New-York tribune., 1919-08-03
Counsel for Brewers Says
Enforcement Act Seeks
to Increase Scope of
War Prohibition Law
2.75 Beer Is Defended
Emergency Passed at Sign
ing of Armistice, Is Claim;
Cause for Ban Removed

Numerous alleged legal flaws in the
yolstead prohibition enforcement bill
are pointed out in an opinion rendere
Yesterday by Elihu Root. William D.
Guthrie and William L. Marbury. The
opinion was drawn up at the request
Of Christian W. Feigenspan, president
of the United States Brewers Associa-
ton.
1t is held by the brewers lawyers
that the wartime prohibition act was
intended only to prohibit Intoxicating
liquors and does not prohibit non-in
toxicating beer. The proposed measure
IS accepted as an effort to extend
the prohibitions of the previous Con
gress.
Call 2.75 Beer "kickless"
As to the alcoholic content of beer
as now manufactured, the opinion
says:
"A number of competent and expe-
renced experts OF the highest stand
:ng and repute, whose afhdavits were
submitted TO the Federal courts IN New
York, have shown most convincinglv
by scientific tests and by practical ex-
perimant that beer containing only
2.75 per cent Of alcohol by weight is
not intoxicating as matter OF fact. and
i, should reasonably follow from this
half OF | per cent of alcohol by vol
ume, which is equal to one-seventh of
275 per cent by weight. would be
demonstrably Notwithstanding. Not a
single scientific test or practical ex-
pertinent was cited by the governments
to esta blish that q beverage containing
as little as one-half of l per cent OF
alcohol by volume could possibly in
;oxicate. and no finding or adjudica
ton by any court has been referred
20 which would support the contention
hat SO highly diluted solution of
alcohol could be rega rded as an in
.oxicating beverage under any reason
able or accepted definition Of the term,
at is in,material that Congress has
for many years -ayod 'f0r-'' N-''od ii~no~'
containing as low an alcoholic content
as one-ha.f % ro~ :
basis was adopted solely for taxation
purp 7ses and irrespective Of the in
tox- eating quality Of the liquor taxed.
Is Ex Post Facto Law
"If, therefore. according to it.
proper co. trnction the act of Con-
gress of November q does not pro-
intoxicating beer. tre n''e~0~o' c-'-~'-
ment extending The prohibition to non
intoxicating liquors would, as to trans
sctioAs prier to its passage, hf in our
opinion unconstitutional and ; d, g
cause violative OF the letter and spir t
u TIE mandate n Section . o. Article
= Of ne Constitution of the United
states that TO eX post facto law shall
De passed by Congress.
"The amendment in the House of
Section ! of the Nolstead bill by in
serting the word hereafter before the
word con trued' was probably for the
purpose Of avoiding this constitutional
7olnt, but it would permit one con-
7truction of the same term as to acts
done prior to its passage and a differ
mt and broader construction as to acts
done afterward. But the amendment
ENDS TO establish that the true intent
vas TO enact practically new legisla-
ton beyond the scope Of the existing
enactments
'The final terms Of peace dictated tc
Germany have been accepted, and the
treaty containing them has been rati-
led by her. The blockade has been
lifted and our government has given
notice in the public press that trade
between the United States and Ger
many may now be resumed, and it is
being resumed The Austrian Empire
after surrendering Internationally nine
months ago, has ceased to exist. In
the face Of these and other develop
ments since the signing Of the armis-
tice November I we do not perceive
how it can be he d by the courts that
any war necessity OR emergency actu-
ally exists at the present time which
would warrant the denial to the brew
ers Of the United States of their con-
stitutional right to carry on their busi-
ness.
War Declared Over
Indeed, the strange anomaly is pre-
sented of the House of Representatives
implicitly processing in and by the
Volstead bill that an actual war neces-
Slty or emergency now exists, eight
months after the practical ending Of
'he war, in the very teeth Of the dec
laration of the President. himse that
10 such necessity or emergency does
exist, as evidenced by his proclama-
tons Of January 80 and March a and
his message to Congress of May 20,
more than two months ago, TO the
specific effect that the demobilization
of Tho 1iiitar,y forces of tho rOJIDt nv