United States v. Murphy

• Decision Date: 02 April 1920
• Citation: 264 F. 842
• Parties: UNITED STATES v. MURPHY.
• Court: U.S. District Court — Eastern District of New York

264 F. 842

UNITED STATES v. MURPHY.

United States District Court, E.D. New York.

April 2, 1920

Leroy W. Ross, U.S. Atty., and John T. Eno, Asst. U.S. Atty., both of Brooklyn, N.Y.

Henry P. Keith and Thomas J. Cuff, both of New York City (Louis J Castellano, of Brooklyn, N.Y., on the brief), for defendant.

GARVIN District Judge.

The government applies for leave of court to file an information against the above-named defendant, charging him with a violation of title 2, section 3, Act Oct. 28, 1919 (41 Stat 308), known as the National Prohibition Law, or Volstead Act. This section provides as follows:

'No person shall, on or after the date when the Eighteenth Amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import export, deliver, furnish or possess any intoxicating liquor except as authorized in this act, and all the provisions of this act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented.

'Liquor for nonbeverage purposes and wine for sacramental purposes may be manufactured, purchased, sold, bartered, transported, imported, exported, delivered, furnished and possessed, but only as herein provided, and the commissioner may, upon application issue permits therefor: Provided, that nothing in this act shall prohibit the purchase and sale of warehouse receipts covering distilled spirits on deposit in government bonded warehouses, and no special tax liability shall attach to the business of purchasing and selling such warehouse receipts.'

The violation alleged is the possession of intoxicating liquor, to wit, whisky, containing one-half of 1 per centum of alcohol or more by volume. The defendant objects and asserts that the prohibition against possession contained in section 3, supra, is in conflict with the Eighteenth Amendment to the Constitution of the United States. This amendment, so far as applicable, provides:

'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.'

Defendant insists that nothing therein contained can be taken to indicate that the mere possession of intoxicating liquor is prohibited, and that Congress had no power to extend the operation of the amendment, and therefore could not declare any act to be a crime which was not forbidden by the amendment itself. If this is correct, it follows that, to the extent that section 3, title 2, of the National Prohibition Law declares the possession of intoxicating liquor to be a crime, it is not within the constitutional authority of Congress.

But this is on the assumption that the Volstead Act is not a war measure. Title 1 of the act is entitled, 'To provide for the enforcement of war prohibition,' and the statute itself begins:

'The term 'War Prohibition Act' used in this act shall mean the provisions of any act or acts prohibiting the sale and manufacture of intoxicating liquors until the conclusion of the present war and thereafter until the termination of demobilization, the date of which shall be determined and proclaimed by the President of the United States.' The Supreme Court treats it as a war measure, amendatory of the War-Time Prohibition Act (40 Stat. 1045, c. 212). Ruppert v. Caffey, 251 U.S. 264, 40 Sup.Ct. 141, 64 L.Ed. . . ., decided January 5, 1920. Congress has obviously intended to prevent the use of intoxicating liquor as a beverage, and the provisions of the Volstead Act, forbidding any person to manufacture, sell, barter, transport, import, export, deliver, furnish, or possess any intoxicating liquor, except as authorized in this act, are consistent with an endeavor to make that intent effective.

While there seems no escape from the conclusion that the Volstead Act is valid as a war measure, even if it should be held to be merely an act to enforce the Eighteenth Amendment, it does not follow that the provision of section 3, against possession is unconstitutional. The amendment in question was adopted in order that the use of intoxicating liquor as a beverage might come to an end. It was...