The sun. [volume] (New York [N.Y.]) 1916-1920, 1919-08-03


to us y furnish an spposite iiiustra-
tion anS analogy
The V-olstead measure - described as
an ex post facto violation of the Con-
stitution In that IL now attempts to
make Illegal those actN which were NOT
held illegal by the war time prohibi'
ton act The latter, the opinion con-
tends, did not forbid the production and
sale of Notwithstanding" beer, as In
terpreted by Judge Hand and the Circuit
Court OF Appeals. Beer containing 2.Tb
por cent Of alcohol was shown In that
case to be Notwithstanding by an Inn
posing array OF expert and practical evf-
dence, while the Government submitted
nothing to show that II was intoxicat-
Ing. Under the volstead bill II Is at
tempted now to describe as Intoxicating
all beverages containing more than
one-half Of 1 per cent of alcohol.
The opinion continues:
AS to the application of the act of
November 81. so extended, to future
transactions, it will only be constftu-
tional provided its prohibitions can be
held to be now. In July, 1919. necessary
and proper for carrying into execution
the war powers vested by the Constitu-
ton In the Congress or in the President
as Commander In chief Of the Army and
Navy Of the United States. Until the
Eighteenth Amendment becomes effec-
tive on January 16, 1890, the Congress,
under we'll settled rules of constitutional
law, has no express power to prohibit
the manufacture and sale Of beer,
whether or not Intoxicating. The su-
preme Court of the United States by
repeated decisions has settled this
proposition beyond further controversy
(Ridd v. Pearson, 1873 u. S. 1, "a. and
Vance v. Vandercook, 40 u. s. 43s,
44D, and II Is equally settled beyond
controversy that the national Govern
ment can exercise no general police
power (Keller v. United States, 213 u.
s. 13S, LA. and Hammer v. Dagenhart,
247 U. s. 251. 773)."
Existing Law Held Ample.
The attorneys then 20 on to show that
there is nowhere in the proceedings of
the House any hint that the Volstead
bill was passed in an effort to foster
food production, conserve food and man
power. or for any of the other purposes
of the War Time Prohibition act. The
protection of present members of the
military and naval service from intoxi-
eating beverages can be accomplished
under existing laws without invading
the constitutional rights OF others and
the protection of those already dis
charged from the service is alleged to
be measure solely within the police
powers OF the several States to regulate
until the Eighteenth Amendment be-
comes effective. ana cannot now be regu-
protection of other civilians in the
States."
THE sound rule seems TO be-" the
opinion continues. that the constitu-
tional liberties and property rights OF
persons and their right to carry on a
lawful business cannot be denied or
abridged by Congress- under the war
power except in cases of actual neces-
sity or emergency. The Supreme Court
of the Omitted States declared in the IA
nous case of ex parte Milligan, 4 Wall
2, 100. 1877, that the Constitution OF the
United States is law for rulers and
people, equally In war and in peace
that its protection cannot be denied OF
withdrawn except in case of necessity
that the necessity must be actual and
present. and that 'as necessity creates
the rule, so 1t limits its Duration In
the leading case of Mitchell V. Harmony
13 How. lis, -134. which involved the
right to take private property as a war
measure. the Supreme Court declared
that IT IL the emergency that gives the
right, and the emergency must be shown
to exist before the taking can be justi-
fed
THE principles of constitutional law
recognized In these two leading cases
seem to us controlling in the present in
stance. II is at the present time and
six months before the Eighteenth Amend
ment becomes effective, the constitutions
liberty and property right OF the brewers
of the United States to continue the con-
duct of their business as long as author
| ICED by the laws of the particular States
In ttrhi nd wifi xv1 nd
| that right cannot be constitutionally de-
MED to them by the Congress unless
| some war necessity or emergency ac-
| tually exists. In our opinion no such
| war necessity or emergency now exists.
THE assumption or declo ration of Con-
gress is not conclusive; a war necessity
| OF emergency does not arise from the
| mere fact that a technical or de jure
state OF war may continue. for that
| might be indefinitely extended and long
| beyond any actual war exigency, and the
| inquiry whether such q necessity or
emergency is actual and present is under
| existing circumstances justiciable ques-
| ton for the courts to determine.
Emergency Has Passed.
THE flnal terms of peace dictated tc
| Germany have been accepted and the
treaty containing them has been rati.
| fed by her The blockade has been
lifted, and our Government has given no.
tice in the public press that trade be-
tween the United States and Germany
may now be resumed, and II Is being re-
sumed. The Austrian empire, after sur
rendering Internationally nine months
ago, has ceased TO exist. In the face OF
these and other developments since the
signing Of the armistice on November
| II, we do not perceive how It can be
held by the courts that any war neces-
sity or emergency actually exists at the
present time which would warrant the
denial to the brewsr Of the United States
of their constitutional right to. carry on
| their business.
Indeed, the strange anomaly Is pre-
| sonted OF the House of Representative:
implicitly protesting in and by the Vol.
Etead bin that an actual war necessity
or emergency now exists. eight months
after the practical ending OF the war, In
the very teeth of the declaration of the
President himself that no such necessity
or emergency does exist. as evidenced
by his proclamations OF January 80 and
| March 4, and his message to the Con-