The New York herald., 1920-01-06

splendid exemplfficaf1on or the protectlon
which this court must extend in time Of
war to rights guaranteed by the consti-
tuition. and also as decisive of Its power
to ascertain whether actual military
necessity justified Interference with such
rights.
"rhe doctrines then clearfy-I may add.
rageousay-announced." Justice Nc
Reynolds gaid. Conflict with the novel
and hurtflI theory now promulgated"
Can Ii b truthfully said, In view OF
the we'll known fncts existing ON Octo-
bcr 2S, t91a that general prohibition I'M
medfately after 6hAt day OF the sale OF
notwithstanding kecr heretofore law
fully manufactured could afford any
direct and appreciabIe aid IN respect Of
the war declared against Germany and
Austrian"
"I Gun see no reasonable relationship" :"
Justice McReynolds SAID, between the
war declared in 1917 or the demobillzation
following Goth of which In essence IL not
by formal announcement terminated be-
fore October, 1870, or restoration OF
peace (wtose quiet had already descended
upon usN, and destruction Of the value
Of compliments beverage, solemnly ad-
n,itted In this record to be non-intod-
eating and which It manufactured, held
and desired to sell in strict compliance
with the laws Of New York. Nor can I
discover any substantial ground for hold
aid in an appreciablo way tho enforce
ment of any prohibition law then within
the competency Of Congress to enact
It Is not enough merely to assert such
a probability; II must arise from the
facts"
New Orleans ana Baftim0re CaseA.
Justice Day In the decision IN the New
Orleans and Baltimore cases said
'srhe declared purpose OF Congress wns
to conserve the nations man power and
increase efficiency in producing war es-
sentials; and it accordingly undertook to
prohibit the manufacture OF intoxicatn
liquors whose use might interfere with the
lcopsummation of that purpose. Other pro-
visions of the act lend support to this
view The sape and withdrawal from bond
of distilled spirits always intoxicating)
were declared unlawful after June So lsiS-
their manufacture already had been pro-
h,hited. The sale Of beer, wine and other
Intoxicating malt or vinous liquors was
mr., ,hibited after the same date and the
limnortation Of all such liquors, and also
Of distilled liquors, was made immediately
unlawful
"The fact that the Treasury Department
may have declared taxable under many
revenue acts all beer containing one-half
of one per cent OF alcohol Is not important.
Such rulings did not turn upon the intoxi-
eating character of the liquid, but upon
classificatiou for taxation controlled by
other considerations. Administrative rul-
,ngs cannot add to the terms OF an act
Of Congress and make criminal that which
such laws leave untouched.
"Furthermore, we must remember IN
considering an act of Congress that con-
struction which might render It unconsti-
utional is to be avoided. We held IN
Hamilton. collectors VS.. Kentucky Disth-
icrv and Warehouse Company, that tne
war power of Congress as applied to the
situation outlined in the opinion IN tnat
cass enabled it to prohibit the sale of in
toxicat ting liquor for beverage purposes
But the question was neither made nor de-
cided as to whether Congress could pro-
hyh;t even in time OF war the manufacture
and sale Of Notwithstanding beverages
I'VE cannot say. as matter OF law tnat
n beverage containing not more than one
half of one per cent of alcohol Is intoxi-
eating, and es neither Indictment so
charges it follows that the courts oelow IN
each of the cases correctly construed the
act of Congress. and the judgments are AZ
firmed-"