Appellants Brief — Grogan v. Hiram Walker & Sons, Ltd.

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CONTENTS.

SETI WR TMEINO a iow nc cen cu ee casmuniut.cacn cota sues<e

ee ACNO TM CORE NO BIB ances ce becce nec tevctsaesbeceecees

NRE ate wine indnr es kek as antkakne sande cba tans

aah eacghckew kc weKiMveshoevewsie Kerk G se eatalarvehiantes

ENE MUN MINE PROBL Ain nan ex ue b ConA ton ccs wwe Nevin k Weeks

NNR S hrarcs Vn'cb anh V2.6 suri Nadisebecsulurn scans cv

EG Koen Cin ence Gon pce reKchens CORCEANSNCEMDEN ORE OE RECS

CONSTITUTIONAL, STATUTORY, AND TREATY PROVISIONS............

IN RIN oh on clan ened whic e ks dine w kn ek oe ats

pecuon 3, Tithe 11, of Volstead Act. ..... 22... 6 cccccc cc ececcne

SUONee CMRECIURE BECEION DU00. oc. 6c kiw cco cticesnsexdceacce

Article XXIX, treaty with Great Britain, proclaimed July 4,

ee icek piu wik nak h oa nin dxntn sats Leet nike tesco

ONMENTO QF BRBOR IN NGO. GM... <5 6 ss occ cee co knee caeaesss

EN de aA SOnkCn wnat KGa wa ca ceed CCU enh viene Cee de eek be

1. The eighteenth amendment and the national prohibition act

apply to and prohib) the transshipment of intoxicating

liquors for beverage purposes in or through the United

PE Week AtnUaUN eens unk sieeeSet enn ce ee sas sae eu bis oes

1. Such transshipments are within the very terms of the

ie nn eee

2. The plain object of the amendment and act was to

destrey all trattic in or dealing with intoxicating

PE os aNo etka chr ene en cots rue even nai vic nies

3. The amendment and the act clearly were intended to

prohibit the possession or transportation of liquor

for beverage purposes, whether for consumption

within the United States or without. ..............

4. The proceedings in Congress evidence the legislative

intention to prohibit all possession and all transpor-

tation except as specifically authorized.............

5. The language of the amendment and act being plain,

resort may not be had to construction to read out

WHE. 58 CROMISY RUCRUGONES. 5.4 okviwn 0c veax nas ev ceees

6. The prohibition on transshipments will not be read

out of the act on the ground that as applied to such

transshipments it has extraterritorial effect.........

J6689—22——1 (1)

21

28

ll

Aroument—Continued. Page.

Il. The national prohibition act in its application to the trans-

shipment of intoxicating liquor for beverage purposes is

constitutional and valid...........----+++eeeeereeere tees 30

1. Fallacy of plaintiffs’ contention. ......-----+++++5++*+ 20

2. Congress in legislating for the enforcement of the

eighteenth amendment may provide all means rea-

sonably necessary effectively to suppress the pro-

hibited ACtS......csccnccocceerenececestescesecens 31

3. Because of their noxious qualities all traffic in or deal-

ing with intoxicating liquor may be absolutely sup-

premned.....cssescenccccnnssscccccensccccsecesnes Od

III. Plaintiffs have not by proper allegations brought them-

selves within Article X XIX of the treaty with Great Britain

proclaimed July 4, 1871; but in any event said article has

been abrogated.........csscsesccccccesercrccscescscsccses o6

1. Neither plaintiff has alleged facts bringing it within

Apticte SKUs ccs scccnsccncceue ss cee acenseas tenes 26

2. The abrogation of Article XXIX was effected by act

Of CONZLORB. ... 06. c ce ececerecceneceececneceneenees 37

3. Presidents Cleveland and Harrison have declared

Article XXIX terminated.........-.++-esee rere ee 49)

4. The question being essentially political and not judi-

cial, the legislative and executive interpretations

should be followed...........-eeeeeeeeeeeeeeeeees 47

5. If Article XXLEX was not abrogated in the manner de-

scribed, then so far as it relates to shipments of

liquor it was abrogated by the national prohibition

Bi ce eu kL Ast horse he wh sas ive se eta eae eN ee ets s> 49

LV. Section 3005 of the Revised Statutes conferred no affirmative

rights with respect to the transshipment of merchandise:

Assuming that it did, it was superseded by the national

prohibition act so far as shipments of liquor are concerned... 0

1. Section 3005 conferred no affirmative PERS sees s es 50

2. Assuming that the section did confer the right claimed,

far as shipments of liquor are concerned......------ 53

3. The prohibition act supersedes all licensing and per-

missive statutes...........-.-seee cece eter eeeceess 4

4. The transshipments involved in case No. 639 are not

within the section............----se-sseeeeeerseees 59

CNN sia cand nn ven As nnea eee ensee esse ante sreyee eSR 0 FEET 59

CASES CITED.

Adams Express Co. V. Kentucky, 238 U.S. 190, 199...----++--+2++5- 24

American Banana Co. V. United Fruit Co., 213 U. 8. 347..--------- 29

Barker v. Harvey, 181 U.S. 481, BAR. cies 5 sack bases ee aoa weees*s 48, 49

Booth v. Illinois, 184 U. 8. BUR oo occ nc vuak ete’ 644+ SES bse nen eee 34

PEEL SYED SAPO ANTE NR ae BEMIS IT

ill

Page

Botelier v. Dominguez, 130 U.S. 238....... 2.02... ccccencccceucee. 49

Brougham v. Blanton, 249 U.S. 495... 20... 0.00. cc ccececcccceceee, 34

Caminetli v. United States, 242 U.S. BIO, SHO oe das a caceea tk uns 24, 25

Chae Chan Ping v. United Stoies, 130 U.S. 581.0000... -000000005.. 49

Chinese Exclusion Cases, 130 U. 8. 581........0..cccccececccecesse, 18

Corneli v. Moore, No. 174, decided January 30, 1922... ............ 28

Crane v. Camphell, 245 U.S. PU OTOR Sc e oboreece tC ee 34

Del., Lack, & West. R. R. Co. v. United States, 231 U.S. 363, 370 34

Er parte Crookshank, 269 Fed. 980... 0.0.0... c0ccceeccccccces.., 58

Fong Yue Ting v. United StAGR EO US BOB ovine. tw cs caus dreno 49

Foster v. Neilson, 2 Pet. 252, 814..... Pesckh nik teseas ket casero 40, 48

Hamilton Vv. Kentucky Distilleries, 251 U.S. ROG AB ark Cokie inne bie 20

Hanilton v. Rathbone, 175 U.S. RIGS BAR ic cA EERE AOR GCE SEL OS 24

Head Money Cases, 112 U. 8. 580.............cccsccccececccucces., 48

Holy Trinity Church Case, 143 U. 8, 457.......0.ccccccceccccccess, 6,25

Horner v. United States, 143 U. 8. 570... ......ccccccecccccceesss, 49

Houston v. St. Lowis Packing Co., 249 UL 8. 479. oo. cece cccec cee. 34

Knorville Iron Co. v. Harbison, 188 U. 8. UB... cece ccc ceccc seen, 34

Lenn Moon Sing v. United States, 158 U. FO NEED DM tite ad oe we dteal eee 49

McCulloch v. Maryland, 4 Wheat. 421, 423... 0.0.0... .cccccceces ss 32

Nutional Prohibition Cases, 253 U.S, BOD; BOO WSOT sv aisc sc dks vewsecucc jd5

Otte v. Parker, 187 U. 8. 06,008, O00... o.oo. conc ccccsceccceses, 33

Powell v. Pennsylvania, 127 U. 8. 678, 685... .......0000000-000... 32

Public Clearing House v. Coyne, 194 U.S. 497. 0... eee eee 3

Purity Extract Co, v. Lynch, 226 U. 8. 192...........00000000505... 33

Rainey'v. United States, 232 U.S. $10... ......000ec0cccscccccscss., 49

pps W, SOP ey, B00 Ti, BQO sos ok cece enn aucecceesciccccc.c 34

Sanchez v. United States, 216 U. 8. 167..........00.cccccecccccess.. 49

amt Ve PONT DUN NE UR oo irae vsckcen sees lac cockucecan cnn 3

Staughter House Cases, 16 Wall, $6...........000s000ceecececcec., 34

Strathearn S. S. Co. y. Dillon, 252 U. 8. 348..........00000000-... 29

Street v. Lincoln Safe Deposit Co., 254 U.S. OG) Ms Se kK bh ok ach ue 17, 26, 27

wuylor v. Morton, 2 Carta, 454.....0..cccc cc cccccccnsecccceces. es, 47

Thomas v. Gay, 160 U.S. 264, 971. oo... ccc cccccncoccse. 48

Thompson v. United States, 245 U.S. 547, O51. 2.00.00 eee 24

United States v. Gudger, 249 U. 8. 373...........ccccccccccccees... 26

United States v. Lee Yen Tai, 185 U.S. 213. ...................... 49

United States v. Levington Miu &e. Co., 232 U. S. 399, 409-10... ... 24

United States ¥. Stafog., 268 Fed. i ae TART Ea Lees | eye Te 58

Untied States v. Two Thousand Cases of Whiskey, 277 Fed. 410..... 58

Untied States vy, Yuginovich, No. 253, decided June 1, 1921......... 55, 56

Vigliotti v. Pennsylrania, No. 530, decided April 10, 1082... .5.5.. 58

Ward y. Mace Horse, 103 0. &. B04, 0... ccc cciccassccccnsccncnncecs 49

Whitney v. Robertson, 124 U. 8. 100........0...0.cececcesccccees.., 48, 49

STATUTES, ETC., CITED.

Act of July 28, 1866, c. 208, 14 Stat. 328................ccccccceees

Act of Mar. 1, 1873, c. 213, 17 Stat. 482..............0..escceeees 38, 40, 47

IV

Page.

Act of Feb. 27, 1877, c. 69, 19 Stat. 240.......-----eeeeerersereccee 51

Act of May 21, 1900, c. 487, 31 |) ee 51

Act of Mar. 3, 1917, c. 162, 39 Stat. 1058, 1069.........----+--e++s 26

Act of Oct. 28, 1919, ¢. 85, 41 Stat. 308-9, 317, 322........- 13, 18, 49, 53, 54

Cong. Rec., v. 58, pp. 2449, 2976. ....-----seeeereeerereeerrcsress 21, 23

Cong. Rec., v. 33, p. 1736......----ee-ereeeeerersttsesesseee see es 51,52

Constitution of United States, eighteenth amendment.....---------- 12

Joint resolution, Mar. 3, 1883 [No. 22), 22 Stat. G41......---------+ 39

Judicial Code, section 238.......------seseeeerrceeerers esse sste ee 2

Messages and Papers of Presidents, Richardson:

Vol. 8, pp. 620, 624, 625........0eeeeeeeereceseeceeeeeeneees 41, 43

Vol. 9, pp. 335-339, 340, 345. . 0... eeeeeeeeee neers ee eeeees 44, 45, 46

Opinions of Attorney General:

Vob. 90, p. 908..0.000.ccncneccsnserevnerneccnnseronnnsteseces 46

Wek Bi. i MI inns cng one es anaes snes andreesensceesees ress 59

Proclamation of President Arthur, J uly 1, 1885, 23 Stat. | ae 40

Revised Statutes, section 2766. .........--.eeeeeree sete eerste eee 53

Revised Statutes, section 2866........--.-0eseeree reese tte ness 39

Revised Statutes, section 3005..........-+eeeereeer es 13, 47, 49, 51, 53, 54

Treaty with Great Britain proclaimed July....--- 4, 1871 13, 36, 37, 38, 46

=

Inthe Supreme Court of the United States.

OcrorneR TreRM, 1921.

Joun A. GroGan, CoLLecror or INTER-

nal Revenue, et al, appellants,

v,

Hiram Waker & Sons (Ltp.).

No. 615.

APPEAL FROM THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN DISTRICT OF MICHIGAN.

Tue Ancnor Line (HENDERSON BroTH- )

ers) (Ltd.), appellant,

v. >No. 639.

.

Grorare W. ALpripGe, CoLLECTOR oF Cus-

toras for the Port of New York.

APPEAL FROM THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

BRIEF FOR THE APPELLANTS IN NO. 615 AND FOR

THE APPELLEE IN NO. 639.

INTRODUCTORY STATEMENT.

These are suits to enjoin officers of the United

States from enforcing the provisions of the eighteenth

amendment to the Constitution and the national

prohibition act' against shipments of liquor (a) from

‘Called interchangeably “ national prohibition act,’’ ‘‘ prohibition act,”

and ‘‘ Volstead Act.”’

(1)

SR, cant Tete RRL Nine a TO TI ae Ta SR dee i ln tee em Ee hay

9

one foreign country through territory of the United

States to another foreign country and (0) from a for-

eign country into the port of New York for trans-

shipment to another foreign country. The right to

transport liquor into and through the United States

for export to points outside the United States is

asserted under the provisions of section 3005 of the

Revised Statutes and Article XXIX of the Treaty

with Great Britain proclaimed July 4, 1871.

Whether those provisions ever conferred the right

claimed, and if so, the extent to which such right

has been modified or abrogated by the eighteenth

amendment and the prohibition act, are the ques-

tions presented. The cases come directly to this

court under section 238 of the Judicial Code on the

ground that there is drawn in question (1) the

construction and application of the Constitution

of the United States; (2) the construction or validity

of a treaty and (8) the constitutionality of a law of

the United States. The two lower courts having

arrived at opposite conclusions, giving rise to much

confusion and embarrassment in the enforcement

of the prohibition act, the necessity of a prompt

decision by this court is manifest.

THE FACTS IN CASE NO. 615.

Bill of complaint.

Hiram Walker & Sons (Ltd.), a corporation of the

Province of Ontario, brought its bill in the United

States District Court for the Eastern District of

Michigan to enjoin the collector of internal revenue

and the collector of customs for that district from

interfering with and preventing the shipment of

whiskey from its plant at Walkerville, Ontario. into

the port of Detroit for conveyance to other ports of

the United States to be there exported to points

outside the United States. (Ree. 1-11.)

The bill alleged that pursuant to section 3005 of

the Revised Statutes and Article XNIX of the treaty

of 1871 plaintifY has for many years conducted a

large and profitable business in the exportation of

whiskey through the United Staies to foreign coun-

tries; that in 1920 a total of 86,815 cases, ageregating

$700,982 in value, was exported in this way, with a

loss of only 286 cases of the value of $2,380: that if

plaintiff were compelled to convey its Whiskey to

Mexico, South and Central America otherwise than

in transit in bond through the United States, the

increased transportation costs and delay in deliveries

would greatly impair if not destroy its fore’en busi-

ness. (Ree. 3-4.)

That on February 14, 1921, plaintiff presented to

agents of the collector of customs at Detroit 25 cases

of whiskey to be conveyed in bond through the United

States to customers in Mexico; that defendant, col-

lector of customs, purporting to act under the Vol-

stead law, seized said shipment and still retains the

same; that on July 14, 1921, plaintiff notified agents

of defendant collector of customs that it desired to

make a further shipment of liquor through Detroit

to New Orleans, for transshipment by water to

Puerto Barrios, in Guatemala; that representatives

of the collector replied that such shipment on arrival

4

at the port of Detroit, would be seized unless plaintiff

should obtain a permit from the State prohibition

director; that such permit was duly applied for and

refused; and that plaintiff is informed and _ believes

that the defendant, collector of internal revenue,

acting as agent of the Commissioner of Internal

Revenue, under the Treasury Department’s inter-

pretation of the Volstead Act, will institute criminal

proceedings against plaintiff and its property offered

for export through the United States. (Ree. 4-7.)

The bill then avers that the eighteenth amendment

relates only to intoxicating liquors “for beverage

purposes”; that there is no provision either in the

eighteenth amendment or in the Volstead Act declar-

ing or making unlawful the conveyance of whiskey in

bond through the United States for export to foreign

countrics; that such conveyance is expressly author-

ized by section 3005 of the Revised Statutes and

Article XXIX of the treaty of 1871, and that if said

Volsteadl Act shall be construed so as to forbid or

prevent such conveyance in transit in bond “then

such const-uction would make such act unconstitu-

tional.” (Ree. 7.)

ihe praver is that both defendants be enjoined

from further interfering with the in-transit shipment

of whiskey from plaintiil’s plant through the United

States to foreign countries; that defendants be re-

quired to return to plaintiff the shipment of whiskey

seized as alleged and which they are now holding;

and that defendants be enjoined from enforce-

ing the provisions of the Volstead law against plaintiff

5

or its property on thé ground that the transportation

of whiskey in the manner described constitutes a viola-

tion of such law. (Ree. 10-11.)

A rule to show cause was issued and a temporary

restraining order granted (Ree. 12-14).

The answer.

Defendants thereupon answered, admitting sub-

stantially all allegations of fact set up in the bill,

but denying the conclusions of law as to the inter-

pretation of the eighteenth amendment and the

Volstead Act, and the applicability of section 3005

of the Revised Statutes and the Treaty of 1871 to

the transshipment of woiskey. (Ree. 16-18.)

In addition, the answer averred that the continued

transportation of whiskey through the United States

would result in a portion of said whiskey remaining

in the United States in violation of law due to

thefts and other unlawful withdrawals while in

storage and en route. Counsel stipulated that the

issues made by bill and answer were issues of law

which could be determined without the necessity of

taking proof; and further, “that. the whiskey in

controversy was and is intended for consumption as

beverage whiskey.”

The decision.

District Judge Tuttle, on final hearing, entered a

decree permanently enjoining the defendants in

accordance with the prayer of the bill. (Rec. 20-26.)

His opinion may be reduced to the following propo-

sitions: (1) That while, by a strict construction, the

—

6

Volstead Act in terms prohi>its the shipments under

consideration, yet under te doctrine of the Holy

Trinity Church Case, 143 U.S. 457, the court may look

beneath the words to the purpose and intendment of

the act; (2) that as the eighteenth amendment ex-

pressly relates to liquors intended ‘‘for beverage pur-

poses,”” and as Congress has expressed its intention

that the Volstead Act should he construed ‘to the end

that the use of intoxicating liquor as 2 beverage may

be prevented,” it follows that the underlying purpose

of the act was the prevention of the use of intoxi-

cating liquor as a beverage within the Uniied States;

(3) that the prohibition in the amendment and the

act against the “exportation” of intoxicating liquor

from the United States does not negative the inten-

tion thus attributed to Congress to confine their

application to the use of such liquor within the

United States; (4) that Congress passed the Volstead

Act with knowledge of the right to transship enjoyed

under existing acts and treaties, and the failure

expressly to repeal gives rise to an inference that

such right should continue; (5) that as repeals by

implication are not favored, the Volstead Act will

not be construed to have repealed section 3005,

Revised Statutes, if effect can be given to both; (6)

that for like reasons a treaty between the United

States and a foreign Government will not be regarded

as abrogated by a subsequent statute unless an

intention so to do is clearly and unequivocally indi-

cated; (7) that Article NXIX of the treaty of 1871

has not expired by limitation nor been expressly

abrogated; (8) that the contention that continued

7

shipments of whiskey through the United States

will result in unlawful removals and thefts is over-

come by the presumption that public officers will

faithfully perform their duty; and (9) that the express

exception in section 20, Title III, of shipments

through the Panama Canal and over the Panama

Railroad is not indicative of an intention to prohibit

all other “in transit” shipments. (Rec. 20-26: 275

Fed. 373.)

THE FACTS IN CASE NO. 639.

; Bill of complaint.

In this case The Anchor Line (Ltd.), a corporation

of Great Britain, engaged in the operation of steam-

ships from ports of the United KXingdom to ports of

Europe, Canada, and the United States, filed its bill

and amended bill in the United States District Court

for the Southern District of New York to prevent the

collector of customs from seizing, under the Volstead

Act, shipments of intoxicating liquors transported

by its steamers from foreign ports to the port of New

York for transshipment to other foreign ports. (Ree.

14-24.)

The amended _ bill alleges that plaintiff during

the past three years has transported large quan-

tities of wines and intoxicating liquors from Glas-

gow to the port of New York, where such liquors

were transshipped to vessels destined for the West

Indies and other countries outside the jurisdiction of

the United States, and that a substantial part of

plaintifi’s revenue is derived from the transportation

of such liquors. (Ree. 15.)

8

Section 3005 of the Revised Statutes and Article

XXIX of the treaty of 1871 are set up as in the

Walker case, and the same rights thereunder are

alleged. (Rec. 15, 17-18.)

It is further alleged that plaintiff has contracted

with a shipper in Glasgow to transport 25 cases of

whiskey from Glasgow to Hamilton, Bermuda; that

said whiskey has been shipped and is now in trans-

portation on the 8. 8S. Cameronia, on the high seas;

that such liquor is to be transshipped at New York

from the Cameronia to another vessel plying between

New York and Hamilton; and that defendant collec-

tor of customs, acting under the direction of the

Treasury Department, has threatened to seize and

forfeit said whiskey on arrival and has refused to

issue permits for transshipment in the port of New

York. (Ree. 18.)

Plaintiff is advised by counsel and _ therefore

avers that section 3005, Revised Statutes, has not

been impaired or repealed by the Volstead Act; that

the Volstead Act does not apply to the transship-

ment of liquors at ports of the United States in the

manner set forth in the bill; that the interpretation

given by the Attorney General and the ‘Treasury

Department to the effect that it applies to such trans-

shipments is erroneous; and that if the Volstead Act

purports to prohibit such transshipments it is uncon-

stitutional and void. (Rec. 16-17, 19-20.)

As in the Walker case, the prayer was that the

defendant collector be enjoined from enforcing the

provisions of the Volstead law against the plaintifi,

ats Papas eee SU EeeSEe AR ae SE ALR SN OR SS SO

9

and that he be enjoined from refusing plaintiff a per-

mit to transship liquors in accordance with section

3005 of the Revised Statutes. (Ree. 20.)

On July 22, 1921, an order was entered by the

District Court directing the United States marshal

on arrival of the S. 8. Cameronia to take into custody

for safekeeping the consignment of whiskey

men-

tioned in the bill of complaint. (Rec. 49.)

The answer.

Defendant filed a combined motion to dismiss and

answer which admitted the prine

fact but expressly denied that the treaty of 1871 was

still in effect and denied all conclusions of law pleaded

in the bill. (Ree. 24-30.)

For a separate and distinct defense defendant

alleged that the amount of liquor transshipped at the

port of New York during the past three years has

been large; that in all cases of such liquors arriving

by vessel the responsibility of the importing vessel

appears to cease forty-eight hours after landing of

the shipment or upon delivery to a Government

truckman or lighterman: that such liquors are fre-

quently to be exported by a vessel berthed at a

diferent dock and scheduled to sail sometimes

much as twelve days after the landing

ing vessel; that in some

ipal allegations of

as

of the import-

cases the dock from which

the exporting vessels sail is as much as six or seven

miles by land or water from the berth of the incom-

ing vessel; that in all cases there el]

of perhaps a day or more, and there

carriage by land or water or both

apses some time,

is involved some

, and that such

ay

10

lapse of time and necessity of carriage has subjected

such liquors to pilferage, loss, and other unlawful

disposition. (Ree. pp. 26-27.)

The answer further averred that both in cases of

importation by water and by rail there have been

heavy losses of intoxicating liquors destined for for-

eign countries, and that, on information and belief,

such liquors were purloined or stolen and ultimately

found their way into consumption for beverage pur-

poses in the United states. (fee. 27.)

Annexed to the answer as exhibits were schedules

prepared by the collector of customs showine in-

stances between July 1, 1919, and July 1, 1921, in

which losses occurred in consignments of liquor being

transshipped in New York between the time the coods

were landed and the time of their arrival on the ex-

porting vessel. (Ree. 27, 81-39.) Specific reference

was made of the theft of a barge containing 174 drums

of alcohol, of which only 29 drums were subsequently

recovered. (ee. 27.)

In addition, the answer averred that if plaintif’s

contention is correct, then it follows as a corollary

that any foreign vessel transporting liquor and bearing

clearance papers from one foreign port to another

may cruise at will in the territorial waters of the

United States, rendering, well-nigh impossible the

already difficult task of preventing the smuggling

of intoxicating liquor into the United States. (Ree.

29-30.) And in this connection the answer alleges,

on information and belief, that a large and profitable

business has been carried on -by American citizens

CF ER SIR BE Phe SOAPS TT REL

ll

with the object and result of importing liquor into

the United States in violation of law; that the vessels

employed by such persons are under British registry

and sail out of a British port in the Bahama Islands

with clearance papers for Halifax, another British

port; that one such vessel is now under seizure in New

York and that another recently was foreed into the

port of Philadelphia by stress of weather. (/d.)

The decision.

‘The case was heard by Circuit Judge Mayer

dismissed the plaintifi’s bill (Ree.

, who

06-57), holding:

(1) The national prohibition act taken literally ab-

solutely prohibits ihe transportation which plaintiff

finds necessary for its purposes; (2) the Congress

had plenary power to prohibit the transportation of

liquor for beverage purposes, even if intended for use

outside of the United States; (3) the

uct provides a

method by which intoxie:

iting liguors for nonbeverage

purposes may be transported, and the fact that the

transshipment of liquors is not included in the means

provided, indicates that Congress did not intend

exception ; (4) that the act, in line with the

ment, expressly forbids the ‘exportation’

cating liquors for beverage purposes; (

an

amend-

of intoxi-

3) the act in

this particular amounts to a practical construction of

the amendment to the effect that it absolutely de-

stroys all traflie in intoxicating liquors for beverage

purposes even though intended for use outside the

United States; (6) Congress had the right to set up

saleguards against the wrongful diversion of intoxi-

12

cating liquors; (7) section 3005 of the Revised Stat-

utes is of doubtful application, since it is a revenue

statute and exempts from customs duties merchan-

dise which otherwise would be dutiable, whereas the

shipments in question were not subject to duty,

could not have been imported, and the subject has

no relation to revenue; (8) while repeals by implica-

tion are not favored, where a later statute is plainly

inconsistent with a prior one, the latter necessarily

repeals the former; (9) section 3, Title II, of the

Volstead Act and section 3005 of the Revised Statutes

are inconsistent in terms, and to the extent that the

latter has any bearing on the case, it must be deemed

to have been repealed; (10) Presidents Cleveland and

Harrison having held that the treaty of 1871 was

abrogated, a court of first instance will not take a

contrary view.

CONSTITUTIONAL, STATUTORY, AND TREATY PRO-

VISIONS.

The applicable constitutional, statutory, and treaty

provisions are as follows:

The eighteenth amendment:

* * * the manufacture, sale or trans-

portation of intoxicating liquors within, the

importation thereof into, or the exportation

thereof from, the United States and all terri-

tories subject to the jurisdiction thereof, for

beverage purposes, is hereby prohibited.

Sec. 2. The Congress and the several States

shall have concurrent power to enforce this

article by appropriate legislation.

PEE EIA Se Rg RN Te yd CeO

13

Section 3 of Title ] I of the Volstead Act:

No person shall on or after the date when

the eighteenth amendment to the Constitu-

tion of the United States goes into effect

manufacture, sell, barter, transport, import,

export, deliver, furnish or possess any intoxi-

cating liquor except as authorized by this act,

and all the provisions of this act shall he

liberally construed to the end th

intoxicating liquor a

vented.

Liquor for nonbeverage purposes and wine

for sacramental] purposes may be manufact ured,

purchased, sold, bartered, transported, im-

ported, exported, delivered, furnished and

possessed, but only as herein provided, and

the commissioner may, upon application,

issue permits therefor: * * *. (Ch. 85, 41

Stat., pp. 308-309.)

Section 3005, Revised Statutes,

All merchandise wriving at any port of

the United States destined for any foreign

country, may be entered at the customhouse

and conveyed, in transit, through the terri-

tory of the United States without the pay-

ment of duties, under such regulations as to

examination and transportation as the Secre-

tary of the Treasury may prescribe.

Article XXIX of the tre:

concluded May 8, 1871,

at the use of

Sa beverage may be pre-

as amended:

ity with Great Britain

and proclaimed July 4, 1871:

It is agreed that, for the term of years

mentioned in Article XXXIII, of this ti

‘eaty,

goods, wares, or merchandise arriving at the

96689 22-_9

RLY Ion RUS es ed Oat

EWN Dipti ONAN NDS Ly as ete a ee

DOPE ee IE Pa SRG

14

ports of New York, Boston and Portland and

any other ports in the United States which

have been or may, from time to time, be

specially designated by the President of

the United States and destined for Her Brit-

annic Majesty’s possessions in North America,

may be entered at the proper customhouse,

and conveyed in transit, without the payment

of duties through the territory of the United

States, under such rules, regulations and

conditions for the protection of the revenue as

the Government of the United States may from

time to time prescribe; and under like rules,

reculations and conditions, goods, wares, or

‘merchandise may be conveyed in_ transit,

vithout the payment of duties, from = such

possessions through the territory of the United

States for export from the said ports of the

United States; and under like rules, regula-

tions, and conditions, goods, wares, or mer-

chandise may be conveyed in transit, without

the payment of duties, from such possessions

through the territory of the United States

for export from the said ports of the United

States. (Treaties, conventions, &e., vol. 1,

pp. 711-712, Senate Doc. No. 357, 61st Cong.,

2d sess.)

ASSIGNMENTS OF ERROR IN NO. 615.

The District Court erred:

1. In holding that the national prohibition act

does not forbid the transportation of intoxicating

liquor intended for beverage purposes, from Canada

to a foreign country, by transshipment, in bond,

through the United States.

—— scien imapeaneahes *

eg EL es iy er niles FOS EARP cs FAN TNS inhale, 20 bib De Ue Sai Fb Bh carat

15

2. In holding that the treaty between Great

Britain and the United States proclaimed July 4,

1871, was not abrogated by the adoption of the

eighteenth amendment to the Constitution and the

passage of the national prohibition act so far as said

treaty relates to liquors for beverage purposes.

3. In holding that said treaty was not abrogated

and terminated by the executive branch of the United

States prior to the adoption of the eighteenth amend-

ment to the Constitution of the United States and

the passage of the national prohibition act, so far as

said treaty relates to the transshipment of merchan-

dise from the British possessions to foreizn countries

and through the United States.

4. In holding that section 3005, Revised Statutes,

was not repealed by the national prohibition act so

far as said section pertains to intoxicating liquor for

beverage purposes.

5. In holding that the national prohibition act and

the regulations lawf ully promulgated thereunder, per-

mit the transportation of intoxicating liquor from

Canada to a foreien country, by transshipment in

bond, through the United States, under regulations

pursuant to the treaty aforesaid and section 3008,

Revised Statutes. (Printed in full, Rec. 28-31.)

Ae ee ee ae ee ek eh) a a Oe) senna -

16

ARGUMENT.

I.

THE EIGHTEENTH AMENDMENT AND THE NATIONAL PRO-

HIBITION ACT APPLY TO AND PROHIBIT THE TRANS-

SHIPMENT ' OF INTOXICATING LIQUORS FOR BEVERAGE

PURPOSES IN OR THROUGH THE UNITED STATES.

1. Such transshipments are within the very terms of

the amendment and act.—The eighteenth amendment

and section 3 of Title II of the Volstead Act ex-

pressly prohibit the “transportation” of intoxicat-

ing liquors within, the “importation” thereof into,

or the “exportation”’ thereof from, the United States

for beverage purposes.

In addition, the Volstead Act provides that no

b

person shall “ deliver,” “furnish,” or “ possess’’ any

intoxicating liquor ‘‘ except as authorized in the act.”

And further, that all provisions of the act “shall be

liberally construed to the end that the use of intoxi-

‘ating liquor as a beverage may be prevented.”

The transshipment of intoxicating liquor in and

through the United States necessarily involves “ im-

”»

porting,” “exporting,” “possessing,” “ transport-

ing,’ “furnishing,’’ and “delivering” such liquor.

The wording of the amendment and act, therefore,

plainly includes transshipment of intoxicating liquors,

as was conceded by counsel for Hiram Walker &

Sons (Ltd.) in the District Court. (Ree. No. 615,

p. 22.)

1 For convenience the word “transshipment” will be used to designate

both the transshipments at the port of New York involved in the Anchor

Line Case, No. 639, and the transshipments and ‘‘in transit” conveyances

involved in the Walker Case, No. 615.

17

Nowhere does the act expressly authorize such

transshipment or “in transit” conveyance of liquor;

therefore, under the very terms of the act they must

be deemed to be prohibited.

2. The plain object of the amendment and act was to

destroy all traffic in ordeal ing with intoxicating liquors.—

Counsel for complainants argue that the amendment

and statute have as their object the prohibiting of

the use of intoxicating liquor in the United States,

and that as the transshipment of liquor in and

through the United States does not directly con-

tribute to such use (a proposition which we do not

admit), it is not within their scope or spirit.

While the ultimate object is the prevention of the

use of intoxicating liquors, it is evident that the

immediate purpose is the destruction of all traffic in

or dealing with the interdicted commodities.

This follows from the language employed. Neither

the eighteenth amendment nor the prohibition act in

terms forbids the use of intoxicating liquors. As re-

cently pointed out by Mr. Justice McReynolds, they are

concerned merely with the incidents of ownership, such

asthe manufacture, sale, transportation possession, ete.

Street v. Lincoln Safe Deposit Co., 254 U.S. 88, 95.

The reason for this is that in dealing with a situa-

tion such as the liquor evil by constitutional amend-

ment or legislation, a more effective method of eradi-

cating it is by preventing the means by which it

comes into being, than by direct inhibitica on the use.

Had the eighteenth amendment and the Volstead

Act provided simply an inhibition on the use or

18

consumption of intoxicating liquors, there might be

room for the contention that such inhibition did not

extend to the possession or transportation of liquor

not intended for beverage use in the United States.

But such was not the language employed.

The truth of the matter is that both the amend-

ment and the statute have for their immediate pur-

pose the suppression of all traffic in or dealing with

intoxicating liquor within the United States. The

ultimate object of such suppression is, of course,

elimination of the use of intoxicants; but the amend-

ment and the act are actually concerned with the

means rather than the end.

38. The amendment and the act clearly were in-

tended to prohibit the possession or transportation of

liquor for beverage purposes, whether for consump-

tion within the United States or without.—When the

Volstead bill was under consideration in the Senate,

there was added an amendment, now section 20,

Title III, making it unlawful to import or introduce

into the Canal Zone, or to manufacture, sell, trans-

port, possess, etc., liquor within the Canal Zone.

(58 Cong. Rec. 4895.) The amendment contained

the following proviso:

Provided, That this section shall not apply

to liquor in transit through the Panama

Canal or on the Panama Railroad. (41,

Stat. 322.)

It is impossible to understand why this proviso

was made to section 20, Title III, while no similar

clause was added to section 3, Title IJ, if Congress

enn tee a) ew P Reed WHA Lia — — ~ SOR

Ride

19

really intended to exempt from the latter the trans-

shipment of liquors. The rule expressio unius est

exclusio alterius applies.

Again, both the eighteenth amendment and the

prohibition act expressly prohibit the exportation of

intoxicating liquors from the United States. Such

prohibition is inconsistent with an intention to re-

strict their application to liquors intended for con-

sumption in the United States,

The conclusion of the District Court in No. 615

(Ree. 24-25) to the effect that this provision is without

significance for the reason that “ exportation” neces-

sarily comprehends manufacture within the United

States, in violation of law, robs the provision of all

meaning and is untenable.

The manufacture of intoxicating liquors was ex-

pressly forbidden by the Volstead Act, and had been

prohibited for some time prior thereto by war-time

legislation. The provision in said act against ex-

portation can not, therefore, be restricted to liquors

manufactured in violation of law. ‘The provision

relates to all exportations of liquor, whatever the

circumstances attending its manufacture.

At the time the Volstead Act was passed there

was stored in bonded warehouses many millions of

gallons of distilled spirits manufactured in this

country strictly in accordance with law. (See opinion

of this Court ix: Hamilton vy. Kentucky Distilleries,

251 U.S. 146, 158, footnote.) In spite of the urgent

pleas of the owners, Congress, in passing the Vol-

—

: 20

stead Act, absolutely prohibited the exportation of

this surplus.

This liquor was bonded, tagged, and labeled and

could have been exported with no greater risk of

loss than attends the “in transit”? shipment of for-

eign liquor. But Congress forbade the exportation

of this legaily acquired liquor and it could have

been led to that decision only through apprehension

of the inevitable losses and diversions to unlawful

usage attendant upon the transportation to sea-

board.

It is hard to believe that Congress would prohibit

American citizens from exporting valuable stocks of

lawfully acquired liquor and at the same time allow |

aliens to flood the ports of the United States with _

liquor, and to transport large quantities thereof

clear across the country, when the chances of loss

by theft are no greater in the one case than in the

other.

Or, assume two competing distillers on opposite

sides of the Canadian border. Is it reasonable to

suppose that Congress intended to say to the American

distiller that his stock of lawfully acquired liquor must

be kept in his warehouse and at the same time allow

the Canadian distiller to transport his liquor at will

past the American’s door bound for Mexico and other

foreign countries?

The inclusion in the amendment and the act of the

ban on exportation conclusively points to the abso-

lute prohibition of ail transportation.

a.

21

4. The proceedings in Congress evidence the legis-

lative intention to prohibit all possession and all

transportation except as specifically authorized.—The

proceedings and debates attending the passage of the

Volstead Act show that it was the earnest desire of a

remarkably unanimous Congress to prohibit abso-

lutely all methods of dealing with intoxicating liquors

which experience had shown might lead to their

diversion to heverage purposes.

Section 3 of Title II, being the omnibus section of

the act, received special attention in both Houses of

Congress. There was considerable opposition to the

inclusion of the word “possess” in this section. For

instance, Congressman Gard, of Ohio, in speaking of

this section, said (58 Cong. Rec. 2449) :

When we considered this section we had the

word “‘use’’ after the word ““possess.”” The

word “‘use’’ has been stricken out and the

word *‘‘possess” should be stricken out. The

words “furnish” and “receive” in my opinion

should he stricken out unless. this House

intends to write a bill so drastic as to make it

appear in the eyes of the people of the United

States that there is nothing in it except a bill

of absolute prohibition.

But the word “‘possess”’ was retained by the con-

ference committee and its retention was thought of

such importance that the Senate conferees in their

report (8. Rep. 151) justified it at considerable

length:

The committee in the House struck out the

word “use” after “possess” and retained the

EG AE NTR Pea eta he PET SO hes ET ae

—

22

”?

word ‘‘possess’”’ for good reasons. * * *

These provisions are of the greatest impor-

tance to the officer who wants to enforce the

law. They are based on experience in the

States. If individuals are permitted to pos-

sess intoxicating liquor for beverage purposes

outside the home, officers of the law are con-

stantly embarrassed in their efforts to enforce

the law. It is always a question whether the

individual has the liquor legally or otherwise.

* #* * The strongest weapon that Congress

can put into the hands of faithful law-enforce-

ment officials will be a provision in this en-

forcement code to prohibit the possession

of intoxicating liquor for beverage purposes,

except as specificaily provided for in the act.

[Italics ours.] .

In order to strengthen this provision against the

‘“‘possession”’ of intoxicating liquor, section 33, Title

II, was placed in the law, making possession ‘‘ prima

facie evidence that such liquor is kept for the pur-

pose of being sold, bartered, exchanged, given away,

furnished, or otherwise disposed of in violation of the

provisions of this title” (41 Stat. 317).

The transshipment or ‘‘in transit’? conveyance of

intoxicating liquor necessarily involves the ‘‘ posses-

sion” of such liquor as well as its ‘‘transportation.”

As shown by the opinion of District Judge Tuttle,

this was conceded by opposing counsel in the Walker

case in the court below (Rec. No. 615, p. 22; 276

Fed. 373, 376):

It is clear enough, and is, I understand,

conceded by the plaintiff, that under a strict

aia Rea a Link. 28 an ARR LORENA. iene te A) eae eee Eee er eee

23

construction of the language of the statute,

the latter is sufficiently broad in its terms to

prohibit the shipments under consideration,

since it is undoubtedly necessary, in order to

make such shipments, to both ““possess”’ and

“transport” intoxicating liquor within the

United States.

As regards the word “transportation,” it was

practically the unanimous opinion of both Houses

that all transportation of intoxicating liquors should

be prohibited except in such cases as might be

specially provided for. An examination of the de-

bates discloses no instance of anyone questioning the

inclusion of this word.

It is noteworthy that all of the amendments pro-

posed for the evident purpose of weakening the law,

while they omitted other provisions contained in

the bill as passed, invariably included the prohibi-

tion against transportation. Thus, Congressman

Igoe, leader of the opposition, moved that the bill

be amended by striking out all after the enacting

clause and that there be substituted a provision for

punishing by fine of $500 or imprisonment for one

year “anyone who shall knowingly manufacture,

sell, or transport within the United States, or import

into the United States, or export from the United

States, any intoxicating liquor.” (58 Cong. Ree.

2976.) This persuasively indicates that it was the

unanimous view of Congress that all transportation

of liquor should be banned.

a

24

The legislative intent further appears from the

provisions of sections 13 to 16 of Title II which

subject carriers to the most stringent regulations in

respect of the transportation of liquor under the

permissive sections of the act. It seems incredible

that the Congress which made such rigid provisions

against evasion of the law through permissive trans-

portation would have left without restrictions im-

posed in the act the great business of transshipping

liquor at the ports of the United States and the con-

veying of it through the United States.

5. The language of the amendment and act being

plain, resort may not be had to construction to read out

what is clearly included.—The recent decisions of this

court are unanimous to the effect that where the

language of a statute is plain and unambiguous,

it can not be divested of its obvious meaning by

resort to construction. Hamilton v. Rathbone, 175

U. 8S. 414, 421; United States v. Lexington Mill &c.

Co., 232 U. S. 399, 409-10; Adams Express Co. v.

Kentucky, 238 U. 8. 190, 199; Caminetti v. United

States, 242 U. S. 470, 485; Thompson v. United

States, 246 U. S. 547, 551.

In Thompson v. United Siates, supra, the court

said:

The intention of Congress is to be sought for

primarily in the language used, and where

this expresses an intention reasonably intel-

ligible and plain it must be accepted without

modification by resort to construction or

conjecture.

Pike bi SS CREATES, RTL AP Pee dd OE

a.

25

And in Caminetti v. United States, supra, an ex-

treme case, the court characterized the rules as “ele-

mentary,” saying:

It is elementary that the meaning of a

statute must, in the first instance, be sought in

the language in which the act is framed, and

if that is plain, and if the law is within the con-

stitutional authority of the law-making body

which passed it, the sole function of the courts

is to enforce it according toits terms. * * *

Where the language is plain and admits of

no more than one meaning, the duty of inter-

pretation does not arise and the rules which

are to aid doubtful meanings need no dis-

cussion.

The case of Holy Trinity Church v. United Slates,

143 U.S. 457, and other cases relied on by plaintiffs,

to the effect that under certain conditions courts will

look beyond the letter of a statute to give effect to the

obvious spirit and intent, have no application. In

the Holy Trinity case this court held that the alien

contract labor law did not apply to a contract

between the Rev. EF. Walpole Warren, an Englishman,

and the Church of the Holy Trinity, a religious society

incorporated under the laws of a State, whereby the

former engaged to remove to the United States and

enter into the service of the latter as rector. The

conclusion was obvious and irresistible, and the case

has gained prominence mainly because of the learned

opinion by Mr. Justice Brewer. In that case, and

in the others cited, the results which would follow

from giving literal effect to the statutes involved

26

would have been absurd, bordering on grotesque.

Indeed, the cases are scarcely less far-fetched than

the historic instances from Puffendorf and Plowden,

cited by Mr. Justice Brewer.

Neither have the cases of United States v. Gudger,

249 U.S. 373, and Sireet v. Lincoln Safe Deposit Com-

pany, 254 U.S. 88, any bearing. The former arose

under the Reed amendment (act of March 3, 1917,

39 Stat. 1058, 1069), making unlawful the trans-

portation of liquor “into any State or Territory the

laws of which * * * prohibit the manufacture,”

etc., of liquor. The defendant was a passenger on a

railroad train bound from Baltimore, Md., to Ashe-

ville, N.C., traveling on a through ticket. While the

train was temporarily stopped at Lynchburg, Va., he

was arrested, his baggage examined, and whiskey

found. Although he had no intention of leaving

the train at Lynchburg or elsewhere in Virginia, he

was indicted for transporting liquor “into” Vir-

ginia in violation of law. ‘This court affirmed the

judgment of the District Court in quashing the indict-

ment, saying (pp. 374-375) :

* * * we think the court was clearly

right in quashing the indictment, as we are of

opinion that there is no ground for holding

that the prohibition of the statute against

transporting liquor in interstate commerce

“into any State or Territory the laws of which

State or Territory prohibit the manufacture,”

etc., includes the movement in interstate com-

merce through such a State to another. No

elucidation of the text is needed to add

pee tee eerste er ercenonerne mene cnemenecr eames aumen ern ememmnnseniiaiill

27

cogency to this plain meaning, which would

however be reinforced by the context if there

were need to resort to it, since the context

makes clear that the word “into,” as used in

the statute, refers to the State of destination,

and not to the means by which that end is

reached, the movement through one State as

a mere incident of transportation to the State

into which it is shipped.

The Reed amendment, unlike the nation

hibition act, did not prohibit transport

ally, but only transportation into a partic

al pro-

ation gener-

ular territory,

and the court simply gave effect to the plain wording

of the statute. The principle applied is the one con-

tended for herein, and if applied in the instant cases

will inevitably result in a holding that the shipments

in question are violative of the prohibition law.

In Street v. Lincoln Safe Deposit Co. the owner of

liquors lawfully acquired for personal consumption

had stored them in a warehouse where, as alleged

and admitted, they were in his “exclusive possession

and control.’ Section 33 of the Volstead Act ex-

pressly authorizes the possession of liquors lawfully

acquired in one’s private dwelling house for personal

consumption. The court held (1) that the ware-

house keeper might permit such storage of liquors to

continue after the effective date of the prohibition

act; (2) that the warehouse owner did not unlawfully

“possess” the liquors. in violation of section 3 of

Title II; and (3) that the act did not prohibit the

transportation of the liquors from the warehouse to

28

the home of the owner, under permit from the

Bureau of Internal Revenue.

The ground of decision, as explained in the later case

of Corneli v. Moore (No. 174), decided January 30, 1922,

was that by the admissions of the pleadings the

liquor in question was “in the exclusive possession

and control” of the owner, and the storage room

“was obviously the use of a convenience very com-

monly employed and contributory to his dwelling.”

The court merely gave preference to a liberal inter-

pretation of one of the permissive provisions of the

act over a construction which would have resulted in

the confiscation of liquors lawfully acquired. ‘The

difference between such a_ situation and _ that

involved in the instant cases, where no permissive

section is involved, is indicated by the following

excerpt from the opinion (p. 93):

That transportation of the liquors to the

home of appellant, under the admitted cir-

cumstances, is not such as is prohibited by

the section is too apparent to justify detailed

consideration of te many provisions of the

act inconsistent with a construction which would

render such removal unlauful * * *, (Ltalies

ours.)

It is clear that this case has no bearing on the cases

at bar; and it has been so narrowed and _ restricted

in the later case of Corneli v. Moore as to have no

application beyond its peculiar facts.

6. The prohibition on transshipments will not be

read out of the act on the ground that as applied to such

7 er

= wat as Jail ” J. Ae BP ARWSP ae ie SOE NE I

r a any “ Piatt RAR Oar NA alt Sa hw zs Aut

JS Pepe ie ate eine ss

29

transshipments it has extraterritorial effect—It is

argued that the national prohibition act if construed

to forbid the transshipment in the United States of

liquor in course of transportation from one country

to another will give the act an extraterritorial effect,

in that it will operate not merely to prevent the use

of liquors in the United States but will extend its

effect beyond the territorial limits of the United

States, and that, as Congress can not be presumed to

have intended such result, the law should not be so

construed.

Unlike American Banana Co. v. United Fruit Co.,

213 U.S. 347, cited by the plaintiff in No. 615, there

is involved in the present cases no attempt to apply

the laws of the United States to acts committed in a

foreign country. ‘The thing prohibited is the pos-

session or transportation of intoxicating liquor “ with-

in the United States.”

A like contention was rejected by this court in

Strathearn S. S. Co. vy. Dillon, 252 U. S. 348. ‘The

statute there under consideration was section 4 of the

seaman’s act of March 4, 1915, ch. 153, 38 Stat. 1164,

providing (1) that every seaman on a vessel of the

United States shall be entitled to receive on demand

from the master one-half of the wages which he shall

then have earned, at every port where such vessel,

after voyage has been commenced, shall load or

deliver cargo before the voyage is ended; (2) that all

stipulations in the contract of employment to the

contrary shall be void; and (3) that the section shall

96589 —23 3

“0

apply to seamen on foreign vessels while in harbors

of the United States.

It was contended that the provision must be con-

fined either (1) to American seamen or (2) to forei¢n

seamen serving under contracts entered into in ports

of the United States, since otherwise it would have

the effect to invalidate contracts of employment en-

tered into in foreign countries and valid where made,

and would in effect amount to an attempt to regulate

the making of such contracts outside the territorial

limits of the United States. ‘This court replied that

the act merely regulated the relation of master and

servant while a foreign vessel was in American har-

bors; that submission to such regulations Was a condi-

tion precedent to the right to enter our ports, and

that the imposition of such condition was within the

constitutional authority of Congress.

‘the reasoning of the opinion is plainly applicable

to the cases at bar.

Il.

THE NATIONAL PROHIBITION ACT IN ITS APPLICATION

TO THE TRANSSHIPMENT OF INTOXICATING LIQUOR

FOR BEVERAGE PURPOSES IS CONSTITUTIONAL AND

VALID

1. Fallacy of plaintiffs’ contention.—The ahove

proposition appears to have been conceded by

counsel in the Walker Case in the District Court (Ree.

No. 615, p. 22); and although contested in the

Anchor Line Case the point was not accorded serious

attention (Rec. No. 639, pp. 50-56).

The argument appears to run: (1) That the pur-

pose of the eighteenth amendment is to prohibit

31

the manufacture, sale, transportation, ete., of intoxi-

cating liquor for beverage purposes within the United

States; (2) that the prohibition act if construed to

apply to the transshipment of liquor in and through

the United States will prohibit the transportation

and possession of liquor for beverage purposes ouf-

side the United States; (3) wherefore, the act. is

broader than the amendment and beyond the power

of Congress to enact.

The fallacy of this argument, as well as of com-

plainants’ argument in reference to the construc-

tion of the act, consists in limiting the operation

and effect of the eighteenth amendment to a purpose

hot expressed therein. As we have seen (supra p. 12),

the eighteenth amendment prohibits absolutely the

transportation of intoxicating liquors (1) “within

the United States,” (2) “for beverage purposes.”

This juxtaposition demonstrates that the words

“within the United States” define the place where

the forbidden act may not take place, and that they

do not relate to or qualify the words “for beve ‘age

purposes.”

But accepting, arguendo, the premise, the con-

clusion does not follow, because—

2. Congress in legislating for the enforcement of

the eighteenth amendment may provide all means rea-

sonably necessary effectively to suppress the prohibited

acis.—It is the settled doctrine of this court (1)

that Congress in legislating within its constitutional

sphere for the suppression of a particular evil may

provide all means reasonably necessary to effectuate

32

the legislative will; and (2) that where the means

provided has some reasonable relation to the evil

at which the legislation is aimed the court will not

substitute its judgment for that of Congress as to

the necessity or advisability of the means.

This proposition is sustained by a principle of

constitutional construction announced in \JeCulloch

v. Maryland, 4 Wheat. 316, 421, 423, and ever

since adhered to. The principle was thus stated in

Powell v. Pennsylvania, 127 U. 5. 678, 685:

The power which the legislature has to pro-

mote the general welfare is very great, and the

discretion which that department of the Gov-

ernment has, in the employment of means to

that end, is very large. While both its power

and its discretion must be so exercised as not

to impair the fundamental rights of life, lib-

erty, and property; and while, according to the

principles upon which our institutions rest,

“the very idea that one man may be compelled

to hold his life, or the means of living, or any

material right essential to the enjoyment of

life, at the mere will of another, seems to be

intolerable in any country where freedom pre-

vails, as being the essence of slavery itself”;

yet “in many cases of mere administration the

responsibility is purely political, no appeal

lying except to the ultimate tribunal of the

public judgment. Aye

Applying the principle to that case it was held

that the courts would not override the legislative

judgment that the protection of the public health

quyeccratnenns — _

SAGE ke ge a Se nN a i en et ese

33

required not merely that the manufacture of oleo-

margarine be so regulated as to exclude noxious

ingredients, but prohibited altogether; that the

legislature had this choice of means.

In Otis v. Parker, 187 U. §. 606, 608, 609, it was

held that in order to Suppress gambling in corporate

stocks the legislature may avoid all contracts for the

sale of such stocks on margin, whether only a settle-

ment of price differences or a bona Jide acquisition of

the stock is contemplated.

Similarly in Public Clearing House v. Coyne, 194

U.S. 497, it was held that in preventing the use of

the postal service in aid of lutteries and fraudulent

enterprises Congress is not confined to excluding

matter relating to such enterprises but may prohibit

the transmission or delivery of all matter sent by or

addressed to persons participating therein.

A leading case on the subject is Purity Extract Co.

v. Lynch, 226 U.S. 192, in which it was held that a

State legislature, in order to make effective its pro-

hibition of the use of malt liquor might include

within the prohibition wholly innocuous beverages.

Mr. Justice Hughes, speaking for the court, said

(p. 201):

It is also well established that, when a

State exerting its recognized authority under-

takes to suppress what it is free to regard as

a public evil, it may adopt such measures

having reasonable relation to that end as it

may deem necessary to make its action

effective. It does not follow that because a

»

oe

transaction separately considered is innocuous

it may not be regarded as essential in the

legislative judgment to accomplish a purpose

within the admitted power of the Government.

That case was followed in Ruppert v. Caffey, 251

U.S. 264, in upholding the power of Congress, under

the war power, to prohibit the manufacture of all

malt gor vinous liquors containing as much as one-half

of one per centum of alcohol by volume, even though

they be not in fact intoxicating.’

In view of the instances cited, who will say that

the prohibition of the possession or transportation

within the United States of liquors for beverage pur-

poses, even though intended for consumption outside

the United States, has no reasonable relation to the

prevention of the use of such liquors within the

United States?

3. Because of their noxious qualities all traffic in or

dealing with intoxicating liquor may be absolutely

suppressed.—It can not be supposed that the power

conferred by the eighteenth amendment on Congress

and the States to suppress the use of intoxicating

liquors is not as great as the power theretofore pos-

sessed by the States to legislate on the subject.

Therefore, the many cases upholding the very drastic

prohibition laws of the States are in point. It will

suffice to quote from only one of these, Crane v.

Campbell, 245 U. 8. 304, 307-308, in which this

See, also, The Slaughter House Cases, 16 Wall. 36; Knoxville Iron Co. v.

Harbison, 183 U. S. 13; Booth v. Illinois, 184 U. S. 425; Silz v. Hesterberg,

211 U. S. 31; Delaware, Lack. & West. R. R. Co. v. United States, 231 U. 8.

363, 370; Houston v. St. Louis Packing Co., 249 U. S. 479; Brougham v.

Blanton, 249 U. S. 495.

o>

vv

court upheld a statute of the State of Idaho punishing

the possession of intoxicating liquor for personal use:

It must now be regarded as settled that on

account of their well-known noxious qualities

and the extraordinary evils shown by experi-

ence commonly to be consequent upon their

use, a State has power absolutely to prohibit

manufacture, gift, purchase, sale, or transpor-

tation of intoxicating liquors within its bor-

ders without violating the guarantees of the

fourteenth amendment. * * *

As the State has the power above indicated

to prohibit, it may adopt such measures as are

reasonably appropriate or needful to render

exercise of the power effective. * * * And,

considering the notorious difficulties always

attendant upon efforts to suppress trafiie in

liquors, we are unable to say that the chal-

lenged inhibition of their possession was arbi-

trary and unreasonable or without proper

relation to the legitimate legislative purpose.

We further think it clearly follows from our

numerous decisions upholding prohibition leg-

islation that the right to hold intoxicating

liquors for personal use is not one of those fun-

damental privileges of a citizen of the United

States which no State may abridge. A con-

trary view would be incompatible with the

undoubted power to prevent manufacture,

gift, sale, purchase or transportation of such

articles—the only feasible way of getting at

them. An assured right of possession would

necessarily imply some adequate method to

obtain not subject to destruction at the will of

the State.

36

Ill.

PLAINTIFFS HAVE NOT BY PROPER ALLEGATIONS

BROUGHT THEMSELVES WITHIN ARTICLE XXIX OF THE

TREATY WITH GREAT BRITAIN PROCLAIMED JULY 4,

1871; BUT IN ANY EVENT SAID ARTICLE HAS BEEN

ABROGATED.

1. Neither plaintiff has alleged facts bringing it

within Article X X 1X .—Said article, as we have seen

(supra, p. 13), provides that—

goods, wares, and merchandise arriving at the

ports of New York, Boston, and Portland and

any other ports of the United States which have

been or may, from time to time be specially

designated by the President of the United States

and destined for Her Britannic Majesty’s pos-

sessions in North America, may be entered at

the proper customhouse, and conveyed in

transit, without the payment of duties, through

the territory of the United States;—

and that in like manner—

goods, wares, and merchandise may be con-

veyed in transit, without the payment of duties,

from such possessions through the territory of

the United States for export from the said ports

of the United States. [Italics ours.]

In No. 615 Hiram Walker & Sons (Ltd.), alleges

interference with two shipments, viz, one from

Walkersville, Ontario, to the port of Detroit, and

thence through the territory of the United States to

customers in Mexico, and another from Walkersville

to Detroit and from Detroit to New Orleans for export

to Guatemala. Yet nowhere in its petition does the

plaintiff allege that the ports at which the shipments

37

were to he exported were “specially designated by

the President of the United States” in accordance

with the provisions of the article.

Again, it is clear that the language of the article,

providing that goods, wares, and merchandise may

“be conveyed in transit” “through the territory of

the United States,” relates to the transportation of

such goods from one port to another and not merely

to transshipments in a single port as alleged by

the Anchor Line in No. 639.

It is submitted, therefore, that neither plaintiff has

set up any rights under the treaty.

2. The abrogation of Article XXIX was effected by

Act of Congress.—Article XXIX as we have seen pro-

vides that it shall be in effect for the term of years

mentioned in Article XX XIII (supra, p. 18).

Article XX XIII, reads as follows:

The foregoing Articles XVIII to XXV, in-

clusive, and Article XXX of this treaty shall

take effect as soon as the laws required to

carry them into operation shall have been

passed by the Imperial Parliament of Great

Britain, by the Parliament of Canada, and by

the Legislature of Prince Edward Island on

the one hand, and by the Congress of the United

States on the other. Such assent having been

given, the said articles shall remain in force

for the period of ten years from the date at

which they may come into operation; and

further until the expiration of two years after

either of the high contracting parties shall have

given notice to the other of its wish to ter-

minate the same; each of the high contracting

——

38

parties being at liberty to give such notice to

the other at the end of the said period of ten

years or at any time afterward.

Articles I to XVII, inclusive, provide for the set-

tlement of the Alabama claims and for claims of

British subjects against the United States; Articles

XVIII to XXV, inclusive, and Article XXX relate to

fisheries; Articles XXIX and XXXIIT have been set

out above and the remaining articles cover miscella-

neous matters such as the use of waterways, arbitra-

tion of boundaries, ete.

On March 1, 1873, Congress passed an act entitled,

“An act to carry into effect the provisions of the

treaty between the United States and Great Britain

signed in the city of Washington the eighth day of

May, eighteen hundred and seventy-one, relating to

fisheries.”’

Section 3 of this act, giving effect to Article XXIX

of the treaty, is as follows:

That from the date of the President’s

proclamation authorized by the first section

of this act, and so long as the articles eighteenth

to twenty-fifth, inclusive, and articles thirtieth of

of said treaty, shall remain in force, according

to the terms and conditions of article thirty-third

of said treaty, all goods, wares or merchandise

arriving at the ports of New York, Boston,

and Portland, and any other ports in the

United States which have been, or may, from

time to time, be, specially designated by the

President of the United States, and destined

for Her Britannic Majesty’s possessions in

39

North America, may be entered at the proper

customhouse and conveyed in transit, without

the payment of duties, through the territory

of the United States, under such rules, regula-

tions, and conditions for the protection of the

revenue as the Secretary of the Treasury may,

from time to time, prescribe; and, under like

rules, regulations, and conditions, goods, wares,

or merchandise, may be conveyed in transit,

without the payment. of duties, from such

possessions, through the territory of the

United States, for export from the said ports

of the United States. (17 Stat. 482.) [Italics

ours. ]

This section was incorporated in the Revised

Statutes as section number 2866.

On March 3, 1883, Congress passed a joint resolu-

tion entitled, “Joint resolution providing for the

termination of articles Numbered XVIII to XXYV,

inclusive, and Article Numbered XXX of the treaty

between the United States of America and Her

Britannic Majesty concluded at Washington May 8,

1871. (22 Stat. 641.)

The resolution provided for the giving of notice of

the abrogation of the articles of the treaty named in

the title, and no others. Section 3 contained the

following provision:

And the act of Congress approved March 1,

A. D. 1873, entitled * * * go far as it re-

lates to the articles of said treaty so to be ter-

minated, shall be and stand repealed and be of

no force on and after the time of the expiration

of said two years.

SRT ene idm guite

a

40

By proclamation of January 21, 1885, President

Arthur gave notice that Articles XVIII to XXV, in-

clusive, and Articles XXX and XXXII will expire on

July 1, 1885. (23 Stat. 841.)

As noted, the act of March 1, 1873, giving effect to

the various provisions of the treaty, limits the opera-

tion of Article X XIX to the life of Articles XVIII to

XXV and Article XXX, and constitutes a legislative

interpretation of Article XXXIII as it relates to

Article X XIX; if not this, it is a legislative limitation

of the article which governs.

Section 3 of the act of 1873, giving effect to Article

XXIX (Section 2866, R.S.), expired by self-limita-

tion on the abrogation of Articles XVIII to XXV

and XXX, and there is, therefore, no legislation in

force to give effect to this Article.!| The observations

of this court in Foster v. Neilson, 2 Pet. 253, 314, are

pertinent:

* * * QOur Constitution declares a treaty

to be the law of the land; it is, consequently,

to be regarded by courts of justice as equiva-

lent to an act of the legislature, whenever it

operates .of itself, without the aid of any

legislative provision. But when the terms

of the stipulation import a contract, when

either of the parties engage to perform a par-

ticular act, the treaty addresses itself to the

political, not the judicial, department, and the

legislature must execute the contract before it

can become a rule for the court.

3. Presidents Cleveland and Harrison have declared

Article X XIX terminated.—President Cleveland, in

1 See editorial note, Compiled Statutes, 1916, vol. 6, page 6667.

el

41

a message to Congress dated August 23, 1888, re-

questing legislative action con ferring upon the Execu-

tive power to suspend by proclamation the operation

of all laws and regulations permitting the transit of

goods, wares, and merchandise in bond across or Over

the territory of the United States to or from Canada,

as a retaliatory measure against grievances suffered

by Americans at the hands of British subjects in

Canada, reviewed the provisions of the treaty and

legislation as to Article XXIX, and stated his opinion

that this article terminated the Ist day of July, 1885.

The President said:

I am of opinion that the “term of years

mentioned in Article XXXII,” referred to

in Article XXIX as the limit of its duration,

means the period during which Articles XVITI

to XXV, inclusive, and Article XXX, com-

monly called the “fishery articles,” should

continue in force under the language of said

Article XXXITI.

That the joint high commissioners who

negotiated the treaty so understood and in-

tended the phrase is certain, for in a state-

ment containing an account of their negotia-

tions, prepared under their supervision and

approved by them, we find the following

entry on the subject:

“The transit question was discussed, and

it was agreed that any scttlement that might

be made should include a reciprocal arrange-

ment in that respect for the period for which

the fishery articles shouid be in force.”

In addition to this very satisfactory evi-

dence supporting this construction of the

42

language of Article XXIX it will be found

that the law passed by Congress to carry the

treaty into effect furnishes conclusive proof

as to the correctness of such construction.

This law was passed March 1, 18738, and is

entitled “An act to carry into effect the pro-

visions of the treaty between the United States

and Great Britain signe} in the city of Wash-

ington the 8th dav of May, 1871, relating to

the fisheries.”” After providing in its first and

second sections for putting in operation. Articles

XVII to XXV, inclusive, and Article XXX

of the treaty, the third section is devoted to

Article X XIX, as follows: “See. 3. That from

the date of the President’s proclamation au-

thorized by the first section of this act, and

so long as the articles eighteenth to twenty-

fifth, inclusive, and article thirtieth of said

treaty shall remain in force according to the

terms and conditions of article thirt:-third of

said treaty, all goods, wares, and merchandise,

arriving,’ etc., ete., following in the re-

mainder of the section the precise words of the

stipulation on the part of the United States as

contained in Article XNXIX, which I have

already fully quoted.

Here, then, is a distinct enactment of the

Congress limiting the duration of this article

of the treaty to the time that Articles XVII

to XXV, inclusive, and Article XXX should

continue in force. ‘That in fixing such limita-

tion it but gave the meaning of the treaty itself

is indicated by the fact that its purpose is

declared to be to carry into effect the provisions

of the treaty, and by the further fact that this

PERIE LE IE VIE EEE V LE POLITE IIE INIA SEA IT AIR ARSE SPA BERD PORE EN —

43

law appears to have been submitted hefore the

the promulgation of the treaty to certain

members of the joint high commission repre-

senting both countries, and met with no ob-

jection or dissent.

After considering the effect of the act of March 1,

1873, the President continued:

There appearing to be no confiiet or in-

consistency hetween the treaty and the act

of Congress last cited, it is not necessary to

invoke the well-settled principle that in case

of such conflict the statute governs the

question.

In any event, whether the law of 187:

construes the treaty or governs it, section 29

of such treaty, IT have no doubt, terminated

with the proceedings taken hy our Govern-

ment to terminate Articles XVIII to XXYV,

inclusive, and Article XXX of the treaty.

* * * * *

If by any language used in the joint resolu-

tion it was intended to relieve section 3 of the

act of 1873, embodying Article XXIX of the

treaty from its own limitations, or to save

the article itself, I am entirely satisfied that

the intention miscarried. (Messages and Pa-

pers of Presidents, Richardson, vol. 8, pp.

| 620, 624, 625.)

President Harrison, in a message to Congress under

date of February 2, 1893, in response to a resolution

of the House requesting information as to regula-

tions concerning the transportation of imported mer-

chandise in bond, etc., took the same view as to Article

XXIX as his predecessor.

a

44

After reviewing the provisions of the treaty, and

the legislation under it, and quoting from the message

of President Cleveland, cited above, President Har-

rison said:

Section 3 of the law of 1873, which I have

quoted, however, contains a legislative con-

struction of Article XXIX of the treaty in the

limitation that the provisions therein con-

tained as to the transit of goods could con-

tinue in force only so long as Articles XVIII

to XXV, inclusive, and XXX of the treaty’

should remain in force.

* * * * x

* * * The enactment of section 3 of the

act of 1873 was a clear declaration that legis--

lation was necessary to put Article XXIX of

the treaty in operation, and that under the

treaty our obligation to provide such legisla-

tion terminated whenever Articles XVIII to

XXV and XXX should be abrogated. The

legislation was accepted by Great Britain as a

compliance with our obligations under the

treaty. No objection was made that our

statute treated Article XXIX as having force

only so long as the other articles named were

in foree.

sic arris 1en consider 1e Opinio

President Harrison then considered tl ns

which had been expressed by Secretary Bayard and

Senator Edmunds to the effect that Article XXIX

was still in force and disposed of them as follows:

An examination of the debates at the time

of the passage of this joint resolution (Mar. 3,

1883, supra, p. 39) very clearly shows that

Congress made an attempt to save Article

PRM LS oe ar8 . ene ‘ ee CNR oe a eo eT

45

XXIX of the treaty and section 3 of the act

of 1873. In the Senate on the 2ist of Febru-

ary, 1883, the resolution being under consid-

eration, several Senators, including Mr. Ed-

munds, the chairman of the Judiciary Com-

mittee, expressed the opinion that Article

XXIX would not be affected by the abrogation

of Articles XVIII to XXV and XXX, and an

amendment was made to the resolution with

a view to leave section 3 of the act of 1873 in

force. The same view was taken in the de-

bates in the House.

The subject again came before Congress in

connection wich the consideration of a bill (Ss.

3173) to “authorize the President of the United

States to protect and defend the richts of

American fishing vessels, American fishermen,

American trading and other vessels in certain

cases, and for other purposes.”

In the course of the debate upon the bill in

the Senate January 24, 1887, and in the House

February 23 following, the prevailing opinion

was, though not without some dissent, that

Article XXIX was still in force.

On the 6th of July, 1887, in response to an

inquiry by the Secretary of the Treasury, Mr.

Bayard wrote a letter, a copy of which aec-

companies this message, in which he expresses

the opinion that Article XXIX of the treaty

was unaffected by the abrogation of the fish-

eries articles and was still in force. In Au-

gust, 1888, however, Mr. Cleveland, in a mes-

sage to Congress, expresses his opinion of the

question in the following language :

96689224

eRe 2 Se ee Se ee

————

46

(Quoting the language set forth on p. 43,

supra.)

* * * % *

I am inclined to think that, using the aids

which the protocol and the nearly contempo-

raneous legislation by Congress in the act of

1873 furnish in construing the treaty, the

better opinion is that Article XNXIX in the

treaty is no longer operative. The. enact-

ment of section 3 of the act of 1873 was a clear

declaration that legislation was necessary to

put Article XXIX of the treaty into operation,

and that under the treaty our obligation to

provide such legislation terminated whenever

Articles XVIII to XXV and XXX should he

abrogated. This legislation was accepted by

Great Britain as a compliance with our obli-

gations under the treaty. No objection was

made that our statute treated Article X XIX

as having force only so long as the other

articles named were in force.

The conclusions of the President, so far as they

relate to the subject now under consideration, were

as follows:

First. That Article XXIX of the treaty of

Washingtomhas been abrogated.

Second. That even if this article were in

force there is no law in force to execute it.

(Messages and Papers of the Presidents, Rich-

ardson, vol. 9, p. 335, 339, 840, 345.)

The President transmitted with his message to

Congress an opinion of Attorney General Miller also

holding that Article XXIX was abrogated. (Opin-

ions of the Attorney General, vol. 20, p. 388.)

SEAT ARTS BEB AR Ae Dolan On ea ta cl

47

As regards the suggestion that the Treasury De-

partment has treated Article XXIX as still in force

after these expressions of the Presidents, we reply:

The Article is not self-executing but is dependent on

enabling legislation. The Treasury Department,

therefore, can have no concern with the Article but

only with legislation passed to carry it into effect.

As we have seen, Section 3 of the Act of March 1,

1873, giving effect to Article XXIX, is no longer in

force. However, Section 3005, R.S., providing for

“in transit” shipments, has been continuously on the

books since before the negotiation of the treaty. A

possible explanation is that existing Treasury Regu-

lations, erroneously supposed to be based on the

treaty, are in reality based on this independent

legislation.

4. The question being essentially political and not

judicial, the legislative and executive interpretations

should be followed.—In Taylor vy. Morton, 2 Curtis,

454, Mr. Justice Curtis, on circuit, said:

Is it a judicial question, whether a treaty

with a foreign sovereign has been violated

by him; whether the consideration of a par-

ticular stipulation in a treaty has been

voluntarily withdrawn by one party, so that

it is no longer obligatory on the other: whether

the views and acts of a foreign sovereign,

manifested through his representative, have

given just occasion to the political depart-

ments of our Government. to withhold the

execution of a promise contained in a treaty,

ro to act in direct contravention of such

promise? I apprehend not.

48

In Foster v. Neilson, 2 Pet., 253, at page 306, Chief

Justice Marshall said:

The judiciary is not that department of the

Government to which the assertion of its

interests against foreign powers is confided;

and its duty commonly is to decide upon

individual rights, according to those _prin-

ciples which the political departments of the

Nation have established. If the course of

the Nation has been a plain one, its courts

would hesitate to pronounce it erroneous.

We think, then, however individual judges

might construe the treaty of St. Ildefonso, it

is the province of the court to conform its

decisions to the will of the legislature, if that

will has been clearly expressed.

In Barker v. Harvey, 181 U.S. 481, 488, Mr. Justice

Brewer said:

This court, in a class of cases like the present,

has no power to set itself up as the instru-

mentality for enforcing the provisions of a

treaty with a foreign nation which the Govern-

ment of the United States as a sovereign

power chooses to disregard.

In Thomas v. Gay, 169 U. S. 264, 271, Mr. Justice

Shiras said:

It is well settled that an act of Congress

supersedes a prior treaty, and that any ques-

tions that may arise are beyond the sphere of

judicial cognizance and must be met by the

political department of the Government.

And see also: Head Money Cases, 112 U. 8. 580;

Whitney v. Robertson, 124 U.S. 190; Chinese Exclusion

Tein ae DONE bgster ee — ee ganna corms __ i

49

Cases, 130 U.S. 581 ; Botelier v. Dominguez, 130 U.S.

238; United States v. Lee Yen Tai, 185 U. S. 213.

5. If Article X XIX was not abrogated in the manner

described, then so far as it relates to sh ipments of liquor

it was abrogated by the national prohibition act.—The

conflict between Article XXIX of the treaty, as

applied to the shipment of intoxicating liquor for

beverage purposes, and section 3, Title II, of the

national prohibition act, is plain and irreconcilable,

(A) As applied to such shipments Article XXIX

provides, in effect, that intoxicating liquor for bev-

erage purposes may be conveyed in transit through

the United States to or from Inglish possessions in

North America; whereas ;

(B) Section 38, Title II, of the Volstead Act pro-

vides that “‘no person shall * * * manufacture,

sell, barter, transport, import, export, deliver, fur-

nish, or possess any intoxicating liquor except as

authorized by this act.”

It is, of course, well settled that in all cases of

conflict between a treaty and a subsequent act of

Congress, the latter will control. Rainey v. United

States, 232 U.S. 310 ; Sanchez v. United States, 216

U.S. 167; Barker vy. Harvey, 181 U.S. 481; Ward v.

Race Horse, 163 U.S. 504; Lenn Moon Sing v. United

States, 158 U.S. 538; Fong Yue Ting v. United States,

149 U.S. 698; Horner v. United States, 143 U.S. 570;

Botelier v. Dominguez, 130 U.S. 238; Chae Chan Ping

v. United States, 130 U.S. 581; Whitney v. Robertson,

124 U.S. 190.

It follows, therefore, that Article X XIX, even if in

force at the time the Volstead Act went into effect,

was necessarily repealed by the latter in so far as

it applied to the possession and transportation of

liquor.

IV.

SECTION 3005 OF THE REVISED STATUTES CONFERRED

NO AFFIRMATIVE RIGHTS WITH RESPECT TO THE TRANS-

SHIPMENT OF MERCHANDISE: ASSUMING THAT IT DID,

IT WAS SUPERSEDED BY THE NATIONAL PROHIBITION

ACT SO FAR AS SHIPMENTS OF LIQUOR ARE CONCERNED.

1. Section 3005 conferred no affirmative righis.—

This provision was originally enacted as section 5 of

the act approved July 28, 1866 (c. 298, 14 Stat. 328).

That act was entitled “ An act to protect the revenue,

’

aid for other purposes,”’ and was purely a revenue

measure. It provided, among other things, the

customs duties to be collected on importations of

cigars, cigarettes, distilled spirits, cotton, salt, ete.,

and contained several measures for the protection

of the revenue. Section 5 read as follows:

That from and after the passage of this act,

all goods, wares, or merchandise arriving at

the ports of New York, Boston, and Portland,

or any other port of the United States which

may be specially designated by the Secretary

of the Treasury, and destined for places in the

adjacent British Provinces, or arriving at the

port of Point Isabel, Texas, or any other

port of the United States which may be

specially designated by the Secretary of the

Treasury, and destined for places in the

Republic of Mexico, may be entered at the

customhouse, and conveyed, in transit, through

ITU ma ; . 2 parse

51

the territory of the United States, without

the payment of duties, under such rules,

regulations, and conditions for the protection

of the revenue as the Secretary of the Treasury

may prescribe.

The provision was carried into the Revised Statutes

in substantially the same language. By act of

February 27, 1877 (c. 69, 19 Siat. 240), entitled ‘‘ An

act to perfect the revision of the statutes of the

United States and of the statutes relating to the

District. of Columbia,’’ section 3005, R. S., was

amended by striking out the words “Point Isabel’?

and inserting the word ‘ Brownsville.’’ By act of

May 21, 1900 (¢. 487, 31 Stat. 181), entitled “An act

to amend section three thousand and five of the

tevised Statutes of the United States,’’ the pro-

vision was amended to its present form, viz:

All merchandise arriving at any port of the

United States destined for any foreign country

may be entered at the customhouse, and

conveyed, in transit, through the territory

of the United States, without the payment

of duties, under such regulations as to ex-

amination and transportation as the Secre-

tary of the Treasury may prescribe.

The reason for the last amendment is stated in

the report of the Committee on Ways and Means of

the House of Representatives, as follows:

The changing conditions of commerce and

the establishment of new transportation routes

demand the enlargement of the privileges

52

given by this statute to all foreign merchan-

dise arriving for transit through the United

States, whether to or from Canada, Mexico,

or any other foreign country. The proposed

change wiil tend to facilitate the carriage of

foreign merchandise in bond through the

United States by our own _ transportation

companies, and will not in any way endanger

the revenues * * ¥,

This section, as it now stands, provides only

for the carrying and transit of merchandise

from foreign countries destined to either

some place in Canada or in Mexico. At the

time the section was passed (July 28, 1866)

this answered all the requirements of com-

merce. Since that time a large trade has

grown up with oriental countries, much of

which seeks transportation through the United

States.

We are losing much of the benefit of this

transportation because we can not pass these

goods through the country in bond. This

amendment is offered in order to give a fair

share of this trade to our transportation.

* * * (33 Cong. Rec. 1736.)

Clearly, therefore, section 3005, R. 8., is purely a

revenue measure enacted in the interest of American

transportation companies and confers no affirmative

right to transport merchandise into and through the

United States. It merely exempts from payment of

customs duties shipments into and through the

United States which, under the tariff laws, would

otherwise be dutiable as imports.

I tae RNS tl on RC nant nh PT Ar RMRar A Sa Machin ee

53

Title XXXIV of the Revised Statutes, in which

section 3005 is contained, is entitled “Collection of

Duties upon Imports.” Section 2766, R.S., a part

of the same title, provides:

The word “merchandise,” as used in this

title, may include goods, wares, and chattels

of every description capable of being im-

ported. (Italics ours.) 7

Therefore, section 3005 has no possible applica-

tion to the present cases, since intoxicating liquor

may not be imported into the United States and is

not “goods,”’ “wares,” or “merchandise” within the

meaning of that section and is not subject to duty.

On this point Judge Mayer said:

In the cases at bar, the liquor was not

subject to duty. It could not be imported.

The introduction into this country from some

foreign port of liquor for beverage purposes

has no relation to revenues. Such liquor

could not be lawfully introduced into this

country because of the change in the national

policy. (Rec. No. 639, p. 55.)

2. Assuming that the section did confer the right

claimed, it was repealed by the national prohibition act

so far as shipments of liquor are concerned.—It is

true that repeals by implication are not favored, but

it is further true that when a later statute is clearly

inconsistent with a prior one, the latter must be

deemed to have been repealed to the extent of such

inconsistency. That section 3005, R.S., and section

3, Title II, of the national prohibition act are hope-

lessly antagonistic as regards the transportation of

d+

liquor will appear from a brief comparison of their

respec tive provisions:

Section 3005 R.S.

All merchandise arriving

at any port of the United

States destined for any for-

eign country may be entered

at the customhouse, and con-

veyed in transit through the

territory of the United States

without the payment of du-

ties under such regulations as

to examination and transpor-

Section 3, Title II, of the

national prohidition act.

No person shall on or after

the date when the eighteenth

amendment to the Constitu-

tion of the United States goes

into effect manufacture, sell,

barter, transport, import, ez-

port, deliver, furnish, or pos-

sess any intoxicating liquor

except as authorized in this

tation as the Secretary of the act. * * *

Treasury may prescribe.

Ascribing to section 3005, R. S., the effect con-

tended for by opposing counsel, viz, that it conferred

an affirmative right to transport merchandise through

the United States, we have the following situation:

The old law, as it applies to intoxicating liquors, says

that they may be “conveyed’’ under regulations

governing “transportation” ; while the new law also-

lutely prohibits such “transportation”? and even

“possession.” It is difficult to conceive of two more

flatly contradictory provisions.

8. The prohibition act supersedes all licensing and

permissive statutes.—The eighteenth amendment and

the Volstead Act being absolute prohibitions on the

manufacture, sale, transportation, etc., of intoxi-

cating liquor, it is not within the power of Congress

to license or permit the doing of any of those acts,

and all licensing and permissive statutes in force on

the effective date of the amendment and act were by

. na eh cuir.

5)

necessary implication repealed. In the National

Prohibition cases (253 U. 8. 350, 386-387) this court

laid down the following propositions:

6. The first section of the amendment—the

one embodying the prohibition—is operative

throughout the entire territorial limits of the

United States, binds all legislative bodies,

courts, public officers, and individuals within

those limits, and of its own force invalidates

every legislative act—whether by Congress, by

a State legislature, or by a Territorial assem-

bly—which authorizes or sanctions what the

section prohibits.

7. The second section of the amendment—

the one declaring “The Congress and the

several States shall have concurrent power to

enforce this article by appropriate legisla-

tion’’—does not enable Congress or the several

States to defeat or thwart the prohibition, but

only to enforce it by appropriate means.

In United States v. Yuginovich (No. 523) decided

June 1, 1921, this court had before it an indictment in

four counts, based on the revenue provisions of the

Revised Statutes and charging (a) defrauding the

United States of the tax on distilled spirits; (b) failing

to display in a distillery the words ‘Registered dis-

tillery”’ ; (¢) operating a distillery without giving the

required bond ; (d) making mash fit for distillation in

a building not a_ registered distillery. The acts

charged having been committed after the effective

date of the eighteenth amendment and the Volstead

Act, a demurrer and a motion to quash were filed on

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tae

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at ec

56

the ground that the statutes under which the indict-

ment was found had been repealed.

This court in affirming the action of the District

Court in quashing the indictment, said:

These statutes have long been part of the

lederal internal revenue legislation, and were

passed under the authority of the taxing

power conferred upon Congress by the Con-

stitution of the United States. At the time

of their enactment it was legal, so far as the

Federal Government was concerned, to manu-

facture and sell ardent spirits for beverage

purposes. The Government derived large revy-

nue from taxing the business, which it sought

to realize and protect by the system of laws

of which the sections in question were a part.

This policy was radically changed by the

adoption of the eighteenth amendment to the

Federal Constitution, and the enactment of

legislation to make the amendment effective.

The eighteenth amendment in comprehensive

and clear language prohibits the manufacture

or sale of intoxicating liquors in the United

States for beverage purposes, and confers upon

Congress the power to enforce the amendment

by appropriate legislation. To this end, Con-

gress passed a national prohibition law known

as the Volstead Act (41 Stat. 305). It isa

comprehensive statute intended to prevent

the manufacture and sale of intoxicating

liquors for beverage purposes.

* * * * *

Section 35 in its first sentence repeals all

prior acts to the extent of their inconsistency

- sates aes mth We

oT

with the national prohibition act, to that

extent and no more.

* * * * *

It is, of course, settled that repeals by im-

plication are not Javored. It is equally well

settled that a later statute repeals former ones

when clearly inconsistent with the earlier

enactments. (United States vy. Tynen, 11

Wall. 88.) In construing penal statutes, it is

the rule that later enactments repeal former

ones practically covering the same acts but

fixing a lesser penalty. The concluding phrase

of section 35 by itself considered is strongly

indicative of an intention to retain the old

laws. But this section must be interpreted in

view of the constitutional provision contained

in the eighteenth amendment and in view of

the provisions of the Volstead Act intended to

make that amendment effective.

Having in mind these principles and consid-

ering now the first count of the indictment

charging an attempt to defraud and actually

defrauding the Government of the revenue

tax, we do not believe that the general lan-

guage used at the close of section 35 evidences

the intention of Congress to inflict for such an

offense the punishment provided in section

3257 with the resulting forfeiture, fine, and

imprisonment, and at the same time to au-

thorize prosecution and punishment under sec-

tion 35 enacting lesser and special penalties for

failing to pay such taxes by imposing a tax in

double the amount provided by law, with an

additional penalty of $500 on retailers and

$1,000 on manufacturers. Moreover, the con-

oe

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58

cluding words of thé first paragraph of section

35, as to all the offenses charged, must be read

in the light of established legal principles gov-

erning the interpretation of statutes, and in

view of the provisions of the Volstead Act

itself making it unlawful to possess intoxicating

Liquor for beverage purposes, or property de-

signed for the manufacture of such Liquor, end

providing for is destruction. We agree with

the court below that while Congress manifested

an intention to tax liquors illegally as well as

those legally produced, which was within its

constitutional power, it did not intend to pre-

serve the old penalties prescribed in section

3257 in addition to the specific provision for

punishment made in the Volstead Act.

We have less difficulty with the other sec-

tions of the prior revenue legislation under

which the charges, already set forth, are made.

We think it was not intended to keep on foot

the requirement as to displaying the words:

“Registered distillery” in a place which could

no longer be lawfully conducted ; nor to require

a bond for the control of such production ; nor

to penalize the making of mash in a distillery

which could not be authorized by law. [Italics

ours. }

Sce also United States v. Two Thousand Cases

Whiskey, 277 Fed. 410; United States v. Stafoff, 268

Fed. 417; Ex parte Crookshank, 269 Fed. 980.

There is nothing in Vigliotti v. Pennsylvania, No.

530, decided April 10, 1922, inconsistent with this

proposition. In that case the court, in accordance

with the general rule, followed the Pennsylvania

—_—

59

courts’ construction of the State statute as being a

prohibitory and not a licensing measure, and held

that, as so construed, it constituted ‘appropriate

legislation” for the enforcement of the eighteenth

amendment.

4. The transshipments involved in case No. 639 are

not within the section.— Appellant Anchor Line has

asserted rights under section 3005, R. 8. (Ree. 15,

19, 20), but it is clear that the facts alleged do not

bring appellant within that section. The section in

terms provides that merchandise arriving at any

port of the United States may be “conveyed,” “in

transit,” “through the territory of the United States,”

without the payment of duties, ete. The object of

the section was to permit such in transit shipments

for the bene‘it of American transportation companies

(supra, p. 51). It clearly does not apply to the mere

transshipment of merchandise from one ship to

another in a single port (compare 27 Op. A. G. 440).

CONCLUSION.

It is respectfully submitted that the decree in No.

615 should be reversed and the cause remanded with

instructions to dismiss the bill, and that the decree in

No. 639 should be affirmed.

Guy D. Gorr,

Assistant to the Attorney General.

ABRAM FI. Myers,

Special Assistant to the Attorney General.

APRIL 17, 1922.

APR 94 1929

WM, R, STANSBURY

CLERK

IN THE SUPREME COURT OF THE UNITED STATES.

JOHN A. GROGAN, Collector of Internal

Revenue, et. al.,

Defendants and Appellants, Z AS

v.

HIRAM WALKER & SONS, LTD.,

Plaintiff and Appellee.

MEMORANDUM FOR APPELLEE.

Alfred Lucking,

Counsel for Appellee.

IN THE SUPREME COURT OF THE UNITED STATES.

JOHN A. GROGAN, Collector of Internal

Revenue, et. al.,

Defendants and Appellants,

v.

HIRAM WALKER & SONS, LTD.,

Plaintiff and Appellee.

MEMORANDUM.

On the hearing the question was asked from the bench:

‘Why should exportation of liquor from the United States

be prohibited and still the practice of ‘transit in bond’ be

permitted?

Two answers are suggested :

L. In the words of Judge Tuttle in his opinion (Ree., pp.

24, 25):

“Tt is urged by the government that the prohi-

bition in the statute against the exportation of i

toxicating liquor from the United States negatives

an intention to confine its application to the use of

such liquor within the United States. This argument

overlooks the close relation between manufacture and

exportation and the incentive to engage in the former

which is furnished by the right to engage in the

latter; and it was doubtless considered, and not with-

out reason, that to forbid the exportation of intoxi-

eating liquor from, would tend to make easier the

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2

enforcement of the prohibition against its manu-

facture and possession in, the United States. It can

not, however, be said that such a relation exists be-

tween the trans-shipments in question and the pre-

vention of the use of intoxicating liquor as a beve rage

within the United States. To hold otherwise would

be in effect to ignore the efficacy and effect of the

protection afforded such . ‘aus-shipment by the United

States customs officers and other Officials under whose

supervision they are couveyed

in transit through the

United States.’’

il. Another and to my mind 2 compelling reason is:

When our government forbids the exportation of liquors

from the United States, if is regulating and controlling the

conduct ef our own citizers—it is forbidding the traffic on

the part of our citizens. This is not at all the case in ‘‘eon-

veyanee in transit through the United States,’’ which is

simply permitting the British to conduct their business in

foreign countries as in the past. We are simply extending

ordinary international comity, in sending across our terri.

tory, in the most convenient way, their merchandise, without

hurt to ourselves—and which practice is reciprocated in

kind, in much larger measure. The commerce in question

is legitimate under their laws and customs, which we do

not seek or wish to control or regulate.

Respectfully submitted,

Alfred Lucking,

Counsel for Appellee.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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Appellants Brief — Grogan v. Hiram Walker & Sons, Ltd. · 259 U.S. 80 | Frix