Omaha daily bee., 1919-08-03
EIihu Root, William D. Guth.
rie and william L. Marbury
Reach CONCLUSION, Which is
Made Public in Capital.
STATE CONGRESS CANNOT
ACT UNTIL JAN. Is, 1920
elias No Express Power to
Prohibit Manufacture and
Sale of Beer, Whether or Not
intoxicating" Their View.

Washington, Aug. 2.-The war
time prohibition enforcement bill
recently passed by the house and
now pending before a senate COM
mittee is unconstitutional. according
to an opinion by Elihu Root, Will
liam D. Guthrie and William L.
Marbury, counsel for the United
States Brewers association, made
public today.
This opinion holds that until the
eighteenth amendment becomes ef-
fective, January l6, 1920, congress,
under we'll settled rules of constitu-
tional law, has no express power to
prohibit the manufacture and sale oi
beer, whether or not Intoxicating"
There is now no valid reason for the
war time prohibition act, the law.
yers declare, and there is no evi.
dence, they. add, to support the
claim that the proposed enforcement
measure is necessary or proper to
conserve the nations food supply.
Say Opinions Don't Apply.
The opinion, All exhaustive docu-
ment dealing with all legal phases
of the question, was sent to Chris
tian w. Feigenspan, president Of
the Brewers association. The law
yers contended that while District
Judge Hand and the New York cir
cult court of appeals had held the
war time act constitutional, the de.
cision would not apply to pending
legislation.
"Conditions," they said in thi.
connection. have meantime materi.
ally changed during the eight
months since November II (the
date of the bills passage); the pres
ident declared on May 20 that it
seemed to him entirely safe to re-
move the ban on wines and beers;
he reiterated on July 20, in his ad-
dress to the senate, that the war had
ended last November; the demobili-
zation of the army and navy is pro-
crossing and will shortly be COM
pleted; war necessity or emergency
has practically ceased to exist and
personal and commercial relations
with Germany have been permitted
to be resumed and are being con-
Quoted.
Taking up two and three-quar-
ters per cent beer, the attorneys
contend it has been established by
competent evidence that such bev-
erage is not Intoxicating and that it
is immaterial that congress for
years taxed "fermented liquors"
containing more than one-half of
per cent alcohol as this basis "was
adopted solely for taxation pur-
poses and quite irrespective of the
Intoxicating quality of the liquor
taxed"
Called Unconstitutional.
"If, therefore, according to its
proper construction" the opinion
continues, "the act of congress of
November q does not prohibit the
manufacture and sale of non-intoxi-
eating beer, the proposed enactment
extending the prohibition to non-in-
toxicating liquors would. as to tram
sactlons prior to its passage, be in
our opinion unconstitutional and
void because violative of the letter
and spirit of the mandate in Section
9, Article | of the constitution of the
United States that no ex-post-facto
law shall be passed by congress.
The amendment in the house of
section ! of the Volstead bill by in
serting the word hereafter before
the word construed was probably
for the purpose of avoiding this
constitutional point; but it would
permit one construction of the same
term as to acts done prior to its
passage and different and broader
construction as to acts done after
ward. But the enactment tends to
establish that the true intent was to
enact practically new legislation be-
yond the scope of the existing c1
actmerts."