The sun. [volume] (New York [N.Y.]) 1916-1920, 1919-07-19
WHISKEY BAN SAVES 4
NO FOOD, is DEFENCE.
Men Indicted for Selling At
tack Constitutionality of
Prohibition Law.
CHARGE FALSE PRETENCE
Congresses Contention Of War
Necessity Denied-Demur-
rers Dismissed by Judge.

The argument was advanced In the
Federal District Court yesterday that
the constitutionality Of the prohibition
Of the sale OF whiskey cannot be sup
ported as a food conservation measure,
which. when enacted, was necessary to
the efficient prosecution OF the war.
1t was alleged that much Of the whiskey
now available for selling purposes was
manufactured several years ago and that
all whiskey now existing was made prior
to September l, 1917.
The issue was raised by George L.
Donnellan and Robert M. Moore, coun-
sci for John Voege, Tony Cuomo and
ether saloon keepers and bartenders who
were indicted on charges Of selling
whiskey or wine subsequent to July !,
when prohibition of the sale OF fntoxi-
eating beverages became effective. De-
murrers were interposed to the indict-
ments and arguments were made yester-
day before Judge William Robert Smith.
Other issues raised were similar to
those that figured in the suit of the
brewers to nullify the law. 1t was al
legged that the law Is not, as II pur-
ports to be. a food conservation meas
ure made necessary by the war, but one
to force prohibition upon tho people
after the war emergency had passed.
THE enactment OF this legislation was
an attempt by Congress to bring about
prohibition by false pretences," said Mr..
Donnellan, for. IL the war necessity for
the act no longer exists, It Is beyond the
province of Congress to impose prohibi-
tion upon the several States. The acts
OF the defendants are lawful under the
laws OF the state OF New York. This
legislation is not open, honest and above
board and IL absolutely un-American."
Differs From Brewers Action.
In pointing out the differences be-
tween the suits OF the brewers attacking
the. law and this case, Mr.. Donnellan
said:
Although the Circuit Court OF Ap-
peals. in the case OF the HOFFMAN, Brew
Ing Company VS.. McElligott, Acting and
Deputy Collector OF Internal Revenue.
and Caffey, United States Attorney. held
the act was constitutional as a war
measure. 1t Is respectfully submitted
that the facts are absolutely different
In the present cases. In that proceed ing,
the defendant after May /, 1919, en-
deavored to manufacture a product
which necessarily consumed certain food
products and on that date a state Of war
did actually exist
Even II the court was right in up
holding the consttutionality Of the act
as being necessary for the conservation
or food products in time of war, this
reasoning could not apply to the crime
charged against these defendants for the
reason that the alleged violation by
them did not result in consumption OF
food products. and took place subse
Quent to the time when articles OF peace
had been formally signed.
The question before the court is
whether on July s. 1919. Congress could
as war measure. prohibit the sale OF
| whlskey. II is unnecessary to remind
the court OF the fact that the manufac-
ture of whlskey was stopped on Sep
| TENDER l. 1917, by an act OF Congress
! 40 that the beverage alleged to have
been sold by the defendants had already
been manufactured prior to the date
when the law In question was approved
and certainly restriction upon its sale
| could not in any way be considered as
a conservation OF food products
THE defendants do not raise the
! question whether, as n moral issue. pro-
hibition may be right orwrong. bu,
seek the protection OF their constitu-
tlonal rights In this tribunal when they
are threatened with destruction through
| the attempted operation OF statute
which is lie on the face OF Il in as
sorting that prohibition is necessary as
war mea sure when q child in the
| street knows that there - war no longer
speaks OF L. =. War Powers Limits
| To attempt to foist prohibition upon
citizen OF the State OF New York under
! the guise Of necessity or war Is the
exercise of an arbitrary power on the
| part Of Congress that Is subject to re-
/ view in our courts The war powers OF
the Federal Government can be exer.
csed only in cases OF actual necessity.
| 1T would seem that TO attempt to i'm
pose prohibition by means OF this subter-
| fuge at the present time Is a fragrant
violation Of the rights OF these defend
ants, for they transacted business under
the laws OF the State OF New York ir
premises covered by internal revenue Ger
| tlfcates OF the Third district after hav
! ing paid excise taxes.
| Should the United States Attorney
raise the point that wartime prohibition
should continue during the period o
disqualification. It is respectfully sub
mitted that there Is a statute. still in full
force and effect which bars these bever
ages from sale to members OF the mill
tary and naval forces"
Francis G Caffey. United States At
torney, argued that it was immateria
what influences shaped the prohibition
rider or what it's effect are on variou!
depa of the liquor trade. He as
serted that the power OF Congress Il
| enact legislation of this character a!
war measures had been sustained agaiI
and again by the United States Supreme
Court. The power OF Congress beini
conceded, all else is irrelevant, he ar
gued,
Judge Smith dismissed the demurrer
In all the cases. Appeals will be takeI
for the defendants and carried to III
United States Supreme Court.