Christian Feigenspan, Inc. v. Bodine

• Citation: 264 F. 186
• Parties: CHRISTIAN FEIGENSPAN, Inc., v. BODINE, U.S. Atty., et al. [*]
• Decision Date: 09 March 1920
• Court: U.S. District Court — District of New Jersey

264 F. 186

CHRISTIAN FEIGENSPAN, Inc., v. BODINE, U.S. Atty., et al. ^[*]

United States District Court, D. New Jersey.

March 9, 1920

Harrison P. Lindabury, of Newark, N.J., and Elihu Root and William D Guthrie, both of New York City, for plaintiff.

Joseph L. Bodine, U.S. Atty., of Trenton, N.J., for defendants.

Wayne B. Wheeler, of Washington, D.C., George S. Hobart, of Jersey City, N.J., and G. Rowland Munroe, of Newark, N.J., amici curiae.

RELLSTAB District Judge.

The plaintiff, Christian Feigenspan, is a New Jersey corporation authorized by the laws of that state to manufacture and sell lager beer and other malt liquors; the defendant Joseph L Bodine is the United States attorney of the district of New Jersey; and the defendant Charles V. Duffy is the collector of internal revenue of the revenue district of New Jersey wherein the plaintiff has its principal place of business.

Generally stated (references of greater detail to appear later on), the bill alleges that plaintiff, the owner of a brewery and its appurtenances, for a number of years prior to August 10, 1917 (the date of the enactment of the act of Congress popularly known as the 'Lever Act' (40 Stat. 276, c. 53 ^[1])), was actively and extensively engaged in the manufacture and sale of fermented malt liquors for beverage purposes, commercially known as lager beer, ale and porter; that on October 28, 1919 (the date of the passage of the act of Congress the short title of which is the 'National Prohibition Act' (41 Stat. 305, c. 85)) it had, and still has, on hand a large quantity of nonintoxicating malt liquors containing more than one-half of 1 per cent. of alcohol by volume, but less than 2.75 per cent. by weight, which, in volume, is less than 3.4 per cent., commercially called 'war beer,' and which it had theretofore lawfully manufactured in the ordinary course of its business, pursuant to the presidential proclamation made under the authority of the 'Lever Act'; that, unless enjoined, the defendants, acting under the 'National Prohibition Act' (which the plaintiff declares to be unconstitutional), will enforce its provisions against the plaintiff, its agents, and customers, and prevent it from carrying on its business as a manufacturer and vendor of nonintoxicating malt beverages, to its irreparable injury and damage.

The plaintiff prays that the defendants be enjoined from enforcing or attempting to enforce against it, or its agents or customers, any of the penalties, seizures, and forfeitures authorized by the provisions of title 2 of the 'National Prohibition Act,' for or on account of its 'manufacture or sale of nonintoxicating malt beverages.'

The cause is before the court on the plaintiff's motion for a preliminary injunction and the motion of the defendants to dismiss the bill. The scope of the allegations of fact and prayer of the bill limits the judicial inquiry on both motions. The questions argued on the hearing of these motions involve the validity of the Eighteenth Amendment to the Constitution of the United States, and of title 2 of the 'National Prohibition Act.' Broadly stated, the validity of the amendment is challenged on the grounds that it is not germane to any of the powers conferred upon the United States or those prohibited to the states, and cannot be added to the United States Constitution by amendment under article V thereof, and that it was neither proposed to the states nor ratified by them in the only way authorized by that article. The invalidity of title 2 of the 'National Prohibition Act' is said to exist because it is based on no other authority than the Eighteenth Amendment, which is itself null and void, that the state of New Jersey has not concurred therein, that its definition of intoxicating liquor is arbitrary, and that its forfeiture provisions are confiscatory.

Concerning the defendants' grounds for their motion to dismiss the bill, it is sufficient to say that they assert that the grounds of attack upon the validity of the amendment present nonjusticiable questions, that the National Prohibition Act is valid, and that no equitable ground for the relief prayed for is alleged.

The matter will be considered by taking up the plaintiff's grounds under two heads:

I. The Alleged Invalidity of the Amendment.

The amendment reads:

'Article 18.

'Section 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.

'Sec. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the Legislatures of the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress.'

The liquor traffic, differing from other kinds of business, has always needed regulating. State after state, beginning several decades ago, has amended its Constitution to prohibit absolutely this business, so that, at the time Congress proposed this amendment to the states for their ratification, more than two-thirds of them had decreed it to be an outlaw. Previous to such submission, in response to persistent demands from the people of those states, Congress, in the exercise of its power to regulate interstate commerce and for the purpose of aiding such states to enforce more effectively their prohibition laws, successively passed laws known as the Wilson Act (Act Aug. 8, 1890, c. 728, 26 Stat. 313 (Comp. St. Sec. 8738)); the Webb-Kenyon Act (Act March 1, 1913, c. 90, 37 Stat. 699 (Comp. St. Sec. 8739)); and the Reed Amendment (Act March 3, 1917, c. 162, Sec. 5, 39 Stat. 1058, 1069 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 8739a)). These acts, as well as numerous statutes of these states passed to enforce their prohibition laws, were held constitutional and valid by the United States Supreme Court. In re Rahrer, 140 U.S. 545, 11 Sup.Ct. 865, 35 L.Ed. 572; Clark Distilling Co. v. Western Maryland Ry. Co., 242 U.S. 311, 37 Sup.Ct. 180, 61 L.Ed. 326, L.R.A. 1917B, 1218, Ann. Cas. 1917B, 845; United States v. Hill, 248 U.S. 420, 39 Sup.Ct. 143, 63 L.Ed. 337.

Section 1 of the Eighteenth Amendment (which alone concerns us at present), it will be noted, is not a delegation of power to be exercised, but a mandate operative by its own terms. If valid, it prohibits the manufacture of, and all dealings in, intoxicating liquors for beverage purposes throughout the United States and all the territory subject to its jurisdiction. For brevity, the transactions thereby prohibited will be hereinafter referred to as the 'liquor traffic' or 'trafficking in liquors.' The prohibition covers both intrastate and interstate business in such beverages. Plaintiff alleges it is invalid:

First. Because of its subject-matter.

At the outset let us keep clearly in mind that the issue here relates solely to power-- the power to amend the United States Constitution. In discussing the challenges of the plaintiff articulated under this head, that fact must not be forgotten. The other attacks upon the amendment, to be considered under separate heads, relate to the use made of the power, if it be found to exist. If the plaintiff is right in its contention of lack of power to insert the Eighteenth Amendment into the United States Constitution because of its subject-matter, it follows that there is no way to incorporate it and others of like character into the national organic law, except through revolution. This, the plaintiff concedes, is the inevitable conclusion of its contention. This is so startling a proposition that the judicial mind may be pardoned for not readily acceding to it, and for insisting that only the most convincing reasons will justify its acceptance.

Article V of the United States Constitution, which gives express power to amend that instrument, is as follows:

'The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the Legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress: Provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.'

This power, by the terms of this article, is not unlimited, but of the express limitations the only one now operative relates to a subject not touched upon by the Eighteenth Amendment. However, it is said the word 'amendment,' used in this article, carries its own limitations; that it is confined to corrections of the text, or at the most to changes in the scope of the subjects dealt with in the Constitution.

'Words in the Constitution of the United States do not ordinarily receive a narrow and contracted meaning, but are presumed to have been used in a broad sense with a view of covering all contingencies. ' In re Strauss, 197 U.S. 324, 25 Sup.Ct. 535, 49 L.Ed. 774.

The definitions of the word 'amendment' include additions to, as well as corrections...