The War-Time Prohibition Act was within the war power of
Congress when passed, and had neither become invalid by change of
circumstances nor expired by its own terms when this suit was
begun. P.
251 U. S. 281.
Hamilton v. Kentucky Distilleries & Warehouse Co.,
ante, 251 U. S. 146.
For the same reasons, Congress had power to enact new
prohibitions at the time when the National Prohibition Act,
infra was passed. P.
251 U. S.
282.
The National Prohibition Act (October 28, 1919, Title I, § 1),
in its provision that
"[t]he words 'beer, wine, or other intoxicating malt or vinous
liquors' in the War Prohibition Act shall be hereafter construed to
mean any such beverages which contain one-half of one percentum or
more of alcohol by volume"
held constitutional. P.
251 U. S.
282.
As a measure reasonably necessary to make the prohibition of
intoxicating liquors effectual, Congress, in the exercise of the
war power, may prohibit those containing as much as one-half of one
percent by volume of alcohol, even though they be not in fact
intoxicating.
Id.
The argument that power to prohibit nonintoxicating liquors is
merely an incident to the power to prohibit intoxicating liquors,
implied from clause 18, § 8, of Art. I, of the Constitution, and
cannot be upheld because one implied power cannot be grafted upon
another, is merely a matter of words, since, rightly understood,
the power in question is a single, broad power not merely to
prohibit, but to prevent the liquor traffic, like the police power
of the states as applied to the same subject. P.
251 U. S.
299.
Some confusion of thought might perhaps have been avoided, if,
instead of distinguishing between powers by the term express and
implied, the term specific and general had been used, for the power
conferred by clause 18, § 8, of Art. I, "to make all laws which
shall be necessary and proper for carrying into execution" powers
specifically granted is itself an express power. P.
251 U. S.
300.
Page 251 U. S. 265
The fact that the above-cited provision of the National
Prohibition Act entail peculiar hardship and loss to owners of
breweries and manufactured beer by becoming effective immediately
upon its passage does not render it arbitrary and unreasonable. P.
251 U. S.
301.
Such immediate prohibition did not amount to a taking of the
nonintoxicating beer previously acquired, for which compensation
must be made. P.
251 U.S.
302.
The action of the President, under the Food Control Act, in at
first permitting the production of malt liquor containing not more
than 2.75 percent of alcohol, in next extending the prohibition to
all malt liquors for beverage purposes irrespective of alcoholic
content, and in afterwards limiting the prohibition to intoxicating
malt liquors,
held not to import a finding that 2.75
percent beer is nonintoxicating, or to raise any equity in favor of
an owner of beer manufactured after the President's authority over
the subject had ceased. P.
251 U. S. 303.
Affirmed.
The case is stated in the opinion.
Page 251 U. S. 278
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
By the Act of August 10, 1917, c. 53, § 15, 40 Stat. 276, 282, a
war measure known as the Lever Act, Congress prohibited the use
after September 9, 1917, of food materials or feeds in the
production of distilled spirits for beverage purposes and
authorized the President to limit of prohibit their use in the
production of malt or vinous liquors for beverage purposes, so far
as he might, from time to time, deem it essential to assure an
adequate supply of food or deem it helpful in promoting the
national security or defense. Under the power so conferred, the
President, by proclamation of December 8, 1917, prohibited the
production after January 1, 1918, of any "malt liquor except ale
and porter" containing more than 2.75 percentum of alcohol by
weight. By proclamation of September 16, 1918, the prohibition was
extended to "malt liquors, including near beer, for
Page 251 U. S. 279
beverage purposes, whether or not such malt liquors contain
alcohol;" and by proclamation of March 4, 1919, the prohibition was
limited "to intoxicating malt liquors." Under § 2 of the act, the
duty of enforcing the above provisions was assigned to the
Commissioner of Internal Revenue. This act contained no provision
prohibiting the sale of intoxicating or other liquors.
On November 21, 1918, the so-called War-Time Prohibition Act (c.
212, 40 Stat. 1045) was approved. It provided that:
"After May first, nineteen hundred and nineteen, until the
conclusion of the present war and thereafter until the termination
of demobilization, the date of which shall be determined and
proclaimed by the President of the United States, no grains,
cereals, fruit, or other food product shall be used in the
manufacture or production of beer, wine, or other intoxicating malt
or vinous liquor for beverage purposes. After June thirtieth,
nineteen hundred and nineteen, until the conclusion of the present
war and thereafter until the termination of demobilization, the
date of which shall be determined and proclaimed by the President
of the United States, no beer, wine, or other intoxicating malt or
vinous liquor shall be sold for beverage purposes except for
export. . . ."
On February 6, 1919, the Commissioner of Internal Revenue ruled
(Treasury Decision 2788) that a beverage containing as much as
one-half of one percentum of alcohol by volume would be regarded as
intoxicating within the intent of the Act of November 21, 1918, and
that, after May 1, 1919, persons would not be permitted to qualify
as brewers if the alcoholic content of their product equaled or
exceeded that percentage. In so ruling, the Commissioner adopted
and applied to this prohibitory act the same classification of malt
liquors which had been applied in administering the laws concerning
the taxation of beer and other similar fermented liquors.
Page 251 U. S. 280
For since 1902 (Treasury Decision 514), fermented liquor
containing as much as one-half of one percentum of alcohol had been
treated as taxable under Revised Statutes, §§ 3339 and 3242, and
this classification was expressly adopted in the War Revenue Act
October 3, 1917, c. 63, § 307, 40 Stat. 311. The correctness of
this construction of the act was promptly and earnestly
controverted by the brewers, who insisted that Congress had
intended to prohibit the production only of such beer or other malt
liquors as were in fact intoxicating. The attempt was then made to
remove the doubt by new legislation before May 1, 1919, when the
act would, by its terms, become operative. On February 26, the
House Committee on the Judiciary reported favorably an amendment to
H.R. 13581 providing:
"The words 'beer, wine or other intoxicating malt or vinous
liquors' in the war prohibition act shall be construed to mean any
liquors which contain in excess of one-half of one percentum of
alcohol."
The Sixty-Fifth Congress ended on March 4 without acting on this
bill, and the Sixty-Sixth Congress did not convene in extra session
until May 19. On June 30, the House Committee on the Judiciary
reported substantially the same provision as § 1 of title I of H.R.
6810; but it was not enacted until October 28, 1919, when, as the
Volstead Act (Act Oct. 28, 1919, c. 85), it was passed over the
President's veto. [
Footnote
1]
Page 251 U. S. 281
Immediately after the passage of the Volstead Act, this suit was
brought in the District Court of the United States for the Southern
District of New York by Jacob Ruppert against Caffey, United States
Attorney, and McElligott, Acting Collector of Internal Revenue, to
enjoin the enforcement as against the plaintiff of the penalties
provided in the War-Time Prohibition Act as amended by the Volstead
Act. It was heard below on plaintiff's motion for a preliminary
injunction and defendants' motion to dismiss, and, having been
dismissed, was brought here by direct appeal under § 238 of the
Judicial Code. The bill alleged that plaintiff, the owner of a
brewery and appurtenances, was on October 28, 1919, engaged in the
manufacture of a beer containing more than one-half of one
percentum of alcohol by volume, and less than 2.75 percentum by
weight or 3.4 percentum by volume, and had then on hand a large
quantity of such beer, and that this beer was not in fact
intoxicating. Plaintiff contended (1) that the Act of November 21,
1918, had become void or had expired by its own terms before the
bill was filed; (2) that its prohibition, by its terms, was limited
to beer which was in fact intoxicating; (3) that the Act of October
28, 1919, title 1, § 1, which purported to extend the prohibition
to the manufacture and sale of beer not in fact intoxicating,
exceeded the war power of Congress, and that thereby violation of
rights guaranteed to plaintiff by the Fifth Amendment was
threatened.
This case was heard and decided below with
Dryfoos v.
Edwards, ante, 251 U. S. 146, and
it was argued here on the same day with that case and
Hamilton
v. Kentucky Distilleries & Warehouse Co., ante,
251 U. S. 146. For
the reasons set forth in
Page 251 U. S. 282
the opinion in those cases, the Act of November 21, 1918, was
and remained valid as against the plaintiff, and had not expired.
For the same reasons, § 1 of title I of the Act of October 28,
1919, was not invalid merely because it was new legislation. But it
is insisted that this legislation is nevertheless void as against
the plaintiff because Congress could not, even under its full war
powers, prohibit the manufacture and sale of nonintoxicants, and at
all events, could not without making compensation, extend the
prohibition to nonintoxicating liquor acquired before the passage
of the act. These objections require consideration.
First. May the plaintiff show as a basis for relief
that the beer manufactured by it with alcoholic content not greater
than 2.75 percentum in weight and 3.4 percentum in volume is not in
fact intoxicating? The government insists that the fact alleged is
immaterial since the passage of the Volstead Act by which the
prohibition of the manufacture and sale is extended to all beer and
other malt liquor containing as much as one-half of one percentum
of alcohol by volume.
If the war power of Congress to effectively prohibit the
manufacture and sale of intoxicating liquors in order to promote
the nation's efficiency in men, munitions, and supplies is as full
and complete as the police power of the states to effectively
enforce such prohibition in order to promote the health, safety and
morals of the community, it is clear that this provision of the
Volstead Act is valid, and has rendered immaterial the question
whether plaintiff's beer is intoxicating. For the legislation and
decisions of the highest courts of nearly all of the states
establish that it is deemed impossible to effectively enforce
either prohibitory laws or other laws merely regulating the
manufacture and sale of intoxicating liquors if liability or
inclusion within the law is made to depend upon the issuable fact
whether or not a particular liquor made or sold as a beverage is
intoxicating. In other words, it clearly appears
Page 251 U. S. 283
that a liquor law, to be capable of effective enforcement, must,
in the opinion of the legislatures and courts of the several
states, be made to apply either to all liquors of the species
enumerated, like beer, ale or wine, regardless of the presence or
degree of alcoholic content, or if a more general description is
used, such as distilled, rectified, spirituous, fermented, malt, or
brewed liquors, to all liquors within that general description
regardless of alcoholic content, [
Footnote 2] or to such of these liquors as contain
Page 251 U. S. 284
a named percentage of alcohol, and often several such standards
are combined, so that certain specific and generic liquors are
altogether forbidden and such other liquors as contain a given
percentage of alcohol.
A test often used to determine whether a beverage is to be
deemed intoxicating within the meaning of the liquor law is whether
it contains one-half of one percent of alcohol by volume. A survey
of the liquor laws of the states reveals that in seventeen states,
the test is either a list of enumerated beverages without regard to
whether they contain any alcohol or the presence of any alcohol in
a beverage, regardless of quantity; [
Footnote 3] in eighteen states, it
Page 251 U. S. 285
is the presence of as much as or more than one-half of one
percent of alcohol; [
Footnote
4] in six states, one percent of alcohol; [
Footnote 5] in one state, the presence of the
"alcoholic principle;" [
Footnote
6] and in two states, two percent of alcohol. [
Footnote 7] Thus, in
Page 251 U. S. 286
forty-two of the forty-eight states -- Maryland appears in two
classes above -- a malt liquor containing over 2% of alcohol by
weight or volume is deemed, for the purpose of regulation or
prohibition, intoxicating as a
Page 251 U. S. 287
matter of law. Only one state has adopted a test as high as
2.75% by weight or 3.4% by volume. [
Footnote 8] Only two states permit the question of the
intoxicating character of an enumerated liquor to be put in issue.
[
Footnote 9] In
Page 251 U. S. 288
three other states, the matter has not been made clear either by
decision or legislation. [
Footnote 10] The decisions of the courts as well as the
action of the legislatures make it clear -- or at least, furnish
ground upon which Congress
Page 251 U. S. 289
reasonably might conclude that a rigid classification of
beverages is an essential of either effective regulation or
effective prohibition of intoxicating liquors. [
Footnote 11]
Purity Extract Co. v. Lynch, 226 U.
S. 192, determined that state legislation of this
character is valid, and set forth
Page 251 U. S. 290
with clearness the constitutional ground upon which it
rests:
"When a state exerting its recognized authority undertakes to
suppress what it is free to regard as a public evil, it may adopt
such measures having reasonable relation to that end as it may deem
necessary in order to make
Page 251 U. S. 291
its action effective. It does not follow that, because a
transaction, separately considered, is innocuous, it may not be
included in a prohibition the scope of which is regarded as
essential in the legislative judgment to accomplish a
Page 251 U. S. 292
purpose within the admitted power of the government."
P.
226 U. S.
201.
"It was competent for the Legislature of Mississippi to
recognize the difficulties besetting the administration of laws
aimed at the prevention of traffic in intoxicants.
Page 251 U. S. 293
It prohibited, among other things, the sale of 'malt liquors.'
In thus dealing with a class of beverages which in general are
regarded as intoxicating, it was not bound to resort to a
discrimination with respect to ingredients and processes of
manufacture which, in the endeavor
Page 251 U. S. 294
to eliminate innocuous beverages from the condemnation, would
facilitate subterfuges and frauds and fetter the enforcement of the
law. A contrary conclusion logically pressed would save the nominal
power while preventing its effective exercise."
P.
226 U. S.
204.
"The state,
Page 251 U. S. 295
within the limits its we have stated, must decide upon the
measures that are needful for the protection of its people, and,
having regard to the artifices which are used to promote the sale
of intoxicants under the guise of innocent
Page 251 U. S. 296
beverages, it would constitute an unwarrantable departure from
accepted principle to hold that the prohibition of the sale of all
malt liquors, including the beverage in question, was beyond its
reserved power."
P.
226 U. S. 205.
Page 251 U. S. 297
That the federal government would, in attempting to enforce a
prohibitory law, be confronted with difficulties similar to those
encountered by the states is obvious, and both this experience of
the states and the need of the federal government of legislation
defining intoxicating liquors, as was done in the Volstead Act, was
clearly set forth in the reports of the House Committee on the
Judiciary in reporting the bill to the 65th Congress, 3d Session,
Report 1143, February 26, 1919, and to the 66th Congress, 1st
Session, Report 91, June 30, 1919. Furthermore, recent experience
of the military forces had shown the necessity
Page 251 U. S. 298
of fixing a definite alcoholic test for the purpose of
administering the limited prohibitory law included in the Selective
Service Act of May 18, 1917, c. 15, § 12, 40 Stat. 76, 82.
[
Footnote 12] And the
Attorney General, calling attention specifically to the claim made
in respect to the 2.75% beer, had pointed out to Congress that
definition of intoxicating liquor by fixed standards was essential
to effective enforcement of the prohibition law. [
Footnote 13] It is therefore
Page 251 U. S. 299
clear both that Congress might reasonably have considered some
legislative definition of intoxicating liquor to be essential to
effective enforcement of prohibition, and also that the definition
provided by the Volstead Act was not an arbitrary one.
Plaintiff's argument is equivalent to saying that the war power
of Congress to prohibit the manufacture and sale of intoxicating
liquors does not extend to the adoption of such means to this end
as in its judgment are necessary to the effective administration of
the law. The contention appears to be that, since the power to
prohibit the manufacture and sale of intoxicating liquors is not
expressly granted to Congress, but is a power implied under § 8 of
Article I of the Constitution, which authorizes Congress "to make
all laws which shall be necessary and proper for carrying into
execution" powers expressly enumerated, the power to prohibit
nonintoxicants would be merely an incident of the power to prohibit
intoxicants, and that it cannot be held to exist, because one
implied power may not be grafted upon another implied power. This
argument is a mere matter of words. The police power of a state
over the liquor traffic is not limited to the power to prohibit the
sale of intoxicating liquors supported by a separate implied power
to prohibit kindred nonintoxicating liquors so far as necessary to
make the prohibition of intoxicants effective; it is a single broad
power to make such laws, by way of prohibition, as may be required
to effectively suppress the traffic in intoxicating liquors.
Likewise, the implied
Page 251 U. S. 300
war power over intoxicating liquors extends to the enactment of
laws which will not merely prohibit the sale of intoxicating
liquors, but will effectually prevent their sale. Furthermore, as
stated in
Hamilton v. Kentucky Distilleries & Warehouse
Co., supra, while discussing the implied power to prohibit the
sale of intoxicating liquors:
"When the United States exerts any of the powers conferred upon
it by the Constitution, no valid objection can be based upon the
fact that such exercise may be attended by the same incidents which
attend the exercise by a state of its police power. . . ."
The distinction sought to be made by plaintiff between the scope
or incidents of an express power and those of an implied power has
no basis in reason or authority. Thus, the Constitution confers
upon Congress the express power "to establish post offices and post
roads." Article I, § 8, cl. 7. From this is implied the power to
acquire land for post offices in the several states,
Battle v.
United States, 209 U. S. 36, and
as an incident of this implied power to acquire land, the further
power is implied to take it by right of eminent domain,
Kohl v.
United States, 91 U. S. 367.
Likewise, the Constitution confers by clause 3 the express power
"to regulate commerce . . . among the several states," but there is
implied for this purpose also the power to grant to individuals
franchises to construct and operate railroads from state to state.
California v. Pacific R. Co., 127 U. S.
1,
127 U. S. 39.
Incidental to this implied power to construct or authorize the
construction of a railroad is the further implied power to regulate
the relations of the railroad with its employees,
Second
Employers' Liability Cases, 223 U. S. 1,
223 U. S. 47; to
require safety appliances upon cars, even when used in intrastate
commerce,
Southern Railway v. United States, 222 U. S.
20, and to regulate freight rates even to the extent of
affecting intrastate rates,
American Express Co. v.
Caldwell, 244 U. S. 617.
Whether it be for purposes of national defense, or for the
purpose
Page 251 U. S. 301
of establishing post offices and post roads, or for the purpose
of regulating commerce among the several states, Congress has the
power "to make all laws which shall be necessary and proper for
carrying into execution" the duty so reposed in the federal
government. While this is a government of enumerated powers, it has
full attributes of sovereignty within the limits of those powers.
In re Debs, 158 U. S. 564.
Some confusion of thought might perhaps have been avoided if,
instead of distinguishing between powers by the term "express and
implied," the term "specific and general" had been used. For the
power conferred by clause 18 of § 8 "to make all laws which shall
be necessary and proper for carrying into execution" powers
specifically enumerated is also an express power. Since Congress
has power to increase war efficiency by prohibiting the liquor
traffic, no reason appears why it should be denied the power to
make its prohibition effective.
Second. Does the fact that Title I of the Volstead Act
took effect upon its passage render § 1 invalid as against the
plaintiff? Prohibition of the manufacture of malt liquors with
alcoholic content of one-half of one percent or more is permissible
only because, in the opinion of Congress, the war emergency demands
it. If, in its opinion, the particular emergency demands the
immediate discontinuance of the traffic, Congress must have the
power to require such discontinuance. To limit the power of
Congress so that it may require discontinuance only after the lapse
of a reasonable time from the passage of the act would seriously
restrict it in the exercise of the war powers. Hardship resulting
from making an act take effect upon its passage is a frequent
incident of permissible legislation, but whether it shall be
imposed rests wholly in the discretion of the lawmaking body. That
the prohibition of the manufacture of nonintoxicating beer, if
permissible at all, may be made to take effect immediately follows
necessarily from the principle acted upon in
Mugler v.
Kansas, 123
Page 251 U. S. 302
U.S. 623,
123 U. S. 669,
since the incidents attending the exercise by Congress of the war
power to prohibit the liquor traffic are the same as those that
attend the states' prohibition under the police power. In the
Mugler case, also, the breweries were erected at a time
when the state did not forbid the manufacture of malt liquors, and
there it was alleged that the prohibition, which became effective
almost immediately, would reduce the value of one of the breweries
by three-fourths and would render the other of little value. Here
as there, the loss resulting to the plaintiff from inability to use
the property for brewery purposes is an incident of the peculiar
nature of the property and of the war need which, we must assume,
demanded that the discontinuance of use be immediate. Plaintiff
cannot complain because a discontinuance later would have caused
him a smaller loss. This, indeed, appears to be conceded so far as
concerns the brewery and appurtenances. The objection on the ground
that the prohibition takes effect immediately is confined to the
prohibition of the sale of the beer on hand at the time of the
passage of the act. But, as to that also, we cannot say that the
action of Congress was unreasonable or arbitrary.
Plaintiff contends, however, that even if immediate prohibition
of the sale of its nonintoxicating beer is within the war power,
this can be legally effected, only provided compensation is made,
and it calls attention to the fact that, in
Barbour v.
Georgia, 249 U. S. 454,
249 U. S. 459,
following some earlier cases, the question was reserved whether,
under the police power, the states could prohibit the sale of
liquor acquired before the enactment of the statute. It should,
however, be noted that among the judgments affirmed in the
Mugler case was one for violation of the act by selling
beer acquired before its enactment (
see pp.
123 U. S.
625-627), and that it was assumed without discussion
that the same rule applied to the brewery and its product (p.
123 U. S.
669). But we are not required to determine here the
limits
Page 251 U. S. 303
in this respect of the police power of the states, nor whether
the principle is applicable here under which the federal government
has been declared to be free from liability to an owner
"for private property injured or destroyed during war, by the
operations of armies in the field, or by measures necessary for
their safety and efficiency"
(
United States v. Pacific Railroad, 120 U.
S. 227,
120 U. S.
239); in analogy to that by which states are exempt from
liability for the demolition of a house in the path of a
conflagration (
see Lawton v. Steele, 152
U. S. 132,
152 U. S.
136); or for garbage of value taken (
Reduction Co.
v. Sanitary Works, 199 U. S. 306;
Gardner v. Michigan, 199 U. S. 325); or
for unwholesome food of value destroyed (
North American Storage
Co. v. Chicago, 211 U. S. 306;
Adams v. Milwaukee, 228 U. S. 572,
228 U. S.
584), for the preservation of the public health. Here,
as in
Hamilton v. Kentucky Distilleries & Warehouse Co.,
supra, there was no appropriation of private property, but
merely a lessening of value due to a permissible restriction
imposed upon its use.
It is urged that the act is particularly oppressive in respect
to the beer on hand, because the plaintiff was engaged in
manufacturing and selling a nonintoxicating beverage expressly
authorized by the President in his proclamation of December 8,
1917, and prohibited by him later, only when conservation of all
the food products of the country became necessary. The facts afford
no basis on which to rest the claim of an equity in the plaintiff's
favor. The specific permission from the President to manufacture
2.75% beer was not on the ground that such beer was
nonintoxicating; nor was it a declaration by him that this beer was
in fact nonintoxicating. The permission extended to all "ale and
porter" which, everyone knows, are intoxicating liquors. [
Footnote 14] This permission to
Page 251 U. S. 304
make 2.75% beer was withdrawn December 1, 1918, under
proclamation of September 16, 1918, and no permission to
manufacture specifically 2.75% beer was ever thereafter given by
the President. His later proclamation (March 4, 1919) merely
limited the prohibition of the use of foodstuffs to use in the
production of "intoxicating liquors." Whether 2.75% beer was
intoxicating was thus left by the President not only without a
decision, but without even an intimation. The statement of
plaintiff that the 2.75% beer on hand was manufactured under
permission of the President is wholly unfounded. It was not until
July 1, 1919, when the War-Time Prohibition Act became operative in
this respect, that there was any prohibition of the sale of any
liquors. So far as appears, all the beer which the plaintiff had on
hand at the time of the passage of the Volstead Act was
manufactured by the plaintiff long after the President had ceased
to have any authority to forbid or to permit.
Decree affirmed.
[
Footnote 1]
"The term 'War Prohibition Act' used in this act shall mean the
provisions of any Act or Acts prohibiting the sale and manufacture
of intoxicating liquors until the conclusion of the present war and
thereafter until the termination of demobilization, the date of
which shall be determined and proclaimed by the President of the
United States. The words 'beer, wine, or other intoxicating malt or
vinous liquors' in the War Prohibition Act shall be hereafter
construed to mean any such beverages which contain one-half of one
percentum or more of alcohol by volume:
Provided, that the
foregoing definition shall not extend to dealcoholized wine nor to
any beverage or liquid produced by the process by which beer, ale,
porter or wine is produced, if it contains less than one-half of
one percentum of alcohol by volume, and is made as prescribed in §
37 of title II of this Act, and is otherwise denominated than as
beer, ale, or porter, and is contained and sold in, or from, such
sealed and labeled bottles, casks, or containers as the
commissioner may by regulation prescribe."
[
Footnote 2]
Cases to this effect are
Marks v. State, 159 Ala. 71;
Brown v. State, 17 Ariz. 314;
Bradshaw v. State,
76 Ark. 562;
Seibert v. State, 121 Ark. 258;
In re
Lockman, 18 Idaho 465;
Hansberg v. State, 120 Ill.
21, 23 (dictum);
Kurz v. State, 79 Ind. 488;
Sawyer v.
Botti, 147 Iowa 453;
State v. Colvin, 127 Iowa 632;
State v. Miller, 92 Kan. 994;
State v. Trione, 97
Kan. 365;
Commonwealth v. McGrath, 185 Mass. 1;
Extract & Tonic Co. v. Lynch, 100 Miss. 650;
State
v. Centennial Brewing Co., 55 Mont. 500;
Luther v.
State, 83 Neb. 455;
State v. Thornton, 63 N.H. 114;
People v. Cox, 106 App.Div. 299;
People v.
O'Reilly, 129 App.Div. 522;
La Follette v. Murray, 81
Ohio St. 474;
State v. Walder, 83 Ohio St. 68;
State
v. Bottling Works, 19 N.D. 397;
State v. Ely, 22 S.D.
487;
State v. Oliver, 26 W.Va. 422, 427 (dictum);
Pennell v. State, 141 Wis. 35;
United States v.
Cohn, 2 Ind.Ter. 474;
Purity Extract Co. v. Lynch,
226 U. S. 192.
Contra: City of Bowling Green v. McMullen, 134 Ky. 742;
Reisenberg v. State, 84 S.W. 585;
State v. Olson,
95 Minn. 104;
Intoxicating Liquor Cases, 25 Kan. 751;
State v. Virgo, 14 N.D. 293;
State v. Maroun, 128
La. 829;
Howard v. Acme Brewing Co., 143 Ga. 1.
In Kansas, the legislature overruled this decision by Laws 1909,
c. 164, § 4,
see State v. Trione, supra; in Minnesota,
made the prohibition apply to all malt liquors containing as much
as 1/2 of 1% of alcohol by volume, Laws 1919, c. 455, p. 537; in
North Dakota, by Laws 1909, c. 187, p. 277,
see State v.
Bottling Works, 19 N.D. 397, the prohibition applied to all
liquors which retained "the alcoholic principle;" in Louisiana,
Acts 1914, Nos. 146, 211, operated to cut down the percent of
alcohol to 1.59,
see State v. George, 136 La. 906; in
Georgia, Acts 1919, p. 123, changed the rule of
Howard v. Acme
Brewing Co., supra, see note
4
[
Footnote 3]
1. Alabama: Gen.Laws Sp.Sess.1907, No. 53,§1, p. 71, made it
unlawful to sell
"any alcoholic, spirituous, or malt liquors, intoxicating
bitters or beverages, or other liquors or beverages, . . . which if
drunk to excess will produce intoxication."
Marks v. State, 159 Ala. 71, 78 stated that "or other
liquors or beverages . . . which if drunk to excess will produce
intoxication" did not modify or limit the prohibition of the
liquors enumerated. Any unenumerated liquor, however, must be
proved to be intoxicating if drunk to excess.
Gen.Laws 1919, Act 7, p. 6, in terms prohibits all liquors
containing any alcohol.
2. Arizona: Constitution, Art. 23, § 1, prohibits "ardent
spirits, ale, beer, wine, or intoxicating liquor, or liquors of
whatever kind."
Brown v. State, 17 Ariz. 314, held that "beer" was
prohibited, whether or not it was intoxicating.
3. Arkansas: Acts 1917, Act 13, p. 41, as amended by Acts 1919,
Act 87, p. 75, prohibits "any alcoholic, vinous, malt, spirituous,
or fermented liquors."
Seibert v. State, 121 Ark. 258, held that the
enumerated liquors are prohibited, whether they are intoxicating or
not, if they contained any alcohol.
An earlier act contained the words "or other intoxicating
liquors," following "or fermented liquors." It was held in
Bradshaw v. State, 76 Ark. 562, that this clause did not
modify the enumerated liquors, and that they were prohibited,
whether intoxicating or not.
4. Colorado: Sess.Laws 1915, c. 98, § 30 (prohibition), as
amended by Sess.Laws 1919, c. 141, prohibits "intoxicating liquors
. . . no matter how small the percentage of alcohol they may
contain."
4 1/2. Hawaii: Rev.Laws 1915, § 2101 (license law).
"'Intoxicating liquors' . . . shall be held to include
spirituous liquors, and any beverage in which may be found any
percentage of distilled spirits, spirits, alcohol, and alcoholic
spirits as defined by the laws of the United States, and any sake,
beer, larger beer, ale, porter and malt or fermented or distilled
liquors."
5. Idaho: Sess.Laws 1909, p. 18 (local option). "Spirituous,
vinous, malt and fermented liquors, . . . and other drinks that may
be used as a beverage and produce intoxication."
In re Lockman, 18 Idaho 465, held that the enumerated
liquors are within the act whether or not they are
intoxicating.
Constitutional amendment of November 7, 1916 (prohibition).
(Sess.Laws 1917, p. 528.) The enforcement laws are cumulative,
including Sess.Laws 1915, c. 28; Sess.Laws 1915, c. 11
(
see § 23); Sess.Laws 1911, c. 15, and Sess.Laws 1909, p.
18. Thus, the definition and interpretation above are retained.
6. Iowa: Code Supp. 1915, § 2382, prohibits "any intoxicating
liquor, which term shall be construed to mean alcohol, ale, wine,
beer, spirituous, vinous and malt liquor, and all intoxicating
liquor whatever."
State v. Intoxicating Liquors, 76 Iowa 243,
State
v. Colvin, 127 Iowa 632 (1905), and
Sawyer v. Botti,
147 Iowa 453 (1910), held that liquor containing any alcohol
whatever is prohibited.
7. Kansas: Laws 1881, c. 128, § 1 (Gen.Stat. 1915, § 5498),
prohibits "any spirituous, malt, vinous, fermented or other
intoxicating liquors."
Intoxicating Liquor Cases, 25 Kan. 751, held that in
every case the question of the intoxicating quality of the beverage
must go to the jury.
Laws 1909, c. 164, § 4 (Gen.Stat. 1915, § 5501), amended the Act
of 1881 as follows: "All liquors mentioned in § 1 of this act shall
be construed and held to be intoxicating liquors within the meaning
of this act."
State v. Miller, 92 Kan. 994, and
State v.
Trione, 97 Kan. 365, declared that the former case is no
longer the law, and that the mere presence of the liquors mentioned
makes the substance intoxicating for purposes of the prohibition
statutes.
See also Laws 1917, cc. 215, 216, "Bone-Dry Prohibition
Law."
8. Louisiana:
Shreveport Ice Co. v. Brown, 128 La. 408,
held that a statute regulating the sale of "spirituous and
intoxicating liquors" includes only intoxicating liquors.
Acts of Extra Session, 1910, No. 171, defines "Grog Shop" as a
place where "intoxicating spirituous, vinous, or malt liquors are
sold" (and forbids them in prohibition territory).
State v. Maroun, 128 La. 829, held that the malt
liquors must be intoxicating to be within the meaning of the
statute.
Acts 1914, No. 146, repeats a similar definition of grog shop or
blind tiger. Acts 1914, No. 211, forbids the manufacture of
near-beer with more than 1.59 percent of alcohol by weight or 2
percent by volume, and prohibits the sale of the near-beer thus
made under the same roof where any other beverage is sold.
State v. George, 136 La. 906, seems to hold that this
near-beer may be sold in prohibition territory where the "grog
shops" are not allowed.
9. Maryland: Laws 1914, c. 831, § 1, p. 1569 (prohibition in
certain counties), forbids "any spirituous, vinous, fermented,
malt, or intoxicating liquors, or any mixture thereof containing
alcohol for beverage purposes. . . ."
Laws 1916, c. 389, § 1, p. 786, prohibits in a certain
county
"any kindred preparation or beverage, having the appearance and
taste of larger beer . . . except those beverages that are labeled
. . . stating that the beverage is free of alcohol."
See also note 4 and
|
note 4 and S. 264fn9|>note
9. These citations are not exhaustive of the Maryland county
prohibition statutes.
10. Michigan: Public Acts 1919, No. 53, § 3, p. 81.
"'Intoxicating liquors' . . . include any vinous, malt, brewed,
fermented or spirituous liquors, . . . and all liquids . . . which
contain any alcohol and are capable of being used as a
beverage."
11. Mississippi: Code 1906, § 1746, as amended by Laws 1908, c.
115, p. 116 (Code 1917, § 2086), prohibits the sale of
"any vinous, alcoholic, malt, intoxicating or spirituous
liquors, or intoxicating bitters, or other drinks, which, if drank
to excess, will produce intoxication."
Fuller v. City of Jackson, 97 Miss. 237;
Extract
& Tonic Co. v. Lynch, 100 Miss. 650. All the enumerated
drinks are prohibited, whether they contain alcohol or are
intoxicating or both or neither.
Laws 1918, c. 189, § 1, p. 210, prohibits "spirituous, vinous,
malted, fermented, or other intoxicating liquors of any kind."
12. New Mexico: Stats.1915, § 2874.
"All persons who make for sale fermented liquors of any name or
description, from malt, wholly or in part, or from any substitute
therefor, shall be considered brewers."
Section 2937. "The words
intoxicating liquors' . . . include
all malt, vinous and spirituous liquors."
Constitutional amendment, proposed by legislature of 1917, Laws
1917, p. 352, prohibits "ardent spirits, ale, beer, alcohol, wine
or liquor of any kind whatsoever containing alcohol."
13. New York; Laws 1897, c. 312, § 2, Laws 1903, c. 486, § 2, as
amended by Laws 1905, c. 679, § 2, defining intoxicating liquors as
"all distilled or rectified spirits, wine, fermented and malt
liquors."
People v. Cox, 106 App.Div. 299, held that "malt rose,"
containing ".74 percent of alcohol" and made from malt was within
the meaning of the act.
People v. O'Reilly, 129 App.Div. 522, 114 N.Y.Supp.
258,
aff'd, 194 N.Y. 592, holds that beer comes within the
act whether intoxicating or not, and declares that an earlier line
of cases holding that the intoxicating quality is always for the
jury to decide are no longer applicable where liquors are named in
the act.
Laws 1917, c. 624, § 2, p. 1835, City Local Option Law,
continues the definition.
14. Ohio: Rev.Stats. 1906, § 4364-9, laid a tax on the business
of "trafficking in spirituous, vinous, malt, or any intoxicating
liquors."
La Follette v. Murray, 81 Ohio St. 474, held that
"Friedon beer." a malt liquor containing .47 percent of alcohol and
not intoxicating, was within the statute.
State v. Walder, 83 Ohio St. 69.
Laws 1919, § 6212-15, p. 388 (Prohibition).
". . . 'Liquor' and 'intoxicating liquors' include any
distilled, malt, spirituous, vinous, fermented or alcoholic liquor
and also any alcoholic liquid . . . which . . . capable of being
used as a beverage."
15. South Dakota: Sess.Laws 1890, c. 101, § 6, p. 229
(Prohibition). Intoxicating liquors include "all spirituous, malt,
vinous, fermented or other intoxicating liquors, or mixtures . . .
that will produce intoxication."
Rev. Pol.Code 1903, § 2834, requires a license to sell "any
spirituous, vinous, malt, brewed, fermented or other intoxicating
liquors."
State v. Ely, 22 S.D. 487, held that the liquors named
come within the act, whether or not they are intoxicating.
Rev.Code 1919, § 10237.
"'Intoxicating liquors' . . . include whisky, alcohol, brandy,
gin, rum, wine, ale, beer, absinthe, cordials, hard or fermented
cider, . . . and all distilled, spirituous, vinous, malt, brewed
and fermented liquors, and every other liquid, . . . containing
alcohol, . . . which . . . is capable of being used as a
beverage."
15 1/2. United States: 28 Stat. 697, § 8 (Indian Territory
prohibition), prohibits "any vinous, malt, or fermented liquors, or
any other intoxicating drinks."
United States v. Cohn, 2 Ind.Ter. 474, held that the
act prohibits all malt liquors whether or not they are
intoxicating.
See also 39 Stat. 903 (Alaska prohibition), and 39
Stat. 1123 (D. of C. Prohibition), both of which prohibit "all malt
liquors."
16. Washington: Code 1912, Tit. 267, § 45 (local option).
"'Intoxicating liquor' . . . shall . . . include whisky, brandy,
rum, wine, ale, beer, or any spirituous, vinous, fermented, malt or
any other liquor containing intoxicating properties . . . except
preparations compounded by a registered pharmacist, the sale of
which would not subject him to the payment of the special liquor
tax required by the laws of the United States."
Sess.Laws 1915, c. 2, § 2 (Prohibition)."
I
ntoxicating liquor' . . . shall . . . include whisky," etc., (as
above) "and all liquids . . . which contain any alcohol, which are
capable of being used as a beverage."
State v. Hemrich, 93
Wash. 439.
17. Wisconsin: Gen.Stat. 1911, § 1565c (local option). "Any
spirituous, malt, ardent, or intoxicating liquors or drinks."
Pennell v. State, 141 Wis. 35, holds that the statute
forbids fermented malt liquors containing alcohol whether
intoxicating or not.
See also Montana,
note
7
[
Footnote 4]
1. Connecticut: Public Acts, 1919, c. 241, p. 2917, defines
intoxicating liquors,
"all beer manufactured from hops and malt or from hops and
barley, and all beer on the receptacle containing which the laws of
the United States require a revenue stamp to be affixed, [but it]
shall not include beverages which contain no alcohol. . . ."
2. Delaware: Laws 1917, c. 10, p. 19 (Local Option Enforcement),
defines as follows:
". . . All liquid mixtures . . . containing so much as 1/2 of 1%
of alcohol by volume shall be deemed liquors, and shall be embraced
in the word 'liquors' as hereinafter used in this act."
3. Florida: Acts Sp.Sess.1918, c. 7736, § 7, as amended by Acts
1919, c. 7890, defines intoxicating liquor, which it prohibits, as
all beverages containing "1/2 of 1% of alcohol or more by
volume."
4. Georgia: Acts Sp.Sess.1915, pp. 77, 79 (Park's Annotated Code
Supplement 1917, Penal Code, § 448 [b]), defines "prohibited
liquors" as " . . . beer, . . . near-beer, . . . and . . .
beverages containing one-half of one percent of alcohol or more by
volume."
5. Illinois: Rev.Stats. 1874, c. 43, § 1 ("Dramshop Act"),
defines a dramshop as a place "where spirituous or vinous or malt
liquors are retailed . . . and intoxicating liquors shall be deemed
to include all such liquors."
Hansberg v. People, 120 Ill. 21, 23. Indictment for
selling "intoxicating liquors;" proof of selling "beer." The court
said:
"No evidence whatever was offered or admitted for the purpose of
explaining or showing what 'beer' was made of, or what its
characteristics were, or whether it was malt, vinous, spirituous or
intoxicating."
Laws 1919, p. 931 (Search and Seizure Law).
"'Intoxicating liquor or liquors' shall include all distilled,
spirituous, vinous, fermented or malt liquors which contain more
than 1/2 of 1% by volume of alcohol."
6. Indiana: Rev.Stats. 1881, § 2094. "Whoever . . . sells . . .
any spirituous, vinous, malt, or other intoxicating liquors."
Kurz v. State, 79 Ind. 488, 490. "It devolves on the
state therefore to prove that the beer sold was either a malt
liquor or that it was in fact an intoxicating liquor."
Laws 1911, c. 119, § 29 (Saloon Regulation Act).
"The words 'intoxicating liquors' shall apply to any spirituous,
vinous or malt liquor, or to any intoxicating liquor whatever,
which is used . . . as a beverage and which contains more than
one-half of one percent of alcohol by volume."
Laws 1917, c. 4, § 2 (Prohibition Act).
"The words 'intoxicating liquor' as used in this act shall be
construed to mean all malt, vinous, or spirituous liquor,
containing so much as 1/2 of 1% of alcohol by volume."
7. Maine: Rev.Stats.1916, c. 127, § 21 (Prohibition Act),
declares
"wine, ale, porter, strong beer, larger beer, and all other malt
liquors, and cider when kept or deposited with intent to sell the
same for tippling purposes, . . . are declared intoxicating within
the meaning of this chapter."
State v. Frederickson, 101 Me. 37, holds that cider
comes within the act, whether or not it is in fact
intoxicating.
State v. Piche, 98 Me. 348, holds that, in case of a
liquor not enumerated, the jury must find the question of
intoxicating quality.
Laws 1919, c. 235, § 21, prohibits
"as well as any beverage containing a percentage of alcohol,
which by federal enactment, or by decision of the Supreme Court of
the United States, now or hereafter declared, renders a beverage
intoxicating."
8. Maryland: Laws Extra Session 1917, c. 13, § 1 (prohibition in
Prince George County).
"Malt liquors shall be construed to embrace porter, ale, beer
and all malt or brewed drinks whether intoxicating or not
containing as much as 1/2 of 1% of alcohol by volume; that the
words 'intoxicating liquors' . . . shall . . . embrace both
spirituous liquors and malt liquors and . . . all liquid mixtures .
. . containing so much as 1/2 of 1% of alcohol by volume."
See also note 3 and
|
note 3 and S. 264fn8|>note
8.
9. Minnesota: Gen.Stat. 1913, § 3188, and Gen.Stat. Supp. 1917,
§ 3161, provide that "the terms
intoxicating liquor' and
`liquor' . . . shall include distilled, fermented, spirituous,
vinous, and malt liquor."
State v. Gill, 89 Minn. 502, held that only those malt
liquors which were intoxicating were within the meaning of the
act.
Laws 1919, c. 455, p. 537 (Prohibition).
"'Intoxicating liquor' and 'liquor' shall include and mean ethyl
alcohol and any distilled, fermented, spirituous, vinous, or malt
liquor or liquid of any kind potable as a beverage, whenever any of
said liquors or liquid contain 1/2 of 1% or more of alcohol by
volume."
10. Missouri: Rev.Stats. 1909, § 7243.
"If a majority of the votes . . . shall be 'against the sale of
intoxicating liquors,' it shall not be lawful for any person . . .
[to sell]. . . any kind of intoxicating liquors or beverage
containing alcohol in any quantity whatever."
State v. Gamma, 149 Mo.App. 694;
State v.
Burk, 151 Mo.App. 188;
State v. Wills, 154 Mo.App.
605.
Laws 1919, c. ___, § 15.
"The phrases, 'intoxicating liquor,' or 'intoxicating liquors,'
whenever used in this act shall be construed to mean and include
any distilled, malt, spirituous, vinous, fermented or alcoholic
liquor, all alcoholic liquids . . . which contain 1/2 of 1% of
alcohol by volume, . . .
Provided, however, that, when the
above mentioned phrases . . . are . . . defined in the laws of the
United States, then such definition by Congress shall supersede and
take the place of the definition . . . in this section."
11. Nebraska: Cobbey's Compiled Stats.1907, § 7161, forbids the
sale of "malt, spirituous, or vinous liquors or any intoxicating
drinks" without a license.
Luther v. State, 83 Neb. 455, holds that all malt
liquors fall within the meaning of the statute, whether or not they
are intoxicating.
Laws 1917, c. 187, § 1 (Prohibition).
"'Intoxicating liquors' . . . embrace all malt, fermented,
vinous or spirituous liquors, wine, porter, beer, ale, or any
intoxicating drink, . . . and all malt or brewed drinks, and all
mixtures . . . which will produce intoxication, and, in addition
thereto, such liquors of a different character and not hereinbefore
enumerated capable of use as a beverage containing over 1/2 of 1%
of alcohol by volume."
12. Nevada: Laws 1919, c. 1, § 1 (Prohibition).
"The word 'liquors' . . . shall . . . embrace all malt, vinous
or spirituous liquors, wine, porter, ale, beer or any other
intoxicating drink, . . . and all malt or brewed drinks, whether
intoxicating or not, shall be deemed malt liquors within the
meaning of this act; . . . and all beverages containing so much as
1/2 of 1% of alcohol by volume shall be deemed spirituous
liquors."
State v. Reno Brewing Co., 42 Nev. 397.
13. Oklahoma: Sess.Laws 1913, c. 26, § 6 (Prohibition), defines
intoxicating liquors as "spirituous vinous, fermented or malt
liquors . . . or any liquors . . . which contain as much as 1/2 of
1% of alcohol measured by volume."
See Laws 1917, c.
186.
Estes v. State, 13 Okl.Cr. 604, held that the state. to
secure conviction for violation of the act. must prove either that
the liquor contained more than 1/2 of 1% of alcohol or that it was
in fact intoxicating.
14. Oregon: Laws 1905, c. 2 (Local Option), used only the term
"intoxicating liquors."
State v. Carmody, 50 Or. 1, held that the court will
judicially recognize that "beer" is intoxicating in an indictment
for selling "intoxicating liquors."
Laws 1915, c. 141, § 2, p. 151.
"'Intoxicating liquor' . . . embrace all spirituous, malt,
vinous, fermented or other intoxicating liquors, and all mixtures .
. . which shall contain in excess of 1/2 of 1% of alcohol by
volume, shall be deemed to be embraced within such term,
independently of any other test of their intoxicating
character."
15. Tennessee: Acts 1917, c. 4, p. 6 (Ann.Code, 1918, §
6798a34). Clubs, etc., may not have on their premises any liquor
"containing more than 1/2 of 1% of alcohol."
16. Utah: Laws 1911, c. 106, § 2; Laws 1913, c. 81, § 2 (license
laws). "Any spirituous, vinous, fermented or malt liquor that may
be used as a beverage and produce intoxication."
Laws 1917, c. 2, § 2 (Prohibition).
"'Liquors' . . . embrace all fermented, malt, vinous or
spirituous liquors, alcohol, wine, porter, ale, beer, absinthe, or
any other intoxicating drink, . . . and all malt or brewed drinks,
and all liquids . . . which will produce intoxication; . . . and
all beverages containing in excess of 1/2 of 1% of alcohol by
volume."
17. Virginia: Code 1887, § 587 (Local Option). "Any wine,
spirituous or malt liquors, or any mixture thereof."
Savage v. Commonwealth, 84 Va. 582, 619, held that a
sale of "ginger extract," in order to be illegal, requires the
proof that the extract is intoxicating.
Acts 1916, c. 146, § 1, p. 216.
"Ardent spirits . . . embrace alcohol, brandy, whisky, rum, gin,
wine, porter, ale, beer, all malt liquors, absinthe and all
compounds, . . . and all beverages containing more than 1/2 of 1%
of alcohol by volume."
18. West Virginia: Code 1860, c. 32, § 1, as amended by Acts
1877, c. 107 (Code 1913, § 1113), prohibits the sale of
"spirituous liquors, wine, porter, ale, beer, or any drink of a
like nature . . . and all mixtures . . . known as 'bitters' . . .
which will produce intoxication . . . shall be deemed intoxicating
liquors."
State v. Oliver, 26 W.Va. 422, 427, in a dictum,
declares that beer is prohibited, whether it is intoxicating beer
or not.
Code 1906, c. 32, § 1, is substantially the same.
State v. Henry, 74 W.Va. 72 [81 S.E. 569], on
indictment for selling "intoxicating liquors," held that evidence
of sale of "bevo" containing 1.31% of alcohol sufficient to sustain
a conviction.
Acts 1913, c. 13, § 1 (Code 1913, § 1280).
"'Liquors' . . . embrace all malt, vinous or spirituous liquors,
wine, porter, ale, beer or any other intoxicating drink, . . . and
all malt or brewed drinks, whether intoxicating or not, shall be
deemed malt liquors, . . . and all beverages containing so much as
1/2 of 1% of alcohol by volume."
[
Footnote 5]
1. California: Stat. 1911, c. 351, § 21 (Local Option and
License). "
Alcoholic liquors' . . . include spirituous, vinous
and malt liquors, and any other liquor . . . which contains one
percent" of alcohol or more.
People v. Strickler, 25 Cal. App. 60, held that the
clause "and any other liquor . . . which contains 1% or more, of
alcohol" modified the enumerated liquors, so that a malt liquor
containing less than one percent of alcohol and not intoxicating
did not fall within the act.
2. Massachusetts: Rev.Laws 1902, c. 100, § 2 (Local Option and
License).
"Ale, porter, strong beer, lager beer, cider, all wines, any
beverage which contains more than 1% of alcohol by volume . . .
shall be deemed to be intoxicating."
Commonwealth v. McGrath, 185 Mass. 1, held that cider
fell within the act whether it contained one percent of alcohol or
was intoxicating or neither.
Commonwealth v. Blos, 116 Mass. 56, held that a liquor
not enumerated in the statute is not prohibited unless it falls
within the general definition which is a question for the jury.
Rev.Laws Supp. 1908, c. 100, § 1, retains the same
definition.
3. New Hampshire: Gen.Laws 1878, c. 109, § 15, restricted the
sale of "lager beer or other malt liquors."
State v. Thornton, 63 N.H. 114, held that all malt
liquors come within the meaning of the act, whether or not they are
intoxicating.
Supp. to Pub.Stat. and Sess.Laws 1901-1913, p. 7, defines
intoxicating liquors as
"all distilled liquors, or rectified spirits; vinous, fermented,
brewed and malt liquors, and any beverage . . . containing more
than one percent of alcohol, by volume."
Laws 1917, c. 147, § 60 (Prohibition).
"By the words spirit, liquor, spirituous liquor, intoxicating
liquor . . . [is meant] . . . all distilled liquors or rectified
spirits; vinous, fermented, brewed and malt liquors, and any
beverage . . . containing more than one percent of alcohol, by
volume."
4. South Carolina: Rev.Stats. 1893, Crim.Stat. § 437; Code 1902,
Crim.Code, § 555; Code 1912, Crim.Code, § 794, prohibit any
spirituous, malt, vinous, fermented, brewed, or other liquors and
beverages, or any compound or mixture thereof which contain
alcohol.
Acts 1917, No. 94, § 1, prohibits
"any spirituous, malt, vinous, fermented, brewed, or other
liquors and beverages or any compound or mixture thereof, which
contains alcohol in excess of 1%."
5. Vermont: Rev.Laws 1880, § 3800, prohibited the sale of cider
at places of amusement.
State v. Spaulding, 61 Vt. 505, held that the
prohibition covered all cider, whether intoxicating or not.
Laws 1902, No. 90, § 1, p. 94 (Gen.Laws 1917, § 6452).
"'Intoxicating liquors' . . . shall mean ale, porter, beer,
larger beer, cider, all wines, any beverage which contains more
than 1% of alcohol by volume."
6. Wyoming: Comp.Stat. 1910, § 2838. "Any person . . . who shall
sell . . . any liquors, either spirituous, vinous, fermented or
malt without . . . a license," etc.
Sess.Laws 1919, c. 25, § 2 (Prohibition).
"'Intoxicating liquor' . . . include any distilled malt,
spirituous, vinous, fermented or alcoholic liquor and all alcoholic
liquids . . . capable of being used as a beverage, which shall
contain more than one percent of alcohol."
[
Footnote 6]
North Dakota: Rev.Code 1895, § 7598, contains a proviso to the
effect that fermented and alcoholic liquors containing less than 2%
of alcohol by volume shall not be deemed to be intoxicating.
Laws 1897, c. 65, § 10. "Courts will take judicial notice that
beer is a malt liquor and intoxicating."
See State v.
Currie, 8 N.D. 545.
Rev.Code 1899, § 7598, prohibits
"all spirituous, malt, vinous, fermented, or other intoxicating
liquors or mixtures thereof, . . . that will produce intoxication,
or any liquors . . . sold . . . as a beverage and which shall
contain . . . methyl alcohol, . . . amyl alcohol,"
etc.
State v. Virgo, 14 N.D. 293 (1905), held that the act
only applied to such liquors as were in fact intoxicating.
Laws 1909, c. 187, p. 277. Intoxicating liquors include alcohol,
brandy, rum, beer, ale, porter, wine, and hard cider, also all
spirituous, malt, etc., liquors, which will produce intoxication in
any degree, or any mixture of such or any kind of beverage
whatsoever which while preserving the alcoholic principle or any
other intoxicating quality may be used as a beverage and may become
a substitute for the ordinary intoxicating beverages.
State v. Fargo Bottling Works, 19 N.D. 397, held that
"Purity Malt" containing 1.75 percent of alcohol preserved "the
alcoholic principle," and, whether or not it was intoxicating, it
might not lawfully be sold.
[
Footnote 7]
Montana: Laws of 1917, c. 143, § 2.
"'Intoxicating liquors' . . . include whisky, brandy, gin, rum,
wine, ale, and spirituous, vinous, fermented, or malt liquors or
liquid . . . which contain as much as 2% of alcohol by volume and
is capable of being used as a beverage."
State v. Centennial Brewing Co., 55 Mont. 500, holds
specifically mentioned liquors prohibited regardless of alcoholic
content.
[
Footnote 8]
Rhode Island: Pub.Laws 1887, c. 634, § 2.
"'Intoxicating liquors' . . . include ale, wine, rum, or other
strong or malt liquors, or any liquor or mixture of liquors which
shall contain more than 2% by weight of alcohol,"
and this is not to be construed to permit the sale of liquors
containing less than 2% if intoxicating.
Public Laws 1919, c. 1740, § 1 (amending Gen.Laws, c. 123, §
1).
"'Nonintoxicating beverages,' as used in this act, includes and
means all distilled or rectified spirits, wines, fermented and malt
liquors which contain one percentum and not more than four
percentum by weight of alcohol."
"Sec. 2. No person shall manufacture or sell or suffer to be
manufactured or sold, or keep or suffer to be kept on his premises
or possessions or under his charge for the purposes of sale and
delivery, any nonintoxicating beverages unless as hereinafter
provided."
"Sec. 5. The electors of the several cities and towns . . .
shall . . . cast their ballots for or against the granting of
licenses for the sale of nonintoxicating beverages pursuant to this
act. . . ."
Maryland: Laws 1918, c. 219, p. 580 (prohibiting at night the
sale of intoxicating liquors to be carried away from the place of
sale), expressly excludes from the operation of the act "malt
liquors containing less than 4% of alcohol by weight."
This provision, however, is not attempting to make a
classification of intoxicating liquors. For laws of this state
which do that,
see note
3 and
note 4
[
Footnote 9]
1. Kentucky: Statutes of 1903, § 2554, as amended by Laws of
1906, c. 21, forbids the sale in dry territory of "spirituous,
vinous or malt liquors."
City of Bowling Green v. McMullen, 134 Ky. 742, held
that the liquors named must be intoxicating in fact to be forbidden
by the act.
2. Texas: Rev.Stats. 1895, Art. 5060a, taxes the selling of
"spirituous, vinous, or malt liquors, or medicated bitters" capable
of producing intoxication.
Ex parte Gray, 83 S.W. 828, and
Reisenberg v.
State, 84 S.W. 585, held that nonintoxicating malt beverages
may be sold without a license.
Gen.Laws 1918, c. 24 (Prohibition), uses the same terms as the
older statute and is cumulative, so presumably it has the same
meaning.
3. Louisiana:
See note
6 The test of 2% applies only to near-beer. Presumably a vinous
liquor must be proved intoxicating in fact under the decisions.
[
Footnote 10]
1. New Jersey: Laws of 1918, c. 2, § 1 (Local Option). "The term
intoxicating liquor' . . . shall mean any spirituous, vinous,
malt, brewed, or any other intoxicating liquor."
No interpretations.
2. North Carolina: Sp.Sess.1908, c. 71, § 1, prohibits the sale
of "any spirituous, vinous, fermented, or malt liquors, or
intoxicating bitters."
Pub.Laws 1909, c. 438, Schedule B, §§ 26, 63, imposed a license
tax on the sale of near-beer or any drinks containing one-half of
1% alcohol or more.
Parker v. Griffith, 151 N.C. 600, and
State v.
Danenberg, 151 N.C. 718, held that the sale of near beer
containing 1 1/2% of alcohol was lawful.
3. Pennsylvania: No definition.
[
Footnote 11]
See note 2
supra.
[
Footnote 12]
That statute made it "unlawful to sell any intoxicating liquor,
including beer, ale or wine, to any officer or member of the
military forces while in uniform." The Judge Advocate General,
having been applied to for an opinion concerning its
administration, advised that
"In matters of military inquiry, the War Department regards a
beverage that contains 1.4% of alcohol as intoxicating liquor
within the meaning of § 12 of the Selective Service Act of May 18,
1917, and the regulations of the President and the Secretary of War
made thereunder; whether beverages are intoxicating liquors . . .
in prosecution of civilians is a question for the civil
courts."
Opinions of Judge Advocate General 250. Dec. 4, 1918 -- Digest
of 1918, p. 360.
See also opinion of March 3, 1919 --
Digest of 1919, p. 289.
[
Footnote 13]
Referring to the proposed definition:
"I do not think the wisdom of such action on the part of
Congress admits of doubt. It goes without saying, I think, that if
a law merely prohibits intoxicating liquors and leaves to the jury
in each case, from the evidence produced, to determine whether the
liquor in question is in fact intoxicating or not, its efficient
and uniform administration will be impossible. The term
'intoxicating' is too indefinite and uncertain to produce anything
like uniform results in such trials. Of course, there are certain
liquors so generally known to be intoxicating that any court would
take judicial notice of this fact. But, in the absence of a
definition by Congress there, will be innumerable beverages as to
which the claim will be made that they do not contain enough
alcohol to render them intoxicating. These contentions will produce
endless confusion and uncertainty. These, I think, are
substantially the reasons why Congress should itself provide a
definition."
"The importance of this matter has been very much emphasized by
our present efforts to enforce the War Prohibition Act. The claim
is being made that beer containing as much as 2 3/4% of alcohol is
not intoxicating. And if this must be made a question of fact to be
decided by each jury, but little in the way of practical results
can be expected. I am, however, most earnestly insisting that, in
view of the rulings for many years by the Internal Revenue
Department, Congress meant when it used the word 'beer' a beverage
of the class generally known as beer if it contained as much as
one-half of 1% of alcohol."
Letter of Attorney General to Senator Morris Shepherd, July 29,
1919, read in Senate, September 5, 1919, 58 Cong.Rec. 5185.
[
Footnote 14]
Webster defines ale as
"an intoxicating liquor made from an infusion of malt by
fermentation and the addition of a bitter, usually hops,' and
porter as 'a malt liquor, of dark color and moderately bitter
taste, possessing tonic and intoxicating qualities."
MR. JUSTICE McREYNOLDS, with whom concurred MR. JUSTICE DAY, and
MR. JUSTICE VAN DEVANTER, dissenting.
I cannot accept either the conclusion announced by the Court or
the reasons advanced to uphold it. The importance of the principles
involved impels a dissent.
We are not now primarily concerned with the wisdom or validity
of general legislation concerning liquors, nor with the
intoxicating qualities of beer, nor with measures taken by a state
under its inherent and wide general powers to provide for public
safety and welfare. Our problem concerns the power of Congress and
rights of the citizen after a declaration of war, but when
active
Page 251 U. S. 305
hostilities have ended and demobilization has been
completed.
The government freely admits, since the present cause stands
upon motion to dismiss a bill which plainly alleges that the beer
in question is nonintoxicating, we must accept that allegation as
true and beyond controversy. In
United States v. Standard
Brewery, ante, 251 U. S. 210, we
rule in effect that for many months prior to the Volstead Act,
passed October 28, 1919, no law of the United States forbade the
production or sale of nonintoxicating malt liquors. And so the
question for decision here distinctly presented is this: did
Congress have power on October 28, 1919, directly and instantly to
prohibit the sale of a nonintoxicating beverage, theretofore
lawfully produced and which until then could have been lawfully
vended, without making any provision for compensation to the
owner?
The federal government has only those powers granted by the
Constitution. The Eighteenth Amendment not having become effective,
it has no general power to prohibit the manufacture or sale of
liquors. But, by positive grant, Congress has been empowered "to
declare war," "to raise and support armies," "to provide and
maintain a navy," "to make rules for the government and regulation
of the land and naval forces," "to make all laws which shall be
necessary and proper for carrying into execution the foregoing
powers," and to these, it is attempted to trace the asserted power
to prohibit sale of complainant's beer.
See, concerning
implied powers, Cooley's Principles of Constitutional Law, 105;
Story on the Constitution (4th ed.) § 1243.
The argument runs: this Court has held in
Hamilton v.
Kentucky Distilleries & Warehouse Co., ante, 251 U. S. 146,
that under a power implied because necessary and proper to carry
into execution the above named powers relating to war, in October,
1919, Congress could prohibit the sale
Page 251 U. S. 306
of intoxicating liquors. In order to make such a prohibition
effective, the sale of nonintoxicating beer must be forbidden.
Wherefore, from the implied power to prohibit intoxicants, the
further power to prohibit this nonintoxicant must be implied.
The query at once arises: if all this be true, why may not the
second implied power engender a third, under which Congress may
forbid the planting of barley or hops, the manufacture of bottles
or kegs, etc. The mischievous consequences of such reasoning were
long ago pointed out in
Kidd v. Pearson, 128 U. S.
1,
128 U. S. 21,
where, replying to a suggestion that, under the expressly granted
power to regulate commerce, Congress might control related matters,
it was said:
"The result would be that Congress would be invested, to the
exclusion of the states, with the power to regulate not only
manufactures, but also agriculture, horticulture, stock raising,
domestic fisheries, mining -- in short, every branch of human
industry. For is there one of them that does not contemplate, more
or less clearly, an interstate or foreign market?"
For sixty years,
Ex parte
Milligan, 4 Wall. 2,
71 U. S. 120,
71 U. S. 125, has
been regarded as a splendid exemplification of the protection which
this Court must extend in time of war to rights guaranteed by the
Constitution, and also as decisive of its power to ascertain
whether actual military necessity justifies interference with such
rights. The doctrines then clearly -- I may add, courageously --
announced, conflict with the novel and hurtful theory now
promulgated. A few pertinent quotations from the opinion will
accentuate the gravity of the present ruling:
"Time has proven the discernment of our ancestors; for even
these provisions, expressed in such plain English words, that it
would seem the ingenuity of man could not evade them, are now,
after the lapse of more than seventy years, sought to be avoided.
Those great and
Page 251 U. S. 307
good men foresaw that troublous times would arise when rulers
and people would become restive under restraint, and seek by sharp
and decisive measures to accomplish ends deemed just and proper,
and that the principles of constitutional liberty would be in peril
unless established by irrepealable law. The history of the world
had taught them that what was done in the past might be attempted
in the future. The Constitution of the United States is a law for
rulers and people, equally in war and in peace, and covers with the
shield of its protection all classes of men at all times and under
all circumstances. No doctrine, involving more pernicious
consequences was ever invented by the wit of man than that any of
its provisions can be suspended during any of the great exigencies
of government. Such a doctrine leads directly to anarchy or
despotism, but the theory of necessity on which it is based is
false; for the government, within the Constitution, has all the
powers granted to it, which are necessary to preserve its
existence, as has been happily proved by the result of the great
effort to throw off its just authority. . . ."
"This nation, as experience has proved, cannot always remain at
peace, and has no right to expect that it will always have wise and
humane rulers, sincerely attached to the principles of the
Constitution. Wicked men, ambitious of power, with hatred of
liberty and contempt of law, may fill the place once occupied by
Washington and Lincoln, and if this right is conceded, and the
calamities of war again befall us, the dangers to human liberty are
frightful to contemplate. If our fathers had failed to provide for
just such a contingency, they would have been false to the trust
reposed in them. They knew -- the history of the world told them --
the nation they were founding, be its existence short or long,
would be involved in war -- how often or how long continued, human
foresight could not tell -- and that unlimited power, wherever
lodged
Page 251 U. S. 308
at such a time, was especially hazardous to freemen. For this
and other equally weighty reasons, they secured the inheritance
they had fought to maintain by incorporating in a written
constitution the safeguards which time had proved were essential to
its preservation. Not one of these safeguards can the President, or
Congress, or the judiciary disturb, except the one concerning the
writ of habeas corpus."
By considering the circumstances existing when the War-Time
Prohibition Act was challenged, in order to reach the conclusion
announced in
Hamilton v. Kentucky Distilleries & Warehouse
Co., supra, this Court asserted its right to determine the
relationship between such an enactment and the conduct of war; the
decision there really turned upon an appreciation of the facts. And
that the implied power to enact such a prohibitive statute does not
spring from a mere technical state of war but depends upon some
existing necessity directly related to actual warfare, was
recognized. Treating that opinion as though it asserted the
existence of a general power delegated to Congress to prohibit
intoxicants, certain cases which declare our inability to interfere
with a state in the exercise of its police power (
Purity
Extract Co. v. Lynch, 226 U. S. 192;
Silz v. Hesterberg, 211 U. S. 31, etc.)
are now cited, and it is said they afford authority for upholding
the challenged statute. But those cases are essentially different
from the present one, both as to facts and applicable principles;
the power exercised by the states was inherent, ever present,
limited only by the Fourteenth Amendment, and there was no
arbitrary application of it; the power of Congress recognized in
Hamilton, and here relied upon must be inferred from
others expressly granted, and should be restricted, as it always
has been heretofore, to actual necessities consequent upon war. It
can only support a measure directly relating to such necessities,
and only so long as the relationship continues. Whether these
Page 251 U. S. 309
essentials existed when a measure was enacted or challenged
presents a question for the courts, and, accordingly, we must come
to this ultimate inquiry: can it be truthfully said, in view of the
well known facts existing on October 28, 1919, that general
prohibition immediately after that day of the sale of
nonintoxicating beer theretofore lawfully manufactured could afford
any direct and appreciable aid in respect of the war declared
against Germany and Austria?
What were the outstanding circumstances? During the nineteen
months -- April, 1917, to November, 1918 -- when active hostilities
were being carried on, and for almost a year thereafter, Congress
found no exigency requiring it to prohibit sales of nonintoxicating
beers. The armistice was signed and actual hostilities terminated
November 11, 1918. Our military and naval forces, with very few
exceptions, had returned, and demobilization had been completed.
The production of war material and supplies had ceased long before
and huge quantities of those on hand had been sold. The President
had solemnly declared: "The war thus comes to an end; for, having
accepted these terms of armistice, it will be impossible for the
German command to renew it." Also: "That the object of the war is
attained. . . . The quiet of peace and tranquility of settled hopes
has descended upon us."
July 10, 1919, he announced, "The war ended in November, eight
months ago;" and in a message dated October 27, 1919, he declared
that war emergencies which might have called for prohibition "have
been satisfied in the demobilization of the army and navy." Food
supplies were abundant, and there is no pretense that the enactment
under consideration was intended to preserve them. Finally, the
statute itself contains no declaration that prohibition of
nonintoxicants was regarded as in any way essential to the proper
conduct or conclusion of the war or to restoration of peace.
Page 251 U. S. 310
Giving consideration to this state of affairs, I can see no
reasonable relationship between the war declared in 1917, or the
demobilization following (both of which in essence, if not by
formal announcement, terminated before October, 1919), or
restoration of peace (whose quiet had already descended upon us)
and destruction of the value of complainant's beverage, solemnly
admitted in this record to be nonintoxicating 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
holding that such destruction could probably aid in an appreciable
way the enforcement of any prohibition law then within the
competency of Congress to enact. It is not enough merely to assert
such a probability; it must arise from the facts.
Moreover, well settled rights of the individual in harmless
property and powers carefully reserved to the states ought not to
be abridged or destroyed by mere argumentation based upon supposed
analogies. The Constitution should be interpreted in view of the
spirit which pervades it, and always with a steadfast purpose to
give complete effect to every part according to the true intendment
-- none should suffer emasculation by any strained or unnatural
construction. And these solemn words we may neither forget nor
ignore:
"Nor shall any person . . . be deprived of life, liberty, or
property without due process of law; nor shall private property be
taken for public use, without just compensation."
"The powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to
the states respectively, or to the people."
MR. JUSTICE CLARKE also dissents.