.

It will be observed that in cases where applicants for a marriage license desire to secure the same by making application before a notary public,

In re Marriage Licenses.

they may not appear before a notary public in any county, but must appear before a notary public of the county in which one of the parties resides and the county where the license is desired. The words "where the license is desired” mean where the license is issued. Therefore, when this method of obtaining a marriage license is pursued, that is, when the application is made before a notray public instead of directly before the Clerk of the proper Orphans' Court one of the contracting parties and the notary public before whom the application is made, and the Clerk of the Orphans' Court which will issue the license must reside in the same. These three facts must concur in every case in which the application for the license is made before a notary public and not directly to the Clerk of the proper Orphans' Court.

You are therefore advised that a notary public of one county has no authority to take the affidavits of applicants for marriage licenses to be issued by the Clerk of the Orphans' Court of another county.

Yours very truly,
WILLIAM I. SCHAFFER,

Attorney General.

In re Beverages. Dealcoholized Wines-Non-Alcoholic DrinksEighteenth Amendment

Foods-State and Federal Jurisdiction.

The words "concurrent power" in the Eighteenth Amendment to the United States Constitution prohibiting traffic or use of intoxicating liquors are intended to authorize either the State or the Federal Government to carry the amendment into effect, and if the State imposes severer restrictions than those imposed by Congress the State laws may, within the confines of the State, be enforced.

The Act of May 13, 1887, P. L. 108, known as the “Brook's High License Law," prohibiting the sale without a license of spirituous, vinous, malt and brewed liquors "containing any percentage of alcohol," has not been superseded by the Act of Congress of October 28, 1919 prohibiting the sale of beverages containing more than one-half of one per cent alcohol.

The Act of May 13, 1887, P. L. 108, distinctly regulates the sale of dealcoholized wine from which all the alcohol has been extracted, and prohibits such sale without a license, so that any beverage if it contains any percentage of alcolhol does not come within the Non-Alcoholic Drink Act of March 11, 1909, P. L. 15, as amended by the Act of June 16, 1919, P. L. 480, and is therefore not subject to the supervision of the State Bureau of Foods.

OFFICE OF THE ATTORNEY GENERAL.
Harrisburg, Pa.

January 6, 1920.
Honorable James Foust,
Director Bureau of Foods,

Harrisburg, Pa. Sir:

You have requested an opinion as to whether the drink called “Virginia Dare Wine" comes within the Non-alcoholic Drink Act of March 11, 1909, P. L. 15, as amended by the Act of June 16, 1919, P. L. 480, and therefore subject to your supervision as to adulteration and misbranding, as defined by that Act.

The facts upon which your request is based I understand to be as follows:

The product known as “Virginia Dare Wine" is produced by the usual process of making wine and it is subjected to a further process of extracting

In re Beverages.

the alcohol. In most instances the alcohol is completely extracted, but it occasionally happens that there is a trace of alcohol remaining, sometimes as much as three-tenths of one per cent., and the sample which happened to be purchased by your Bureau contained that quantity of alcohol.

The chemist's report indicates that this drink "possesses the general properties of light colored, unfermented grape juice and is much superior to some of the beverages which have lately appeared," and that three-tenths of one per cent. is less alcohol than is sometimes found in "unfermented fruit juices, such as grape juice, loganberry juice, apple cider, even when perfectly sweet and put up with the greatest care.”

The Act of May 13, 1887, P. L. 108, known as the “Brooks High License Law," prohibits the sale, without a license, of "spirituous, vinous, malt and brewed liquors.” In constructing this Act of Assembly it has been held that if a liquor is vinous or spirituous a conviction may be sustained, even though there was no evidence that the liquor was intoxicating or had an intoxicating effect, Commonwealth v Reyburg, 122 Pa., 299; and that if the liquor sold without a license contained any alcohol such sale violated the law, even though the percentage of alcohol was slight. Convictions have been sustained where the drink was admitted to contain 87/100 of one per cent. Commonwealth v Wenzel, 24 Sup. Ct., 467. It has also been held that it is a violation of this law to sell liquor containing two per cent. of alcohol, even though there be no evidence that the drink was intoxicating. Hatfield v Commonwealth, 120 Pa., 395; Commonwealth v Burns, 38 Sup. Ct., 514.

The Eighteenth Amendment to the Constitution of the United States prohibits:

"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."

Section 2 of this amendment provides:

“The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.”

The State of Pennsylvania has not passed any legislation designed to enforce this constitutional amendment. Congress, however, has passed the Act of October 28, 1919, Public No. 66, 66th Congress, enforcing the eighteenth amendment.

The question, therefore, to be determined is the effect of this congressional legislation upon the Brooks High License Law of May 13, 1887.

The proper interpretation of the words “concurrent power” given by Section 2 of the amendment to Congress and the several States is involved in this question. I think the words "concurrent power” are equivalent to “concurrent jurisdiction.” If these words mean that, notwithstanding any legislation of Congress, there must also be legislation by the States before this amendment to the Constitution is enforceable, then the rule that when Congress legislates upon a subject within its jurisdiction and covers the field, it supersedes legislation by the States, is not applicable.

If, on the other hand, “concurrent power” means that either the Congress or the States have the power to enforce the amendment, then the question arises as to how far the Act of Congress has superseded the Brooks High License Law.

The cases interpreting “concurrent jurisdiction” are not uniform, and this phrase is construed with reference to the situation with which it deals. For instance, concurrent jurisdiction conferred over fishing in boundary rivers has been construed to mean that, where there is a conflict of law, the law of the State which is most restrictive in its character must prevail. In such cases "concurrent jurisdiction” is not joint in the sense that only

In re Beverages.

legislative acts adopted by both States can be effective on boundary waters. State v Neilson, 95 Pac., 720, 131 Am. St. Rep., 765; State v Meyers (Iowa), 136 N. W., 896, 41 L. R. A. (N. S.), 366.

It has also been held with reference to the Columbia River that Oregon can only "enact such criminal statutes as are agreed to or acquiesced in by the State of Washington, or as are already in force within its jurisdiction." Ex.parte Desjeiro, 152 Fed., 1004.

As applied to Courts, “no one has ever pretended that the exercise of such jurisdiction by one Court was dependent upon its concurrent exercise by any other." Keater v St. Croix Boom Corporation, 72 Wis., 62, 38 N. W., 529.

A familiar application of concurrent power, though not applied at the same time, is the operation of the Acts of Congress on food products which enter into Interstate Commerce, and the subsequent operation of the laws of the State upon such food products.

It would render this Article of the Constitution ineffective if Congressional action in carrying it into effect had to await the concurrent legislative action of the several States. National prohibition would be a jarce, and the matter would still remain within the complete control of the police power of the several States, exercised through its concurrent legislation.

I am, therefore, of opinion that the words “concurrent power” are intended to authorize either the State or the Federal Government to carry the eighteenth amendment into effect, and if the State imposes severe; restrictions than those imposed by Congress the State laws may, wiihin the confines of the State be enforced.

When the State does not legislate on the subject, the Act of Congress has, in my opinion, the effect of superseding prior State legislation which is inconsistent with it.

It is a familiar rule that Acts of Congress only supersede State laws in so far as the latter are in conflict with the paramount Federal statute This rule has been applied in our own State to the Federal Bankruptcy Acts. Potts v Smith Manufacturing Company, 25 Sup. Ct., 206; Hoover v Ober, 42 Sup. Ct., 308.

How does this leave the situation? The Act of Congress has defined intoxicating liquors to be any liquid fit for beverage purposes, by whatever named called, "containing one-half of one per centum of alcohol by volume."

If there were nothing else in the Act of Congress, the conclusion would be irresistible that it legislates only as to vinous, spirituous, malt or brewed liquors which contain more than one-half of one per centum of alcohol by volume, and that it does not cover such liquors if they contain less than one-half of one per centum of alcohol.

The Brooks High License Law having been construed to include liquors containing any per centage of alcohol, and, therefore, percentages less than one-half of one per cent., would cover a field that has not been covered by the Act of Congress. It would follow that the Act of Congress has not superseded the Brooks High License Law as to such liquors, but in Section 1 of Title II of the Act of Congress defining "intoxicating liquors" there is this further provision:

"That the foregoing definition shall not extend to dealcoholized wire nor to any beverage or liquid produced by the process by which beer, ale. porter or wine is produced, if it contains less than one-half of one per centum of alcohol by volume, and is made as prescribed in section 37 of this title, and is otherwise denominated than as beer, ale, or porter, and is contained and sold in, or from, such sealed and labeled bottles, casks, or containers as the commissioners may by regulation prescribe."

In re Beverages.

Section 37 provides that

"A manufacturer of any beverage containing less than one-half of on: pe: centum of alcohol by volume may, on making application and giving such bond as the commissioner shall prescribe, be given a permit to dev op in the manufacture thereof by the usual methods of formentation and fortification or otherwise a liquid such as beer, ale, porter, or wine, containing more than one-half of one per centum of alcohol by volume, but before any such liquid is withdrawn from the factory or otherwise disposed of the alcoholic contents thereof shall under such rules and regulations as the commissioner may prescribe be reduced below such one-half of one per centum of alcohol."

This section further provides how the alcohol may be extracted and taxed, and that no tax shall be assessed on dealcoholized wine containing less than one-half of one per centum of alcohol by volume.

Does this provision, which covers the manufacture of dealcoholized wine, so cover its sale as to supersede the Brooks High License Law regulating beverages containing less than one-half of one per centum of alcohol by volume? I do not think it has that effect. The Act of Congress determines how dealcoholized wine may be made, but it is not, in my opinion, intended to regulate the sale thereof. The Brooks High License Law, as interpreted by the Courts, distinctly regulates the sale of dealcoholized wine from which all the alcohol has not been extracted, and prohibits sucli sale without a license.

I am, therefore, of the opinion that the Act of Congress has not superseded the Brooks High License Law in so far as beverages are concerned which contain less than one-half of one per centum of alcohol by volume, and that a license is required to sell such beverages. This conclusion is consistent with that reached by the Court of Quarter Sessions of Schuylkill County in the matter of the petition of William G. Freeze for the transfer of a retail liquor license, wherein the Court came to the conclusion ihat a license was still required to sell "vinous, spirituous, malt or brewed liquors, or any admixture thereof” containing less than one-half of one per centum of alcohol by volume, and that such requirement was not affected by the Vational Prohibition let.

I, therefore, advise you that “Virginia Dare Wine," if it contains any percentage of alcohol, does not come within the Non-alcoholic Drink Act of March 11, 1909, P. L. 15, as amended by the Act of June 16, 1919, P. L. 480, and is, therefore not subject to your supervision.

Very truly yours,

WM. I. SCHAFFER.

Attorney General.

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