STATEMENT BY WILLIAM S. KENYON

In signing the general report of the Commission, the right is reserved to each member to express his or her individual views as to matters therein discussed. It is not an easy matter for eleven individuals to agree on any report concerning the problem of prohibition enforcement and of necessity there must be some give and take in order to reach any conclusions.

I desire, as to some of the propositions, to submit a few observations.

I use the term, "prohibition laws," to cover all the laws passed by Congress to carry out the Eighteenth Amendment, and the terms "witnesses" and "evidence" to cover names and statements of parties before us.

In the report is this: "A division of opinion exists in view of the foregoing considerations as to whether enforceability of the law has been fairly tested." It seems to me the evidence before us is sufficient to demonstrate that at least up to the creation of a Bureau of Prohibition in the Department of Justice the enforceability of the prohibition laws had never been subjected to any fair and convincing test. Whether in view of the bad start in the enforcement program and the maladministration of the same up to said time there has been created a public sentiment against the law that makes it impossible for enforceability to have any fair chance, may be a debatable proposition. From my viewpoint, it is unfortunate that the hearings of the Commission on prohibition have been in secret, which compels us to file a report based in part on secret evidence. If the evidence produced before us could have been made public, I think it would have given to the country a true picture of why reasonable enforcement of the prohibition laws could not have been expected.

The Commission, of course, had no authority to grant immunity to witnesses, nor did it have the power of subpoena to compel attendance, which facts bore somewhat on the policy adopted of secrecy.

Notwithstanding this policy, it is permissible, I think, to refer to some evidence of witnesses before us who did not enjoin secrecy, without giving the names except in instances where the witness may have publicly stated the same thing.

There are many reasons why the prohibition laws have never had a fair chance of reasonable enforcement. I refer to some of them.

Up to the time of the recent transfer to the Department of Justice of prohibition enforcement, responsibility therefore was in the Treasury Department. It did not logically belong there. The higher officials of the Treasury Department were skilled in finance but not in law enforcement, and with some exceptions, had little heart in the enforcement of these laws. This naturally dampened any enthusiasm for enforcement on the part of enforcement forces all down the line.

Another reason is that a large part of the personnel up to the time at least that employees of the Prohibition Bureau were placed under the Civil Service were the kind who would not ordinarily have been selected to enforce any law. The report points out the tremendous overturn and in a general way the political influences surrounding the appointment of prohibition enforcement agents. Prior to the covering into the Civil Service of employees of the Prohibition Bureau, appointments of prohibition agents to a large extent were dictated through political influence and by political bosses. These appointments were regarded as political patronage. We have had before us experts from the Civil Service Commission from whom we have learned that even after the prohibition agents were placed under Civil Service, this political interference persisted, that some of the worst men had the strongest political backing. An examination of the Civil Service records would tell the story. Some of the prohibition agents, whose appointments were attempted to be forced by political influence were men with criminal records. Some apparently sought the positions because of the opportunity for graft and boasted of what they could make therein. Others were entirely incompetent. It has been stated before us by those who should know that at least fifty per cent of the men employed as prohibition agents prior to the time they were placed under Civil Service were unfit for the position and incompetent as law enforcing officers. The turnovers in the prohibition personnel prior to Civil Service show a shocking condition. The situation is probably somewhat better now, and better men are being secured. There have been many honest, capable and patriotic officials in the prohibition service--men of the highest character, such as Prohibition Administrators John D. Pennington, S. O. Wynne, Thomas E. Stone, Alfred Oftedahl and others. I do not mean to criticize the entire personnel, nor by mentioning these to disparage all of the others. Some of the personnel have been excellent, some indifferent, some indifferent, some corrupt.

Major Chester P. Mills, who honestly tried to enforce the law as Prohibition Administrator of the Second Federal District of New York, has told in articles published in Collier's Weekly in 1927 the story of attempted political influence in the appointment of prohibition agents in his district, and has repeated practically the same story before us. In these articles he said that "three-fourths of the 2,500 dry agents are ward heelers and sycophants named by the politicians." Politicians, some of them high in national affairs, attempted to force upon him men with criminal records--some the very lowest grade of vote-getters--which apparently was the test of the politician for good prohibition agents. Prohibition was expected evidently by some politicians to furnish a fine field for the operation of the spoils system in politics. Their expectations have been largely realized. One of the leading political bosses of New York City informed Mills that he must let him control the patronage in his office or he would have to get out. Another told him that efficiency must give way to patronage. One agent with a criminal record whom he discharged was reinstated after Mills ceased to be Administrator, and was continued in office until about a year ago, when he was indicted for alleged conspiracy to violate the provisions of the National Prohibition Act. One of the parties whom it was insisted he should appoint had shortly before shot a man in a row in a speakeasy, another had been found with burglar tools upon him. Major Mills tried to do an honest job and soon discovered, according to his statements, that he was not wanted on the job, and to use his language, was kicked "up-stairs to an innocuous zone supervisorship."

In one district the evidence shows that a prohibition agent was transferred prior to an election because his enforcement activities were injuring the party and interfering with the collection of funds for the campaign. Some officers were directed by political bosses to let up in their activities and "lay off" on their work until after some particular primary or election.

Another reason, somewhat closely associated with the character of the personnel, as to why the law has not been better enforced, is corruption. After every war there is a tragic era of graft and corruption, but all of the corruption under prohibition cannot be attributed to the aftermath of the war.

The profits in the unlawful making and vending of intoxicating liquors have been so enormous that the funds to invest in protection have been large, and the temptation to many men in the service on small salaries has been difficult to withstand. Evidence before us by those accurately acquainted with the workings of prohibition in the great cities, shows that in many of them the supposed enforcement of prohibition has been reeking with corruption, and has been a complete fiasco. The grand jury investigation at Philadelphia in 1928 disclosed that some of the police force were depositing more in the banks than their salaries amounted to. Bootleggers' accounts running up to $11,000,000 were deposited in a certain bank, and the officers of the bank testified they did not know any of the parties so depositing. Witnesses have presented to us evidence showing that breweries have been operated in the heart of a great city with the knowledge of prohibition agents, in some of which as much as $200,000 was invested in the plant. In one large city three breweries were openly operated, and at least up to April 1, 1930, were making real beer and delivering it around the city. Every one of the vicinity except the prohibition agents seemed to know of the breweries. Truck loads of liquors have been transported under the protection of police. In one state prohibition agents sent to a great university to look into the situation at a "Home Coming" were found drinking with some of the students in a hotel room. In many of the cities there was developed under prohibition an entirely new underworld, due to the large amounts of money involved in the bootlegging business. The gangster and his crew have taken an important part in politics, and in connection with politicians and under their protection control the liquor business in many of the cities. In one of them gangs have entered into agreements dividing the city for plunder, and providing that the beer privilege shall belong in certain parts of the city to certain particular gangs, and criminal syndicates take care through politics of those who buy from the gangs.

There are thousands of speakeasies operating in the large cities--the number is appalling. Speakeasies cannot operate openly unless protected from prosecution. One who can operate a speakeasy in a block where policemen are constantly passing is enabled to do so only because of one thing, and that is protective graft. In some cities there is complete protection by ward politicians who must have back of them the influential political bosses. The speakeasies could not run a day if the authorities would act. The combination of liquor and politics has been almost fatal to law enforcement, but surely the government is not powerless to strike, and strike hard at such a situation. Surely enough honest men can be found to act as prohibition agents and as police. If not, there is no use in any further efforts to enforce these laws or any other laws.

I have referred to only a part of the evidence before us showing the mess of corruption. It is difficult in view of the secret policy of the Commission to prepare any report doing justice to the subject that may not do injustice to the many able and honest men in the service. Some of the evidence is so startling that it is difficult to believe it. Of course, there was corruption prior to prohibition. The saloon was the center of political activity, but I think the corruption was not so widespread and flagrant as it now is. The amounts involved were not so large. Corruption had not become such an established art and racketeering was unknown. It has now developed to a high degree of efficiency. Nothing but a Congressional investigation could give to the public the whole story.

This situation has developed a type of politician-lawyer unknown to the federal courts in earlier days, who sells his supposed influence with the district attorney's office and acquires the bootlegger's legal business in many instances by virtue of his political connections and influence.

Certain abuses in some of the cities in the permit system of handling alcohol have added to the difficulty. Political influence has been exerted to secure permits and the reinstatement of revoked permits. Quite a business along that line has been carried on by some political lawyers. One witness who knows the situation in one of the larger cities states that permits are sometimes secured by getting men with decent reputations to appear as the real applicants, when in fact behind it are gangsters and underworld men. Some legitimate permittees have been blackmailed by threats to revoke permits. In some cases where administrators have denied applications the applicants have gone to the federal district court, and that court in some instances has directed issuance of the permit. Today the courts are more inclined to sustain the administrator where he refuses a permit than they formerly were. In some instances the cases were not properly presented to the court on behalf of the administrator.

How in view of all these things, can it be reasonably claimed that prohibition laws have had any real honest test as to enforceability? It seems to me they have never had a chance. Laws against murder and arson under similar conditions, could not have been enforced. If a different beginning had been made in the enforcement of these laws, there might have been a very different story.

No law can be enforced without reasonable public sentiment behind it. Public sentiment against the prohibition laws has been stimulated by irritating methods of enforcement, such as the abuse of search and seizure processes, invasion of homes and violation of the Fourth Amendment to the Constitution, entrapment of witnesses, killings by prohibition agents, poisonous denaturants resulting in sickness and sometimes blindness and death, United States attorneys defending in the federal courts prohibition agents charged with homicides, the padlocking of small places, and the lack of any real attempt to padlock clubs or prominent hotels where the law is notoriously violated, the arrest of small offenders and comparatively few cases brought against the larger ones. The limitation of the amount of liquor that physicians may prescribe for medicinal purposes, restraint in the use of alcohol for scientific purposes, the fruit juice proviso of the National Prohibition Act (Section 29, Title II) which practically permits the making of wines in the homes when there is no similar provision as to the making of beer, have contributed to the dissatisfaction.

That there have been abuses of search and seizure processes is without question; likewise as to entrapment of witnesses. We have studied the numerous cases of killings by prohibition agents in the attempt to enforce the laws. There have been few convictions. Some of the shootings were apparently careless and unjustifiable, and evidence the reckless use of firearms and disregard of human life. There has been a too free and easy use of firearms by some of the prohibition agents. This is now being restrained.

On the other hand, many prohibition agents have lost their lives in attempting to perform their duties, concerning which little reference is made by the press.

The defense by United States district attorneys of prohibition agents charged with killing has made difficult the conviction of such agents.

The Supreme Court of the United States holds that agents of the government engaged in enforcement of the prohibition laws have the right of removal of a case against them from the state to the federal court where they are charged with homicide while engaged in their duties. Maryland v. Soper, 270 U.S.9. The present Attorney General has announced a very wise doctrine on this subject, which may be summed up, I think, by the statement that while the United States attorneys will defend in these cases after removal to the federal courts, they will not attempt to procure the acquittal of guilty men or attempt to justify unlawful or illegal acts by federal officers. This question of defense by district attorneys of the United States raises very difficult questions of policy and of justice. The Federal Government might be seriously impaired if its officers were to be tried in state courts for conduct in carrying out their legitimate official duties. On the other hand, it is apparent that with the United States attorney defending a man in the federal court there is little possibility of conviction. It seems to me the policy of Attorney General Mitchell will alleviate to some extent this particular irritation.

The present book of instructions to agents issued by the Prohibition Bureau stresses the idea that enforcement must be by lawful methods. Government lawlessness in law enforcement is an abhorrent proposition. The Fourth and Fifth Amendments to the Constitution safeguarding the rights of citizens are fully as important as the Eighteenth Amendment. "Let the homes alone," should be the policy of enforcing officials, unless there is a clear showing that the home is being used as a place for the sale of liquors or the manufacture for sale. (Such is apparently the present policy of the new Administrator.) The doctrine that a man's home is his castle still applies so long as it is used as a bona fide home. Nothing can tend to create public sentiment against these laws more than the invasion of the home.

The use of poisonous denaturants in alcohol cannot be justified. Death or blindness is too heavy a punishment to administer to one who may indulge in a drink of liquor. We are advised that arrangements have now been made for the use of non-poisonous denaturants which make the liquor nauseating but not fatal. Congressman Sirovich of New York clearly pointed out in a speech in the House of Representatives on January 17, 1930, how this can be done.

Some of the physicians who have appeared before us make no objection to the restrictions upon physicians in the use of liquors as medicines. They differ as to the necessity for such use, but the majority of them resent these limitations as to the maximum amount of alcohol that may be permitted to a patient within a given period placed upon them by laymen who have no knowledge of the needs therefor, and take them as a reflection on the medical profession. Physicians should be permitted, under reasonable regulations, to prescribe whatever liquor in their judgment is necessary for a patient. If a physician can be trusted to prescribe dangerous drugs he can be trusted to prescribe liquors as medicines.

The forfeiture of automobiles of innocent persons in which liquor may be found adds to the irritation.

These things have not helped to create a friendly attitude toward the prohibition laws by those who might be considered as neutrals, and undoubtedly have interfered with their enforcement by creating public sentiment against them. Public sentiment changes quickly in the United States and a fair and honest trial of prohibition laws with less of the irritating methods of enforcement might change much of public sentiment on the question.

It is impossible to obtain satisfactory statistics to show whether or not more intoxicating liquor is being consumed today than during pre-prohibition days. I am satisfied there is not. The liquor bill of the nation before prohibition was staggering. It required a tremendous outpouring of liquor to support 178,000 saloons openly selling and soliciting business. Most of the witnesses agree that there is less drunkenness under prohibition than before. Statistics generally can be secured to prove almost any proposition, and we have a mass of them in our files on various phases of the subject. Figures uninterpreted may be very misleading. The years 1920 and 1921 seem to have shown the best results under prohibition. The low mark in arrests for drunkenness was reached in those years. In many parts of the United States it appears that arrests for drunkenness have increased since 1920.

Arrests for drunkenness are not an infallible index, but do have significance. The attitude of the police of one city toward prohibition laws may be entirely different from that of another. Some do not regard violations of such laws as serious, and leave the entire matter to the United States Government, making few arrests. Others regard drunkenness as more serious than in the pre-prohibition days.

Alcoholics in detention institutions have apparently increased, and the figures given out by the Metropolitan Life Insurance Company tend to show there have been more deaths from alcoholism in the last few years than heretofore. The company in a report on the subject says:

"The rising alcoholism death rate in this country since 1920 cannot, in our judgment, be explained by increased consumption of 'hard' liquor as compared with war-time and pre-war-time years. The reason must lie, we think, in the greater toxicity of the alcoholic liquors which are now used so generally throughout the country. The only encouraging feature in this picture is that officials of various states, responsible for the public health, are now stirred by the situation and are preparing measures for its more adequate control."

This upward trend in the death rate from alcoholism is accounted for by some on the theory that the liquor available today is more injurious to life than that available before prohibition.

That there is an abundance of intoxicating liquor is evident. It is idle to close one's eyes to that fact. It is supplied by smuggling, illicit distilling and diversion of industrial alcohol.

In the report made to the President on January 13, 1930, we have spoken of the tremendous border line of this country which makes the control of smuggling difficult. While some of the reports that have been given out by the Prohibition Bureau would indicate that smuggling has decreased, the figures before us tend to show it has not, except in spots. At some particular point, such as Windsor, smuggling may have lessened, only to break out at other places, such as Amherstburg. The situation at Detroit is one of the worst in the United States, and the few boats, the small force of the customs and prohibition agents of the government, are totally inadequate to cope with the problem in that vicinity. Bank statements at Detroit would show the tremendous business of some smugglers.

The Canadian Parliament has recently passed a law forbidding exportation of liquor to this country, which it was supposed would be helpful in meeting the problem as far as the Canadian boundary line is concerned, but it appears that since this change there has been more smuggling than before the passage of the act.

That it will require a tremendous force in the nature of a border patrol to prevent smuggling from Canada and Mexico is apparent. It should be a unified border patrol. To prevent all smuggling along our extended water fronts is impossible. It requires constant vigilance to hold it within any reasonable bounds.

The Prohibition Bureau makes reports as to the seizure of stills, illicit distilleries and paraphernalia used in the manufacture of whisky. These figures show an enormous increase in the number of stills seized by agents of the Bureau since 1920, in which year there were approximately 32,000 stills seized. In 1928, there were about 261,000. These still are sold by mail order houses and department stores in sections and easily set up. General Lincoln C. Andrews, formerly Prohibition Administrator, before the Senate Committee investigating this subject in 1926, testified that the department in twelve months had seized 172,600 stills and had not captured, he thought, more than one in ten. That testimony would indicate a tremendous number of stills. The evidence before us tends to show a great increase in the number of stills and a universality of operation extending all over the country. The amount of moonshine liquor made in this country per year cannot be estimated within any reasonable bounds.

It is asserted there has been a great increase in the manufacture of flasks and corks. We have been unable to obtain any evidence as to this.

The question of diversion of industrial alcohol as a source of the liquor supply is discussed in the report. That there have been serious and unconscionable diversions of industrial alcohol in the past is without question. The specially denatured alcohol permittee is the chief diverter of industrial alcohol into beverage channels. Major Mills estimated a diversion of fifteen million gallons of industrial alcohol in New York per year when he became Prohibition Director for that state. At Buffalo in one three-month period ninety carloads of such diverted alcohol were seized. We have before us reports of special agents made to their superior officers in the year 1930 with relation to the legitimate consumption of industrial alcohol in one district in a large western state to be used by 2,300 drug stores, 200 hospitals, 25 Turkish baths, and miscellaneous consumers. The report shows that 60,000 gallons would cover the actual needs for these purposes, but the amount imported in 1929 to that district as four times the quantity legitimately used. In this particular district it was estimated that industrial alcohol products constitute approximately thirty per cent of the total contraband liquor seized. In this same state it was estimated by those who should know that in the northern part of the state ten to fifteen per cent of seized liquor is diverted alcohol, while in the southern portion it is thirty per cent. Others estimate it at seventy per cent. Two important cases were brought by the government last year, one at Baltimore and one at Chicago, involving the question of a conspiracy in diversion of industrial alcohol. It is charged in the Chicago case that during a period of seven years a million gallons a year of alcohol have been diverted to illicit distilleries. The ramifications of this conspiracy reach from New York to Los Angeles. Large quantities of industrial alcohol are seized in carload lots that never reach a still. In the Chicago case over three carloads had been seized and the railroad records showed that approximately 138 carloads of the same product had been shipped into Chicago in six months. Carloads of pure grain alcohol have been seized where the consignor and the consignee were both fictitious. The diversion of industrial alcohol in the New England district was forty-four per cent of the total in the district a year and a half ago. It ahas been, according to the prohibition officers, reduced to twelve per cent. One administrator captured within two or three months last year on carload on insecticide. Forty per cent of it was alcohol. It came from New Jersey, and was ordered destroyed by the Federal Court. Another car of the same stuff was captured at Cleveland. >From January 1, 1927, to March 4, 1927, the same administrator captured nineteen carloads of straight alcohol. It came from the Federal Chemical Company of Nitro, West Virginia. Figuring 78,000 gallons of straight alcohol to the car would be 1,482,000 gallons. It was all billed to firms that did not exist (otherwise known as corer houses). It was not certain that any denaturants whatever had been placed in this alcohol. A Chemical and Products Company in the same district, which was a fake concern operating under a permit, had a capacity of 80,000 gallons of alcohol per month. This would make three times the amount of bootleg whisky, or 240,000 gallons, which would sell at $30.00 a gallon. In one district alone millions of gallons have been diverted, and enough withdrawn in a few months for perfume manufacturers to perfume the South Sea Islanders. There has been enough specially denatured alcohol withdrawn in one year by one corporation for hair tonics "to supply the world with hair tonic," as one witness puts it. There have been diversions of medicinal and sacramental alcohol, but they are minor compared with the diversion of industrial alcohol.

The legitimate uses of alcohol throughout the nation in industry have tremendously increased. There were some 38,000,000 gallons withdrawn in 1921 for denaturing purposes, while in 1929 there were 182,000,000 gallons withdrawn, an increase of nearly five hundred per cent. The Department of Commerce has been unable to furnish us the figures as to the amount of alcohol needed per year for legitimate industry. The permittee has not been required to follow through to ultimate destination the alcohol he sells, and through the instrumentality of cover houses the system of fraudulent diversion has been built up in this country by crooked permit-holders Corporations and partnerships have been created merely for the purpose of using diverted industrial alcohol. The independent denaturing plant is a fraud, and should not be permitted to exist apart from the manufacturing plant. Undoubtedly the Bureau is strenuously endeavoring to remedy this leak. Such things as supposed manufacture under permits and formulas for hair tonics, perfumeries, deodorants, barber supplies, tobacco sprays, lacquers, paints and varnishes, furnish opportunity for diversions. In many instances where permits have been taken away new companies representing the same parties have been organized and new permits secured. Fly-by-night concerns, dignified by titles of chemical companies and drug associations have been acting as cover houses and denaturing plants. It is possible the situation could be remedied by requiring accounting by concerns which purchase from the permittee, or by the adoption of regulations urged by Mrs. Willebrandt when Assistant Attorney General, requiring permittees to follow the liquor through to ultimate destination, although there is some legal difficulty in the matter.

It is impossible to estimate with any degree of accuracy the amount of industrial alcohol diverted into bootleg channels. Any estimate is a mere guess. The Bureau announced some time ago that it had cut down on permits some fifteen million gallons of industrial alcohol per year in the future. How the Bureau arrives at his arbitrary figure we are not advised. If the Bureau can arbitrarily cut the amount allowed to permittees fifteen million gallons, it is some evidence that at least that much diversion has been taking place. The Director of Prohibition estimates the diversion for the year ending June 30, 1930, as nine million proof gallons. One estimate is probably as good as another. My own would be from the evidence before us that tem million gallons per year over a period of years was the minimum average of diversion, at least up to the present time: and while under the efforts of Dr. Doran such diversion has been materially lessened, it has not stopped. The problem is a most difficult one.

The production of corn sugar, which it is claimed is used largely in the manufacture of whisky, has increased from 157,000,000 pounds in 1919 to 894,985,794 pounds in 1929. What percentage of the increased production of corn sugar is used for the production of illicit whisky is problematic. Of the unrefined product from which alcohol can be made, approximately one hundred million pounds are used per year for the manufacture of rayon. It is also used in other textiles as starch: is used in tanning leather, vinegar manufacture: by caramel makers, for candy fondant, ice cream and condensed milk. The legitimate uses of corn sugar, however, do not account for the enormous increase, and it must be assumed that a considerable proportion of the corn sugar goes into the bootleg trade, and is one of the chief sources in the manufacture of illicit liquor. Corn sugar is preferred by the moonshiner because of the price, though cane and beet sugar contain more fermentable material and hence offer a larger return of alcohol.

The blame for the supply of illegitimate liquor should not be placed entirely on corn sugar, which has enough to answer for without putting on it all the responsibility for the prevalence of illicit alcohol. It is undoubtedly contributing its part. While alcohol can probably be produced more cheaply form corn sugar, it is not so safely done as to obtain it by diversion.

The beer situation has changed vary materially under prohibition.

The increase in the production of hops in the United States has been quite marked, viz., 27,744,000 pounds in 1922, 33,220,000 pounds in 1929. some hops are used for medicinal and commercial purposes. Probably 10,000,000 pounds go into the manufacture of beer. There has been a large increase in the production of yeast. In recent years considerable beer has been shipped from New Jersey to other states. Breweries are openly operating in New York City. In some of the leading cities large plants have been engaged in manufacturing beer. No man is buying a brewery since prohibition except for bootlegging purposes. Some great breweries such as the Anheuser Busch Company at St. Louis have obeyed the law and upon the enactment of the prohibition laws ceased to make real beer.

What is known as wort, a product of barley, is now being used in the production of beer, and in the industry known as "alley brewing" which has developed in the large cities. It seems impossible to secure any information as to wort. We took up the question with the secretary of the National Malt Products Association, but he could furnish us no information as to the amount of its production or use in this country. It is interesting, however, to note in this connection that the state of Michigan in 1929 imposed a privilege tax upon the sale of malt syrup, malt extract and wort. The question of wort being subject to this tax is now in the courts. From August 28, 1929 to Mar4ch 20, 1930, there was collected form the tax approximately $600,000.00.

The general report has covered rather fully the question of increased drinking of liquor among college students. These students know that a large number of American citizens are daily helping those who are violating the prohibition laws by patronizing the bootlegger and smuggler. They see the laws ridiculed in many of the motion pictures of today and in the newspaper cartoons. It is little wonder that their respect for the law has been lessened. There was drinking in colleges before prohibition. It is not clear how any system that might make liquor easier to procure would remedy this situation. Efforts to teach the bad effects of drinking intoxicating liquor upon the health and efficiency of the individual seems to have lessened if not entirely stopped since the adoption of prohibition, and the growing youth of today has not had any advantage from such teachings as in the pre-prohibition days. Hence to a considerable extent he does not understand the reason for having prohibition laws and rebels against what is considered restraint on liberty.

The government could well afford to appropriate money for an educational campaign throughout the Nation to educate the youth of the land in respect for law. It is fully as important as to appropriate money for many of the governmental purposes of today. Nothing is more fundamental to the stability of the Republic than a deep seated respect for law among the youth thereof. Education is not so important as to the older citizens, for they will soon pass off the stage. Any plan of education as to respect for law should be limited to the youth of the country. It would be a useless performance as to those who consider themselves so completely educated as to be above law.

There is much to be placed on the credit side of prohibition, even under the inauspicious circumstances surrounding its supposed enforcement, that should incline public sentiment favorably toward a further test of enforceability of the law. Approximately 178,000 legal saloons have been closed under prohibition. Only one or two witnesses before us have favored the return of the saloon. They were driven to that position by their theories as to local option and the leaving of the matter entirely with the states. While there are thousands of speakeasies today in the great cities, where people may sneak in side doors or down an alley and in some back way and get liquor, or may go to other speakeasies more openly operated, yet it must be that the abolition of the saloon has been a mighty movement of the betterment of the Nation. The saloon was in partnership with crime. It was the greatest aid in political corruption. It never did a good thing or omitted to do a bad one. Nothing good could be said of it, and it is notable that very few people advocate its return. The open saloon in this country is dead beyond any resurrection. People are prone to forget the picture of conditions before prohibition. Speakeasies, so prevalent in the large cities, are not entirely a product of prohibition--they existed prior thereto. Interesting is the following account from a Pittsburgh paper of November 15, 1900: "At the meeting of the retail liquor dealers yesterday the statement was made that there are in Allegheny County 2,300 unlicensed dealers who sell liquor, in violation of the law, every day in the year, Sundays and election days included. This is a decidedly startling assertion, for while it is notorious that speakeasies exist and, are to some extent tolerated by the authorities, there has been no visible reason to suppose that illicit traffic was being conducted on so large a scale. The district attorney of the county and the public safety directors of the city ought to be heard from on this head. If the law is being violated so extensively as the licensed dealers claim, it is manifest that there must be a wholesome neglect of duty in official quarters."

Some witnesses before us have strongly challenged the claim that prohibition has benefited industry. At the Hose of Representatives hearings and before us, representatives of great industries spoke against prohibition. These same representatives take strong ground against their employees drinking. It is an irritating circumstance to labor that great captains of industry favor prohibition to prevent the laboring men securing a glass of beer on the ground that they can get more work out of them if they do not have liquor, while they reserve to themselves the right to have all they want in their cellars and their club lockers. We asked many of the leaders of industry to express themselves on the question of whether conditions in industry were better than before the passage of the prohibition laws. Some appeared and some filed statements. I quote from a few. From the president of a great coal company: : "I know the business men of my acquaintance, quite generally, have something wet around their homes, if they want it, but the spirit of it is more that of the mischievous school boy who rather shuns the `goody-goody' path but is not positively bad. When some of our best people are evading taxes, concealing dutiable goods, violating the Sunday laws, divorcing, swapping mates, speeding, gambling etc., I do not quite understand the agitation about liquor violations. Law enforcement has always been one of the chief functions of government, and one would think the Eighteenth Amendment was expected to enforce itself.

The old liquor laws aimed to control the public nuisance feature of drinking and failed. The present law, in our mining towns at least has largely corrected that failure. There is some moonshine liquor, some home-brew, and some bootleg, but the old days of the pay-day whoopee are gone. What drinking there is, is under cover, the practice of drinking up a whole month's pay, and challenging the world to mortal combat has passed. A drunken miner in public is so rare a sight that when it happens one would think a dancing bear had come to town, and even his chance acquaintances rally to get hem out of sight.

... I have seen pay days when it was not safe to ride on the branch-line trains going to and from mining towns. I have seen at Christmas season the station platforms jammed with a swearing, fighting, vomiting mod, with cheap Christmas toys thrown away, tramped on and lost. I have lain awake listening to the crack of revolvers as miners staggered up and down the railroad tracks. I have fought with crazy drunks at the pay window. I have seen Christmas-tree entertainments broken up, religious worship interrupted, and Sunday School picnics turned into a stampede of terror.

Wages have not increased enough to provide for any great amount of liquor at prevailing prices and at the same time to buy automobiles, radios, electrical appliances, and better food and clothing. The drink bill must be much less than before.

It is only fair to state that whatever success prohibition has had in the mining fields may be somewhat attributed to the mine operators. No matter how much they may talk wet and drink wet in the great convention sites, they do not want any `modification' at their mines.

I believe I have noticed some increase in drinking during the past year, and it may be due to the publicity given the matter by the wets and drys.

* * * * * * * *

... Prohibition may be an utter failure other places, but is not so here nor with the industrial people with whom I make contract. They are spending more money for things the whole family enjoy, are better fit for work, better fed, and they constitute a majority of our population."

From the head of a great industrial company: "Improvement in the economic condition of employees' families is evidenced by the fewer cases of distress among employees reported from time to time. Visiting nurses, whom we employ to visit and administer to families of employees in case of sickness, report that the economic condition of such families is much better now than prior to prohibition."

From another: "The working people are better off under prohibition, they make more money and have more time. I do not dread Monday morning like I used to before prohibition. There is less of the effects of liquor on the job today than there was four of five years ago"

There are many other statements of similar import, and only a few of different view. Mr. Samuel Crowther in articles in The Ladies Home Journal last year sets forth many statements on the subject from industrial leaders. We find form a check-up that these statements are substantially correct and can be relied on.

My conclusion on this subject from the evidence before us is, that while there is some drinking now creeping into certain of the large industrial establishments, and the bootlegger is endeavoring to ply his trade there, on the whole industry has vastly benefited by prohibition. Accidents have been fewer and efficiency greater. The working men and their families are more prosperous than before prohibition. The contest for the Saturday night pay check between the wife and the saloon keeper is no more.

Some of those in favor of prohibition are wont to claim that increased life insurance, homebuilding, bank deposits, automobiles, radios are to a large extents the result of prohibition. The marvelous progress of this Nation can not of course be entirely attributed to prohibition. There are many factors, apparent to any thinking person, which have been at work to build up what we like to call prosperity. There has been an industrial revolution in the United States, and industrial development has contributed materially to prosperity. Certainly, however, much of the money formerly spent on the saloon has gone into the purchase of automobiles, radios, better furniture in the homes, That prohibition has been a factor contributing to our prosperity can not well be denied. Savings deposits have increased from $11,534,850,000.00 in 1918, $28,538,533,000.00 in 1930. High wages during and since the war and steady work in industry have of course been a contributing cause. It is impossible to determine approximately what per cent of the increase of savings deposits is due to prohibition, but some undoubtedly is.

As to the question of the effect of prohibition upon social welfare: we have had statements before us from Miss Evangeline Booth and Miss Mary McDowell, head of the University of Chicago Settlement House, and others who are familiar with conditions among the poor and working people in industry, to the effect that prohibition has resulted in a better condition of affairs. Miss McDowell states that in the packing house district of Chicago the homes of the working men are better; their children better fed and clothed; there is less rioting and shooting up alleys; more observance of law and order; that there were hundreds of saloons in that neighborhood prior to prohibition, and while now there may be some speakeasies, there are no open places to entice the workingman and relieve him of his pay check. In a remarkable statement to the Commission by Miss Evangeline Booth, she says in part: "To sum up the conclusion of the Salvation Army in a sentence or two, I desire to state in unmistakable terms that the benefits derived from prohibition far outweigh any difficulties that may have been raised against its enforcement, that the wettest of wet areas is less wet today than it was when the saloon, usually accompanied by the speakeasy, were wide open, and that much of the outcry against the Volstead Act, so far from undergoing a failure of enforcement, arises from persons who in fact cannot obtain all the liquor that they desire. "As Commander-in Chief of the Salvation Army in the United States, and with full support of my officers, I warn the Commission that any surrender to the forces of crime and indulgence at this time will be followed inevitably by a heavy toll in human life and by a loss of the prosperity which has been an untold blessing to millions of our homes. The hope that crime will be diminished by concessions to crime is preposterous on the face of it.

"The Salvation Army knows the underworld. Tens of thousands of its victims have been rescued by our efforts, and a victory of the wets over the law of the land, if permitted, will be a signal for an orgie of exultation and renewed excesses, by those whose entire life is a rebellion against orderly citizenship."

Other words of Miss Booth that challenge attention are: "You can hush every other voice of national and individual entreaty and complaint! You may silence every other tongue--even those of mothers of destroyed sons and daughters, of wives of profligate husbands--but let the children speak! The little children, the wronged children, the crippled children, the abused children, the blind children, the imbecile children, the dead children. This army of little children! Let their weak voices, faint with oppression, cold and hungry, be heard! Let their little faces, pinched by want of gladness, be heeded! Let their challenge-- though made by small forms, too mighty for estimate--be reckoned with. Let their writing upon the wall of the nation--although traced by tiny fingers, as stupendous as eternity--be correctly interpreted and read, that the awful robbery of the lawful heritage of their little bodies, minds and souls is laid at the brazen gates of Alcohol!

If anyone is entitled to speak with authority on the subject, it is Miss Booth, and what she says is not paid propaganda.

It has been charged by some who have appeared before us that the criminal elements in the United States now engaged in violating this law, as well as every other law, find encouragement from the attitude of those who have been termed by witnesses "the upper crust" of society, meaning that portion of the very rich people of the Nation constituting so-called fashionable society. It is not fair to indict all the so-called "upper crust" of the Nation as law-breakers, but it has been frankly stated before our Commission that many of these people of great wealth and prominence will not obey the prohibition laws, do not intend to, and boast of the fact that they will not because they do not believe in them and consider them an encroachment on personal liberty. In other words, that they will obey the laws in which they believe, and refuse to obey the laws in which they do not believe. If that is to be the standard of law observance, our government will fail. The forger and the back robber; the highwayman and the embezzler, do not believe in laws that restrain them. There is no more reason why what is termed the "upper crust" of society should choose the laws they will obey than that the same privilege should extend to the "under crust".

Clubs in some of the cities, officered by distinguished men, leaders in finance and in the life of the community, are maintaining bars where liquor is freely dispensed to the members. People who by bootleg liquor are assisting in violating the law and are contributing money for purposes of bribery and corruption, for they know that the system of illicit sale of liquors cannot be carried on to the extent that it is without bribery and graft. They are moral accessories to the illegal business of the bootlegger. They are assisting in breaking down law in the Nation.

One of the greatest of American manufacturers is reported by the newspapers to have recently said: "That portion of `high society' that buys bootleg liquor is just a part of our underworld." A truth well stated.

Honorable Herbert Hoover, in his address accepting the Republican nomination for President, said in part: "Modification of the enforcement laws which would permit that which the Constitution forbids is nullification. This the American people will not countenance. Change in the Constitution can and must be brought about only by the straightforward methods provided in the Constitution itself. There are those who do not believe in the purpose s of several provisions of the Constitution. No one denies their right to seek to amend it. They are not subject to criticism for asserting that right. But the Republican Party does deny the right of anyone to seek to destroy the purposes of the Constitution by indirection."

In his inaugural address of March 4, 1929, he said: "But a large responsibility rests directly upon our citizens. There would be little traffic in illegal liquor if only criminals patronized it. We must awake to the fact that this patronage from large numbers of law-abiding citizens is supplying the rewards and stimulating crime."

"... The duty of citizens to support the laws of the land is coequal with the duty of their government to enforce the laws which exist. No greater national service can be given by men and women of good will--who, I know, are not unmindful of the responsibilities of citizenship--than that they should, by their example, assist in stamping out crime and outlawry by refusing participation in and condemning all transactions with illegal liquor. Our whole system of self-government will crumble either if officials elect what laws they will enforce or citizens elect what laws they will support. The worst evil of disregard for some law is that it destroys respect for all law. For our citizens to patronize the violation of a particular law on the ground that they are opposed to it is destructive of the vary basis of all that protection of life, of homes and property which they rightly claim under other laws. If citizens do not like a law, their duty as honest men and women is to discourage its violation; their right is openly to work for its repeal."

In his address at the annual luncheon of the Associated Press in New York City, April 22, 1929, he said in part:

"What we are facing today is something far larger and more fundamental-- the possibility that respect for law as law is fading from the sensibilities of our people. Whatever the value of any law may be, in the enforcement of that law written in plain terms upon our statute books is not, in my mind, a debatable question. Law should be observed and must be enforced until it is repealed by the proper processes of our democracy. The duty to enforce the laws rests upon every public official and the duty to obey it rests upon every citizen."

"No individual has the right to determine what law shall be obeyed and what law shall not be enforced. If a law is wrong, its rigid enforcement is the surest guaranty of its repeal. If it is right, its enforcement is the quickest method of compelling respect for it. I have seen statements published within a few days encouraging citizens to defy a law because that particular journal did not approve of the law itself. I leave comment on such an attitude to any citizen with a sense of responsibility to his country."

* * * * * * * * *

"...Respect for law and obedience to law does not distinguish between federal and state laws--it is a common conscience."

General Pershing, at a dinner to ex-service men is reported to have said:

"Ex-service men must stand up courageously and fearlessly for everything sacred in our institutions. No man or woman can fulfill the obligations of citizenship who remains passive regarding the enforcement of the law."

These statements at this time are entitled to the thoughtful consideration of the American people. This government will continue to be a government of law or it will cease to be a government at all. The representatives of great property interests who are well within their rights in seeking repeal of the laws go far beyond such rights when they defy the laws' enforcement. The day may come in this country when representatives of great property interests will realize that they need the protection of the law for the properties they represent more than other people may need it.

Everything in the way of breaking down of law, prison riots, hard times, increase in crime, is charged to prohibition by its enemies. That there is an increase of crime in this country is evident to all practical thinking citizens. The whole age in which we live has changed. Crime is more sensational, is featured all too much by the newspapers, and has become nauseating. The great was affected the thought and habits of people, and resulted in a national letdown in our moral fibre. All this has borne on the question of criminality. Surely the terrorizing of the people of some large cities by gangs of murderers who seek to create an American Mafia in this country cannot be laid at the door of prohibition. The revenue of these gangsters comes from gambling establishments, dance halls, houses of prostitution and other vice dens and not entirely from beer and other liquors.

The calm judgment of the American people must face the situation as it now exists. It is probable that the Eighteenth Amendment cannot be repealed. The other alternatives are enforcement, modification, or nullification. Nullification is an odious word in this republic and yet the Fifteenth and parts of the Fourteenth Amendment to the Constitution have been nullified and such nullification accepted by the people. The situation now as to use wine concentrates, which seems to be backed by governmental appropriations, amounts to a nullification in part of the Eighteenth Amendment. That the Eighteenth Amendment is now nullified in many of the large cities of the country cannot be denied by anyone willing to face the facts, and this very nullification is producing public sentiment against the prohibition laws and affecting the judgement of those who earnestly believe that it is a dangerous proposition for a country to permit its laws to be nullified. It would be better to modify the Eighteenth Amendment than to nullify it. I have pointed out the reasons why, in my judgement, the prohibition laws have never had a fair chance of enforcement. The effort to enforce the same is now quickened, due I think somewhat to the statements made by the President in his various addresses, from which I have quoted, and due to the transfer of enforcement to the Department of Justice.

It has been admitted by some of the strongest prohibition leaders of the country whom we have had before us that the prohibition laws cannot be enforced without the cooperation of the states, that the cost would be almost prohibitive, and it is doubtful if the people of the Nation would countenance a system of federal policing of our cities. Certainly that is a duty that should not rest on the federal government. Dr. Doran and General Andrews, testifying in 1926 before a Senate Committee, stated it would require $300,000,000 a year to administer the prohibition laws if state cooperation could not be secured. It is idle under our form of government to talk of enforcing these laws by the military and naval forces. In large cities in the states which have no enforcement laws the National Prohibition Laws are bound to become more or less of a dead letter, unless public sentiment therein changes. The government can go ahead and prosecute some of the larger cases, but every little violation cannot be taken care of by the federal government at least without creating a system of courts and police that would be staggering.

I do not like to admit that the Federal Government cannot enforce its laws without the help of the states, but I am satisfied it cannot enforce completely the prohibition laws without such aid. Certainly it cannot enforce them in a state where there is active opposition on the part of the officials of the state, and while there is no legal duty on the states that could in any way be enforced to assist in carrying out the federal statutes, it is apparent that Congress in providing for concurrent jurisdiction expected the states to assist. There is a moral obligation on the states to assist in enforcing the Eighteenth Amendment and laws passed in pursuance thereof. They should take care of the violations coming peculiarly within the province of the state, such as intrastate violations of the law. States are a part of the federal government. surely there is a solemn moral duty on the states to support the Constitution. The Constitution and amendments and laws to carry them into effect are still the supreme law of the land. What kind of a Union of States is this if there is no obligation on the part of the states to assist in preserving the government which makes possible the existence of the states and guarantees to every state a republican form of government and protects it against invasion. It is a dangerous doctrine that the states of the Union have no interest in preserving the Federal Government. The words of Senator Borah in an article in the New York Times of January 28, 1929, hit the nail squarely on the head. He said:

"The most inconsistent and indefensible thing in all government is for a state to be a part of a government, to belong, as it were, to a government, to enjoy the interstate trade and commerce, the prosperity and the dignity of such government, but whose will and policy and authority it rejects. It is a part of the government for its supposed burdens. That is a false and mistaken position to take and no argument, no plea will be able to justify such a position or give it a place of dignity and honor."

Officials of states swear to support the Constitution of the United States. If they give aid and comfort to the attempts to nullify laws passed by Congress to carry out Constitutional provisions, they are not supporting the Constitution of the United States and are violating their oaths of office. There are moral obligations in government binding on those representatives of the people. True, Congress is not compelled to appropriate money to carry on the government. It can paralyze the administrative and judicial branches of government by refusing to provide necessary funds by taxation and to make appropriations for carrying them on and thus cause the Federal Government to perish. The honest patriotism of the legislators is the safeguard against such course.

The present situation as to prohibition in the large cities is intolerable and presents a serious question to the thinking people of the Nation, vis., are they willing to have a few states, through the influence of large cities, and that influence affected by thousands who have come to our shores from foreign countries and who have been naturalized, but insist that their customs and habits shall not be interfered with, nullify the Constitution of the United States, and if they are not willing what are they going to do about it? The seriousness of these questions cannot be underestimated. The seeds of national trouble are implanted therein, and thoughtful citizens may well give pause and meditate thereon.

Inasmuch as the amendment was ratified by all of the states of the Union except two it would seem that opponents of the prohibition laws ought to be willing to have them given a fair trial. After such fair trial if they cannot be enforced any better than in the past, the proponents of these laws should be willing to have the Eighteenth Amendment modified or repealed and abandon the effort for national prohibition. The general report states: "There has been more sustained pressure to enforce this law than on the whole has been true of any other federal statute. No other federal law has had such elaborate state and federal enforcing machinery put behind it." That is true, but no law has had as much propaganda against it as these laws, and while the pressure was not of the nature applied to enforce other laws.

Much has been said about the Eighteenth Amendment having been adopted while the boys were overseas and that the people have had no chance to express themselves upon it. In view of growing opposition to the prohibition laws and the prevalence of this sentiment, it seems to me there should be if possible a referendum which would settle the proposition of whether the majority of the American people favor prohibition as a national policy. There is no provision of the Constitution for a referendum and a mere straw vote referendum by states or magazines is unsatisfactory. There could be an expression by the people under Article 5 of the Constitution. An amendment could be proposed to the Constitution to repeal the Eighteenth Amendment, and the Congress could provide that the ratification should be by conventions in the various states, delegates to be elected by the people. That would present as clear cut an issue on the subject as is possible under the Constitution.

The people are the source of power, and on a question of this character, where the discussion has become nation-wide and excludes consideration of other great questions involved in our national political life, the people should have a right to speak and to register their desires. Such an amendment as I have suggested, if submitted to conventions in the states, delegates to be chosen by the people, would find the nation soon engaged throughout its length and breadth in an educational campaign, and such campaign would be beneficial. After ten years of trial, such as it has been, why should the people not have an opportunity to register their feeling on this subject? If the great majority of the American people are against prohibition and say so in the selection of delegates to constitutional conventions in the states, it will be apparent that such laws cannot be nationally enforced. If a large majority of the people declare against repeal of the Eighteenth Amendment, many who are opposed to it will see that the policy of the Eighteenth Amendment is to be the national policy and will adjust themselves to the situation. My firm judgment is that the referendum herein suggested would be the best thing that could happen to assist in settling this troublesome situation. A limit of time should be fixed as to the meetings of the conventions, so that the matter may not be stretched over a period of years and so that the will of the people may be expressed at substantially the same time. This can be done under the authority of Dillon v. Gloss, 256 U.S. 368.

If it were possible to repeal the Eighteenth Amendment what in the way of a regulatory measure is to take its place? Those who advocate its repeal offer no program. The answers to this question propounded to practically all of those who appeared before us advocating a change or repeal of the prohibition laws brought little help. Some advocated the substitution of the Canadian system. There are as many different systems in Canada as there are provinces, and there is no Canadian system, as such.

Honorable E.C. Drury, former Premier of the Province of Ontario, was before us, and stated that bootlegging is carried on in the Province of Ontario to as great an extent now as during prohibition days; that there is much drunkenness, and that arrests for drunkenness have not diminished. He stated that the present system in Ontario is not satisfactory; that liquor consumption and crimes have increased under governmental liquor control. Other prominent Canadians are quoted to the contrary in the papers. Throughout Canada it will be found that there are complaints as to violations of their laws. It must be remembered that under prohibition in Canada licenses upon the payment of one dollar were issued for home-brewing, and citizens were permitted to make wines in their homes out of native fruit juices. This practically amounted to permitting the manufacture in the homes of light wines and beers. Undoubtedly there has been increased sale and consumption of intoxicating beverages in Canadian provinces that have given up prohibition.

The Bratt system of Sweden which bears some similarity to the Quebec system has been explained before us as an ideal system. The Commission has had the benefit of the testimony of our Minister to Sweden and has been fortunate in that Honorable Henry W. Anderson, one of the members of the Commission, visited Sweden during the summer and gave a careful study to the situation. They have presented very fully to the Commission the operation of the Bratt system. It is based on a paternalism which would be rather odious to citizens of this republic. It should be carefully studied, however, if any change is to be made.

Many of the witnesses before us representing organizations opposed to prohibition insist that state local option is a proper method of control; that inasmuch as the government trusts the state to punish murderers it can trust them to handle the liquor traffic. Others point to the fact that under such local option all of the difficulties that arise as to prohibition are found.

There is no doubt from the experiences of this Nation and others that there are tremendous difficulties involved in any control or regulation of the liquor traffic and always will be. No system of control anywhere is satisfactory. Even Soviet Russia is having all kinds of trouble with it. Any restraint of the liquor traffic is regarded by many as infringing on personal liberty, and probably that idea will always prevail. The traffic never can be entirely eliminated as long as the appetite for drink remains. A repeal of the prohibition laws and the Eighteenth Amendment, without some satisfactory plan to take their place, is unthinkable. The result would be chaos. In this high-powered age of universal rapid traveling by automobiles on the interstate highways of the Nation, an awakened public would not long submit to the situation that would be brought about by an uncontrolled or state sporadic control of the liquor traffic. Public roads and drunken automobile drivers are not a good combination.

If prohibition cannot be successfully enforced, I should favor a trial of the system proposed by Commissioner Anderson in his report--which could only be after some modification of the Eighteenth Amendment putting the matter in the hands of Congress. Professor Chafee of Harvard University interestingly discusses in the January Forum of 1931 a somewhat similar proposal.

It seems to me, in fairness to a great social and economic experiment, that the enforceability of the prohibition laws should have further trial under the new organization in the Department of Justice; that if, after such reasonable trial it is demonstrated they cannot be enforced any better than they have been in the past, the modification of the Eighteenth Amendment suggested by the Commission should be brought about and the power placed in Congress to deal fully with the subject; that in the meantime, the feeling of the people on the subject should be registered by a referendum on repeal of the Eighteenth Amendment in the manner suggested herein.

WILLIAM S. KENYON

Washington, January 7, 1931.

34402 --H. Doc. 722, 71-3----10