The sun. [volume] (New York [N.Y.]) 1916-1920, 1919-08-03
ROOT PUTS LIFE TN
JOHN BARLEYCORN
He Tells Brewers volstead Act
snd War Time Prohibit
\ ton Are Dead.
EMERGENCY HAS PASSED
Holds Constitution is Violated
4, by House Bill and That
Peace Is Restored.

Ths revenue agent ambitious to pinch
Tn dispenser Of any alcoholic beverage Of
from Ats to third rail has got to prove
that the war Ia eth in full, bloody and
dangerous blast--and TO prove II against
me contentious Of Eiihu Root, william d.
tGathrie and william L. Marbury. three
young men VINO have been getting on
pretty nicely for some years on their
ability as provers in one line and
another.
Not only IL the volstead measure.
lust passed by the House to cut out
avs beer, unconstitutional and unen-
fcrceable In their opinion. but the war
time prohibition act, under which the
sale Of whiskey gin and other spirituous
liquors was more or less actually dis
continued July 1, has been made equally
unenforceable at the present time.
Messrs. Root. Guthrie and Marbury
voiced this opinion and backed II up with
an amazing array OF cited cases In
letter which they sent on July rs to
Christian w, Feigenspan, president OF
tile United States Brewers Association.
me letter was made public yesterday.
In the meantime word came from
Trenton that Joseph L. Bodine, United
States Attorney. had filed yesterday a
criminal information against the Feigen-
span brewerfes OF Newark charging
them with the manufacture of beer con-
tanning more than one-hah OF per cent.
The proceeding IL q test case In which
tho brewers must answer on Wednesday
before Judge Davis In Newark.
According to ruling of Internal Rev
enue Commissioner Roper any beer OF
oue-half Of 1 per cent alcoholic content
IL ciassed as Intoxicating. The Feigen-
span brewery has admittedly been man
ufacturing ATS per cent beer
The practice in other cases through
out the country has been to plead for the
purpose of expediting the proceedings.
The action is In the nature of test
case. The Feigenspan brewery was Sc
lected because II operates one OF the
largest breweries in New Jersey.
Decisions favorable to the Government
in similar GASES have been obtained IN
Pittsburg, Philadelphia Chicago and
Connecticut Adverse decisions in like
cases have been given in Boston and New
OrIeans
Announcement also was made yesteT-
day that the Attorney-General OF Rhode
Island, directed by his Legislature to
test the Eighteenth Amendment before
the Supreme Court, had accepted the
the Association Opposed to National
Prohibitions. to help him in the pro-
ceedings.
Contention OF MI. Root.
The Root letter set forth for the first
time IN. serious form the contention that
the man who sells liquor Of any kind
forbidden as q war measure Is within
his rights in such a sale The conten-
ton - based on two premises:
1. The Federal Government has
power to stop q legitimate business
and to override the police powers OF
the various States only in the face Of
an actual and immediate military
necessity proved in court, and not
through Congressional action based
upon a mere technical state of war.
Q. That a statute may be constitu-
tional when passed and become un"
constitutional by reason of subse-
Qusnt events.
Il Ia the second premise, carrying
with II the possible restoration OF the
liquor trade in full through court action,
which aroused yesterday the greatest in
tsrest among Little Groups of Serious
Drinkers. 1t was predicted that with
this opinion. furnished primarily to the
brewers for the protection of their modi-
ue0 Deer, men VINO nave D6en SelllnB All
kinds Of hard liquor over New York
bars with sometimes more and often
less secrecy. will throw precaution to
ths winds and dare the Federal agents
b argue 1t out with Mr. Root. This
despite the fact that sellers of whlskey
and other hard liquor. in the few in
stances where they have been arrested
since July /, invariably have been held
10 answer for 1t in the courts where
they have been arraigned.
Nessrs Root. Guthrie and Marbury
recognize this state of affairs by admit
ting that Judge Hand and the Circuit
Court Of Appeals already have held the
war time prohibition act to be con-
stttutional. But they say:
TN our opinion the constitutionality
2 end enforceablity of the new legislation
Evolstaad bill and likewise that OF
u any existing war legislation should
b determined as Of the date when II Is
sought TO be actually applied and en-
forced to the prejudice or denial of the
constitutional rights Of the persons af-
fected. The controlling justiciable ques-
ton always Ia whether or not a statute
sought to be enforced in a particular
case does or does not violate constitu-
tional rights at the time of the commits
sion of the alleged offence. A statute
may be constitutional when passed and
Become unconstitutional by reason OF