James Everard Breweries v. Day Edward John Burke v. Blair

Citation44 S.Ct. 628,68 L.Ed. 1174,265 U.S. 545
Decision Date09 June 1924
Docket NumberNo. 200,No. 245,200,245
PartiesJAMES EVERARD'S BREWERIES v. DAY, Prohibition Director of New York, et al. EDWARD & JOHN BURKE, Limited, v. BLAIR, Commissioner of Internal Revenue, et al
CourtU.S. Supreme Court

Mr. S. W. Moore, of New York City, for appellant in No. 245.

[Argument of Counsel from pages 546-550 intentionally omitted] Messrs. Nathan Ballin and Walter E Ernst, both of New York City, for appellant in No. 200.

[Argument of Counsel from pages 551-553 intentionally omitted] Mr. Joseph S. Auerbach, of New York City, for Lambert, as amicus curiae, by special leave.

Mr. H. H. Griswold, of Chardon, Ohio, for Attorneys General of 25 states as amicicuriae, by special leave.

Mr. James M. Beck, Sol. Gen., of Washington, D. C., for appellees.

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 (Comp. St. Ann. Supp. 1923, § 10138 1/2 ccc), is constitutional, in so far 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' (section 1), and that 'Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.' (section 2).

The National Prohibition Act (41 Stat. 305 [Comp. St. Ann. Supp. 1923, § 10138 1/4 et seq.]), enacted in pursuance of this Amendment, provides that no person shall 'manufacture, sell, barter, transport, import, export, deliver, funish 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 2, § 3 (Comp. St. Ann. Supp. 1923, § 10138 1/2 aa); 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, Id., § 3; that no one shall manufacture, sell or prescribe intoxicating liquor without first obtaining a permit from the Commissioner, section 6 (section 10138 1/2 c); 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 section 6; that no one shall be given a permit to prescribe intoxicating liquor except a licensed practicing physician, section 6; that no one but a physician holding such permit shall issue any prescription for intoxicating liquor, section 7 (section 10138 1/2 cc); and that not more than a pint of 'spirtuous liquor' shall be prescribed for the same person within any period of ten days, section 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 section 2, as has been stated, the provision that 'only spirituous and vinous liquor may be prescribed for medicinal purposes,' and that all prescriptions for any other liquor1 and permits therefor shall be void. The direct effect of this provision is to prohibit physicians from prescribing intoxicating malt liquors for medicinal purposes, and the Commissioner from issuing permits authorizing such prescriptions. This section also limits prescriptions for vinous liquor to one-fourth of a gallon, containing not more than 24 per centum of alcohol, and provides that the vinous and spirituous liquor prescribed for any person within any period of ten days shall not contain more than one-half pint of alcohol.

James Everard's Breweries, the plaintiff in the first case, is a New York corporation. Prior to the passage of the Prohibition Act it had been engaged in the manufacture and sale of beer and other intoxicating malt liquors. After the Treasury Regulations had been amended, it obtained a permit for the manufacture of intoxicating malt liquor for medicinal purposes, and stout for sale to pharmacists for resale on physician's prescriptions. for resale on physician's prescriptions. When the Supplemental Act was passed it had on hand a large quantity of these intoxicating malt liquors which it could not thereafter sell in the conduct of its business, and of which it could only dispose, after de-alcoholization, at a heavy loss.

Edward & John Burke, Limited, the plaintiff in the second case, is a British corporation, engaged in bottling and distributing an intoxicating malt liquor known as Guinness's Stout. Prior to the passage of the National Prohibition Act it had maintained a branch of its business in New York. Early in November, 1921, the Commissioner refused it a permit to sell such stout for medicinal purposes because of the pendency in Congress of the Supplemental Prohibition Bill. At the time of the passage of the Act it had on hand a large quantity of stout.

Each of these corporations brought a suit in equity in the District Court to enjoin the Commissioner of Internal Revenue and other federal officers from enforcing the provision of the Supplemental Act prohibiting the prescribing of intoxicating malt liquors for medicinal purposes, alleging that it was not authorized by the Eighteenth Amendment and was in conflict with other provisions of the Constitution.2 Each of these bills was dismissed by the District Court, for want of equity.3 The plaintiffs then appealed directly to this Court. Judicial Code, § 238 (Comp. St. § 1215).

The contention that this provision of the Supplemental Act is unconstitutional, is based primarily upon the grounds: That the Eighteenth Amendment merely delegates to Congress the authority to prohibit the traffic in intoxicating liquors for beverage purposes, and the control of the traffic in such liquors for non-beverage purposes is reserved to the several States; that while Congress possesses the incidental power to regulate the traffic in intoxicating liquors for non-beverage purposes so far as is reasonably necessary to make effective the prohibition of the traffic in such liquors for beverage purposes, this incidental power is limited to reasonable regulation and does not extend to complete prohibition; and that the prohibition of prescription for the use of intoxicating malt liquors for medicinal purposes is neither an appropriate nor reasonable exercise of the power conferred upon Congress by the Amendment and infringes upon the legislative power of the States in matters affecting the public health.

It is clear that if the Act is within the authority delegated to Congress by the Eighteenth Amendment, its validity is not impaired by reason of any power reserved to the States. The words 'concurrent power' as used in the second section of the Amendment 'do not mean joint power, or require that legislation thereunder by Congress, to be effective, shall be approved or sanctioned by the several States or any of them'; and the power confided to Congress, while not exclusive, 'is in no wise dependent on or affected by action or inaction on the part of the several States or any of them.' National Prohibition Cases, 253 U. S. 350, 387, 40 Sup. Ct. 486, 488 (64 L. Ed. 946). And if the Act is within the power confided to Congress, the Tenth Amendment, by its very terms, has no application, since it only reserves to the States 'powers not delegated to the United States by the Constitution.' See McCulloch v. Maryland, 4 Wheat. 316, 406, 4 L. Ed. 579; Lottery Case, 188 U. S. 321, 357, 23 Sup. Ct. 321, 47 L. Ed. 492.

We come then to the question whether this Act is within the power conferred upon Congress by the Eighteenth Amendment. By its terms the Amendment prohibits the manufacture, sale or transportation of intoxicating liquors for beverage purposes, and grants to Congress the power to enforce this prohibition 'by appropriate legislation.' Its purposes is to suppress the entire traffic in intoxicating liquor as a beverage. See Grogan v. Hiram Walker & Sons, 259 U. S. 80, 89, 42 Sup. Ct. 423, 66 L. Ed. 836, 22 A. L. R. 1116. And it must be respected and given effect in the same manner as other provisions of the Constitution. National Prohibition Cases, 253 U. S. 350, 386, 40 Sup. Ct. 486, 588, 64 L. Ed. 946.

The Constitution confers upon Congress the power to make all laws necessary and proper for carrying into execution all powers that are vested in it. Article 1, § 8, cl. 18. In the exercise of such non-enumerated or 'implied' powers it has long been settled that Congress is not limited to such measures as are indispensably necessary to give effect to its express powers, but in the exercise of its discretion as to the means of carrying them into execution may adopt any means, appearing to it most eligible and appropriate, which are adapted to the end to be accomplished and consistent with the letter and spirit of the...

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