New-York tribune., 1920-03-28
w ct Pleas Up
Tomorrow i'm
Highest Court
New Jersey and Wisconsin
Actions To Be Heard;
Prohibition Enforcement
Is Attacked as Illegal
State Rights at Stake
volstead Act Upheld in
All Its Workings by
Counsel for Government

WASHINGTON, March 27.-Consti-
tutonality Of the prohibition amend
ment and parts Of the enforcement act
were attacked in a brief filed In the
Supreme Court to-day by counsel for
Christian Feigenspan, a brewer Of
Newark, N. j. Feigenspan is appeal
ing from Federal court DEGREES dis
missing injunction proceedings to en-
join prohibition officials from prevent
ing him from manufacturing beer al
legged to be Notwithstanding but con-
tanning more than one half Of per
cent Of alcohol.
Arguments in this case as we'll as in
the original suit brought by New Jer-
sey and appeals from Wisconsin in
volving these questions will be heard
by the court Monday.
The brief, which was prepared by
Elihu Root and William D. Guthrie,
contends the amendment is invalid be-
cause in reality it is legislation OUT
side the scope Of limitations imposed
by Article Of the Constitutions; that
it impairs the states police or govern
mental powers and that it has not been
legally ratified by three-fourths Of the
states because the constitutions af sew
eral states require submission of the
amendment to the electorate.
ut is submitted" the brief said,
chat the destruction of the liquor
traffic, even if desirable in some
aspects, at the expense of ultimately
local government, and turning our
Constitution into q mere code Of statu-
tory enactments, or erecting constl-
tutional precedent which 1ill afford
legal justification for spoliasion and the
destruction of republican government
and of leaving every natural right,
whether Of life, liberty or property,
wholly at the mercy of future consti-
tutional amendment, may be too high
a price to pay for even the greatest
reform, and such a misfortune should
not be visited upon the people of the
United States because q comparatively
small minority Of them are incapable
OF self-restraint in the use of liquor.
at may be the duty of government t
to protect the comparatively few weak
and degenerate among the people, but
1T cannot be it's duty to remedy an
even admitted evil if such remedy nee
essarily involves laying the foundation
for the possible ultimate overthrow Of
our federal system of government"
Replying to contentious raised in the
Feigenspan brief, the government de-
Tended both the prohibition amend
ment and the Volstead act. AS to the
latter, the brief said:
In order to effectively enforce the
prohibition against intoxicating liquors
the definition contained in the Volstead
act as means appropriate to such en-
forcement. The Volstead act is an ex-
ercise of the police power, and what
ever hardships may result from the de-
structlon or impairment of the value
Of property or of beer heretofore law
fully manufactured, it cannot be said
that there has been such taking of
property or beer as requires compensa-
tlon or that the resulting impairment
of values is unconstitutional.
ut is said that the amendment au-
thorizes Congress to prohibit only in
toxlcating liquor, and that beverage
which does not contain largely more
than one-half of per cent of alcohol
is not intoxicating. The contention is
that Congress, being empowered only
to prohibit intoxicating liquors, cannot,
by definition, make a beverage intoxi-
eating which is not, in fact, Intoxicating
within the meaning Of the language Of
said that the definition adopted is un-
truthful and arbitrary and therefore
unconstitutional.
ut is, of course, true that Congress
cannot extend its powers by giving to
the language used in comforting those
powers an arbitrary meaning which
does not belong to it. But so long as
it has the constitutional power to do
the thing which it does, it may use the
words employed by it for that purpose
in any sense which it chooses to give
them. In other words, if, in order to
enforce the Eighteenth Amendment, it
has the power to prohibit the sale or
manufacture of beverages containing
less alcohol than is necessary to rem
der them intoxicating, it is immaterial
whether it provides separately for thei,
prohibition or accomplishes the same
thing by including them. for the pur.
poses of the act, in the definition of in
toxicating liquor. If, therefore, for any
reason, it is competent for Congress to