Evening star. [volume] (Washington, D.C.) 1854-1972, 1919-08-03

Brewers Counsel, Including
EIihu Root, See Wartime :
Act as Invalid.
HAS PASSED THE HOUSE

The wartime prohibition enforce
ment BILL recently passed by the
House and now pending before 2
Senate committee, is unconstitutional,
according to IN opinion by Elihu
Root, william d. Guthrie and william
L. Marbnry, counsel for the United
STATES Hrewsrs' 1ssocaAt lion. Iaesls
IN xestaEae ssassssssssxsssssss,,,,s,s,,,,
s. Tbjs opinion holds thAts nntH ;th6
e&n4h alnendfne I
feciivs son January H. iBa9y seS1l-
gross, under wen settled rules OF
constitutional law has no express
power to prohibit the naa,sfacture
and sale Of beer. whether or not in-
toxicating.,, There n now no valid
reason for the wartime prohibition
act, the lawyers declare, and there Is
no evidence, they. add. to support the
claim that the proposed enforcement
measure IL necessary or proper to
conserve the nation.s food supply.
Document Is Exhaustive.
The opinion, an exhaustive docu-
ment dealing with all legal phases OF
tho question, was sent to- Charles W.
Feigenspan. president of the brewers
association. The lawyers contended
that while District Judge Hand and
the New York Circuit Court Of APP
peals had held the wartime act con-
stitutional, the decision would not APP
ply to pending Legislation.
Conditions" they said in this con-
.nection. 'haye meantime materially
changed during the eight months
since November ~ (the date of, the
bill,s passage): the President declared
on MAG 20 that It seemed to him en-
tirely 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 tho Army ana Navy
IL progressing and will shortly be
completed; war necessity or emer-
eency has practically ceased to exist
and personal and commercial rela-
lions with Germany have been per-
mitted to be resumed and are being
o e
As to 2.75 Beer. s.
Taking up ~ per cent beer. the at.
torneys contend It has. been established
by competent evidence that such bever-
age Is not intoxicating. and that It Is
immaterial that Congress for years
taxed /. 'fermented liquors. containing
more than one-han Of per cent alco-
hol, az this basis was adopted solely
for taxation purposes and quite ire
spective Of the intoxicating quality Of
the liquor taxed"
eff, therefore, according to its proper
construction" the opinion continues "the
act Of Congress Of November 81 does
not prohibit the manufacture and sale
Of Notwithstanding beer. the proposed
enactment extending the prohibition to
Notwithstanding liquors, would as to
transactions prior to its passage. be. in
our opinion, Unconstitutional and void
because violative Of the letter and spirit
Of the mandate in section, nine. article
one. Of the Constitution Of the United
States that no ex post facto law shall
be passed by Congress. i
.The amendment in the House Of
section one Of the volstead bill by
inserting the word hereafter before
the word construed was probably
for the purpose Of avoiding this cons
stitutional point; but 1t would permit
one construction Of the same term as
to acts done prior to its passage and
q different. and broader construction
as to acts done afterward. But the
enactment tends to establish that the
true intent was to enact practically
new legislation beyond the scope Of
the existing enaetments."
Senators Progress on Bill.
work on prohibition enforcement
legislation practically was completed
yesterday by 4 Senate judiciary sub.