United States v. Baumgartner

• Citation: 259 F. 722
• Decision Date: 08 August 1919
• Docket Number: 1788.
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. BAUMGARTNER.

259 F. 722

UNITED STATES v. BAUMGARTNER.

No. 1788.

United States District Court, S.D. California, Southern Division.

August 8, 1919

Robert O'Connor, U.S. Atty., and Gordon Lawson, Asst. U.S Atty., both of Los Angeles, Cal.

Theo. A. Bell, of San Francisco, Cal., and E. J. Emmons, of Bakersfield, Cal., for defendant.

BLEDSOE District Judge.

The question arising herein concerns the present applicability and scope of the act of Congress of November 21, 1918, c 212, 40 Stat. 1045, providing for war-time prohibition. A demurrer has been interposed to an information filed against the defendant charging that he did in this district, 'on the second day of July, 1919, * * * knowingly, willfully, and unlawfully sell, for beverage purposes and not for the purpose of export, beer containing as much as one-half of one per cent. of alcohol, by both weight and volume, to Edward Guthrie, ' etc. The only point involved is whether or not it should have been alleged, in order that a public offense might have been described, that the beer so sold was 'intoxicating.' The precise point has been presented to the District Court in a number of districts throughout the country, and, without special enumeration, the rulings thereon have been diverse. I have therefore endeavored to give the matter the benefit of my own independent judgment.

It should be said in passing that, pending the operation of the prohibition amendment to the federal Constitution, Congress probably possesses no authority to pass prohibition measures for the whole country, the exercise of the police power in such respect being reserved to the states. Under its war power, however, the power no less to declare, than to carry to successful conclusion, any war made necessary, Congress possesses complete authority, pending the continuance of such war, to enact such legislation as would reasonably be considered as aiding in the prosecution of the war. To conserve the man power and increase its efficiency by a denial of intoxicants which would have a detrimental effect and to conserve the foodstuffs and food resources of the nation, as a part of the necessary war program, would clearly fall within the domain of constitutional legislation, in my judgment.

By an act passed August 10, 1917, c. 53, Sec. 15, 40 Stat. 282 (Comp. St. 1918, Sec. 3115 1/8l), having the above aims in mind, it was provided that 'from and after thirty days from the date of approval of this act, no foods, fruits, food materials, or feeds shall be used in the production of distilled spirits for beverage purposes. * * * Nor shall there be imported into the United States any distilled spirits. ' In addition, in the same section of the act the President was authorized from time to time to prescribe and give notice of the extent of the limitations and prohibitions made necessary and provided for therein.

On November 21, 1918, the act involved herein was passed, and in addition to providing that nothing in its terms should be construed to interfere with the power conferred upon the President by section 15 of the act of August 10, 1917, it provided with respect to liquor for beverage purposes, and not for export, pending the conclusion of the war and until the termination of demobilization as proclaimed by the President, that--

'After June thirtieth * * * it shall be unlawful to sell * * * any distilled spirits. * * * After May first * * * no grains, cereals, fruit, or other food product shall be used in the manufacture or production of beer, wine, or other intoxicating malt or vinous liquor. * * * After June thirtieth * * * no beer, wine, or other intoxicating malt or vinous liquor shall be sold. * * * After the approval of this act no distilled, malt, vinous, or other intoxicating liquors shall be imported into the United States. * * * That the President of the United States be, and hereby is, authorized and empowered, at any time after the passage of this act, to establish zones of such size as he may deem advisable about coal mines, munition factories, shipbuilding plants, and such other plants for war material as may seem to him to require such action whenever in his opinion the creation of such zones is necessary to, or advisable in, the proper prosecution of the war, and that he is hereby authorized and empowered to prohibit the sale, manufacture, or distribution of intoxicating liquors in such zones,' etc. Section 1.

The specific provision of the act under which the present prosecution is had is that above adverted to, to the effect that after June 30, 1919, 'no beer, wine or other intoxicating malt or vinous liquors shall be sold for beverage purposes, except for export.'

The recital in the information that the beer sold contained 'as much as one-half of 1 per cent. of alcohol by both weight and volume' is not found in any statute. It was inserted because of the fact that the government of the United States, through its Internal Revenue Department, has determined, so far as the collection of revenues is concerned at least, that 'within the intent of the act of November 21, 1918, a beverage containing one-half of 1 per cent. or more of alcohol by volume will be regarded as intoxicating. ' The implication therefrom is that less than one-half of one per cent. of alcohol would be considered as nonintoxicating. It is because of this ruling by the department that the phrase was inserted in the information, but the United States attorney admits that the information may just as well be read as if the reference to the quantity of alcohol contained in the beer had been omitted.

So in the substantial aspect of the case the defendant stands charged under the act named with the sale of 'beer.' It is not asserted that such beer was intoxicating, and hence he contends that in the presence of that bald allegation only, no crime is alleged. With this contention I am constrained to agree.

In the first place, I think from a careful reading of the statute it was the intention of Congress that the sale of intoxicating beer only should be prohibited. True it is, in words, the inhibition was laid against beer and wine, with no qualifying description; but true it is also that that was done within the limits of the same sentence, and in immediate proximity to language which proclaimed an inhibition against 'all other intoxicating malt or vinous liquor. ' It is both necessary and permissible here to use two well-established rules of statutory construction. First, the...