(dissenting). I. To constitute a public nuisance under section 1530 of the Penal Law the act or omission complained of must have been done “ unlawfully ” and it must have led to one of the results mentioned in the four subdivisions of that section.
a. Was the act here in question done “ unlawfully? ” .
In the absence of any language to indicate a contrary intent, I think the word “ unlawfully ” in our statute must be construed as referring to the body of law which is binding upon the people and courts of New York as a separate sovereignty.
“We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory.” (U. S. v. Lanza, 260 U. S. 377, 382.)
The Federal sovereignty, by the National Prohibition Act (41 U. S. Stat. at Large, 305, chap. 85), also known as-the Volstead Act, has dealt with the subject of prohibition. The State so ver*116eignty declines to deal with it. So far as its criminal provisions are concerned, the National Prohibition Act is no part of the law of this State as a separate sovereignty. So far, however, as its provisions are enforcible by civil process, it is a part of the law of this State. (U. S. v. Sumner, 216 App. Div. 782, affg. 125 Misc. 658; U. S. v. Myers, 215 App. Div. 624; Broadway C. S. Corp. v. Buchanan Rest. Co., 218 id. 594; Claflin v. Houseman, 93 U. S. 130.) Back of all that, however, is the Constitution of the United States. The act of defendant in selling intoxicating liquor was prohibited by the Eighteenth Amendment to the United State Constitution. It was, therefore, prohibited by the law of New York. (National Prohibition Cases [Rhode Island v. Palmer], 253 U. S. 350, 386, conclusion No. 6.) In People v. Otis (235 N. Y. 421, 423) it is said: “ The possession of intoxicating liquor is now unlawful. Liquor so possessed may not be sold, transported or delivered to any one.”
I conclude that the defendant in selling intoxicating beverages did an act “ unlawfully ” within the language of section 1530 of the Penal Law, although the act was not per se criminal under the State law.
b. Did that act lead or tend to lead to any of the results mentioned in the four subdivisions of section 1530 of the Penal Law?
The evidence in the case seems to render subdivisions 1, 3 and 4 inapplicable. We have to consider, then, the question as it arises under subdivision 2. Did defendant’s act offend or tend to offend “ public decency? ”
As subdivisions 1, 3 and 4 embrace injuries to comfort, health and safety, so subdivision 2 contemplates injuries to morality. “ The injury may be to person or property, to health, comfort, safety or morality.” (Melker v. City of New York, 190 N. Y. 481, 488) Among other definitions of the word “ decency ” are “ moral fitness ” (Funk & Wagnalls’ New Standard Dictionary) and “ decent or orderly condition of civil or social life ” (Murray’s New English Dictionary). Broadly speaking, public decency means public morality in relation to orderly conditions of civil or social life. What offends public morality at any particular period is largely determined by the views of the entire community prevailing at that time. It would not be true to say that reverence of all law is a part of present prevailing morality. But I feel safe in asserting that respect for at least so much of the law as is embodied in the Constitutions,— State or Federal, is a part of the public morality of the people of this State and so included in the term “ public decency.”
The treatment of the prohibition question by our State Legislature is confirmatory rather than dqstryctiye of this view,
*117The Eighteenth Amendment to the United States Constitution was ratified by this State in 1919, subsequent to the due ratification thereof by the necessary three-fourths of the several States. (See N. Y. Sen. Jour. 1919, pp. 108-113; N. Y. Assem. Jour. 1919, pp. 119-123, 163, 164; U. S. Const, art. 5; 40 U. S. Stat. at Large, 1941; Dillon v. Gloss, 256 U. S. 368, 376, 377.) Prohibition of traffic in intoxicating liquor thus became a part of the public policy of this State.
In 1920 this State enacted a law defining intoxicating liquors and non-intoxicating beverages (Laws of 1920, chap. 911), evidently upon the theory that the Eighteenth Amendment reserved to the States equal concurrent power with the Congress to define an intoxicant. The decision of the United States Supreme Court in Rhode Island v. Palmer (253 U. S. 350) rendered such State statutory definition inoperative by holding that the definition contained in the Volstead Act was binding upon the States.
Thereafter the Mullan-Gage Law or the State Prohibition Act was enacted. (Laws of 1921, chap. 155, adding to Penal Law, art. 113.) At the same time another Mullan-Gage. Law, known as the State Prohibition Enforcement Act (Laws of 1921, chap. 156, adding to Code Crim. Proc. §§ 11-b, 117-a, 802-b), was enacted.
On January 3, 1923, the Governor dealt with the subject in his annual message. (28 State Dept. Rep. 513.) He recommended thé passage of a resolution requesting “ that the legislative machinery at Washington be set in motion immediately to bring about an amendment [to the National Prohibition Act] that will permit light wines and beer under the careful restrictions set forth in the New York State Act of 1920.”
That Legislature repealed the Mullan-Gage Law, known as the State Prohibition Act (Laws of 1921, chap. 155) and the MullanGage Law known as the State Prohibition Enforcement Act (Laws of 1921, chap. 156) in 1923 (Laws of 1923, chap. 871), and further memorialized Congress along the lines suggested by the Governor. (See N. Y. Sen. Jour. 1923, pp. 215, 216; N. Y. Assem. Jour. 1923, pp. 318, 385.)
On January 2, 1924, the Governor in his annual message again touched the subject. (30 State Dept. Rep. 513.) He referred to the resolution passed by the preceding Legislature and then said: “ Subsequently the Legislature further defined the policy of the State in relation to this subject by the repeal of the State law * * * and left the prosecution for violation of the Volstead Act entirely with the Federal government.” He suggested that since a new Congress was then in session, the memorial of the year before be again placed before the new Congress. The Senate complied but *118the Assembly refused the request. (See N. Y. Sen. Jour. 1924, pp. 395, 567, 568; N. Y. Assem. Jour. 1924, pp. 1093, 1732.)
Finally, by chapter 850 of the Laws of 1926, the Legislature provided for a State referendum on the question of whether Congress should modify the Federal act so as not to prohibit “ beverages which are not in fact intoxicating as determined in accordance with the laws of the respective States.”
The public policy of the State, as shown by the foregoing record, is not in conflict with the policy of prohibition embodied in the United States Constitution. It is in conflict merely with the interpretation put upon that policy by the Congress. The traffic involved in this case was in beverages in fact intoxicating.
I reach the conclusion that the customary sale of beverages intoxicating in fact is both unlawful and offensive to public decency.
I, therefore, favor an affirmance of the conviction.
Crouch, J., concurs.
Judgment of conviction reversed, indictment dismissed, bail exonerated and defendant ordered released from custody. The reversal is solely for errors of law and not for errors of fact or as a matter of discretion, this court having reviewed all questions of fact and found no error therein.