NATIONAL COMMISSION ON LAW OBSERVANCE AND ENFORCEMENT

REPORT ON THE ENFORCEMENT OF THE PROHIBITION LAWS OF THE UNITED STATES

DATED JANUARY 7, 1931

NATIONAL PROHIBITION

1

THE EIGHTEENTH AMENDMENT AND THE NATIONAL PROHIBITION ACT

 On December 18, 1917, the joint resolution was adopted by both houses with the required constitutional majority and was transmitted to the states for their consideration. On January 29, 1919, the Secretary of State, by proclamation, announced that on January 16th thirty-six states had ratified the amendment and therefore it had become a part of the Constitution. It was subsequently ratified by ten additional states. It became effective on January 16, 1920, as the Eiahteenth Amendment to the Constitution, the pertinent sections of which are as follows: 

" Sec. 1. After one year from the ratification of this article the manufacture, sale or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage, purposes is hereby prohibited.

" Sec. 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation" 

The absolute prohibitions of the Amendment extend only to the manufacture, sale, transportation, importation, or exportation of intoxicating liquors for beverage purposes. The Amendment does not prohibit the manufacture, sale, transportation, importation, or exportation of alcoholic liquors which are not intoxicating, or of intoxicating liquors for other than beverage purposes. It does not define intoxicating liquors or directly prohibit the purchase, possession by the purchaser, or use of any liquor, whether intoxicating or otherwise. The power to deal with these questions is vested in Congress under the provisions of Section 2 of the Amendment, or left to the several states.

In pursuance of this authority, in October, 1919 Congress passed the National Prohibition Act. In the title to this act three distinct purposes are stated: (1) to "prohibit intoxicating beverages," (2) to regulate the manufacture, production, use and sale of high proof spirits for other than beverage purposes," and (3) to "insure an ample supply of alcohol and promote its use in scientific research and in the development of fuel, dye and other lawful industries."

The law is divided into three titles. Title I deals with war-time prohibition and is not material to this inquiry; Title II with the prohibition of intoxicating beverages; and Title III with industrial alcohol.

By Section 3 of Title II it is declared that " all of the provisions of this Act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented." This language has been criticized as extending the purpose of the Act beyond that of the Amendment of the Constitution. The criticism seems rather technical. The Amendment did not expressly prohibit the use of intoxicating liquors as a beverage, but without this use the things prohibited would not exist. On the other hand, if the direct prohibitions of the Amendment were effective there could be no use for beverage purposes except as to the limited simply on hand when the Amendment became operative. The direct and expressed purpose was to prohibit the sources and processes of supply; the ultimate purpose and, if successful, the inevitable effect was to prohibit and prevent the use of such liquor as a beverage.

It has been observed that the Eighteenth Amendment did not define intoxicating liquors which were prohibited for beverage purposes. In the absence of any definition this would, of course, mean liquors which were in fact intoxicating, a matter practically impossible of accurate determination, since" it -would depend upon the amount and conditions of consumption, the physiology of the consumer, and other factors which vary in each case. The definition of this term to be effective must necessarily fix a somewhat arbitrary standard. It was left to the legislative discretion of Congress.

In Title II Section 2, of the National Prohibition Act, it was declared that the phrase "intoxicating liquors should be construed to include alcohol, brandy, whisky, rum, gin, beer, ale, porter, and wine, and in addition thereto any spirituous, vinous, malt or fermented liquor, liquids and compounds. whether medicated, proprietary, patented or not, and by -whatever name called, "containing one-half of one per centum or more of alcohol by volume which are fit for use for beverage purposes."

The validity of the provision and the definition of alcoholic liquor therein were challenged in the courts and were sustained by the Supreme Court of the United States as being within the powers conferred upon Congress by the Amendment."

To this general limitation of less than one-half of one per cent alcoholic content by volume there is in the Act one exception as applied to manufacture.

This appears in Section 29 of Title II, which, after prescribing penalties for certain violations of the Act, including illegal manufacture and sale, declares that "the penalties provided in this Act against the manufacture of liquor without permit shall not apply to a person for manufacturing non-intoxicating cider and fruit juices exclusively for use in his home, but such cider or fruit juices shall not be sold or delivered except to persons having permits to manufacture vinegar."

The amendment does not directly prohibit the purchase or possession of alcoholic liquor for beverage purposes. Nor does the National Prohibition Act prohibit the purchase for such purpose, although prohibitions against purchase are contained in many state laws. "Section 25, Title II of the Act does expressly declare it to be unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violation of the Act, or which has been so used and makes such property subject to confiscation. Section 33 provides that after February 1, 1920 the possession of liquor not legally permitted shall be prima facie evidence that such liquor is kept for disposition in violation of the law. This latter section excepts from its operation liquor in one's private dwelling, while the same is occupied as his dwelling only provided such liquors are for use only for the personal consumption of the owner thereof and of his family residing therein and of his bona fide guests when entertained by him therein, placing the burden of proof upon the possessor to prove that such liquor was lawfully acquired, possessed and used.

The penalties prescribed for violations of the Act vary as to different offenses. For violation of an injunction against maintaining a place of manufacture or sale, declared to be a nuisance, the penalty is fixed at a fine of not less than $500 nor more than $1,000 or imprisonment of not less than thirty days nor more than twelve months, or both. For illegal manufacture or sale, the penalty prescribed for the first offense is a fine of not more than- $1,00 or imprisonment not exceeding six months; and for a second or subsequent offense a fine of not less than $200 nor more than $2,000 and imprisonment of not less than one month nor more than five years. By the Increased Penalties Act approved March 2, 1929, it was provided that wherever any penalty was prescribed for the illegal manufacture, sale, transportation, importation, or exportation of intoxicating liquor as defined in the Act, the penalty imposed for each such offense should be a fine not to exceed $10,000 or imprisonment not to exceed five years, or both, but that this Act should not operate to repeal any minimum penalties then prescribed by law. It is further declared by this Act that it was the intent of Congress that the courts in passing sentence under this Act should discriminate between " casual and slight " violations, and habitual sales of intoxicating liquor or attempts to commercialize violations of the law. 

In addition to these basic provisions, which are in a sense supplemental to the Amendment, the Act contained elaborate provisions for the enforcement of the prohibition against the manufacture, sale, transportation, importation, exportation, or possession of alcoholic liquors as defined therein for beverage purposes; the regulation of the manufacture, sale, transportation, and use of alcoholic liquors for non-beverage purposes and of alcohol for industrial purposes, with numerous administrative provisions intended to make the law effective. 

It is not deemed appropriate to encumber this report with further analysis of the Act. Other pertinent provisions will be stated to such extent as may seem necessary in connection with the discussion of the problem of enforcement as applied to the various subjects which come within the scope of the law.