Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1919-11-07
EL|HU ROOT SAYS
PROHIBITION NOT.
Within The Law
Argues That Passage Was
Contaminated Under False
Pretenses and Beyond
Power of Congress.

New York, Nov. 6.-Elihu Root
argued against the constitutionality
CT the prohibition enforcement act
in the United States district cour
today, saying that its passage was
under false pretenses and beyond
the power of congress.
He was associated with William
D. Guthrie in the suit of Jacob Rup-
pert, who seeks an injunction against
the local United States attorney in
order that sale of US per cent beer
may be resumed. Two other suits
involving the constitutionality of
the act were also argued and Judge
Hand took all under advisement.
"On October d the sale of this
beer was legal" said Mr.. Root. ION
October % its sale was not lawful.
on October %, the date of enactment
of the Volstead act by overriding
the presidents veto, congress had
no constitutional authority to pro-
hibit the manufacture and sale of
the kind of beer made by the Rup-
pert company.
Mr.. Root argued that in passing
the bill congress was not exercising
its constitutional power to raise and
support armies.
Armies Demobilized.
"The president has told congress
that the armies had been demobi-
lized," he said. "He had said over
and over again that the actual war
had ended and that it was no longer
necessary to raise and support an
army. He said that when the armi-
stice was signed. Now the armi-
stice has been executed. The enemy
has laid down its arms. 1t has sur-
rendered its navy and sunk it, dis
banded its army, given up its NUM-
tons. There are no countries in
the world which are so certain not
to wage war during our lives as
Germany and Austria. The terms
of peace have been communicated
to them and accepted. These terms
are not being discussed now by us.
We are only discussing certain cove
nants among the parties on one
side.
Under False Pretenses.
"This bill was not passed in rela-
ton to carrying on the war. There
isn't a man. woman or child in the
United States that does not know
it. The bill was passed under false
pretenses.
"The prohibition amendment
passed during the war, provided one
year for the liquor business to ad-
just itself. Now after the real war
has passed, when no enemy threat
ems, congress passes law taking
away from the people the year of
grace that in time of greatest ex-
igency the will of the people de-
creed. This imposes greater duty
upon the courts to scrutinize the
substance of this legislation and de-
termine whether it was honest and
sincere" .
Mr.. Guthrie argued that in vetoing
the Vo1stead act and again in his
Thanksgiving proclamation Presi-
dent Wilson had in effect proclaimed
that rehabilitation had taken place.
Declares Proclamation.
Clearly" said Mr.. Guthrie. "he is
advising congress that certain condi-
tons SO far as conclusion of the war
is concerned, have been accom-
plished That is a proclamation by
the president of that fact. The presi-
dent can proclaim fact in any way
he sees fit"
Judge Hand remarked that this
was not the proclamation intended
by the original wartime prohibition
act.
tThis country is still legally at
war with Germany" said Assistant
Attorney General William Frierson.
The present period, he said, was an
alagous to the year Immediately fol-
lowing the civil war. While his
tory said that in effect the war
ended in April, 1865, with Lees sur
render, the courts had held that
from a legal standpoint it had not
ended until the presidents procla-
nation in August, 1866, that the in
surrection had been put down.