The appellants were charged, by an information filed November 10, 1920, with violating sections 3 and 21 of title 2 of the .act commonly known as the “National Prohibition Act.” The information contained two counts. The first count charged :

The second count charged that the defendants—

*43 Upon the trial of the cause all of the defendants were convicted. Judgment was entered accordingly, and from this judgment appellants prosecute this writ.

[1] It is contended in behalf of the appellant Ernest Burr that there is no evidence in the record to support the judgment against him on either of the counts in the information. William Page, one of the defendants, testified:

Harry Erickson, city license collector, testified that the license of the Fred Douglas Club was issued to Burr and Finley as owners. Mr. Burr admits that he was present at the club the night of the raid and that he was at that time a member of the club. He admitted that he and another person originally leased the building where the club was conducted. If the jury believed this testimony, ■ the court is of the opinion that it was sufficient, with the natural and reasonable inferences to be drawn therefrom, to warrant the verdict of the jury.

It is next contended that the Eighteenth Amendment to the Constitution of the United States confers no power upon Congress to legislate against the possession of intoxicating liquor, the manufacture, sale, and transportation being the only things prohibited, and that therefore section 3 of title 2 of the National Prohibition Act ( 41 Stat. 305 , 308), under which the prosecution upon the first count in the information is based, is invalid and unconstitutional.

The Eighteenth Amendment to the Constitution of the United States provides as follows:

The Act of October 28, 1919 ( 41 Stat. 305 ), provides, in title 2, section 3, page 308, that—

[2] The objection that a statute is unconstitutional which is not authorized by the express letter of the Constitution is not new. Article 1, § 8, cl. 18, of the Constitution provides that Congress shall have power—

In McCulloch v. Maryland, 4 Wheat. 316, 420 , 4 L. Ed. 579 , Marshall, tire great Chief Justice, commenting upon the power of Congress to provide the means for carrying into effect a constitutional provision, declared a rule of construction which has been followed since. He said:

[3] This, rule is applicable to the construction of the section of the National Prohibition Act under consideration. If, in.order to enforce the constitutional amendment, it is necessary to restrict the possession of intoxicating liquor to those having permits- to possess the same and to private houses when intended for the sole use of the owner and his family and for bona fide guests, it is within the discretion of Congress to prohibit the possession as a means for the enforcement of the amendment. As said by the Circuit Court of Appeals for the Sixth Circuit in Rose v. United States, 274 Fed. 245 :

[4] It is objected that the only penalty provided in the case of unlawful possession of intoxicating liquor is the seizure of the liquor and its destruction under the provisions of section 25 of title 2 of the act There is no penalty either special or otherwise provided in section 3 of title 2 of the act for the possession of intoxicating liquor, but it is made unlawful, and in section 29 of the act it is provided that—

The defendants were each fined $100 under this section of the act. The penalty was properly imposed.

[5] It is objected that both of the counts of the information are supported by the same evidence and that therefore conviction on the first count is a bar to conviction on the second count. The objection cannot *45 be sustained. The second count charges that the defendants maintained a common nuisance at the Douglas Club, No. 1211 F street, in the city of Fresno, in violation of section 21 of the act. There is abundant evidence in the record to support this charge in addition to the evidence relating to the “possession by the defendants of one pint bottle of jackass brandy” charged in the first count.

Re Roy Toast testified that in August he purchased at the club, of these defendants, a half pint of brandy from a man introduced to him by his cousin, a member of the club, and that also he smelled liquor and wine at the same club. Ray Palmer testified that in September he was told by Dee Toast that he could get liquor at the club, and that Toast, the man who told him, took his money, stationed the witness at the front, and came out of the back way; that he paid the sum of $10 for a bottle, and received it in the alley back of the club; also that on another occasion he purchased in the kitchen of the club from a man employed there as cook, a drink of jackass brandy, paying 50 cents for it and giving the man who served him 50 cents by way of a tip.

Guy Shoun, a police officer of the city of Fresno, testified that Mr. Finley, one of the defendants, told him that he had been selling liquor for four months at 35 cents a drink, and that Page told him the same. Mr. Page said to the witness that he, Finley, Burr, and Brown, but mostly Mr. Brown, had been selling the liquor, as he was the bartender and paid to do that. He did not say he meant the entire club; he said those four were the ones who had the management of the club. He said they served the drinks of the booze; he was sure he said “jackass” or liquor; * * * that he asked who sold the liquor, and he (Finley) said Brown sold it, and when Brown wasn’t there, Burr sold it, and when Burr wasn’t there, Page sold it, and so on, but that Brown sells it as he is the bartender; that he is sure he said to Finley: “Who sells this liquor?” and not “drinks.” This statement is corroborated by the testimony of A. D. Truesdell, a police inspector of the city of Fresno.

Frank Traux, the chief of police of the city of Fresno, testified:

Mrs. Ida Hensley, residing at. 1707 F. street in the city of Fresno, testified that she visited the Douglas Club on or about the 29th of October, and that Mr. Page offered her a drink, which she took and drank; that she is familiar with the odor and taste of liquor; that the contents of the glass handed her looked like liquor, had the taste of liquor, and smelled like liquor.

This evidence shows that the defendants maintained a common nuisance, as distinguished from a single unlawful act of possession. The *46 charges in the information were sufficient to acquaint the defendants with the nature of the offense for which they were tried, and the evidence was sufficient to support the charges contained in both counts.

The judgment of the District Court is affirmed.