Arizona republican., 1919-08-03
WAR TIME DRY MEASURE |S IN CONFLICT WITH
 ORGANIC LAWS
Prominent Attorneys so Say in an Opinion Given to
 Brewers of Nation - Is Merely Opinion, However
LRepuhIlcan A. P. Leased Wlrel

WASHINGTON, Aug. 2.-The war time prohibition enforcement bill re- gently passed by the house and now pending before @ senate committee, is unconstitutional, according to an opin ion by Elihu Root, Wm. D. Guthrie and .Wm. l.. Marbury counsel for the United States Brewers association, made public today.
 This opinion holds that until the amendment becomes effective on Jan Jary Is, 1920, congress, under well settled rules of constitutional law has no express power to prohibit the man. ufacture and sale of beer, whether or not intoxicating"
 There is now no valid reason for the wartime prohibition act, the law yers declare, and there is not evidence. they add, to support the claim that the proposed enforcement measure is necessary or proper to conserve the nations food supply.
 The opinion, an exhaustive document dealing with all legal phases of the question, was sent to Christian w. Feigenspan, president of the brewers association. The lawyers contended that while District Judge Hand and the New York circuit court of appeals had held the wartime act constitu tional, the decision would not apply to pending legislation.
 Conditions Changed
 Conditions" they said in this con nection. "have meantime materially changed during tie eight months since November 21 (the date of the bills passage) the president declared on May 20 that it seemed to him entirely safe to remove the ban on wines and beers; he reiterated on July 10 in his address to the senate that the war had ended last November; the de- mobilization of the army and navy is progressing and will shortly be com pleted; war necessity or emergency has practically ceased to exist and per sonal and commercial relations with Germany have been permitted to be resumed and are being conducted"
 234 Beer Not Intoxicating { Taking up PA per cent beer, the attorneys contend it has been estab- lished by competent evidence that such tbeverage is not intoxicating and that fit is immaterial that congress for years taxed "fermented liquors" containing noer than F of 1 per cent alcohol as 1his basis was adopted solely for taxation purposes and quite irrespec- tive of the intoxicating quality of the liquor taxed
 If, therefore. anything to it's proper construction the opinion continues, "the act of congress of November 21 does not prohibit the manufacture and sale of non-intoxicating beer, the pro- posed enactment extending the prohi- bition to non-intoxicating liquors would, as to transactions prior to it's passage be in our opinion unconstitu- tional and void because violative of the letter and spirit of the mandate in section 9, article I of the constitution of the United States that no expost facto law shall be passed by congress.
 Is Beyond Scope
 The amendment in the house of sec tion ] of the Volstead bill by inserting the word hereafter before the word construed was probably for the pur- pose of avoiding this constitutional point, but it would permit one con- struction of the same term as to acts done prior to it's passage and diff ferent and broader construction as to acts done afterward. But the enact ment tends to establish that the true inent was to enacting practically new legislation beyond the scope of the ex- isting enactme 1ts."