Evening star., 1932-03-27
BINGHAM WEIGHS
LEGALITY OF BEER
Senator Does Not Believe a
Per Cent Content Issue for
Supreme Court.
BY DAVID LAWRENCE.

Would the Supreme Court have to
pass on the constitutionality of a bill
to legalize 4 per cent beer?
Senator Bingham, Republican. of
Connecticut, author of such a bill, is
convinced the issue need not, and In
his opinion probably could not. be
brought before the Supreme Court for
review. He said yesterday he had
originally believed a review by the
Supreme Court would be inevitable, but
that he changed his opinion after ex-
ploring the legal problems involved.
Supposing Congress repealed the
Volstead act" the Senator said, then
there would be no enforcement statute.
Would that repeal be unconstitutional?
How would it get before the Supreme
Court? SuppoSing the Congress were
to say that the penalties and restric-
tions of the Volstead act were only to
apply to hard liquor containing more
than 80 per cent alcohol. How could
you bring that before the Supreme
Court?
Change of Percentages.
MY bill amending the Volstead act
and legalizing 4 per cent beer merely
changes the percentages of beverages to
which the act applies from less than
one e-half OF l per cent to per cent.
II the Congress has the right to re-
peal the Volstead act. why has it not
the right to change the percenetage in
the bill to which the penalties apply?
Remember the Volstead act does net
say in SO many words that one-half
OF per cent is intoxicating 1t mere
ly says the act shall apply to all such
beverages, namely. one-half of l per
cent or more. In legalizing per cent
beer, We do not say in the act per
cent beer is not Intoxicating. That is
is not, some believe it is. All We saw
is the act shall not apply to anything
containing per cent or less.
On the statute books today there is
a provision for taxing beer at the rate
OF SO or $6 barrel. As soon as YOU
change the application of the Volstead
act so that it shall not apply to bev-
erages containing 4 per cent or less
you Immediately open the door to a
very large amount Of revenue, esti-
mated at something in the neighbor-
mood OF $400,000.000. I do not see why
there would be any delay in getting
Dement'S, fiscal, agricultural and eco
nomic, from such legislation"
Opinion of Dry Lawyers.
The foregoing view is concurred in
by the lawyers for the drys only to the
extent that If the Volstead act is re-
pealed so that there is no enforcement
act at all there would be no certain
way OF getting the issue before the
Supreme Court. This would, of course.
be notification of the eighteenth
amendment by failure to pass appro-
pirate legislation. The drys insist that
such situation would be intolerable
because 1t would mean unrestricted
traftic in alcoholic beverages, and this
would lead sooner or later to definition
OF the content and hence an issue
would be possible.
could be brought before the Supreme
Court if the proposed Bingham bill
specified that penalties were not to
apply to beverages containing less than
4 per cent, the drys by no means agree
that there would be any trouble in
getting a constitutional question before
the court
Prof. Howard Lee McBain Of Column
bia University. in his book. "Prohibi-
tion-Legal and Illegal" expresses an
opinion that is viewed by the legal au-
thoritieS of the dry side as essentially
sound.
Requiring Of Permits.
He contends: IF Congress should
perceptibly raise the percentage of al
cohol laid down In the definition of
liquor it would be indis-
that permits should be re-
quired OF those who manufacture and
sell beverages containing alcohol in
the percentages not prohibited. Some
measure of supervision would be man
ifestly exigent; and permits or licenses
would be the only conceivable method
OF exercising such control. There
would be tnnumerable business opera
tions.
Suppose, for example, that one per-
son brought suit against another upon
q contract for the sale of wine of al
coholic content authorized by the law.
The eighteenth amendment prohibits
the sale of intoxicating liquor. Would
such a contract be legal if the wine
was in fact intoxicating? Could the
courts avoid passing on such a uues-
tion?" 4N"
The probabilities are that the Sen
ate VIII not act favorably on the Bfne-
nam bill in this session. and already
the House has rejected the idea of a
beer tax. But the problem NAV come
up In the next Congress especially II
the vets achieve the majority they are
working to attain.
Copyright, 1882