United States v. Minery

• Decision Date: 22 July 1919
• Citation: 259 F. 707
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES v. MINERY.

259 F. 707

UNITED STATES v. MINERY.

United States District Court, D. Connecticut.

July 22, 1919

John F Crosby, U.S. Atty., of Hartford, Conn.

Arnon A. Alling, of New Haven, Conn., and William A. King, of Willimantic, Conn., for defendant.

CHATFIELD District Judge.

The defendant has been brought into court on an information charging that on or about July 7, 1919, he did unlawfully and knowingly, 'before the conclusion of the present war, and before the termination of demobilization, the date of which is to be hereafter determined and proclaimed by the President of the United States, sell distilled spirits, beer, wine, and other intoxicating malt and vinous liquors, for beverage purposes, the said distilled spirits,' etc., 'not being then and there sold for export, sacramental, medicinal or other than beverage uses,' etc., contrary to the provisions of the statutes of the United States.

The defendant has demurred to this complaint upon the grounds (1) that the facts set forth in the information do not constitute a crime under the laws of the United States; (2) that the act was committed on or about the 8th day of July, 1919, and therefore not on a day before the conclusion of the present war; (3) that the law of November 21, 1918 (chapter 212 of 65th Congress, 2d Session, 40 Stat. 1045), under which the defendant is charged, is unconstitutional, in that it contravenes amendment 10 to the Constitution of the United States reserving to the states, respectively, such powers as that of regulating the sale of spirituous and intoxicating liquors within each respective state; (4) that the act of November 21, 1918, is unconstitutional and void in that it contravenes the provisions of the 18th amendment, which prohibits after January, 1920, the sale of intoxicating beverages, and thus specifically withholds from Congress until January, 1920, the power to prohibit the sale of spirituous and intoxicating liquors within any particular state; (5) that the act of November 21, 1918, is unconstitutional, in that it provides for the operation and enforcement of provisions for war after the termination of the war, and until termination of demobilization by the express language of the statute, which thus shows that the act is to continue after the war emergency has ended and the war subsided; and (6) that the information does not allege any emergency or necessity which could be denominated war and which therefore could be a basis for such legislation.

No separate discussion of the first and sixth grounds of the demurrer is necessary, inasmuch as it is evident that, if the law be upheld over the objections raised by the other grounds of the demurrer, these furnish no reason why the law should be held beyond the powers of Congress and unconstitutional.

The third ground of demurrer, that the law of November 21, 1918, contravenes article 10 of the amendments to the Constitution, is also of no force. If Congress had the power to enact this particular law for the purpose of conserving food and increasing the sufficiency of the production of supplies, etc., for the army and navy, it is no objection to an exercise of that power to say that it thereby accomplishes prohibition of the sale of alcoholic liquors, which under other amendments of the Constitution is left to legislation by the particular states.

In the case of In re Kollock, 165 U.S. 526, 17 Sup.Ct. 444, 41 L.Ed. 813, a tax act for the raising of revenue was upheld although the effect of this law was to prevent deception in the sale of oleomargarine for butter, and although the prevention of this traffic was assumed to be one of the objects of passing the law.

In the case of McCray v. United States, 195 U.S. 27, 24 Sup.Ct. 769, 49 L.Ed. 78, it was held that the taxing power of Congress could not be assailed on the ground that it would destroy or restrict the manufacture of artificially colored oleomargarine. The court said that, if power to tax be within the lawful power of Congress, the exertion of that power may not be judicially restrained because of the results which arise from its exercise, or because the court questions the motive underlying the passage of the law. Where there is power to tax a particular subject, the power to prevent traffic by the exercise of the taxing power is judged solely from the standpoint of whether the tax is lawful. Even if the exercise of that power shall accomplish a result which by itself is not within the power of Congress, nevertheless the law is not unconstitutional if the taxing power be lawfully exercised, so that the indirect result is the mere effect of legal regulation. Hammer v. Dagenhart, 247 U.S. 251, at page 269, 38 Sup.Ct. 529, 62 L.Ed. 1101, Ann. Cas. 1918E, 724, with citations on the following pages.

By analogy it must be held that the prohibition of the sale of intoxicating liquors through the exercise of the power to levy war is within the right of Congress in the exercise of its discretion.

The second ground of demurrer, to the effect that the act charged as an offense in this information was committed on the 8th of July, 1919, that this day is not included within the words, 'until the conclusion of the present war, ' as legally construed, and that the power to carry on the war cannot be extended by act of Congress to include that date, also the fifth ground of demurrer, that the law of November 21, 1918, is unconstitutional, in that it provides for the operation and enforcement of war measures after the conclusion of the war and during a period of peace-- that is, until the termination of demobilization-- are based upon the fact that a treaty of peace with Germany has been actually signed; that the present German government has ratified the treaty, and actual hostilities on the European front have ceased for some months; that the armies of the United States are being demobilized; and that the President has stated that the war-- that is, armed hostilities-- has terminated so that peace is now at hand. The defendant cites the cases of Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281, and Mitchell v. Harmony, 13 How. 115, at page 134, 14 L.Ed. 75, in which the Supreme Court has held that, in order to have the power granted to the military forces by the Constitution in a state of de jure war invoked, so that personal and property rights of the individual and the powers of civil government can be interfered with, the emergency or necessity must be so urgent that no delay can be considered, and such that the action of the civil authorities would be too late to provide the means which the occasion calls for. But in those cases the question was whether the actual facts existing at the time were sufficient of themselves to show that the rule of the military forces should supersede that of the civil government. The power of Congress to enact a statute was not under consideration.

The defendant further contends that, even if the...