Evening star., 1933-09-24
BY SENATOR KING.

BY SENATOR KING.
In my opinion the ratification BY
the States of the so-called repeal
| amendment now pending before them
| will. in effect, restore the status quo
| which existed prior to the adoption of
the eighteenth amendment.
In other words, the statutory provi-
! sions, both State and Federal. enacted
| prior to the adoption of the eighteenth
| amendment, which do not authorize or
, sanction what the amendment prohi-
bits, and which have not been super
seded by later enactments, have con-
| tinued and will remain in force; stat
utes which in terms or effect sanction
what the amendment prohibits are nc
longer law and would not automatically
| revive by virtue Of the repeal of the
eighteenth amendment, but both the
Federal Government and the States
may in general, legiSlate to the same
extent as though the eighteenth amend
ment had not been adopted.
With respect to Federal legislation. it
| will be recalled that Congress had
, prior to the adoption of the eighteenth
amendment. exerted its constitutional
power to regulate the movement in in
| terstate commerce into any State of
| intoxicating liquors for purposes pro-
hibited by the State law. The Webb
| Kenyon act. the Wilson act and the
Reed amendment are statutes Of this
character These laws were probably
not repealed by the eighteenth amend
ment or the national prohibition act.
| As to the Webb-Kenyon act, the Su-
preme Court has so held directly
| 286 U. S. 1917
Doubt Of Validity Raised.
Although it has been suggested that
there is room for reasonable doubt
| whether the Reed amendment has not
been abrogated or impliedly repealed
by the national prohibition act, doubt
less because Of the fact that the Reed
amendment defines criminal offense
and prescribes definite penalty tmat-
tiers specifically dealt with in the Vol
stead act). yet the Supreme Court did
not suggest in the Mccormick case that
the Wilson act and the Reed amend
ment were to be distinguished IN TINS
| respect from the Webb-Kenyon act, and
it is quite reasonable to suppose that
these laws are still in effect.
If that be true. the repeal Of the
eighteenth amendment would. Of course,
not affect their validity With respect
to the bb-Kenyon act. it is to be
observed that section 2 Of the pro-
posed constitutional amendment pro-
hibits the transportation or importa-
tion into any State. Territory or pos
session of the United States for de-
livery or use therein of intoxicating
liquors. in violation of the laws there
Of" and that the subject matter OF
this section is quite similarly dealt with
in the Webb-Kenyon act But it is my
view that the latter act would not
necessarily be affected by the consti-
tutional provision.
In addition to the above statutes,
sections 23S. 239 and 240 of the Grim
inal Code must be considered. These
sections forbade respectively any inter-
state carrier (1 to deliver any lntoxl-
eating liquor to any person other than
the bona fide consignee. the penalty
for violation being a fine OF $4,000 or
Imprisonment for not more than two
years or both: tb) to collect the pur-
chase price of liquor transported, the
penalty being a fine of not more than
5000. or Co to ship any package con-
tanning any liquor not plainly marked
to show the name of the consignee, the
nature of the contents. and the quantity
contained therein, the penalty being a
fine of not more than $4,000 and for
States.
Prosecution Sustained.
Whether or not these statutes are
in force depends upon whether they
have been repealed by the Volstead act.
In at least one case arising after the
enactment of the Volstead act a prose-
cution has been sustained for conspir-
ing to transport liquor in violation OF
(a) the national prohibition act. and
(b) section 240 of the Criminal Code.
There was no discussion of the question
as to the repeal of section 240 by the
Volstead act. although both sections 238
and 240 will. upon examination, appear
to be definitely inconsistent with the
Volstead act. The court in the case
mentioned seemed to assume. however,
that section 240 was still in force. Pre-
sumably that is the law today.
As to the Volstead act itself, the COM
monty understood regulatory features
Of the law will doubtless fall with the
repeal of the eighteenth amendment.
However, Title III. relating to indus
trial alcohol and plants and warehouses
tor the production of industrial alcohol.
could and probably will be held to re-
main in force, unless modified or re-
pealed. 1t is significant that this title
took effect upon the enactment Of the
Volstead act rather than upon the date
when the eighteenth amendment went
into effect, as in the case Of Title II
Except for certain sections.
Then there are the various statutes
relating to internal revenue which were
not affected by the eighteenth amend
ment or the Volstead act. and. of course,
would remain in force after repeal.
These include not only the regulatory
statutes, but the statutes levying taxes
upon intoxicating liquor. Likewise the
statutes prescribing the rates of duty
to be levied upon imported intoxicating
liquors would in no way be affected
by the repeal
Subject to Modification.
In my opinion, the statutes referred
to above as being definitely in force
may be strengthened or modified in any
way that the Congress sees f1t to the
same extent as would have been possi-
BILE prior to the adoption Of the eight
zenith amendment. Penalties may be
provided for violation of the Webb
Kenyon act. aiding the States in the
enforcement Of their laws: and. indeed.
section 2 of the proposed amendment
apparently contemplates some action
in that regard. although it is quite con-
ceivable that the section itself is self
executing. at least to the extent Of
being susceptible of enforcement by in
junction or other similar process.
Moreover. the taxing provisions may be
increased or decreased, as Congress
desires
With respect to State legislation, just
as in the case Of Federal legislation,