265 U.S. 545 (2005), Everard's Breweries v. Day

Citation:265 U.S. 545, 44 S.Ct. 628, 68 L.Ed. 1174
Party Name:Everard's Breweries v. Day
Case Date:June 09, 1924
Court:United States Supreme Court

Page 545

265 U.S. 545 (2005)

44 S.Ct. 628, 68 L.Ed. 1174

Everard's Breweries



United States Supreme Court

June 9, 1924




1. Section 2 of the Supplemental Prohibition Act of November 23, 1921, insofar as it prevents physicians from prescribing intoxicating malt liquors for medicinal purposes, is constitutional. P. 557.

2. This provision does not violate the Tenth Amendment, since it is not an invasion of power reserved to the states. P. 558.

3. It is supported both by the implied power of Congress to make laws necessary and proper for executing powers expressly granted

Page 546

(Const., Art. I, § 8, cl. 18) and by the clause of the Eighteenth Amendment specifically conferring power to enforce by "appropriate legislation" the prohibition of traffic in intoxicating liquors for beverage purposes. P. 558.

4. The Court cannot say, in face of the contrary affirmation by Congress, that prohibiting traffic in intoxicating malt liquors for medicinal purposes has no real or substantial relation to the enforcement of the Eighteenth Amendment. P. 560.

5. Nor can it be held that the act is an arbitrary and unreasonable prohibition of the use of valuable medicinal agents, in view of the determination of Congress, and the evidence supporting it, that intoxicating malt liquor possesses no substantial and essential medicinal properties, which, as respects the public health, cannot be supplied by permitting physician to prescribe spirituous and vinous intoxicating liquors in addition to nonintoxicating malt liquors. P. 561.

6. Dealers in beer, ale and stout, who were prevented by the act from disposing of stocks acquired before it was passed, were not thereby. deprived of property without due process of law in violation of the Fifth Amendment. P. 563.


Appeals from decrees of the district court which dismissed the bills, for want of equity, in two suits brought by manufacturers and dealers in intoxicating malt liquors, to enjoin the Commissioner of Internal Revenue and other officials from enforcing a Supplemental Prohibition Act.

Page 554

SANFORD, J., lead opinion

MR. JUSTICE SANFORD delivered the opinion of the Court.

These two cases were heard together. They involve the single question whether Section 2 of the Supplemental Prohibition Act of November 23, 1921, c. 134, 42 Stat. 222, is constitutional, insofar as it prevents physicians from prescribing intoxicating malt liquors for medicinal purposes. This section of the Act provides:

That only spirituous and vinous liquor may be prescribed for medicinal purposes, and all permits to prescribe and prescriptions for any other liquor shall be void.

The Eighteenth Amendment to the Constitution provides that

the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States, . . . for beverage purposes is hereby prohibited

(§ 1), and that "Congress and the several states shall have concurrent power to enforce this article by appropriate legislation." (§ 2).

The National Prohibition Act (41 Stat. 305), enacted in pursuance of this Amendment, provides that no person shall "manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor" except as authorized in the Act, and that all its provisions shall be liberally construed to the end that "the use of intoxicating liquor as a beverage" may be prevented, Title II, § 3; that intoxicating liquor "for nonbeverage purposes" may be manufactured, sold, etc., "but only" as provided in the Act, and the Commissioner of Internal Revenue may issue permits therefor, ibid., § 3; that no one shall manufacture, sell or prescribe intoxicating liquor without first obtaining a permit from the Commissioner, [44 S.Ct. 630] § 6; that no permit shall be issued for the sale of intoxicating liquor at retail except through a pharmacist licensed to dispense medicine prescribed by physicians,

Page 555

§ 6; that no one shall be given a permit to prescribe intoxicating liquor except a licensed practicing physician, § 6; that no one but a physician holding such permit shall issue any prescription for intoxicating liquor, § 7, and that not more than a pint of "spirituous liquor" shall be prescribed for the same person within any period of ten days, § 7.

Under the Regulations adopted by the Treasury Department after the passage of the act, physicians obtaining permits were authorized to prescribe only distilled spirits, wines, and certain alcoholic medicinal preparations. T.D. 2985. In October, 1921, pursuant to an opinion of the Attorney General that the Commissioner might issue permits for the manufacture of beer and other intoxicating malt liquors, as well as whisky and vinous liquors, for medicinal purposes (32 Op. Attys.Gen. 467), the Regulations were amended so as to authorize the Commissioner to issue permits for the manufacture of intoxicating malt liquors for medicinal purposes and to permit physicians to prescribe them. T.D. 3239.

In November, Congress passed the Supplemental Act now in question, containing in § 2, as has been stated, the provision that "only spirituous and vinous...

To continue reading