Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1920-01-06

gency demands the immediate discon-
tinuance of the traffic congress must
have the power to require such dis
continuance.
In Regard TO Beer.
1T is urged that the act is partic-
ularly repressive in respect to the
beer on hand because the plaintiff was
engaged in manufacturing and selling
a Notwithstanding beverage expressly
authorized by the president in his
proclamation of December s, 1917, and
prohibited by him later, only when
conservation of all the food products
of the country became necessary. the
facts afford no basis upon which 10
rest the claim of an equity in tine
plaintiffs favor. The specific permiS'
sion from the president to manufac-
ture 2.75 per cent beer was not on the
ground that such beer was non-lntoX-
icating, nor was it declaration by
him that this beer was in fact non-lh-
toXicating The permission EXTENDED
to all ale and porter which are intoX-
icating liquors. This PERMISSION 10
make 2.75 beer was Withdrawn De
cember /, 1918, under proclamation OF
September t6, 1918, and no permission
to manufacture specifically 2.f5 peer
was ever thereafter given by the pres
ident, His later proclamation (March
4 1870. merely limited the prohlpl-
ton of the use of foodstuffs to use IN
the production of Intoxicating NO
uors' whether PTS beer was intoxl-
eating was thus left by the president
not only without decision, but Win
ont even an intimation. The statement
of plaintiff that the 2.75 beer on hand
was manufactured under permission or
the president is wholly unfounoed' II
was not until July /, 1919, when the
war time prohibition act became OPP
erative in this respect that there was
anv prohibition of the sale of any lq-
uors. So far as appears, all the peer
which the plaintiff had on hahd az
tho time of the passage OF the VOL
stead act was manufactured by ehe
nIaintiff long after the president hau
ceased to have any authority to tofoIu
or to permit"
McReynolds Dissents.
Justice McReynolds in the dissent
,p opinion said the problem to De
met concerned the power or congress
after declaration of war, but "heh
active hostilities had ended and deiho-
Utilization had been completed
.The federal government mas oniS
chose movers granted by the consul
tuition" he said. 1.-THE eighteenth
amendment not having become etiec'
tive, it has no general power 10 pro
hibit the manufacture ana SAFE Vi
liquors" .,,,,,oot
After a statement of the argument
the opinion said that for sixty yea ,,
tho Milligan cases had been regafoeu
"as n splendid exemplcation OF tne
protection which this court must en-
tend in time of war to rights suaraH-
teed nv the constitution, and also az
10 decisive of its power to ascertail,
whether military necessity 1ustiiieu
interference with such rlgnts'
.'The doctrines then clearly al
nounced." Justice McReynolds saiu,
Conflict with the novel ana hu' y -
theory now promulgated D,..;,
"In the case of the KENTUCKY Dio ~
Ieries and Warehouse company,
opinion said, the supreme court as
serted its right to determine the re-
lationship between such an
merit and the conduct OF war tne ue-
cision really turning upon an opp,
citation of the facts ana recos,liNeu
that implied power to enact sum
prOnlDltiNe Stdtule uoc1 ~.
from a mere technical state or war put
depends upon some existing necessi.
tv directly related to actual warfare;
This made the ultimate inquiry 1t
said.
Can it truthfully be said, In view OIL
the we'll known facts existing on &c
tober %. 1919, that general prohibi-
ton Immediately after that day of the
sale of notwithstanding beer thereto
fore lawfully manufactured. could ar
ford any direct and appreciate ana
in respect Of the war declared against
Germany and Austria 2"
No Reasonable Relationship.
II can see no reasonable relation
shin" Justice McReynolds said. "be-
tween the war declared in 1917, or the
rehabilitation following (both OF
which in essence if not by formal an
nouncement terminated before Octo-
Der. 1870, or restoration Of peace
(whose quiet had already descended
upon us), and destruction of the value
of compliments beverage, solemnly
admitted in this record to be non-in-
toxicating and which it manufactured,
l'held and desired to sell in strict COM
pliance with the laws of New York.
Nor can ! discover any substantial