Amicus Curiae Brief — Cunard SS Co. v. Mellon

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INDEX

Page No.

Statement—questions of law involved..........0000000.-0.0-- ooo ooo 1

Eighteenth Amendment prohibits all transportation beverage

intoxicants in territory of United States... l

The National Prohibition Act prohibits all transportation,

furnishing or possession of beverage liquors in absence of

MI III nsscssiisccrtincestesatsitennprbceveoeenesiocnsaves re

Congress may prohibit possession of beverage intoxicants... 10

The purpose of the Eighteenth Amendment conclusive of its

I II iio a 12

National Prohibition Act to be giv en a liberal construction to

a TN ELITE PLT EID TOR 20

Vessels of the United States are territory of United States.. 21

Foreign merchant vessels entering ports of United States for

trade subject themselves to the law of port of entry...... 24

The decision in Grogan vs. Walker conclusive of these cases 34

Construction sought by shippers involves tale limitation

upon sovereignty—not favored by courts.. 36

Conclusion . EEL Aba ne 43

Exhibit—Letter to “A. iy ‘Lasker, ‘Chai lirman, ” United States

Shipping Board .. 45

AUTHORITIES CITED.

Abby Dodge vs. United States, 223 U. S. 172, 56 L. Ed.

390 aeeen 28, 29, 33

The Annapolis vs. Johanna Stoll, Lush. 295... 33

Brolan vs. United States, 236 U. S. 216, 59 L. Ed. 544....... 28

Buttfield vs. Stranahan, 192 U. S. 468, 48 L. Ed. 525 28, 34

Crane vs, Campbell, 245 U.S. 304, 62 L. Ed. 304... 6, 11, 13

Crapo vs. Kelly, 16 Wall. 610 24

Daeche vs. United States, 250 Fed. 566........ é 23

Downes vs. Bidwell, 182 U. S. 45, 44 L. Ed. 1088 3

Ex Parte Crane, 151 Pac. 1006... is wie. SS

Gloucester Ferry Co. vs. Pa., 114 U. | 42

Grogan vs, Walker, hacer Line vs. Aldridge, U.S.—— 15

Hawaii vs. Mankichi, 190 U.S. 198, 47 L. Ed. 1023 4

Lindstrom vs, International Nav. Co., 117 Fed. 170... 24

Mali vs. Keeper of peg eo Jail, 120 U.S. 1, 30 L. Ed. 565 6

Manchester vs. Mass., 139 U.S. 240... 24+

Massey 7 vy. United sed 281 Fed. 283 }

Maxwell vs. Dow, 176 U. S. 580, 44 L. Ed. 597 12

Miller vs. U.S, 242, Fed. 907, sustained 62 L. Ed. 535 22

Page No.

National Steam Navigation Co. vs. Dyer, 15 Otto 24, 26 L,

i a aaioh oaeieenepignebes celonensanehetiiapadnebieiasininesdans 32

Nishimura Ekiu vs. United States, 142 U. S. 659, 35 L. Ed.

aie cer iainela oak oadoe ae aaah 27

Old Dominion Steamship Co. vs. Gilmore, 206 U.S. 402, 403 24

Olsen vs. San Francisco, 83 Pac. 850..................-.se:sse0eeeees |

Page vs. United States, 278 Fed. 41, certiorari denied, 258

U.S. Sb | eee eA nee 1

Patterson ws. Eudora, 190 U.S. 168, 47 L. Ed. 1002.......... 19, 26

Paul vs. Gloucester, 50 N. J. Law, 585; 15 Atl. 272, 1 L.

lasek elated 14

Pederson, et al. vs. United States, 271 Fed. 187........................ 23

Rhode Island vs. Palmer, 253 U. S. 350, 64 L. Ed. 946..... 6,7, 20

Rogers vs. United States, 150 U. S. 247, ..............0ceeeeees 22, 24

een ton, CORT, Cee. Gs Tc onsen ervetcenincrecenseernineninince 20

St. Clair vs. United States, 154 U. S. 134, 38 L. Ed. 936.......... 21

The Schooner Exchange vs. McFadden, et al., 7 Cr. 114, 3

i a eerie 25

eo ot eR, renee 24

The Sylvia, 171 U. S. 462, 43 L. Ed. 241, 243............0.00.......... 32

United States vs. Dickson, 15 Pet. 141, 10 L. Ed. 689............ 8

United States vs. Diekelman, 92 U. S. 520, 23 L. Ed. 742........ 26

United States vs. Greathouse, + Sawy. +57, 26 Fed. Cas. No.

| RR Ren <A A OR. en ieee -

United States vs. Rodgers, 150 U. S. 249, 37 L. Ed. 1071... 22

United States vs. Smiley, 6 Sawy. 640, 645-..002000-.. 23, 24

United States vs. 254 Bottles of Intoxicating Liquor, 281

RN, SEO sirceinnvinancneneeieonenetnemnemnniinnien 17

Wiborg ts. United States, 164 U. S. 633, 41 L. Ed. 289... 2

Wilson ws. McNamee, 102 U.S. 572... 24

Wynne vs. United States, 217 U.S. 240, SL. £4. 8... 22

CONSTITUTIONAL PROVISIONS AND STATUTES

CITED

Article I, Section 8—(power to punish crime on high seas)...... 2

Article II], Section 2—( maritime jurisdiction of courts) 2

Article III, Section 3—( Treason) ..........-.............-eeeccceeeeeeeeee 3,4

Customs Statutes, Sections 2795, 2796, 2797, 3111, 3112, 3113 38

FL RR TNC DD LTS Z

National Prohibition Act, Section 3..........0.0...0.......ccc.eecce0eeeo- ;

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Inthe Supreme Court of the United States.

October Term, 1922

Tue Cunarp STEAMSHIP Co., LTp., and

Ancuor Linge (HENDERSON Bros.) LTp.,

Appts. vs. > No. 659.

Anprew W. MELLON, Secretary of Treasury

of the United States, et al.

Tur OcEAN STEAM NAVIGATION Co., Lip. |

Appts. vs. |

No. 660.

Anprew W. MELLON, Secretary of Treasury |

of the United States, et al. |

INTERNATIONAL NAVIGATION Co., Lrp., |

Appts. Tv). | No

Anprew W. MELLON, Secretary of Treasury | ~

of the United States, et al.

ComPAGNIE GENERALE TRANSATLANTIQUE, |

Appt. US. No

Anprew W. MELLON, Secretary of Treasury | ~

of the United States, et al.

Tue NETHERLANDS-AMERICAN STEAM

NaviGATION Co., (HOLLAND-AMERICAN |

Lint), Appt. vs. ; Ne.

Anprew W. MELLON, Secretary of Treasury |

of the United States, et al.

STEAM NAVIGATION Co., Ltp., Appt.

US.

Anprew W. MELLON, Secretary of Treasury |

LiverPooL, BRAZIL AND RIVER aie

of the United Seates, et al. |

. 661.

No.

662. |

666. |

667. |

Tue Royar Maiz Steam Packet Co., Appt. |

US.

ANDREW W. MELLON, Secretary of Treasury

of the United States, et al.

UNITED STEAMSHIP COMPANY OF COPEN-)

H AGEN (SCANDINAVIAN-A ME RICAN

LINE), Appt.

US. | No. 669.

ANDREW W. MELLON, Secretary of Treasury

of the United States, et al.

Paciric STEAM NAVIGATION sipaiopes)

Appt. US.

ANDREW W. MELLON, Secretary of Treasury

of the United States, et al. }

NAVIGAZIONE GENERALE ITALIANA, Appt.,|

US.

ANDREW W. MELLON, Secretary of Treasury

of the United States, et al.

——

INTERNATIONAL MERCANTILE MARINE Co.,, }

Appts. Vs.

H. C. Stuart, Collector of Customs of the} No. 693.

Port of New York and Ratpu A. Day,

Federal Prohibition Director, et al.

UNITED AMERICAN LINEs, Appt.,

US.

Port of New York and Joun D. AppLeny

Federal Prohibition Zone Chief, et al.

H. C. Sruart, Collector of Customs of ° ef No. 694.

No. 670.

No. 678.

see

Appeals from the United States District Court for the

Southern District of New York.

BRIEF AMICI CURIAE ON BEHALF OF

DEFENDANT.

Agreeable to the permission of the court this brief is

filed in the hope that it will prove helpful in the solution

of the questions of law involved.

STATEMENT.

This brief is submitted in support of the following prop-

ositions of law which are determinative in these cases.

The transportation, possession or furnishing of intoxi-

cating liquors for beverage purposes upon vessels of the

United States at all places and upon foreign vessels within

the territorial waters of the United States is unlawful

under the Eighteenth Amendment to the Constitution of

the United States and the National Prohibition Act.

I. THE EIGHTEENTH AMENDMENT PRO-

HIBITS ALL TRANSPORTATION OF INTOXI-

CATING LIQUORS FOR BEVERAGE PURPOSES

WITHIN THE UNITED STATES AND ALL TER.

RITORY SUBJECT TO THE JURISDICTION

THEREOF.

The Eighteenth Amendment insofar as it is applicable

to this question provides :

“The * * * transportation of intoxicating

liquors within * * * the United States, and all

territory subject to the jurisdiction thereof for

beverage purposes is hereby prohibited. * * *”

This prohibition flows from an amendment to the Con.

stitution. The amendment not only lays the prohibition

but defines the extent of its jurisdictional application.

The language of the article is comprehensive and pro

hibits all transportation of intoxicating liquors within the

United States and all territory subject to the jurisdiction

thereof for beverage purposes. This amendment insti-

tutes a new policy upon the part of the national govern.

ment and confers upon Congress a portion of the police

power heretofore residing solely in the states.

In any attempt to apply the decisions of this court con

struing the territorial application of acts of Congress and

to reason therefrom in their application to the Eighteenth

Amendment, certain fundamental differences must be

noticed. In the original Constitution of the United States

there were two clauses which conferred upon Congress

authority to legislate with reference to ships upon the high

seas. They were: Article I, Section 8, Clause 10, which

provides in defining the legislative power of Congress,

“that Congress shall have power * * * to define and

punish piracies and felonies committed on the high seas

and offenses against the law of nations”; and Article III,

Section 2, which provides that “judicial power shal! extend

* * * to all cases of admiralty and maritime jurisdiction

* ee

Examining these two sections of the original Constitu-

tion it will be observed that they do not lay any prohibi-

tion or define any offense. The first specifically provides

that Congress shall have power to punish piracies and

felonies, the second merely defines the jurisdiction of the

courts. Therefore, under these two sections of the

Tey

Pee ee

original Constitution until there was a plain legislative

enactment upon the part of Congress indicating an intent

to punish a specific offense upon the high seas the court

had no jurisdiction to try and punish such offenders, and in

all of the decisions by this court construing the acts of Con-

gress enacted pursuant to these powers the question was

always, has Congress exercised this power conferred ?

When consideration is given to the Eighteenth Amend-

ment a very fundamental and material difference is ap-

parent. The Eighteenth Amendment represents a

changed policy by the sovereign people through the addi-

tion of a new principle to the organic law. It in itself lays

a prohibition and defines the extent of its application by

declaring that its provision shall apply to the United

States and all territory subject to the jurisdiction thereof.

In this case there is no need to determine whether Con-

gress has legislated to create an offense upon the high seas.

The amendment itself does that and imposes upon Con-

gress the duty of enacting appropriate legislation for its

enforcement. In other words the offense is declared by

the Constitution and in this instance the source of power is

not alone that derived from the clauses of Article I or

Article III, above quoted. The Eighteenth Amendment

is co-ordinate and co-existent with the articles of the origi-

nal Constitution. Because the Eighteenth Amendment

isa part of the Constitution and in terms defines the extent

of its operation the legislation enacted by Congress for its

enforcement must be co-extensive with the amendment it-

self. The only similar principle in the Constitution to

that embodied in the Eighteenth Amendment is that found

in the Thirteenth Amendment prohibiting slavery, which

also defines the extent of its operation. See the language

of Justice Brown in Downes vs. Bidwell, 182 U.S. 45, 44

L. Ed. 1088, 1092.

and in comprehensive terms defined the scope within

which the prohibition was to apply is indicative of an in-

tention upon the part of the people of the United States

that there should be nothing left to surmise or implication

as to the extent of its operation.

This court in its decision in the case of Rhode Island vs.

Palmer, 253 U. S. 350, 64 L. Ed. 946, in which it upheld

the validity of the amendment and the constitutionality of

the National Prohibition Act enacted for its enforcement,

said:

“The first section of the amendment—the one

embodying the prohibition—is operative through-

out 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 assembly—which authorizes or sanc-

tions what the section prohibits.”

It will be observed that the court uses the words “is

operative throughout the entire territorial limits of the

United States.” These are not words of limitation. If

the court had intended to use restrictive language in con-

nection with the interpretation of the Amendment it would

have used the phrase ‘actual territorial limits.” The

phrase “actual territorial limits” is one which is well

understood in international law when the purpose is to

refer to the actual confines of a country and the territorial

waters over which jurisdiction is commonly exercised as a

matter of sovereign right under international law.

The contention that the use of the words “territorial

limits”’ is indicative of an intention to refer simply to lands

is based upon a mis-apprehension. If it is attempted to

limit the use of the words “territorial limits” simply to

lands by the adoption of a literal construction, such as 1s

contended for by those urging the narrow interpretation,

it would be possible to go still further and say that the

Eighteenth Amendment has no application to the navi-

gable waters of this country since they are not a part of

theland. The phrase “entire territorial limits” employed

by the court, is properly susceptible of no such interpreta-

tion. Mr. Chief Justice White, in his concurring opinion

in speaking of the prohibition laid in the amendment, said :

“In the first place, it is indisputable, as I have

stated, that the first section imposes a general pro-

hibition which it was the purpose to make univer-

sally and uniformly operative and efficacious.”

II. THE NATIONAL PROHIBITION ACT PRO-

HIBITS ALL TRANSPORTATION, POSSESSION

OR FURNISHING OF LIQUOR EXCEPT WHERE

EXPRESS AUTHORIZATION THEREFOR IS

FOUND IN THE ACT. THOSE WHO SEEK TO

SET UP AN EXCEPTION MUST ESTABLISH IT

AS BEING WITHIN THE WORDS AS WELL AS

THE REASON THEREOF.

Section 3 of Title II of the National Prohibition Act

provides :

‘No person shall on or after the date when the

Eighteenth Amendment to the Constitution of the

United States goes into effect, manufacture, sell,

barter, transport, import, export, deliver, furnish

or possess any intoxicating liquor except as author-

ized in this Act, and all the provisions of this Act

shall be liberally construed to the end that the use

of intoxicating liquor as a beverage may be pre-

vented.”

This statute enacted by Congress for the enforcement of

the Eighteenth Amendment is co-extensive with the opera-

tion of the amendment itself. Upon this point this court

said in Rhode Island vs. Palmer; 253 U.S. 350, 64 L. Ed.

946:

‘The power confided to Congress by the provi-

sions of the Eighteenth Amendment to the Federal

Constitution, that ‘the Congress and the several

states shall have concurrent power to enforce this

article by appropriate legislation,’ while not ex.

clusive, is territorially co-extensive with the pro.

hibition of that Amendment, embraces manufac

ture and other intrastate transactions as well as

importation, exportation, and interstate trafic,

and is in np wise dependent on or affected by action

or inaction on the part of the several states or any

of them.” (Italics ours.)

The National Prohibition Act not only prohibits the

transportation and sale of intoxicating liquors for bever. —

age purposes but also prohibits the possession and furnish.

ing of such liquors for beverage purposes except where

specific authorization is made therefor in the Act.

The general rule of statutory construction is that even

an expressed proviso carves special exceptions only out of

a general enacting clause; and that those who set up any |

such exception must establish it as being within the words

as well as the reason therefor.

United States ws. Dickson, 15 Pet. 141, 165, 10 L. Ed.

689; Ryan ws. Carter, 93 U. S. 78, 83, 23 L. Ed. 807;

Schlemmer vs. Buffalo Railway, 205 U.S. 1, 10, 27 Su.

Ct., 407, 51 L. Ed. 681; United States vs. Trinity Rail-

way (5th Circuit), 211 Fed. 448, 453, 128 C. C. A., 120.

In the instant case there is no express proviso authoriz-

ing the transportation, possession, or furnishing of bever

age liquors on ships.

In all of the prohibition laws of the states which pro

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

cating liquor except as authorized by the law, those who

claim the right to make or possess such liquor must set

‘forth the provisions in the law which authorized them to

have control of the liquor. This is the form of the pro

hibition in Section 3 of the National Prohibition Act.

These laws do not confine the prohibition to the bever-

age liquor traffic, but prohibit intoxicating liquors for all

purposes except as authorized in the Act. Those who

desire to make, sell, transport or possess liquor under a

genera! prohibition of such Acts must do so under some

specific exception named in the law. In the recent case of

Crane vs. Campbell, 245 U. S. 304, in construing the

statute of the State of Idaho which prohibited the posses-

sion of whisky even for medicinal purposes, this court sus-

tained the decision of the State Supreme Court that held:

“The only means provided by the Act for pro-

curing intoxicating liquors in the prohibition dis-

trict tor any purpose relates to wine to be used for

sacramental purposes and pure alcohol to be used

for scientific or mechanical purposes, or for com-

pounding or preparing medicines, so that the pos-

session of whisky, or of any intoxicating liquor,

other than wine and pure alcohol for the uses

above mentioned is prohibited.”

Section 15 of the State law provides:

“It shall be unlawful for any person to import,

ship, sell, transport, deliver, receive or have in his

Possession any intoxicating liquors except as in

this Act provided.”

The full text of the statute of Idaho setting forth tne

exceptions will be found in the decision of the State Su-

preme Court in Ex Parte Crane, 151 Pac. Rep. 1006.

In construing the National Prohibition Act the Circuit

Court of Appeals, Sixth Circuit, in Small Grain Distilling

& Drug Company vs. Hamilton, 276 Fed. 544, said:

“The prohibitory language of sections 3 and 6

is prima facie universal; those who seek to show a

right within the exceptions stated must make that

right clear.”

That this is the rule adopted in the construction of pro-

hibitory laws is well established. The Supreme Court of

TT RASS nomen

EBS

Utah in construing an act of the Legislature of that State

(Laws 1917, Ch. 2) State vs. Certain Intoxicating

Liquors, 172 Pac. 1050, prohibiting all sale, manufacture,

use and posession of intoxicating liquor except as author.

ized, in answer to the contention that the statute did not

prohibit the possession of liquor acquired prior to the date

upon which the act became effective and intended for the

personal use of the owner, said:

‘““(1) No exceptions being made in the act other

than the foregoing, we think it is made clear by the

sections quoted that it was the legislative intent to

not only forbidg the possession but to abolish

property rights in alcoholic liquors within the con-

fines of the State after August 1, 1917, aside from

the exceptions expressly provided for in the Act,

no matter when or how acquired, for what use in-

tended, or in what place kept or possessed. * * *”

Other illustrations of this are found in the decisions of

the Supreme Court of Washington, case of State vs.

Giaudrone, 186, Pac. 870; the decision of the Supreme

Court of Nebraska in the case of Fitch vs. State, 167 N.

W. 418.

This principle was again sustained by this court in the

recent case of Grogan vs. Walker, wherein it was said:

“The manufacture, possession, sale and transpor-

tation of spirits and wine for other than beverage

purposes are provided for in the act, but there is no

provision for transshipment or carriage across the

coun’. 7 from without. When Congress was ready

to permit such a transit for special reasons, in the

Canal Zone, it permitted it in express words.

Title III, Section 21, 41 Stat. 322.”

III. THE RIGHT OF CONGRESS TO PROHIBIT

THE POSSESSION OF INTOXICATING LIQUORS

IS WELL ESTABLISHED. IT IS APPROPRIATE

LEGISLATION FOR THE ENFORCEMENT OF THE

EIGHTEENTH AMENDMENT.

The Circuit Court of Appeals for the Ninth Circuit in

the case of Page vs. United States, 278 Fed. 41, held:

“The restrictions on the possession of intoxicat-

ing liquors contained in National Prohibition Act,

Title II, Section 3, are reasonably adapted to the

enforcement of the prohibition against the unlaw-

ful manufacture, sale, or transportation of intoxi-

cating liquors under the Eighteenth Amendment,

so that such restrictions are not beyond the power

of Congress to enact.”

A writ of certiorari was denied by this court in this

case. 258 U.S. , 42 Su. Ct. 461, 66 L. Ed. ,

The Circuit Court of Appeals, for the Eighth Circuit

in the case of Massey vs. United States, 281 Fed. 293, held:

“Under Const. Amend. 18, prohibiting the

manufacture, sale, and transportation, but not the

possession, of intoxicating liquor, section 2 of which

gives Congress power to enforce the amendment

by appropriate legislation the provisions of the

Hacional Prohibition Act making the possession

of intoxicating liquor unlawful was reasonably

proper to enforce the prohibition against the manu-

facture and sale of such liquor, so as to be within

the power of Congress, even though the statute

may embrace some instances in which possession

is not the result of unlawful manufacture, sale, or

transportation.”

This court in passing upon the alleged Constitutional

right to possession of liquor for beverage purposes held

in the case of Crane vs. Campbell, 245 U. S. 304, 62 L.

Ed. 304:

“The mere possession of whisky for personal

use may be rendered criminal by state legislation

without abridging privileges or immunities of citi-

zens of the United States, or depriving a person of

a liberty, or property without due process of

aw. re

The Supreme Court of Alabama in the case of Phelps

os. State, 75 So. 877, held: :

“It is a violation of the prohibition law for

defendant to retain in his possession liquors that

were owned and possessed by him before the law

became operative.”

See also State vs. Certain Intoxicating Liquors, (Utah)

172 Pac. 1050; Jones os. State, (Ala.) 85 So. 839; State os.

Giaudrone, (Wash.) 186 Pac. 870; Lacount vs. State, (Ga)

104 S. E. 920; People vs. Stambosva (Mich.) 178 N. W.

226; State vs. Macek, (Kan.) 180 Pac. 985; Bank vs. State,

(Texas) 230 S. W. 994; People vs. Sandy, (Colo.) 203 Pac.

671.

In the instant case there is no express proviso in the

National Prohibition Act itself, there is no provision in

any treaty nor is there other statutory authority author-

izing transportation, possession or the furnishing of

beverage liquors on vessels of the United States anywhere

or upon foreign vessels within the territorial waters of the

United States. Such an exception can arise only by

implication. The position of the shippers in the Grogan

case was much stronger. In that case they relied upon

the express provisions of a treaty and the terms of Section

3005 of the Revised Statutes of the United States. In

the instant case the exception can arise only by implica-

tion. Implied exceptions are not favored and can arise

only where to adopt a literal construction would defeat

the purpose of the legislation. This necessitates a con

sideration of the purpose of the Eighteenth Amendment

and National Prohibition Act.

IV. THE PURPOSE OF THE EIGHTEENTH

AMENDMENT IS CONCLUSIVE OF ITS CORRECT

CONSTRUCTION.

The Supreme Court said in the case of Maxwell ss.

Dow, 176 U. S. 580, 44 L. Ed. 597, of the rule of con-

struction to be applied to constitutional amendments:

“The language of a constitutional amendment

should be read in connection with the known con-

dition of affairs out of which the occasion for its

adoption may have arisen, and then construed, if

there be therein any doubtful expressions, in a way,

so far as is reasonably possible, to forward the

known purpose or object for which the amendment

was adopted.”

The ultimate purpose of all prohibition statutes is to

prevent the consumption of intoxicating liquors for

beverage purposes. The Supreme Court of Alabama in

the case of Southern Express Company vs. Whittle, 194

Ala. 406, 69 So. 652, said:

“The object and purpose of all laws governing

the subject of intoxicating liquors is ‘to promote

temperance.’ The evil to be remedied is the use of

intoxicating liquors as a beverage.”

See: Ex Parte Crane, 151 Pac. 1006; Lincoln vs. State,

27 Vt. 320 at 337; State vs. J. P. Bass Publishing Co.,

104 Me. 288, 71 A. 894; State vs. Certain Intoxicating

Liquors (Utah) 172 Pac. 1050; State vs. Giaudrone (Wash.)

186 Pac. 870; Fitch os. State, (Neb.) 167 N. W. 417, 419;

West Virginia vs Adams Express Co., (C. C. A., 4th Cir.

Ct.), 219 Fed. 794; Trageser vs. Gray, 73 Md. 250, 20

Atl. 905; Crane vs. Campbell, 245 U. S. 304, 62 L. Ed. 304.

The courts not only consider the purpose of the statute

but the nature of the evil to be remedied as well, as was

said by Mr. Justice McReynolds in sustaining the pro-

hibition statutes of Idaho in the case of Crane vs. Camp-

bell, 245 U. S. 304, 62 L. Ed. 304:

“Tt must now be regarded as settled that, on

account of their well-known noxious qualities and

the extraordinary evils shown by experience com-

monly to be consequent upon their use, a state has

power absolutely to prohibit manufacture, gift,

“saoenage Phe ig or transportation of intoxicating

iquors within its borders without violating the

guaranties of the Fourteenth Amendment.

* *”

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It was said by the Court of Errors and Appeals of

New Jersey in the case of Paul os. Gloucester, 50 N. L.

Law 585, 15 Atl. 272, 1 L. R. A., 86:

“The sale of intoxicating liquors has, from the

earliest history of our state, been dealt with by

legislation in an exceptional way. It is a subject

by itself, to the treatment of which all the analogies

of the law, appropriate to other topics, cannot be

applied.”

The Eighteenth Amendment represents the culmina-

tion of a half century struggle upon the part of the people

of the United States in an attempt to reach a satisfactory

solution of the problems arising from the use of intoxicat-

ing liquor as a beverage. The various steps of the progress

of this movement are strikingly portrayed in the decisions

of the United States Supreme Court from the decision

in the case of Leisy vs. Hardin, 135 U. S. 100, 34 L. Ed.

128, wherein the court held that intoxicating liquors

shipped into a state were protected under the commerce

clause as long as they remained in the origina! package.

This was met by the passage of what was known as the

Wilson Law, which was sustained in Jn Re Rahrer, 140

U. S. 545. This in turn was followed by the passage of

the Webb-Kenyon Act, removing the interstate commerce

protection from intoxicating liquors introduced into a

state in violation of the law of a state, sustained in the

case of Clark Distilling Company os. Western Maryland

Railway Company, 242 U. S. 311.

So widespread had become the demand for legislation

prohibiting the manufacture and sale of intoxicating

liquors at the outbreak of the World War, that Congress,

in the exercise of the power conferred by the Constitution

to wage war, prohibited the manufacture and sale of

intoxicating liquors as a war measure. This legislation

was sustained in Hamilton vs. Kentucky Distilleries and

Warehouse Company, 251 U. S. 146, and Ruppert 2%.

Caffey, 251 U. S. 264. The application of the principle

of prohibition on a national scale met with such general

approval that Congress on December 18, 1917, submitted

a resolution proposing the Eighteenth Amendment to the

Constitution of the United States. This resolution

required that it be ratified within seven years, if it was to

become operative. The proposed amendment was so

responsive to popular demand that by January 16, 1919,

the Legislatures of the necessary three-fourths of the states

had ratified it, and up to the present time the Legisla-

tures of forty-six of the forty-eight states have ratified the

amendment. This amendinent was ratified Veieke

’ me than any amendment to the Con-

stitution which had preceded it. To a peculiar degree it

represents the popular demand of the people of the United

States.

That it was the purpose of the people in incorporating

this amendment in the Constitution to withdraw all sanc-

tion and protection of this government from beverage in-

toxicants without regard to whether they were to be used or

consumed by citizens of this country is evidenced by the

comprehensive language employed in the Amendment itself,

for the amendment prohibits the exportation of intoxicating

liquors for beverage purposes, although such liquors are not

intended for use by the citizens of the United States. As

this court in speaking of this feature of the Amendment

aptly expressed it in the case of Grogan os. Walker:

“* * * Tt does not confine itself in any

meticulous way to the use of intoxicants in this

country. It forbade export for beverage purposes

elsewhere. * * *”

Congress, in the exercise of the duty imposed upon it to

enact appropriate legislation for its enforcement, has also

framed legislation broad in its terms to give effect to the

true intendment of the Amendment. Section 3 of the

Act lays down a broad prohibition by providing that “no

person shall on or after the date when the Eighteenth

Amendment to the Constitution of the United States goes

into effect, manufacture, sell, barter, transport, import,

export, deliver, furnish or possess any intoxicating liquor

except as authorized in the Act, and all of the provisions of

this Act shall be liberally construed to the end that the

use of intoxicating liquors as a beverage may be pre-

vented.”

In the remaining sections of the Act exceptions are made

for the procuring and use of intoxicating liquors for non-

beverage purposes. There are no exceptions created in

the statute with reference to vessels of the United States

anywhere or as to foreign vessels within the territorial

waters of the United States. Where Congress in its legis-

lative wisdom deemed an exception proper it made express

provision for it. A single instance of this is found in the

case of transportation of liquor through the Panama Canal

or on the Panama Railroad. But even in this excepted

case the liquor is required to be in transit and it is expressly

provided that there shall be no sale of such liquors for

beverage purposes within the Canal Zone. These pro-

visions of the statute clearly show that Congress recognized

the nature of the evil to be remedied and withdrew the

protection of this government, insofar as it was within

its sovereign power, from all possession or transportation

of intoxicating liquors coming within the jurisdiction of

this country, irrespective of whether it was to be consumed

by citizens of this country. This but followed the pur-

pose of the Amendment in prohibiting exportation and

this has been the construction given the Amendment and

statute by this court in the case of Grogan os. Walker,

wherein the shipping interests contended that the trans-

shipment of liquors through this country was not within

the purview of the Amendment. The court said:

;

“They did not want intoxicating liquor in the

United States, and reasonably may have thought

that if they let it in some of it was likely to stay.”

Considering next the practical questions involved.

According to enforcement officers one of the chief diffi-

culties at present in law enforcement is the smuggling of

liquors into the United States in the guise of ship stores or

through other forms of subterfuge. The practical con-

siderations involved in the construction of the statute

apply as reasons for prohibiting the transportation, pos-

session or furnishing of liquors upon foreign vessels within

the territorial limits in the instant case, with even greater

force than they did in the case of Grogan vs. Walker, and

Anchor Line vs. Aldridge. In that case the question of

the permission to transship liquors through this country

involved to the people of the United States simply the

danger that some of the liquor might be diverted in transit.

There is involved in the instant case, the additional

element of unjust discrimination against vessels of the

United States if an exception be implied in the statute.

(See Exhibit “A,” p. 45.)

The Attorney General of the United States in an opinion

rendered October 6, 1922, in reaffirming a ruling made by

the former Attorney General, of November 1, 1920, held

that the transportation or possession of intoxicating

liquor upon vessles of the United States whether within or

without the territorial waters of the United States was

prohibited under the Eighteenth Amendment and

National Prohibition Act. This view has also been

sustained by the courts in the case of United States os.

254 Bottles of Intoxicating Liquor; 281 Fed. 247 wherein

the District Court for the Southern District of Texas held:

“Possession of intoxicating liquors on the high

seas by captain of a vessel owned and operated for

the account of the United States Shipping Board

mergency Fleet Corporation was illegal, and they

were subject to forfeiture under the National

yo sel ike. seed ere Seis ewan

et Ni a ll Rl i lt a enh Nisa STi LC ST lc ll a is ew:

POSED Coa UK ONES ny TOW

Prohibition Act, Title II, sections 3, 6, 26; the ship

being a part of the territory of the United States.”

District Judge Learned Hand in passing upon these

cases when they were before him, said in speaking of the

purpose of the Eighteenth Amendment and National

Prohibition Act:

«x * * Effecting a revolutionary reform in

the habits of the nation, the statute is to be under-

stood as thoroughgoing in its intent to accom-

plish the results desired. It did not specify the

extent of its application in detail, but left that to

be gathered from its occasion, and the generality of

the words used. It intended to exercise once for

all the complete power of Congress under the

amendment, and its very want of particularity,

is a good index that it meant to cover what it

could. * * * Indeed, specification in the stat-

ute might have defeated its ends, on the theory

that what was omitted must be taken as excluded.”

In the case of the application of the Eighteenth

Amendment and National Prohibition Act to vessels of

the United States on the high seas it is true that the

National Prohibition Act does not in express terms extend

its application to vessels upon the high seas, but these

rulings are based upon the fact that this offense is created

by the Constitution itself which not only lays the pro-

hibition but defines the extent of its operation. There

being no exception made with reference to vessels of the

United States upon the high seas it naturally follows that

the prohibition applies to them. In the instant cases

there are no exceptions made in the statute authorizing

the transportation, possession or furnishing intoxicating

liquor by foreign vessels within the territorial waters of the

United States. If the people of the United States did not

intend that vessels of the United States should have the

privilege of transporting or possessing intoxicating

liquors it is unlikely that they would have discriminated

in favor of foreign nations as against vessels of the United

States. The National Prohibition Act provides that it

shall be liberally construed to the end that the use of

intoxicating liquor as a beverage may be prevented. As

between a construction which will prevent vessels trans-

porting or possessing liquor for beverage purposes from

entering the jurisdiction of the United States and one

which will permit such entry there can be no doubt as to

which construction better tends to prevent the use of

beverage intoxicants. The courts in endeavoring to

ascertain the intention of the legislative body will not only

consider the language of the statute but the practical

results flowing from such interpretation. The mere sug-

gestion that the people of the United States intended to

grant to foreign nations a privilege which they denied to

their own citizens, carries its own refutation.

In considering the practical effect of a construction of

the Act of Congress relating to American Seamen the

Supreme Court of the United States in the case of Patter-

son vs. Eudora, 190 U. S. 168, 47 L. Ed. 1002 held the

provisions of the statute to be equally applicable to foreign

ships and said of the reasons which induced Congress to

enact it:

“Moreover, as ninety per cent of all commerce in

our ports is conducted in foreign vessels, it must be

obvious that their exemption from these shipping

laws will go far to embarrass domestic vessels in

obtaining their quota of seamen. To the average

sailor it is a consideration while in port to have his

wages in part prepaid, and if, in a large port like

New York, ninety per cent of the vessels are per-

mitted to prepay such seamen as ship upon them,

and the other ten per cent being American vessels,

cannot thus prepay, it will be exceedingly difficult

for American vessels to obtain crews. This

practical consideration, presumably, appealed to

Congress and fully justified the provision herein

contained.”

The indisputable purpose of the people of the United

States in adopting the Eighteenth Amendment and of

Congress in passing the National Prohibition Act was to

make its prohibition of uniform application within the

limits of its jurisdiction; to discriminate against none and

to treat all nations alike.

V. THE LANGUAGE OF THE STATUTE AS

WELL AS THE DECISIONS OF THIS COURT

INDICATE THAT IT IS TO BE GIVEN A LIBERAL

RATHER THAN A RESTRICTED CONSTRUCTION

TO EFFECT ITS PURPOSE.

Section 3, Title II of the National Prohibition Act

provides:

“All the provisions of this Act shall be liberally

construed to the end that the use of intoxicating

liquors as a beverage may be prevented. alae

The uniform decisions of this court in construing the

National Prohibition Act are to the effect that it is to be

given a liberal rather than a restricted construction. This

is evidenced by the decision in the case of Rhode Island

vs. Palmer, 253 U. S. 350, 64 L. Ed. 946, wherein the pro-

vision defining intoxicating liquors to include beverages

containing as much as one-half of one per cent of alcohol

was sustained, although such might not be in fact intoxi-

cating; see also Ruppert vs. Caffey, 251 U. S. 264, 64

L. Ed. 261, also sustaining the prohibition as applicable to

liquors manufactured prior to the date the Act became

effective and denying compensation to the owners

thereof. Rhode Island vs. Palmer and Ruppert ».

Caffey, supra. Sustaining the application of the pro-

hibition to liquors purchased prior to the date the act

became effective and stored in bonded warehouses though

intended solely for use of the owner in the home. Corneli

vs. Moore, 66 L. Ed. —. | Denying the contention of the

British shippers that under the provisions of a treaty

they were entitled to transship liquors through this

country in bond. Grogan vs. Walker, Anchor Line os.

Aldridge.

VI. VESSELS OF THE UNITED STATES ARE

TERRITORY OF THE UNITED STATES. THE

PROHIBITIONS OF THE EIGHTEENTH AMEND-

MENT APPLY TO THEM WHEREVER THEY ARE.

Vessels on the high seas occupy a position in law unlike

that of any other species of property. This is shown by

the following excerpts from Moore’s International Law

Digest, Volume 1, Page 930, wherein it is said:

“Tt is often stated that a ship on the high seas

constitutes a part of the territory of the nation

whose flag it flies. In the physical sense, this

phrase obviously is metaphorical. In the legal

sense, it means that a ship on the high seas is sub-

ject to the exclusive jurisdiction of the nation to

which, or to whose citizens, it belongs. The juris-

diction is quasi territorial.”

For the purpose of the administration of law such

merchant vessels are constructively considered a part of

the territory of the nation to which they belong, both as

regards the application of civil and criminal statutes.

This is the view expressed by this court in the case of St.

Clair os. United States, 154 U. S. 134, 38 L. Ed. 936.

This was a prosecution for murder under Section 5339 of

the Revised Statutes of the United States providing for

the punishment of “every person who commits murder

upon the high seas * * *-* within the admiralty and

maritime jurisdiction of the United States and out of the

jurisdiction of any particular state.” The court held:

“A vessel registered as a vessel of the United

States is, in many respects, considered as a portion

of its territory, and persons on board are protected

and governed by the laws of the country to which

the vessel belongs.”

In the case of United States vs. Rodgers, 150 U. S. 249,

37 L. Ed. 1071, which was an indictment for murder com-

mitted on the Great Lakes, this court held that the term

“high seas” included the unenclosed waters of the Great

Lakes, and said:

“A vessel is deemed a et of the territory of

the country to which she belongs.”

See also the case of Wynne vs. United States, 217 U.S.

240, 54 L. Ed. 748, wherein this court sustained a convic-

tion for murder committed on board an American ship

lying in the harbor at Honolulu. It was held there was

nothing in the Hawaiian Organic Act of April 30, 1900,

which expressly or impliedly deprived Federal courts of

their jurisdiction to punish murder under the circum-

stances, when committed in a haven or arm of the sea

within the admiralty jurisdiction of the United States

and out of the jurisdiction of any particular state.

See also the case of Wiborg vs. United States, 163 U. S.

633, 41 L. Ed. 289, which was an indictment for embarking

upon a military expedition prohibited by the United

States Revised Statutes, Section 5286. The indictment

was sustained where the evidence showed that the parties

in pursuance of an agreement were taken by a tug thirty

or forty miles out to sea to a steamer on which they

embarked, whereon they drilled in preparation for partici-

pation in the Revolution in Cuba. The majority of the

court sustained the conviction notwithstanding the dis-

senting opinion of Mr. Justice Harlan in which he held

that the defendant could not have been said to have done

any act within the territorial jurisdiction of the United

States within the contemplation of the statute. It will

be observed that the overt acts in this case were com-

mitted on the high seas.

See also the case of Miller vs. United States, 242 Fed.

907, sustained by this court in 62 L. Ed. 535. The case

a ’ . pie (SNL

of a conviction for the unlawful theft of fish on the high

seas.

See the case of Daeche vs. United States, 250 Fed. 566,

the Circuit Court of Appeals for the Second Circuit held:

“In a prosecution under Cr. Code, Section 37

(Comp. St. 1916, Section 10201), denouncing con-

spiracies to commit any offense against the United

States, and Section 298 (Comp. St. 1916, Section

10471), denouncing the offense of attacking any

vessel belonging to another with intent to unlaw-

fully plunder the same or despoil any owner thereof

of any goods, etc., where defendants to aid Ger-

many conspired to attach to munition bearing

ships while in the waters of the United States infer-

nal machines which would explode while they were

on the high seas, the offense must be deemed to

have been committed within the United States,

which was the place where the last conscious act

of the wrongdoers was performed.” (Italics ours.)

See also Pedersen, et al., vs. United States, 271 Fed. 187.

Mr. Justice Field, in United States vs. Smiley, 6 Sawyer

640, 645, stated the rule of law determining the territory

subject to the criminal jurisdiction of the United States

as follows:

“Their actual territory is co-extensive with their

Possessions, including a marine league from their

shores into the sea. * * * The constructive

territory of the United States embraces vessels

sailing under their flag; wherever they go they

carry the laws of their country, and for a violation

of them their officers and men may be subject to

punishment.”

Our diplomatic correspondence and the opinions of the

courts have uniformly considered that insofar as the

restraining and protecting jurisdiction of our government

is concerned, American ships whether owned by the

government or by private citizens or corporations are in

many respects territory of the United States, both for

PRUSSIA AR ORE OR PON! emteen oa ee wae Bh Mini ete

purposes of civil and criminal jurisdiction; the Scotia,

14 Wall. 170, 184; Crapo vs. Kelly, 16 Wall. 610; Lind-

strom vs. International Navigation Company, 117 Fed.

170; Mr. Blaine, Secretary of State, to Mr. Ryan, Minister

to Mexico, Nov. 27, 1889, (Moore’s Int. Law Digest,

vol. I, page 931; Mr. Webster, Secretary of State, to

Lord Ashburton, August, 1842 cited in Rogers vs. United

States, 150 U. S. 247; St. Clair vs. United States, 154

U. S. 134, 152; United States os. Smiley, 6 Sawy. 640,

645; Wilson vs. McNamee, 102 U. S. 572; Manchester vs.

Mass., 139 U. S. 240; For purposes of taxation, People vs.

Com. of Taxation, 58 N. Y. 2421; Olsen vs. San Francisco,

82, Pac. 850; Pilotage Laws; Wilson vs. McNamee, 102

U. S. 572; Laws concerning assignment, Crapo vs. Kelly,

16 Wall. 610; Manchester vs. Mass., 139 U. S. 240; Old

Dominion Steamship Company vs. Gilmore, 206 U. S.

402, 403; For purpose of extradition; Moore on Extradi-

tion, vol. I, page 135, section 104; Vogt 14 Op. Att. Gen.,

281; Wharton’s State Trials, pages 392, 403, 404; Seale’s

Cases on Conflict of Laws, Section 22, page 506.

VII. MERCHANT VESSELS OF ONE SOVEREIGN

ENTERING THE PORTS OF ANOTHER SUBJECT

THEMSELVES TO THE LAW OF THE PORT OF

ENTRY. REQUIRING FOREIGN VESSELS EN-

TERING OUR PORTS SEEKING OUR TRADE TO

COMPLY WITH OUR LAWS VIOLATES NO RULE

OF INTERNATIONAL LAW.

The people of the United States and Congress are

possessed of full authority to enact this legislation. It is

based upon the fundamental right of a sovereign to

enforce its laws. Every sovereign nation has the inherent

right to admit or refuse entrance to vessels belonging to

another nation as it may see fit, and may impose such

conditions upon their entrance as in its legislative wisdom

may be necessary.

Ta tN SSL eA BARA ORNS

OB ee NSS ROS a OR Ded |

The construction of the statute, herein contended for,

involves no unjust discrimination in violation of treaty

rights. It treats all nations alike. It affords to natives

of foreign nations the same protection as to natives of this

country. This is all that they may demand under any

law, international, municipal or moral. The construction

operates uniformly upon the citizens of all nations.

Authorities for this principle are as follows:

EACH FULLY SOVEREIGN STATE HAS EXCLU-

SIVE JURISDICTION OVER ITS OWN TERRITORY

AND WITHIN THAT TERRITORY THE STATE IS

ABSOLUTE. 22 Cyc. International Law, page 1718.

Chief Justice Marshall in the early case of The Schooner

Exchange os. McFadden, et al., 7 Cranch, 114; 3 L. Ed.

page 287, laid down the law upon the subject as follows:

“The jurisdiction of the nation within its own

territory is necessarily exclusive and absolute. It

is susceptible of no limitation not imposed by itself.

Any restriction upon it, deriving validity from an

external source, would imply a diminution of its

sovereignty to the extent of the restriction, and an

investment of that sovereignty to the same extent

in that power which could impose such restriction.

“All exceptions, therefore, to the full and com-

plete power of a nation within its own territories,

must be traced up to the consent of the nation

itself. They can flow from no other legitimate

source.”

MERCHANT VESSELS OF ONE SOVEREIGN

ENTERING THE PORTS OF ANOTHER SUBJECT

THEMSELVES TO THE LAWS OF THE PORT OF

ENTRY. This principle was also laid down by Chief

Justice Marshall in the case of The Schooner Exchange os.

McFadden et al., 7 Cranch, 144, 3 L. Ed. 296, as follows:

“When private individuals of one nation spread

themselves through another as business or caprice

may direct, mingling indiscriminately with the

oe ewe SANE >

inhabitants of that other, or when merchant vessels

enter for the purpose of trade, it would be obviously

inconvenient and dangerous to society, and would

subject the laws to continual infraction, and the

government to degradation, if such individuals or

merchants did not owe temporary and_ local

allegiance and were not amenable to the juris-

diction of the country. Nor can the foreign

sovereign have any motive for wishing such exemp-

tion. His subjects thus passing into foreign

countries, are not employed by him, nor are they

engaged in national pursuits. Consequently there

are powerful motives for not exempting persons of

this description from the jurisdiction of the

country in which they are found, and no one motive

for requiring it. The implied license, therefore,

under which they enter can never be construed to

grant such exemption.”

This enunciation by Chief Justice Marshall has been

repeatedly followed by this court and has become a well

established principle of our jurisprudence. In the case of

Patterson vs. Eudora, 190 U. S. 168, 47 L. Ed. 1007, in

speaking of the Act relating to American Seamen, the

court said:

“* * * Yet when a foreign merchant vessel

comes into our ports, like a foreign citizen coming

into our territory, it subjects itself to the jurisdiction

of this country.” (Italics ours.)

In the case of United States vs. Diekelman, 92 U. S.

520, 23 L. Ed. 742, this court said:

“Merchant vessels of one country, visiting the

ports of another, for the purpose of trade, subject

themselves to the laws which govern the ports so

visited, so long as they remain; and this as well in

war as in peace, unless otherwise provided by

treaty.”

See also Mali vs. Keeper of Common Jail, 120 U. S.

1, 30 L. Ed. 565. This view is also sustained by text

writers on International Law and by diplomatic Corre-

spondence of nations. Moore’s International Law Digest,

Volume 2, Section 204, page 272, 273.

THERE ARE INNUMERABLE INSTANCES OF

THE EXERCISE OF THIS INHERENT POWER OF

A SOVEREIGN TO PROHIBIT BOTH UNDESIR-

ABLE PERSONS AND PROPERTY FROM ENTER-

ING WITHIN ITS TERRITORIAL LIMITS AND

SUSTAINING THE AUTHORITY TO PROVIDE

THE CONDITIONS UPON WHICH SUCH EN-

TRANCE MAY BE MADE. Illustrations of this

principle, as it applies to persons, will be found in the

Chinese Exclusion Act in the case of Nishimura Ekiu vs.

United States, 142 U. S. 659, 35 L. Ed. 1146 in which this

court said:

“It is an accepted maxim of international law,

that every sovereign nation has the power, as in-

herent in sovereignty, and essential to self-preser-

vation, to forbid the entrance of foreigners within

its dominions, or to admit them only in such cases

and upon such conditions as it may see fit to pre-

scribe. Vattel, lib. 2 sections 94, 100; 1 Phillimore

(3rd ed.) chap. 10, section 220. In the United

States this power is vested in the national govern-

ment, to which the Constitution has committed the

entire control of international relations, in peace as

well as in war. It belongs to the political depart-

ment of the government, and may be exercised

either through treaties made by the President and

Senate, or through statutes enacted by Congress,

upon whom the constitution has conferred power to

regulate commerce with foreign nations, includ-

ing the entrance of ships, the importation of goods

and the bringing of persons into the ports of the

United States; to establish a uniform rule of

naturalization; to declare war; and to provide

and maintain armies and navies; and to make all

laws which may be necessary and proper for carry-

ing into effect these powers and all other powers

REALS OH EME LA ec G2 PL SOM ot SIN wa worene . 7 : -

vested by the Constitution in the government of

the United States or in any department or officer

thereof. U. S. Const. art. 1, section 8; Head |

Money Cases, 112 U. S. 580 (28:798); Chae Chan

Ping vs. United States, 130 U. S. 581, 604-609 (32:

1068, 1075, 1076).”

EXCLUSION AND DEPORTATION OF ANARCH-

ISTS. United States vs. Williams, 194 U. S. 278, 48

L. Ed. 979; PROHIBITING THE IMPORTATION OF |

SPONGES. Abby Dodge vs. United States, 223 U. S.

172, 56 L. Ed. 390; PROHIBITING THE IMPORTA-

TION OF TEA. Buttfield vs. Stranahan, 192 U. S. 468,

48 L. Ed. 525; OPIUM—PUNISHMENT FOR THE

RECEIPT, CONCEALMENT OR TRANSPORTA-

TION OF OPIUM IMPORTED IN VIOLATION OF

THE ACT OF CONGRESS. In the case of Brolan vs.

United States, 236 U. S. 216, 59 L. Ed. 544, this Court

sustained the Act of Congress of February 9, 1909, 35

Statutes at Large, 614, Chap. 100. Mr. Chief Justice

White said:

“Tt is not to be doubted that from the beginning

Congress has exercised a plenary power in respect

to the exclusion of merchandise brought from

foreign countries; not alone directly by the enact-

ment of embargo statutes, but indirectly, as a

necessary result of provisions contained in tariff

legislation, it has also in other than tariff legisla-

tion, exerted a police power over foreign commerce

by provisions which, in and of themselves, amounted

to the assertion of the right to exclude merchandise

at discretion. This is illustrated by statutory pro-

visions which have been in force for more than

fifty years, regulating the degree of strength of

drugs, medicines, and chemicals entitled to admis-

sion into the United States, and excluding such as

did not equal the standards adopted. 9 Statutes

at L. 237, Chapter 70, Rev. Stat. section 2933,

Comp. Stat. 1913, section 5622. And see Oceanic

Steam. Nav. Co. vs. Stranahan, 214 U. S. 320, 334,

ri Stadt.

an ES

335, 53 L. Ed. 1013, 1020, 29 Sup. Ct. Rep. 671;

The Abby Dodge, 223 U. S. 166, 176, 56 L. Ed.

390, 393, 32 Sup. Ct. Rep. 310.”

If Congress in the exercise of its power under the Con-

stitution to regulate commerce with foreign nations was

authorized to prohibit the importation of such innocuous

commodities as tea and sponges there can be no question

of its authority in the exercise of its powers to prohibit

the importation or transportation of intoxicating liquors,

under the Eighteenth Amendment.

GREAT BRITAIN—The British Parliament has re-

peatedly exercised this right. See the Act prohibiting

the importation of foreign prison made goods. Act of

1897, 60, 61 Vict., Chapter 63, Section 2. Also other

illustrations will be found in Section 42 of the Consolidated

Customs Act of 1876 as amended, 39, 40 Vict. Chapter 36,

Section 42.

LEGISLATIVE CONDITIONS FOR ENTRANCE

INTO PORTS MAY BE MADE TO APPLY EQUALLY

TO BOTH DOMESTIC AND FOREIGN SHIPS AND

IN CERTAIN INSTANCES NATIONS HAVE IM-

POSED CONDITIONS PRECEDENT AS A PRE-

REQUISITE TO ENTRANCE INTO ITS PORTS

THOUGH THE ACT REQUIRED TO BE PER-

FORMED OR OMITTED IS TO BE DONE BEYOND

ITS TERRITORIAL LIMITS. In the case of Abby

Dodge v. United States, 223 U. S. 172, 56 L. Ed. 390, this

court passed upon the Act of June 20, 1906, 34 Stat. at

Large, 313, making it unlawful to land, deliver, cure or

offer for sale at any port or place in the United States,

any sponges taken by means of diving or diving apparatus

from the waters of the Gulf of Mexico or Straits of Florida.

The exact language of the first section of this act is as

follows :

_“That from and after May first, Anno Domini

nineteen hundred and seven, it shall be unlawful

ti al nal ll ki IS Sik Aa, PN lc wr lt Ne Aa 9 Biko ec

“ EFT RRS. CACY Dy AD GEE TOR 2 TORE re aw 2

to land, deliver, cure, or offer for sale at any port

or place in the United States, any sponges taken

by means of diving or diving apparatus from the

waters of the Gulf of Mexico or Straits of Florida;

Provided, That sponges taken or gathered by such

process between October first and May first of

each year in a greater depth of water than fifty feet

shall not be subject to the provisions of this act:

And, provided further, That no sponges taken from

said waters shall be landed, delivered, cured, or

offered for sale at any port or place in the United

States of a smaller size than four inches in diam-

eter.”

It was contended that this act was invalid for two

reasons, first, that it attempted to regulate sponges taken

within territory which might be within the jurisdiction of

the states and was therefore beyond the authority of

Congress to enact; and second, that if it be construed to

apply only to sponges taken beyond the jurisdiction of the

state it would then deal with sponges taken in the open sea

and beyond the jurisdiction of the national government.

The court sustained the first proposition, namely, that

Congress had no power to legislate with reference to

sponges taken within the jurisdiction of the state but held

that in view of the well known distinction between the

powers of the Federal and State governments it would not

be so construed but would be held to apply to sponges

taken in mid-ocean, and pointed out that its penalties

were equally applicable to foreign as well as American

ships. The court said:

“Undoubtedly (Lord & Goodall, N. & P. S.

Co., 102 U. S. 541, 26 L. Ed. 224), whether the

Abby Dodge was a vessel of the United States or

of a foreign nation, even although it be conceded that

she was solely engaged in taking or gathering sponges

in the waters which, by law of nations, would be

regarded as the common property of all, and was

transporting the sponges so gathered to the United

ee ee

— SSS KAN SPAREN

States, the: vessel was engaged in foreign com-

merce, and was therefore amenable to the regu-

lating power of Congress over that subject. This

being not open to discussion, the want of merit of

the contention is shown, since the practices from

the beginning, sanctioned by the decisions of this

court, establish that Congress, by an exertion of its

power to regulate foreign commerce, has the

authority to forbid merchandise carried in such com-

merce from entering the United States.” (Italics ours.)

The court dismissed the libel in the case because it

failed to negative the fact that the sponges may have been

taken from waters within the territorial limits of the state,

but the court was careful to point out the right of Congress

to legislate with reference to sponges taken in the open sea

when attempted to be brought into the United States, for

the court said:

“Tn view of the paramount authority of Congress

over foreign commerce, through abundance of pre-

caution we say that nothing in this opinion implies

@ want of power in Congress, when exerting its

absolute authority to prohibit the bringing of

merchandise, the subject of such commerce into the

United States, to cast upon one seeking to bring

in the merchandise, the burden, if an exemption

from the operation of the Statute is claimed, of

establishing a right to the exemption.” (Italics

ours.)

ACT OF UNITED STATES CONGRESS KNOWN

AS THE HARTER ACT. By Section 1 of the Act of

Congress of February 13, 1893, 27 Stat. at L. 445, it was

declared to be unlawful for the representative or owner of

any vessel transporting merchandise from or between ports

of the United States and foreign ports to insert in any bill

of lading any clause for relief from liability for damages

arising from negligence from the proper loading, storage,

Custody, care or delivery of property so transported. In

1900 this court in the case of Knott Botany Worsted Mills

RRND OT SUPA LRN ESET eh IND a PR APM ALT tae

179 U. S. 68, 45 L. Ed. 90 held that this Act of Congress

overroad and nullified any stipulation concerning limited

liability on a contract for carriage. The facts in this case

were: A British vessel, the “‘ Portuguese Prince,” belonging

to a line trading between New York, Brazil and the West

Indies, undertook the transportation of certain bales of

wool from Buenos Aires. The bill of lading exempted

the carrier from liability for certain forms of negligence.

This court said:

“The remaining question is whether the first

section of the Harter Act applies to a foreign vessel

on a voyage from a foreign port to a port in the

United States. The power of Congress to include

such cases in this enactment cannot be denied in a

court of the United States. The point in the con-

troversy is whether, upon the proper construction

of the act, Congress has done so. That the third

section does extend to such a vessel on such a voyage

has a already decided by this court.” (Italics

ours.

The Sylvia, 171 U. S. 462, 43 L. Ed. 241, 243; The

Chattahoochi, 173 U. S. 540, 43 L. Ed. 801, 806.

LIMITED LIABILITY ACT OF 1851. The Act of

Congress of March 3, 1851, 9 Statutes at Large, 635,

reproduced in sections 4282 and 4289 of Revised Statutes

provided for limited liability upon the owners of vessels

for losses arising from certain causes. In the case of the

National Steam Navigation Company vs. Dyer, 15 Otto

24, 26 L. Ed. 1001, this court said:

“The Limited Liability Act of 1851 reproduced

in the Revised Statutes in section 4282, etc,

applies to owners of foreign as well as domestic

vessels; and to acts done on the high seas as well

as in the waters of the United States, except when

a collision occurs between two vessels of the same

foreign nation, or perhaps of two foreign nations

having the same maritime law.”

te i

Bsa Se ie At ARM lpn bh PE i AAD Aig

THE PLIMSOLL ACT OF GREAT BRITAIN. See

Volume 2, Moore’s International Law Digest, 282.

It is a well recognized principle of both criminal and

international law that penal laws of a sovereign have no

extra territorial jurisdiction, but in many instances, how-

ever, nations have provided conditions precedent for the

entrance of vessels into their ports and imposed penalties

for violation thereof, though the condition to be performed

or omitted was to take place beyond the territorial limits

of such nation.

GREAT BRITAIN. In the case of The Annopolis vs.

Johanna Stoll, (1861) Lush. 295, the High Court of Ad-

miralty held:

“The British legislature has no authority over

foreign vessels on the high seas out of British

jurisdiction, but may impose any conditions on

foreign vessels entering a British port, and conse-

quently an obligation on foreign ships inward

bound to take a pilot at an convenient station

beyond the three mile limit is valid.”

UNITED STATES. This was the precise question

presented in the case of Abby Dodge vs. United States,

223 U. S. 172, 56 L. Ed. 390, wherein this court sustained

the act of Congress making it unlawful to land, deliver,

cure or offer for sale at any port or place in the United

States any sponges taken by means of diving or diving

apparatus from the waters of the Gulf of Mexico or

Straits of Florida, although it applied to acts done beyond

the territorial waters of the United States and to foreign

vessels as well as vessels of the United States.

The Eighteenth Amendment and National Prohibition

Act do not apply to the conduct of foreign vessels outside

of the territorial waters of the United States. The fore-

going cases are merely cited as illustrations of the plenary

power possessed and exercised by nations in the execu-

tion of domestic policies.

SO A ee ee

Sih als Nt a a a PSE ea Lis tennant IE ics

THERE IS NO VESTED RIGHT IN ANY INDI-

VIDUAL TO TRADE WITH FOREIGN NATIONS

WHICH PRECLUDES CONGRESS IN THE EXER-

CISE OF ITS PLENARY POWER TO REGULATE

FOREIGN COMMERCE TO EXCLUDE COMMODI-

TIES FROM ENTRY INTO THIS COUNTRY.

This was fully established by this court in the case of

Buttfield vs. Stranahan, 192 U. S. 468, 48 L. Ed. 525.

In this case the court sustained the validity of the Tea

Inspection Act of March 2, 1897, 29 Statutes at Large,

604, which forbade the importation of teas of a quality

inferior to the government standard. This act authorized

the destruction of any tea which was not removed within

six months after their inspection by the inspector of teas.

VIII. THE DECISION OF THIS COURT IN THE

CASES OF GROGAN vs. WALKER AND ANCHOR

LINE vs. ALDRIDGE IS CONCLUSIVE OF THESE

CASES.

Every argument which has been urged in these cases

was passed upon by this court in those cases, and fully

considered, as is evidenced by the opinion of the court.

In one of those cases certain foreign vessels claimed the

right to remove liquors from one foreign vessel in New York

harbor to another, for shipment to a foreign port under

customs bond, and claimed exemption from the operation

of the statute by virtue of Section 3005 of the Revised

Statutes and atreaty. The liquor was not to remain in

this country. It was to be under customs bond while

in transit in this country. It was claimed that it was

neither importation nor exportation from this country.

It was like the liquor which formerly was sealed and

locked as a part of the ship’s stores when it came into the

harbors of the United States.

After considering fully the former status of the law and

Section 3005 of the Revised Statutes, which formerly per-

mitted such shipments, and Article 29 of the treaty con-

cluded with Great Britain the court said:

“In view of the parallelism between the statute

: and the treaty the question seems of no importance

except so far as the existence of the treaty might 4

be supposed to intensify the reasons for construing is

! later legislation as not overruling it. But make- ;

weights of that sort are not enough to affect the :

result here.

| “On the other side is the Eighteenth Amend- :

ment forbidding ‘the manufacture, sale, or trans- ;

portation of intoxicating liquors within, the im- t

! portation thereof into, or the exportation thereof

from the United States and all territories subject 4

to the jurisdiction thereof for beverage purposes.’ :

There is also the National Prohibition Act of ;

October 28, 1919, ch. 85, Title II, Section 3, 41

Stat. 305, 308, which provides that except as

therein authorized, after the Eighteenth Amend-

ment goes into effect no person shall manufacture,

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

nish or possess any intoxicating liquor. All the

. provisions of the act are to be liberally construed

to the end that the use of intoxicating liquor as a

| beverage may be prevented. (Italics ours.)

. “The routine arguments are pressed that this

) country does not undertake to regulate the habits

i of people elsewhere and that the references to

beverage purposes and use as a beverage show that

| it was not attempting to do so; that it has no

interest in meddling with the transportation across

its territory if leakage in transit is prevented, as it

as been; that the repeal of statutes and a fortiori

of treaties by implication is not to be favored; and

that even if the letter of a law seems to have that

effect a thing may be within the letter yet not

| within the law when it has been construed. WE

APPRECIATE ALL THIS, BUT ARE OF

OPINION THAT THE LETTER IS TOO

STRONG IN THIS CASE. (Capitals ours.)

“The Eighteenth Amendment meant a great

revolution in the policy of this country, and pre-

sumably and obviously meant to upset a good

many things on as well as off the statute books.

It did not confine itself in any meticulous way to

the use of intoxicants in this country. It forbade

export for beverage purposes elsewhere. True,

this discouraged production here, but that was for-

bidden already, and the provision applied to

liquors already lawfully made. See Hamilton ss.

Kentucky Distilleries & Warehouse Co., 251 U.S.

126, 151, n. 1. It is obvious that those whose

wishes and opinions were embodied in the Amend-

ment meant to stop the whole business. They did

not want intoxicating liquor in the United States

and reasonably may have thought that if they let

it in some of it was likely to stay. When, there-

fore, the Amendment forbids not only importation

into and exportation from the United States, but

transportation within it, the natural meaning of the

words expresses an altogether probable intent. The

Prohibition Act only fortifies in this respect the

interpretation of the Amendment itself. The

manufacture, possession, sale and transportation of

spirits and wine for other than beverage purposes

are provided for in the act, but there is no provision

for transshipment or carriage across the country

from without. When Congress was ready to per-

mit such a transit for special reasons, in the Canal

Zone, it permitted it in express words. Title III,

Section 20; 41 Stat. 322.”

It follows clearly, therefore, from this decision that the

possession, transportation or furnishing of beverage

intoxicants are prohibited within the territorial limits of

the United States because of the provision in Section 3

and there is no exemption or exception to it. This con-

clusion is made more definite and certain when we read

the dissenting opinion of Mr. Justice McKenna.

IX. THE CONSTRUCTION SOUGHT BY THE

FOREIGN SHIPPING INTERESTS IN THIS CASE

SEEKS TO IMPOSE A LIMITATION UPON THE

SOVEREIGNTY OF THE UNITED STATES BY

IMPLICATION. LIMITATIONS UPON SOVER-

EIGNTY ARE NOT FAVORED BY THE COURTS

AND ARISE ONLY WHERE THE LANGUAGE OF

THE LEGISLATIVE BODY IS EXPLICIT.

In the consideration of these cases the character of the

complainants and the nature of the privilege sought must

not be overlooked. The complainants are foreign ship-

ping interests seeking a special privilege in the matter of

trade with the United States. The construction which is

sought seeks to impose a limitation upon the sovereignty

of the United States. They rely simply upon custom

and existing practice. The right of the United States

to determine upon what conditions foreign vessels seek-

ing our trade can enter our ports cannot be gain-

said. There is no principle of international law in-

volved. Even before the Eighteenth Amendment was

adopted Congress possessed the power under the author-

ity conferred by the Constitution to regulate com-

merce with foreign nations and to prohibit vessels of

foreign nations entering the ports of the United States

whenever it saw fit. This right was exercised repeatedly

without the infringement of any principle of international

law.

In the light of these facts the slight basis upon which the

privilege now being sought is based, becomes manifest.

In Moore’s International Law Digest, Volume II, Page

18, he discusses the rule of construction in such cases:

“If, therefore, a dispute occurs between a ter-

ritorial sovereign and a foreign power as to the

extent or nature of rights enjoyed by the latter

within the territory of the former, the presumption

is against the foreign state, and upon it the burden

lies of proving its claim beyond doubt or question.”

It is insisted by the foreign steamship companies

that an implied exception must be made in the statute

eet

insofar as liquors commonly designated as sea stores,

intended entirely for the subsistence of the passengers and

crew, are concerned. It is contended that as to this class

of beverage liquors that they occupy a position somewhat

like that of the furniture or other appurtenances of the

ship, and are necessary for its operation; that the customs

laws of the United States expressly recognize these sea

stores and that the transportation of such sea stores

aboard foreign vessels while within the territorial waters

of the United States is not a transportation within the

meaning of that term as employed in the Eighteenth

Amendment and National Prohibition Act.

A sovereign nation may prohibit the entry of foreign

vessels within its ports entirely, if such a step should be

considered necessary in the administration of its govern-

mental policy. Nations may, and do, legislate concern-

ing the character of the equipment or the furnishings of

vessels entering their ports. There are many illustrations

of this found in statutes regulating the equipment neces-

sary for the safeguarding of human life; statutes regulating

the manner of loading of vessels and sanitary laws

enacted for the protection of the public health.

The sections of the Revised Statutes of the United

States dealing with sea stores, R. S. 2795, 2796, 2797,

3111, 3112 and 3113, indicate merely that these statutes

were enacted for the effective collection of the customs

duties imposed by the statutes of the United States.

Section 2795 in this connection reads: “In order to ascer-

tain what articles ought to be exempt from duty, as the

sea stores of a vessel, the Master shall particularly specify

the articles.”

District Judge Learned Hand, in speaking of this ques-

tion, said:

“Assuming that the customs laws give a positive

right to enter sy stores into the United States,

a position in itself very doubtful since in form it

only exempted them from customs duties, at least

it must be conceded that the statute, old as it is,

represented only the policy, and not the promise of

the nation. It is true that the custom in maritime

affairs is of long standing to treat such stores as

a part of the ship, but balancing that consideration

with the implication against the repeal of a treaty,

I cannot help believing that the second is the more :

weighty. At best it can only be said that the cases 1

are on a parity in this regard.” (Italics ours.) :

Judge Hand then pointed out the reasons given by this 1

court in its decision in the case of Grogan vs. Walker and

Anchor Line vs. Aldridge. He said:

“In the decisions cited there was no conceivable

danger in the transit of liquor across the United

States except the chance of its escape. It is true

that as suggested in Grogan vs. Walker, supra, the :

provision against export may have been intended

to prevent the use of stimulants outside the United

States, and, so far as it was, the argument applies

with stronger force to the cases at bar. But taken :

wibetsesialiy, the only evil which the transit could

accomplish was that some of the liquor should not

complete its passage. In the cases at bar the 3

danger of an escape is equally present, not perhaps

in the case of these plaintiffs, Sn I cannot regard \

them alone. Less responsible owners may not be }

as scrupulous, and the law runs for all.

“Naturally I have nothing to say about the

wisdom of the amendment or the law, but wise or

not, one thing is clear, that a drink of whisky is as

hurtful to health and morals outside as inside

Ambrose Light. It appears to me inconceivable,

when one is discussing the implied intent of Con-

gress, that a statute cast in such sweeping terms

should be read as indifferent to open preparations

within the United States for the gratification by

its citizens of exactly those appetites which it was

the avowed intent of the statute altogether to deny.

Nor do I believe that any who would hesitate to

think so who did not already repudiate the whole

thy"

LN ESRRIe Pree a ee ey

See

reform. If, for example, we were to substitute

cocaine or opium for alcohol, I can scarcely think

there could be any disinterested difference of

opinion.

“Suppose it were the habit of Chinese vessels

to bring to our ports among their stores a proper

supply of morphine and opium with the avowed

purpose of dispensing it freely to passengers from

the United States as soon as they cleared the

league limit. Could it be seriously argued that a

constitutional amendment and a statute in broad

language designed to prevent citizens from using

this drug did not cover so palpable a means of

nullifying the very purpose of the law? The

illustration is extreme only to those who can see

no parity between the evils of opium and alcohol.

But a lode cannot take any position on that

question; it must be enough for him that each is

forbidden.”

Judge Hand then pointed out that although in the

argument of the cases before him no distinction was made

between such portions of the sea stores as were intended

for the consumption of passengers and that intended as

rations for the crew, he points out the distinction, but

states that both are equally within the purpose of the

amendment and the statute. He says:

“Tt is indeed different with so much of the

stocks as are kept for the crews, and a much

stronger argument can be made for the legality of

their carriage, though these also seem to me to fall

within the decision I have so often cited. How-

ever, that question is really irrelevant as these

cases are presented. The plaintiffs base their

argument on the improbability that a statute in

such general words should have meant to cover

sea stores. This in turn rests upon the unliklihood

that what has been for so long treated as not sub-

ject to municipal law should all at once become so.

But the argument breaks down as soon as it appears

that the stores as a whole cannot fairly be excluded.

To say that the section covered some of such stores,

but not all, would be to admit that as such they

were not excluded by implication. What then

becomes of the argument? There are indeed

cogent reasons why these might be expected, but

these are not because they are ship’s stores.

“Congress may indeed determine to make an

exception in their favor, as to the validity of which

I have nothing to say, but I do not think that a

judge can imply the exception because of the un-

questioned difficulties in which its absence leaves

the plaintiffs. There is a narrow limit to judicial

redrafting of statutes. Indeed, the argument was

not suggested at the bar that passengers’ refresh-

ment and crews’ rations stood in different posi-

tions. Probably none was intended, and I men-

tion it only against the possibility that it might

be taken later.”

The position of the foreign steamship companies in the

case of Grogan vs. Walker and Anchor Line os. Aldridge

was immeasurably stronger than their position in the

instant cases. In those cases they relied upon the pro-

vision of an existing treaty and the language of Section

3005 of the Revised Statutes of the United States per-

mitting transshipment of merchandise through this coun-

try. In those cases this court held that notwithstanding

treaty provisions and the language of the statute, the

privilege sought by the foreign shippers could not be

implied in the face of the altered national policy of this

government, manifested in the Eighteenth Amendment

to the Constitution. This court said:

“In view of the parallelism between the statute

and the treaty the question seems of no importance

except so far as the existence of the treaty might

be supposed to intensify the reasons for construing

later legislation as not overruling it. But make-

weights of that sort are not enough to affect the

result here.”

iia

PE WME ELON MT, DEEN A SIM

In the present cases, sole reliance is placed upon the

existing custom. There is no distinction made in the

customs statutes of the United States between such por-

tions of sea stores as are intended for consumption by pas-

sengers and that portion intended as rations for the crew.

Such a distinction is wholly unjustifiable. In the face of

the sweeping language of the Amendment and the statute,

a right predicated merely upon custom and usage cannot

prevail in the face of the changed policy expressed in the

fundamental law of the United States.

The cases decided by this court, cited by counsel for

the foreign ship owners, such as Gloucester Ferry Com-

pany vs. Pa., 114 U. S. 196; Rhodes vs. Iowa, 170 U. S.

412; Louisville & Nashville Railroad vs. Cook Brewing

Company, 223 U. S. 70; Danciger vs. Cooley, 248 U. S. 31,

to the effect that the transportation of such liquor as sea

stores within the territorial waters of the United States

is not a transportation within the meaning of the

Amendment and statute are not controlling in this case.

Those cases all involved the question of the validity of

state legislation effecting interstate commerce. They are

based upon the peculiar relation existing in this country,

under our form of government, between the states and

the federal government. Legislation by the states, inso-

far as it effects interstate commerce, is, under the Con-

stitution, subordinate to the superior authority of Con-

gress in the exercise of its power under the commerce

clause. The Eighteenth Amendment is an exercise of

sovereign power by the people of the United States and

is subject to no superior authority. Furthermore, under

this statute it is not only the transportation which is pro-

hibited, but also the possession or furnishing of such

liquors within territory subject to the United States which

is unlawful.

CONCLUSION

In conclusion the following may be said concerning both

of the legal questions involved in this controversy. The

construction contended for by the shipping interests, both

as to vessels of the United States on the high seas and

vessels of foreign nations within the territorial waters of

the United States, involves an implied exemption. This

would have to be made in the face of the literal language

of the amendment and the statute as well as contrary to

their spirit, and is predicated entirely upon the argument

of convenience of trade and the existing customs.

It is contended by counsel for the shippers that the ques-

tion of comity of nations is seriously involved in the issue

under discussion and that to construe the Federal Prohibi-

tion legislation as prohibiting all transportation within the

territorial limits of the country would involve the United

States in serious trade controversies. It is submitted that

there is a far more serious question involved than mere

matters of comity and trade. It is the question of

whether there shall be enforced in the United States the

laws of the United States or whether there is to be substi-

tuted for the will of the nation that of foreign powers.

In view of the source of this legislation which is the will of

the people expressed in an amendment to the Constitu-

tion, it would be contrary to American traditions, incon-

sistent with all precedents of treaty, constitutional and

statutory interpretation to read into the law by implica-

tion an exception not expressly contained therein and one

tending to defeat its purpose, merely upon the grounds

of inconvenience of trade.

The shipping interests have urged as one of the reasons

for seeking this exemption, the fact that the laws of cer-

tain foreign nations require that the immigrants and mem-

bers of their crew be furnished wines and that it is impos-

sible to compete in trade unless vessels of the United

States have the same privileges. If foreign nations, in

pursuance of their domestic policies can require vessels

2 ant Di CE et

A edie nil mls et al ad WA

Sa ns De iin Si Bitlis a A ata ta Lita ae

Pit PSE AL EARN NTN ADOSER DWE ELLA AL LACED LNCS Gc aia “i

entering their ports, seeking their trade, to comply with

their domestic laws, certainly the United States is no less

sovereign than any one of these nations. Shall the ex-

press will of the people of the United States embodied in

an amendment to their fundamental law be declared sub-

ordinate to the will of any other people? That is the

issue in this controversy. The construction which is

sought involves a confession of weakness and a limitation

upon the sovereign right of the people of the United

States inconsistent with all of her past traditions; and

incompatible with their honesty of purpose; whereas the

construction which is urged herein asserts the right of a

sovereign people to enforce their fundamental law and

imposes upon foreign nations no duty of observance incon-

sistent with any principle of international law. It will

treat all nations alike. This is but an elementary prin-

ciple of simple justice. By this, vessels of the United

States on the high seas, which claim the protection of the

stars and stripes are but required to observe the Consti-

tution of the United States, from which the flag derives

its significance and power, and foreign nations made to

observe a governmental policy flowing not simply from a

legislative enactment but from the source of all power—

the will of the people.

For these reasons, as well as the fact that Congress has

consistently refused to enact legislation to permit the sale

of intoxicating liquors on vessels of the United States upon

the high seas although insistently besought to do so (see

H. R. 11579 of the 66th Congress and hearing on the

same, Serial 26, January 13, 1921, before the House

Judiciary Committee of the 67th Congress), it is respect:

fully submitted that the decision of the District Court for

the Southern District of New York in these cases should

be afirmed.

Respectfully submitted,

ANDREW WILSON,

Wayne B. WHEELER,

Attorneys, Amici Curiae.

feberaes

EXHIBIT (A)

UNITED STATES LINES

45 Broadway

New York

Moore & McCormack Co., Inc. Managing

Roosevelt Steamship Co., Inc. i Operators

December 9, 1922.

A. D. Lasker, Esq., Chairman,

United States Shipping Board,

Washington, D. C.

Dear Mr. Lasker:

The Freight and Passenger Agents with whom we do

business are giving us the “merry laugh” this morning.

Whenever we have dinners or luncheons on board our

steamers for Passenger and Freight Agents (and we must

have them throughout the year, because the other lines do

the same thing, and it is necessary for us to keep them as

our friends), we serve a fine buffet luncheon or a good din-

ner, with soft drinks, cigars, etc., but no cocktails, wines,

or beer.

These Agents attended a buffet luncheon on board the

S. S. FORT VICTORIA yesterday noon, at Pier 95

North River, at which they were freely served cocktails,

wines and beer. As a matter of fact the luncheon itself

did not amount to anything, and most of those present

Practically construed the invitation as one to “come up

and have a drink” —of which they all availed.

If we are to be up against this kind of competition, be-

cause of the failure of the Treasury and Prohibition Off-

cers to enforce prohibition on foreign steamers as it is en-

forced on American steamers, it can have only one result,

and the foreign lines will be carrying all of the freight

Lathe nth nia atc sal

Te ti i i a. i ih ln Ain ti lat TI i

at Msn

aunts" cee

alta nat

and passenger traffic of the United States, because the

agents will be working for them instead of for American

lines.

Very truly yours,

T. H. RosspoTtTom,

General Manager.

THR/G

INDEX.

I. The eighteenth amendment and the national prohibition

act require the application of prohibition to every place

where the United States may exercise its jurisdiction... .

The enforcement statutes............................

The purpose of the amendment... ..................

Wa II. A foreign ship within the territorial waters of the United

States is subject to their jurisdiction...................

would distinguish liquor carried as such from liquor car-

ried as cargo, or which would indicate that liquor carried

as sea stores was intended by Congress to be exempt from

the provisions of the eighteenth amendment and the na-

IIIs sinc oinenndcunnecth beuescnieccca.

CITATIONS.

Cases:

Anchor Line v. Aldridge, decided POOy 05; WORD gk cnc kccccaccx,

Brown v. Dechesne, 19 How. 183...............-..0ccceceeeeee.

State of Maine, The, 22 Fed. 743..........-00c00-005--........

United States v. Bowman, decided November ee eee

United States v. Diekelman, 92 U.S. 520....... er

United States v. 24 Coils Cordage, 28 Fed. Cas. 276.............

United States v. 1 Hempen Cable, 27 Fed. Cas. 26..............

25145221 (1)

1 OORT NE Ms Ow

PEL A N Dee AND

% Within Bind we >

Statutes:

Act of March 2, 1799....----+--+ssr**"0"

Act supplemental to the national prohibition act

National prohibition act ....--+--+sssrersereeceeseeeee

Revised Statutes—

ee ME cucxcnnccnacancnsneesensaennnnssssehTT

ete MURR <u cauacnxnssnansesenwesenstnenes

RRM. cs canvaxcenensnnnsanenesenelnen tS

Tariff act, September Oe Ec ciauacevan dans akeseeensesnie

Miscellaneous:

Moore’s International Law Digest......-++s++850°*

Oppenheim’s International Law, vol.

S “ andes oe ~ -toete ee

—~7~»KKS pemeuaisuneneente ee on

Inthe Supreme Court of the Wnited States,

OcroBeR TreRM, 1922.

Tue CUNARD STEAMSHIP Company, Lrp.,

and Anchor Line (Henderson Brothers),

Ltd., appellants, No. 659.

ANDREW W. MELLON er AL,

OckaNic STEAM NAVIGATION CoMPANY,

Ltd., appellants,

. >No. 660.

ANDREW W. MELLON eT AL. |

INTERNATIONAL NAVIGATION COMPANY,

Ltd., appellants, ' No. 661

v. : 5

ANDREW W. MELLON ET AL. |

CoMPAGNIE GENERALE TRANSATLAN-

tique, appellants, | No. 662

ANDREW W. MELLON ET AL. |

Tat NETHERLANDS AMERICAN STEAM

Navigation Company (Holland Ameri-

can Line), appellants, > No. 666,

ANDREW W. MELLON ET AL. |

LiverPooL, Brazit AND River PLATE

Steam Navigation Company, Ltd., ap-

pellants, > No. 667.

ANDREW W, MELLON ET AL.

Tue Roya Mat. STEAM Packet Com-

pany, appellants, No. 668

v | ‘ p

ANDREW W. MELLON ET AL.

(1)

chee SARIS URS SAIS TR Od O° Sud Sees

UNITED STEAMSHIP ComMPANY OF COPEN-

hagen (Scandinavian American Line),

appellants,

AnpREW W. MELLON ET AL.

Tue Paciric STEAM NAVIGATION ca |

pany, appellants, Xo. 670

v. | . .

Anprew W. MELLON ET AL.

NAVIGAZIONE GENERALE ITALIANA, AP-

pellants,

AnpREW W. MELLON ET AL.

APPEAL FROM THE DISTRICT COURT OF THE UNITED

STATES FOR THE SO UTHERN DISTRICT OF NEW YORK.

BRIEF ON BEHALF OF THE APPELLEES.

STATEMENT.

These are appeals by ten foreign steamship com-

panies from final decrees of the District Court of the

United States for the Southern District of New York,

dismissing bills of complaint filed to enjoin the de

fendants from enforcing against their ships plying

between American and foreign ports the provisions of

the National Prohibition Act, as construed by the

Attorney General of the United States, and embodied

in regulations pursuant thereto made by the Secre

tary of the Treasury. The cases were heard up0ot

bill and answer on motions made by the plaintiffs for

final decrees granting the relief prayed for, and, by

the defendants, to dismiss the bills. The motions to

dismiss the bills were granted and decrees accordingly

entered.

Each of the plaintiffs is a foreign corporation own-

ing and operating lines of steamships carrying passen-

gers between European and American ports. The

defendants are officers of the United States charged

with the duty of enforcing the law in question.

The question presented is the application of the

Fighteenth Amendment and the National Prohibition

Act to intoxicating liquor brought into ports of the

United States by foreign ships as part of their sea

stores.

The plaintiffs in Nos. 659, 660, 661, 667, 668, and

670 are British corporations operating ships of British

registry.

The plaintiff in No. 662 is a French corporation

operating ships of French registry.

The plaintiff in No. 666 is a Dutch corporation op-

erating ships of Dutch registry.

The plaintiff in No. 669 is a Danish corporation

operating ships of Danish registry.

The plaintiff in No. 678 is an Italian corporation

operating ships of Italian registry.

The allegations of the bills are fully set forth in the

appellant’s brief and need not be repeated.

GROUNDS FOR AN INJUNCTION.

Briefly we may state the facts alleged as grounds

upon which the bills ask equitable interference of the

court as follows:

(1) It has always been the practice of vessels to

carry wines, liquors, and other intoxicating bever-

ages as part of their sea stores for the consumption

of the passengers and crew; many of the passengers

and of the crews are accustomed to use wines and

liquors. If the passengers can not obtain it they

will travel by other routes, and if the crews can not

have it there will be difficulty in obtaining crews.

(2) A considerable number of the crews of vessels

plying between American and Italian ports are Ital-

ians, and they carry many third-class passengers for

which it is necessary to have Italian stewards. The

Italian law requires certain officers and members of

the crew of ships carrying third-class passengers to

be Italians and compels the ship to furnish one-half

liter of wine per day for each third-class passenger

and a larger quantity to the crew. In the case of

Italian ships, the entire crew must be Italian sub-

jects. The French ships are subject to similar pro-

visions of French law differing in detail, not in

principle. ,

(3) If the National Prohibition Act is enforced so

that these ships can not carry wines and liquors, it

will result in large financial loss to the owners, and

they will suffer much embarrassment from the con-

flict of laws and the difficulty in obtaining crews.

All the bills contain general allegations to the

effect that the defendants intend to enforce the law

in such manner as to prevent the carriage of all in-

toxicating liquors for beverage purposes as sea stores

for crew and passengers on foreign vessels entering

ports of the United States. The bills allege the lack

of an adequate remedy except in a court of equity

ideaamaal

a esnnssteennenetennn cai

—

and ask that the defendant be enjoined from enfore-

ing the law in the manner threatened.

THE ANSWERS.

The answer in each case sets forth six objections

to the bill as follows:

1. The suit is in effect one against the United States

and does not aver or show that the United States

has consented to be sued;

2. The court has no jurisdiction to grant the relief

prayed for;

3. The bill does not present a cause of action in

equity under the Constitution of the United States ;

4. The bill does not disclose a cause of action

equitable in its nature, civil in its character, and

arising under the Constitution of the United States;

5. The facts alleged in the bill are insufficient to

constitute a valid cause of action in equity ;

6. The complainant has a complete remedy at

law.

The answer further alleges that any difficulty

which the complainants may experience in obtaining

adequate crews from among the nationals of coun-

tries in which the custom to use alcoholic liquors is

widespread would be readily obviated by the pay-

ment of higher wages, and that many of the vessels

of the American merchant marine carry crews, a

portion of whom come from nations accustomed to

the use of alcoholic beverages, and that such vessels

have never had difficulty in obtaini _ adequate

crews. The answer denies the allegations that the

ruling of the Attorney General and the regulations

are and will be void or contrary to the complainants’

rights under existing treaties, and denies also the

other conclusions alleged in the bill with respect to

the unconstitutionality of the interpretation of the

prohibition act by the Attorney General. The

answer also alleges that if the claim of the plaintiffs

is correct it would imply the right of any ship to carry

liquors within the territorial waters of the United

States: that a large and profitable business has been

carried on, resulting in the importation of liquor

into this country contrary to the law by vessels with

foreign registry; that the former rulings of the

Secretary of the Treasury have actually been used as

a cloak for smuggling, and that the success of the

complainants’ contentions will result in a great

increase of such operations; that complainants make

large profits from the sale of intoxicating liquors on

the high seas, and that the loss of such profit is the

only definitely ascertainable loss which complainants

will suffer; that the sale of intoxicating liquors on

American ships has ceased, and that if vessels of

foreign registry are facilitated in the sale of liquor

on the high seas the resulting damage to the American

merchant marine will be great and the result will be,

in effect, a differential treatment giving preference

to foreign ships over American ships.

THE ISSUE.

The amendment is aimed at the use of liquor for

“beverage purposes.” The meaning of these words

‘s well understood, but it may be well to note that

the noun beverage is defined in the Standard Diction-

ary as: “Drink; that which is drunk; especially a

pleasant or refreshing drink, or a habitual one.”

The vicious thing, therefore, is drinking intoxicants

for pleasure, refreshment, or from habit. The defini-

tion could not have been phrased more exactly to

fit the facts alleged in the bills. The claim is that

the officers of the United States intend to prevent

the ships from furnishing liquor to passengers and

crew who habitually drink it for pleasure and re-

freshment, and the court is asked to construe the

amendment and the enforcement act so as to permit

them to bring and have liquor for that purpose within

our ports and littoral waters freely and without

molestation.

ARGUMENT.

{

The eighteenth amendment and the national pro-

hibition act require the application of prohibition

to every place where the United States may exer-

| ¢ise its jurisdiction.

The first section of the Eighteenth Amendment is

as follows:

After one year from the ratification of this

article the manufacture, sale, or transporta-

tion of intoxicating liquors within, the im-

portation thereof into, or the exportation

thereof from the United States and all ter-

ritory subject to the jurisdiction thereof for

beverage purposes is hereby prohibited.

25145— 22—_2

— suse

The things prohibited are—

(1) Manufacture,

(2) Sale,

(3) Transportation,

(4) Importation into, and

(5) Exportation from.

The subject of the prohibition is intoxicating

liquors for beverage purposes.

The place of the prohibition is “the United States

and all territory subject to the jurisdiction thereof.”

By section 2 Congress is given power to enforce

the article by appropriate legislation.

Congress, therefore, has express power in its dis-

cretion to enact all laws which it may deem desir-

able or necessary to accomplish the purpose of sec-

tion 1 of the amendment.

The enforcement statutes.

Congress has passed two acts to enforce the

amendment, the National Prohibition Act (41 Stats,

Part 1, p. 305) and an act supplementai thereto

(act of November 23, 1921, ce. 134).

The National Prohibition Act is entitled—

An act to prohibit intoxicating beverages

and to regulate the manufacture, production,

use, and sale of high-proof spirits for other

than beverage purposes, and to insure al

ample supply of alcohol and promote its use

in scientific research and in the develop-

ment of fuel, dye, and other lawful industries.

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Section 3 of Title II of that act provides:

No person shall on or after the date when

the eighteenth amendment to the Constitution

of the United States goes into effect, manu-

facture, sell, barter, transport, import, export,

deliver, furnish, or possess any intoxicating

liquor except as authorized in this act, and

all the provisions of this act shall be liberally

construed to the end that the use of intoxi-

cating liquor as a beverage may be prevented.

Liquor for nonbeverage purposes and wine

for sacramental purposes may be manufac-

tured, purchased, sold, bartered, transported,

imported, exported, delivered, furnished, and

possessed, but only as herein provided, and

the commissioner may, upon application, issue

permits therefor: * * *

While the act makes provision for the use of

intoxicants for medicinal and sacramental purposes,

it nowhere contains any provision whereby their use

for beverage purposes is made lawful in any place

except a private dwelling for the personal consump-

tion of the owner, his family and his bona fide guests,

(Sec. 33, Title II.)

By section 17 it is made unlawful to advertise any-

where, or by any means or method, liquor, or the

manufacture, sale, keeping for sale or f urnishing of the

same, or where, how, from whom, or at what price

the same may be obtained. No one shall permit

any sign or billboard containing such advertisement

to remain upon one’s premises,

By section 18 of Title IT it is unlawful to advertise,

manufacture, sell, or possess for sale any utensil,

She eee

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contrivance, machine, preparation, compound, tablet,

substance, formula, direction, or recipe advertised,

designed, or intended for use in the unlawful manv-

facture of intoxicating liquor, and by section 19 no

person shall solicit or receive, nor knowingly permit

his employee to solicit or receive, from any person

any order for liquor or give any information of how

liquor may be obtained in violation of the act.

By section 21 it is provided:

Any room, house, building, boat, vehicle,

structure, or place where intoxicating liquor

is manufactured, sold, kept, or bartered in

violation of this title, and all intoxicating

liquor and property kept and used in main-

taining the same, is hereby declared to be a

common nuisance, and any person who main-

tains such a common nuisance shall be guilty

of a misdemeanor and upon conviction thereof

shall be fined not more than $1,000 or be im-

prisoned for not more than one year, or both.

If a person has knowledge or reason to believe

that his room, house, building, boat, vehicle,

structure, or place is occupied or used for the

manufacture or sale of liquor contrary to the

provision of this title, and suffers the same to

be so occupied or used, such room, house,

building, boat, vehicle, structure, or place

shall be subject to a lien for and may be sold

to pay all fines and costs assessed against the

person guilty of such nuisance for such viola-

tion, and any such lien may be enforced by

action in any court having jurisdiction. (Ital-

ics ours.)

By section 25 it is unlawful to have or possess any

liquor or property designed for the manufacture of

liquor intended for use in violating this title or

which has been so used, “and no property rights

shall exist in any such liquor or property.” This sec-

tion provides for the issuance of search warrants

and contains a proviso that no search warrants

shall issue to search any private dwelling occupied

as such unless it is being used for the unlawful sale

of liquor, or unless it is in part used for some busi-

hess purpose, and the term “private dwelling” is

to be construed to include the ‘room or rooms used

and occupied not transiently but solely as a resi-

dence in an apartment house, hotel, or boarding

house.”’

Section 33 of the act provides as follows:

After February 1, 1920, the possession of

liquors by any person not legally permitted

under this title to possess liquor shail be

prima facie evidence that such liquor is kept

for the purpose of being sold, bartered, ex-

changed, given away, furnished, or otherwise

disposed of in violation of the provisions of

this title. Every person legally permitted

under this title to have liquor shall report to

the commissioner within ten days after the

date when the eighteenth amendment of the

Constitution of the United States goes into

effect, the kind and amount of intoxicating

liquors in his possession. But it shall not be

unlawful to possess liquors in one’s private

dweiling while the same is occupied an used

Rs :

. SM ab tee RD 2 wy Nit aha PT AED tens eg. nat NaS

EE ENR Re RLM Oe FT SoS +

by him as his dwelling only and such liquor

need not be reported, provided such liquors

are for use only for the personal consumption

of the owner thereof and his family residing

in such dwelling and of his bona fide guests

when entertained by him therein; and the

burden of proof shall be upon the possessor

in any action concerning the same to prove

that such liquor was lawfully acquired, pos-

sessed, and used.

The act may be searched in vain for any provision

which allows anyone to have liquor for beverage

purposes anywhere except in his dwelling. There

is nowhere the suggestion that vessels in our waters |

enjoy any immunity.

Even the use of liquor as medicine by the sick is

drastically restricted.

Under section 7 of Title II not more than a pint of

spirituous liquor to be taken internally shall be pre-

scribed for use by the same person within any period

of ten days, and no prescription shall be filled more

than once, and no one but a physician holding a

permit to prescribe liquor shall make any such

prescription.

By act of November 23, 1921, c. 134, entitled “An

act supplemental to the national prohibition act,”

it was provided in section 3:

That this act and the national prohibition

act shall apply not only to the United States

but to all territory subject to its jurisdiction,

including the Territory of Hawaii and the

Virgin Islands; * * *

SRSA ea Rae tte RE ae OA cate Ra

13.

Section 2 provides that only spirituous and vinous

liquor may be prescribed for medicinal purposes, and

that no physician shall prescribe any vinous liquor

containing more than 24 per cent alcohol by volume,

or on any prescription, more than one-fourth of a

gallon of vinous liquor, or any vinous or spirituous

liquor containing separately or in the aggregate more

than one-half pint of alcohol for use by any person

within any period of ten days. No physician shall be

furnished with more than one hundred prescription

blanks for use in any period of ninety days, unless on

application it shall be clearly apparent to the com-

missioner that, for some extraordinary reason, a

larger amount is recessary. Under the same sec-

tion, no spirituous liquor shall be imported into the

United States, nor shall any permit be granted

authorizing the manufacture of any spirituous liquor

save alcohol, until the amount of such liquor now in

distilleries or other bonded warehouses shall have

been reduced to a quantity that, in the opinion of

the commissioner will, with liquor that may there-

after be manufactured and imported, be sufficient to

supply the current need thereafter for all nonbeverage

uses, and no vinous liquor shall be imported into the

United States unless it is made to appear to the com-

missioner that vinous liquor for such nonbeverage

use, produced in the United States, is not sufficient

to meet such nonbeverage needs. The use of alco-

holic liquors for medicinal purposes is thus more

drastically restricted, and, whatever may have been

true before, since the passage of the act of 1921 the

re ~~ * at Kone lk a a. ee

» ve BE LAEAEL EINE MES Rh SEAL ANGIE OO on HR

national prohibition act now applies not only to the

United States but to all territory subject to its juris-

diction. Its application is, therefore, coextensive

with the amendment itself, and if the amendment

applied wherever the jurisdiction of the United States

extends, the enforcement act has now the same

application.

The purpose of the amendment.

The purpose or intent of the States in adopting

the Kichteenth Amendment and that of the legislative

body in initiating it, must be considered in the light

of “the mischief to be prevented” (¢ ‘raig Vv. Mis-

souri. 4 Pet. 410, 431), the subject, the context and

the intention of the body inserting the word in the

Constitution (/cCulloch v. Maryland, 4 Wheat. 316),

“oll the aids and lights of contemporary history”

(Kendall v. United States ex rel Stokes, 12 Pet., 524),

‘in connection with the known condition of affairs

out of which the occasion for its adopting may have

arisen * * * in a way, So far as is reasonably

possible to forward the known purpose or object for

which the amendment was adopted” ( Maxwell v. Dow,

176 U.S. 581).

The history of the movement which led to the adop-

tion of the 18th Amendment is a matter of common

knowledge, and, whether one agrees with the prin-

ciple or not, we all recognize the fact that it represents

the culmination of a nation-wide movement which

had been going on in the.United States for many years

prosecuted with a zeal which amounted in some

cases to the spirit of religious fervor, opposed with a

WE dA SORE Bg

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bitterness equaily zealous by those who denounced

it as subversive of personal rights and liberties, but

aimed at the total eradication of the use of alcoholic

liquors of every kind and under all circumstances,

except for strictly limited medicinal and sacra-

mental purposes. It was essentially «a moral crusade

under religious leadership, frankly intended to save

the people from a habit believed to be the chief cause

of crime, poverty, and misery. It took no account

of property rights and allowed no room for di‘ferences

of opinion. Believing as they did, that the use of

liquor did more than any other one thing to debauch

and degrade our manhood and womanhood, the

advocates of prohibition contended that whatever

material hardship might be the direct or indirect

result of prohibition, it should count as nothing in

view of the evils to be removed and the blessings to

follow.

It must be remembered that at the time the amend-

ment was adopted over thirty of the forty-eight

States already had absolutely prohibited the liquor

traffic, and that all of them had in some necatilire

restrained it. It was well established. as a matter

of law, that each State had plenary power to pro-

hibit the traftie und the use, and the Federal Governr

ment had, within the limits imposed by the Con-

stitution, lent its aid to the States in their efforts to

bring about absolute prohibition. Nevertheless, its

advocates were not satisfied and, naturally, for the

traffie which they sought to destroy still flourished.

25145—22——-3

Believing that the final destruction of the use of

liquor for beverage purposes was necessary to the

peace and good order of the country and of the world,

they felt that that result could only be accomplished

by an amendment which would bring to its destrue-

tion the full power of the Nation.

Finally it was ratified by forty-five of the forty-

eight States. Undoubtedly, when the Amendment

thus became an accomplished fact, those who had

striven mightily for the result believed that never

again, anywhere where the power of the United

States could be exerted by law, would the drinking

of liquor be lawful. Prohibition was now a fact,

throughout the “United States and all territory

subject to the jurisdiction thereof.”’ They must

have experienced an exaltation of spirit similar to

that which moved Mr. Justice Miller in the Slaughter-

house cases to say of the war between the states,

followed by the 13th Amendment (16 Wall. 36, 68):

In that struggle slavery, as a legalized social

relation, perished. It perished as a necessity

of the bitterness and force of the conflict.

* * * Hence the thirteenth article of

amendment of that instrument. Its two short

sections seem hardly to admit of construction,

so vigorous is their expression and so appro

priate to the purpose we have indicated.

After quoting the amendment, he continues:

To withdraw the mind from the contem-

plation of this grand yet simple declaration of

the personal freedom of all the human race

within the jurisdiction of this Government—a

declaration designed to establish the freedom

of four million slaves—and with microscopic

search endeavor to find in it a reference to

servitudes, which have been attached to prop-

erty in certain localities, requires an effort,

to say the least of it.

Anyone reading the language of the Eighteenth

Amendment in the light of the history of the times

must read indeed “with microscopic search”’ to find

in the purpose of the amendment anything less com-

plete than the commitment of the United States as a

nation unalterably to the policy of suppressing with

all its power the drinking of liquor for pleasure, re-

freshment, or from habit in every place to which its

jurisdiction extended. Throughout the jurisdiction

of the United States drinking as a “ legalized social

custom”’ was to perish under the iron heel of the law.

This court has recognized the force of this conten-

tion in Grogan v. Walker, and Anchor Line v. A ldridge,

decided May 15, 1922. In those cases the court held

that the transportation of intoxicants from a foreign

port through some part of the United States to

another foreign port, and the transshipment of in-

toxicants from a vessel in a port of the United States

to another vessel bound for a foreign port, was a

Violation of the National Prohibition Act. In those

cases Mr. Justice Holmes, speaking for the court, said

of the act:

All the provisions of this act are to be

liberally construed to the end that the use of

intoxicating liquor as a beverage may be

prevented.

The routine arguments are pressed that this

country does not undertake to regulate the

habits of people elsewhere, and that the

references to beverage purposes and use as a

beverage show that it was not attempting to

do so; that it has no interest in meddling with

transportation across its territory if leakage

in transit is prevented, as it has been; that the

repeal of statutes and a fortiori of treaties by

implication is not to be favored; and that even

‘f the letter of a law seems to have that effect

a thing may be within the letter yet not within

the law when it has been construed. We ap-

preciate all this, but are of opinion that the

letter is too strong in this case.

The cighteenth amendment meant a great

revolution in the policy of this country, and

presumably and obviously meant to upset a

good many things on as well as off the statute

books. It did not confine itself in any metic-

ulous way to the use of intoxicants in this

country. It forbade export for beverage pur-

poses elsewhere. True, this discouraged pro-

duction here, but that was forbidden already,

and the provision applied to liquors already

lawfully made. See Hamilton v. Kentucky

Distillerics & Warehouse Co., 251 U. S. 146,

151, n. 1. It is obvious that those whose

wishes and opinions were embodied in the

amendment meant to stop the whole business.

They did not want intoxicating liquor in the

United States and reasonably may have

thought that if they let it in some of it was

likely to stay.

_ esiieduadanane emeenen —

The vigor of the dissent in that case but lends

emphasis to the position taken by the court. The

object of the amendment and the national prohibi-

tion act was to stop the whole business.

And this applies throughout the United States and

all territory subject to the jurisdiction thereof.

It is our contention that the matters decided by

this court in the Grogan and Anchor Line cases not

only compelled the Attorney General, in compliance

with his oath of office, to give to the Secretary of the

Treasury the advice which is at the basis of these

actions, but that they require an affirmance of the

decrees herein rendered. Judge Hand so regarded

them, and his interpretation of their effect seems to us

unanswerable. His opinion is printed in the tran-

scripts of the records. (See record in No. 670, pp.

19 et seg.) He says (p. 21):

Grogan v. Walker, supra, and Anchor Line v.

Aldridge, supra, plainly meant to adopt a

broad canon for the interpretation of the

national prohibition act, following the ad-

monition at the end of the first paragraph of

section three. Effecting a revolutionary re-

form in the habits of the Nation, the statute

is to be understood as thoroughgoing in its

intent to accomplish the results desired. It

did not specify the extent of its application in

detail, but left that to be gathered from its

occasion, and the generality of the words used.

It intended to exercise once for all the com-

plete power of Congress under the amendment,

and its very want of particularity is a good

index that it meant to cover what it could.

BRAS Grn CR

SAMRAT RM OREN EMEA OLE

For this reason it is distinguished from earlier

local acts of the same kind, as, for example,

the Alaskan prohibition act, upon the language

of section twenty-nine of which the plaintiffs

rely. Indeed, specification in the statute

might have defeated its ends, on the theory

that what was omitted must be taken as

excluded. At least I can not read the two

decisions cited without supposing that it was

in the foregoing sense that the Supreme Court

meant section three to be read.

Continuing, he reasons that there is more ground

for supposing that the admonition at the end of the

first paragraph of section 3 of the National Prohibition

Act covers these ship’s stores than did the transporta-

tion before this court in the Grogan and Anchor Line

cases. It was necessary to overrule at least as much,

if not more, to reach the result in those decisions,

especially because there were in them much stronger

reasons to imply an exception from the literal

language of the act. In those cases there was 4

statute which gave as much right of transit across the

territory of the United States as here, and that

statute had the support of the treaty negotiated only

five years later, and assumed in the opinion of Mr.

Justice Holmes to be still in force. Assuming that

the customs laws govern the right to enter ship’s

stores into the United States, a position very doubt-

ful, since in form it only exempted them from customs

duties, it must be conceded that the statute, old as

it is, represented only the policy and not the promise

of the Nation. He reasons that the custom in mari-

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_— Lain SC AO Si Oa NA EN lls limi bP

time affairs of long standing to treat ship’s stores as

part of the ship is not as weighty as the implication

against the repeal of a treaty as in the Grogan and

Anchor Line cases. Under the facts of those cases

there was no conceivable danger in the transit of

liquor, except the chance of its escape, that some of

the liquor might not complete its passage. In the

cases at bar the danger of an escape is equally present,

and in the case of corporations less responsible than

the appellants the danger might be great indeed.

He then continues:

The distinction which puts these cases within

the law with much greater certainty is the pur-

pose for which the liquors are brought and kept

here. Ignoring for the moment the crews, all

of the stocks are avowedly intended for the

consumption of those who are now within the

United States, of which a substantial part are

residents or citizens, the very persons whom it

was the whole purpose of the amendment to

prevent drinking liquors.

Naturally, I have nothing to say about the

wisdom of the amendment or the law, but, wise

or not, one thing is clear, that a drink of

whisky is as hurtful to health and morals out-

side as inside Ambrose Light. It appears to me

inconceivable, when one is discussing the im-

plied intent of Congress, that a statute east in

such sweeping terms should be read as indif-

ferent to open preparations within the United

States for the gratification by its citizens of

exactly those appetites which it was the

avowed intent of the statute altogether to

deny. Nor do I believe that anyone would

PRT A INES fe nS AAO LOR te Pe eee ae ee ee

hesitate to think so who did not already re-

pudiate the whole reform. If, for example, we

were to substitute cocaine or opium for alcohol,

I can scarcely think there could be any disin-

terested difference of opinion. Suppose it were

the habit of Chinese vessels to bring to our

ports among their stores a proper supply of

morphine and opium with the avowed purpose

of dispensing it freely to passengers from the

United States as soon as they cleared the league

limit. Could it be seriously argued that a con-

stitutional amendment and a statute in broad

language designed to prevent citizens from

using this drug did not cover so palpable a

means of nullifying the very purpose of the

law? The illustration is extreme only to those

who can see no parity between the evils of

opium and alcohol.

This court said in the National Prohibition cases,

953 U.S. 350, 386, that the first section of the amend-

ment is operative throughout the entire territorial

limits of the United States and binds all legislative

bodies, courts, and public officers. With such an

obligation binding the Attorney General, and with

the decision of this court in the Grogan and Anchor

Line cases before him, how could he, mindful of his

oath of office, advise the Secretary of the Treasury

that he had the power to prepare and promulgate

rules and regulations permitting ships to bring to

our ports liquor for beverage purposes and openly

prepare, within the jurisdiction of the United 5tates,

for the gratification by its citizens of exactly those

appetites which it was the avowed intent of the

“eto ag PIN

EN as a Bee ite 4 netted alee,

eaaE— ASU NS iets tO ROTOR. CEA RS ae

Constitution to deny? Were aliens, temporarily

enjoying the hospitality of our ports, in a privileged

position and given rights and privileges on boats

moored to our docks, denied to our own people on

land ?

Il.

A foreign ship within the territorial waters of the

United States is subject to their jurisdiction.

In the first place, it is to be noted that the 18th

Amendment is not the only source of the jurisdiction

of the United States over foreign ships in our waters.

It has always possessed that jurisdiction and has

frequently, in common with all nations, exercised it.

In the second point in appellants’ brief, pages 25 et

sequitur, many authorities are collected and quoted

with respect to the jurisdiction of one nation over

ships within its waters belonging to another nation,

and also with respect to the jurisdiction of a nation

over its own ships wherever they may be. With

these authorities we have no dispute. Thus in

United States v. Diekelman, 92 U. 8. 520, 525, Mr.

Chief Justice Waite Says:

The merchant vessels of one country visit-

ing the ports of another for the purposes of

trade subject themselves to the laws which

govern the port they visit so long as they

remain. (See also j/oore’s International Law

Digest, Vol. II, 275 et seq.)

In 1885 Mr. Bayard, Secretary of State, wrote to

the French minister as follows:

A foreign merchant vessel going into the

port of a foreign State subjects herself to the

528

Soe aaa

laws of that State and is bound to conform to

its commercial as well as to its police and

other regulations during the period of her stay

there. ‘She is as much a subditus tem pora-

neous,” remarks Sir R. Phillimore with refer-

ence to such a case, in The Queen v. Keyn, 2

Ex. D. 82, ‘“‘as the individual who visits the

interior of the country for the purposes of

pleasure or business.” ( Moore’s International

Law Digest, Vol. II, p. 308.)

It is part of the law of civilized nations that

when a merchant vessel of one country enters

the ports of another for the purposes of trade

it subjects itself to the law of the place to

which it goes, unless by treaty or otherwise

the two countries have come to some different

understanding or agreement; for, as was said

by Chief Justice Marshall in The Exchange,

7 Cranch. 116, 144, “it would be obviously

inconvenient and dangerous to society, and

would subject the laws to continual infrac-

tion, and the Government to degradation if

such * * * merchants did not owe tem-

porary and local allegiance, and were not

amenable to the jurisdiction of the country.”

United States v. Diekelman, 92 U. 8. 520; 1

Phillimore’s Int. Law, 3d ed. 483, see. 351;

Twiss Law of Nations in Time of Peace, 229,

sec. 159; Creasy’s Int. Law, 167, sec. 176;

Halleck’s Int. Law, 1st ed. 171. And the

English judges have uniformly recognized the

rights of the courts of the country of which

the port is part to punish crimes committed

by one foreigner on another in a foreign mer-

chant ship. Regina v. Cunningham, Bell C. C.

72;5. C. 8 Cox C. C. 104; Regina v. Anderson,

11 Cox C. C. 198, 204;8.C.L. R.1C.¢. 161,

165; Regina v. Keyn, 13 Cox C. C. 403, 486,

525; S. C. 2 Ex. Div. 63, 161, 213. As the

owner has voluntarily taken his vessel for his

own private purposes to a place within the

dominion of a government other than his own

and from which he seeks protection during his

stay, he owes that government such alle-

giance for the time being as is due for the

protection to which he becomes entitled. 17/-

denhue’s case, 120 U.S. 11, 12.

Oppenheim, in his International Law, Vol. I, 3d ed.

339, 340, says:

Many writers maintain, and the practice

of France and some other States support their

view, that the littoral State has no jurisdiction

in case only the internal order of the ship is

affected, or the relations between members of

the crew or passengers are alone concerned,

However, there is no rule of international law

which limits jurisdiction to this extent, and it

can therefore claim jurisdiction in all matters

over such merchantmen and_ the persons

thereon as have cast anchor within the mari-

time belt or entered a port. On the other

hand, the littoral State is not compelled to

exercise such jurisdiction, and many States

have therefore by commercial and consular

treaties stipulated that in such cases as those

in which the internal order of a ship is alone

concerned, jurisdiction should be exercised,

not by the littoral State, but by the home State

through its consul * * *,

Ce ee ee nl PR tS ls DICE. ASG a .

In The Exchange, 7 Cranch, 185, 148, Mr. Chief

Justice Marshall states the rule as follows:

The jurisdiction of the nation, within its

own territory, is necessarily exclusive and ab-

solute. It is susceptible of no limitation not

imposed by itself. * * * When private

individuals of one nation spread themselves

through another, as business or ‘aprice may

direct, mingling indiscriminately with the in-

habitants of that other, or when merchant

vessels enter for the purpose of trade, it would

be obviously inconvenient and dangerous to

society, and would subject the laws to con-

tinual infraction, and the vovernment to deg-

“adation, if such individuals or merchants did

not owe temporary and local allegiance, and

were not amenable to the jurisdiction ot the

country. Nor can the foreign sovereign have

any motive for wishing such exemption. His

subjects thus passing into foreign countries

are not employed by him, nor are they en-

gaged in national pursuits. Consequently,

there are powerful motives for not exempting

persons of this description from the jurisdie-

tion of the country in which they are found

and no one motive for requiring it. ‘The im-

plied license, therefore, under which they

enter can never be construed to grant such

ays

ARE SP ISTOR TE

exemption.

Again in The Eagle, 8 Wall. 15, 22, the Supreme

Court holds that:

All vessels entering into, or departing from,

a domestic or foreign port are bound to obey

the laws and well-known usages of the port,

and are subject to seizure and penalties for

disobedience; and when submitting to them,

they are entitled to all the protection which

they afford.

That a ship is also subject to the jurisdiction and

laws of the country under whose flag she sails is

beyond question, and we need only cite the case of

United States v. Bowman, just decided by this court,

No. 69, October term, 1922. From this dual re-

sponsibility and jurisdiction it follows—

(1) That a merchant ship, wherever she goes, car-

ries the laws of her country, and for a violation of

them those on board may be subjected to punish-

ment.

/ (2) When she enters the waters of another nation,

however, she becomes also subject to the jurisdiction

of the laws of the littoral state and is bound to con-

form to its commercial as well as its police and other

Tegulations so long as she remains. mee

There seems to be no authority which challenges

the right of the littoral state to jurisdiction of all

matters which affect its peace, order, and security,

as distinguished from matters wholly internal to the

ship. The regulation of the liquor traffic has always

been regarded as part of the police power, and to it,

in the case of the States of the Union, there seems

to have been practically no limit. Crane v. ( ‘amp-

bell, 245 U.S. 304. With respect to interstate and

foreign commerce the United States has always had

plenary power, and the 18th amendment, whatever

it may have done, has not limited its power.

Considered with reference to the importation clause

of the amendment, the enforcement act becomes a

smuggling statute also. We have, therefore, in addi-

tion to the well-known difficulties of enforcing pro-

hibition, the age-long difficulty incident to smuggling,

Can it be said, therefore, that liquor on board a ship

is a matter solely of the internal regulation of the

affairs of the ship?

The question of jurisdiction goes far beyond Jjuris-

diction of the ship. It is rather jurisdiction of our

ports and littoral waters. That we have such juris-

diction no one will question.

It is not merely liquor on board a ship which offends our law, it

is the challenge to our peace, order, security, and national policy

of a ship within our waters laden with liquor.

(our waters and ports belong to us, not to the ship,)

She uses them by our permission, not by her right,

and when she uses them she must obey our laws or

take the consequences. We could refuse to allow

her to come. Patterson v. The Eudora, 190 U.S. 169.

We can and do say how and when she shall come,

what papers she shall bring, where she shall lie while

in port, when, where, and how she shall discharge her

cargo, and when and how she shall depart. No one

would ever question our right, or the right of any

nation, to prevent a vessel infected with typhus fever

from lying alongside a dock. It is jurisdiction over

our navigable waters, not over the internal affairs of

a ship which we assert.

Our organic law has said that the manufacture,

sale, importation, or exportation of liquor as 4

beverage shall cease. And that applies throughout

the United States and “all territory subject to the

jurisdiction thereof.’’ Congress, in its power to en-

force that organic law, has said that the possession of

liquor under other than limited conditions is a crime,

and that any place where it is possessed in violation of

those conditions is a nuisance. And that applies

throughout the United States and “all territory

subject to the jurisdiction thereof.” Why, then,

should it be said that vessels carrying it should be

permitted to hover about our shores, anchor in our

harbors, and lie alongside our wharves? Are not

these “subject to the jurisdiction thereof” ?

With “microscopic search” it is argued that the

constitutional amendment does not prohibit the

possession or use of liquor, but only prohibits sale,

importation, or exportation, and if “the national

prohibition act goes beyond the limits of the amend-

ment, and prohibits mere possession, it is unsupported

by the ( ‘onstitution, and, to that extent at least,

unenforcible.”” (Appellant’s brief, pp. 73, 74.) But

to forbid possession is a reasonable method of stopping

sale, importation, and exportation.

As the State has the power above indi-

cated to prohibit, it may adopt such measures

us are reasonably appropriate or needful to

render exercise of that power effective. * * *

And, considering the notorious difficulties

always attendant upon efforts to suppress

traffic in liquors, we are unable to say that

the challenged inhibition of their possession

Was arbitrary and unreasonable or without

’- gM On tre EOI BREN at OOS AE SRA Seen Ste ee

Soi ah en —

proper relation to the legitimate legislative

purpose. Crane Vv. Campbell, 245 U. 8. 304,

307.

The appellants urge that the courts never give a

construction to a statute contrary to international

law or the accepted custom and usage of civilized

nations when it is possible reasonably to construe it

in another manner, and they say that the same rule

a fortiori should apply to the construction of a pro-

vision of the Constitution. But we must remember

that—

The Eighteenth Amendment meant a great

revolution in the policy of this country, and

presumably and obviously meant to upset a

good many things on as well as off the statute

book. It did not confine itself in any metic-

ulous way to the use of intoxicants in this

country. Grogan and Anchor Line cases, supra.

It applied to the United States and all territory

subject to the jurisdiction thereof.

The amendment represents a declared policy of the

country, contrary we may for the sake of argument

admit, to the custom and usage of most civilized

nations. It was declared by the supreme power of

the people as part of their organic law, and it is the

supreme law of the land. It binds legislatures,

courts, officials, and individuals, and of its own force

invalidates everything which authorizes that which

it prohibits. National Prohibition cases, supra. What

room is there here for spelling out a duty on the part

of the court to conform or to construe this national

policy so as to harmonize it with customs and usages

Ps .

oe! PS

of nations whose policies are entirely different?

Would any one say that the Thirteenth Amendment

must be construed in accordance with the customs

and usages of nations which include slavery among

their policies? Slavery and liquor are now equally

foreign to our lawful institutions. The constitutional

ban admits of no compromise. The enforcement act

is not a statute to regulate, it is a statute to prohibit.

Toleration in accordance with custom and usage may

be consistent with regulation, but not with prohibition.

The national prohibition act, we submit, should be

construed in accordance with the national policy,

declared in the amendment, and by no other standard.

If that policy is utterly to banish liquor as a beverage,

and if the language of the enforcement act is, and since

the act of 1921 it surely is, broad enough to cover all

places subject to the jurisdiction of the United States,

it should be so construed,

It is to be remembered that we are not considering

here a revenue measure, or a patent law, involving

merely individual rights (Brown v. Duchesne, 19

How. 183), or a commercial regulation; we are not

concerned with the rights of seamen (The State of

Maine, 22 Fed. 743; The Kestor, 110 Fed. 432;

Patterson v.. The Eudora, 190 U. S. 170; Sandberg v.

McDonald, 248 U. §. 185; Neilson v. Rhine Shipping

Company, 248 U. §. 105), nor with the immigration

of contract laborers (Scharrenberg v. Dollar Steam-

ship Company, 245 U.S. 122). We are not attempt-

ing to adjust a complicated problem involved in the

seizure of vessels as prizes in time of war or under

embargo or nonintercourse statutes. (The Habana,

175 U. 8. 677; The Charming Betsy, 2 Cranch 64)

We are enforcing a national policy, drastic, revolu-

tionary, and, as its foremost proponents claim, evan-

gelistic in its proclamation and purpose. We know

of no consideration of comity or expediency which

may be heard to weaken or interfere with it any-

where in “the United States or the territory sub-

ject to the jurisdiction thereof.”

This court has already had ‘the routine argu-

ments”’ pressed, that ‘‘this country does not under-

take to regulate the habits of people elsewhere”;

that it has ‘no interest in meddling with transporta-

tion across its territory if leakage in transit is pre-

vented”; that the repeal of “statutes and a fortion

of treaties by implication is not to be favored,” and

that if the letter of the law seems to have that effect—

“A thing may be within the letter yet not within the

law when it has been construed’”’—and has given no

uncertain answer.

Ill.

There is no distinction between cargo and sea stores

which would distinguish liquor carried as such

from liquor carried as cargo, or which would indi-

cate that liquor carried as sea stores is intended

by Congress to be exempt from the provisions of

the 18¢h amendment and the national prohibition

act.

The collection act of March 2, 1799, whose pro-

visions were incorporated in the Revised Statutes,

has until recently contained the regulations for the

manifesting of cargo and sea stores. Section 2806,

Revised Statutes, provided that no merchandise

should be brought into the United States from any

foreign port in any vessel without a manifest in

writing of the cargo signed by the master. Section

2807 set forth what must be included in the manifest,

and one thing was “an account of the sea stores

remaining, if any.’ Sections 2795, 2796, and 2797

further particularized the requirements in manifest-

ing sea stores in order to prevent the importation of

such sea stores. Section 2795 was as follows:

In order to ascertain what articles ought to

be exempt from duty as the sea stores of a

vessel, the master shall particularly specify

the articles in the report or manifest to be

by him made, designating them as the sea

stores of such vessel; and in the oath to be

taken by such master, on making such report,

he shall declare that the articles so specified

4s sea stores are truly such, and are not in-

tended by way of merchandise or for sale;

whereupon the articles shall be free from duty.

By section 2796, if it appeared to the collector that

the quantities of articles reported as sea stores were

excessive, the collector could estimate the amount

of the duty on the excess, which should forthwith be

paid on pain of forfeiture. Section 2797 provided

that if any articles were found on board as sea stores

other than those specified, or if they were landed

without a permit, all such articles should be forfeited.

Section 2775 reads as follows:

The master of any vessel having on board

distilled spirits or wines shall, within forty-

ee Per

eight hours after his arrival, whether the same

be at the first port of arrival of such vessel or

not, in addition to the requirements of the

preceding section, report in writing to the

surveyor or officer acting as inspector of the

revenue of the port at which he has arrived,

the foreign port from which he last sailed, the

name of his vessel, his own name, the tonnage

and denomination of such vessel, and to what

nation belonging, together with the quantity

and kinds of spirits and wines on board of the

vessel, particularizing the number of casks,

vessels, cases, or other packages containing

the same, with their marks and numbers, as

also the quantity and kinds of spirits and wines

on board such vessel as sea stores, and in

default thereof he shall be liable to a penalty

of five hundred dollars, and any spirits

omitted to be reported shall be forfeited.

It is obvious that sea stores, therefore, have always

been treated in our customs laws in the same manner

as cargo. They were to be manifested and, if landed

without a permit, forfeited. Liquors as sea stores

were covered by special requirements and were to be

reported with the other liquors on board.

Nor is it true, as claimed, that sea stores have

always been regarded as part of the ship. A ship

and the things on board other than passengers

baggage have always been, by the customs laws at

least, classified under three heads, (1) the ship, its

tackle, apparel, and furniture, (2) its cargo, (3) its

sea stores. See sections of the Revised Statutes

referred to supra; United States v. 24 Coils Cordage,

feiti,

‘ eS ee eee

o~_T~—"" "at Sith Psp Di TN BE Ks at an EI IIE wat Bb alr we tate, > Be

28 Fed. Cas. 276; United States v. 1 Hempen Cable, 27

Fed. Cas. 26. In the latter case Judge Davis, in

the District court of Massachusetts, considering the

customs laws and referring to sea Stores, said that

the words “sea stores’? were applicable “not to the

tackle and apparel of the ship, furniture, sails,

rigging, cables, or anchors. These are to be consid-

ered as attached to the ship and so belonging to the

ship that it is no more necessary to include them in

the manifest than the ship itself.”

The tariff act of Sept. 21, 1922, in its later sections,

revised the collection act of May 2, 1799, incorporated

in the Revised Statutes. By section 642 of the act of

1922 sections 2775, 2795, 2796, 2797, 2806, and

2809 of the Revised Statutes were repealed. The

fact that section 2775 was repealed is convincing

evidence that Congress did not intend that liquor

should be carried either as cargo or as sea stores.

This is particularly suggestive when we consider

that, in the later sections of the tariff act of 1922,

most of the provisions of the old act of 1799 were

teenacted in one form or another with the exception

of those which had to do with liquor. Can it reason-

ably be said that a Congress which revised the old

collection act and left out of it all provisions for

manifesting liquors, and showed its intention to

make the old sections comply with present conditions,

intended that liquors might be carried as ships’

stores? Nowhere either in the old act or the new

is there any limitation upon the amount of mer-

thandise which can be carried as sea stores. Is it

Sean

reasonable to suppose that Congress intended to

allow a vessel to carry as sea stores any amount of

liquor which she might choose, to stay in our ports

with it as long as she chose, with only a penalty of

having it treated as imported merchandise if any

of it was landed? It would seem to follow by neces-

sary implication that if Congress, when it passed

the tariff act of September 21, 1922, and repealed

the provisions of section 2775 of the Revised Statutes

specifically providing for reporting liquors forming

part of the sea stores of a vessel, had intended to

allow such liquors to be included as sea stores, it

would have made some specific provision for them,

including the amount which might be carried, and

carefully drawn safeguards against smuggling.

IV.

Summary and conclusion.

Our construction of the enforcement laws must

follow the policy of our country declared in the

eighteenth amendment. The language of the statutes

is broad enough to give complete effect to that

policy wherever the jurisdiction of the United States

extends. It should therefore be given such effect.

That it may cause loss is evident. That it may

offend friends beyond the sea is indeed regrettable.

The difficulties, however, are probably greater in

imagination than they will prove to be in reality.

We have no reason to believe that the Governments

of Italy and France will object to recasting their

shipping regulations so as to conform to our law as

soon as that law is settled by this court. And, beyond

all question, our Constitution can not be made to

yield to their shipping regulations. Surely, those

nations would not tolerate the commission in their

ports by foreign vessels of what their law regards

as nuisances, and they will readily see the impropriety

of allowing their vessels thus to offend in our ports.

The judgments appealed from, therefore, should be

affirmed.

JAMES M. Beck,

Solicitor General.

MaBeL WALKER WILLEBRANDT,

Assistant Attorney General.

ALFRED A. WuEatT,

Special Assistant to the Attorney General.

DECEMBER, 1922.

, — —

appre os ee ae

IN THE

Supreme Court of the United States

Ocrosper Term, 1922

THE “CUNARI STEAMSHIP COMPANY, LTD. and ANCHOR )

LINE (HENDERSON BROTHERS) LTD.,

Appellants,

against

ANDREW W. MELLON, et. al.

Appellees.

OCEANIC STEAM NAVIGATION COMPANY, LTD...

Appellants,

against

ANDREW W. MELLON, et. al,

Appellees

INTERNATIONAL NAVIGATION COMPANY, LTD...

Appellants,

against

HENRY C. STUART, et. al.

Appellees,

COMPAGNIE GENERALE TRANSATLANTIQUE,

Appellants,

against

ANDREW W. MELLON, et. al.

Appellees.

THE NETHERLANDS AMERICAN STEAM NAVIGATION COM-

PANY (HOLLAND AMERICAN LINE),

Appelhints,

against

ANDREW W. MELLON, et. al,

Appellees

LIVERPOOL BRAZIL AND RIVER PLATE STEAM NAVIGATION

COMPANY, LTD.,

Appellants,

against

ANDREW W. MELLON, et. al,

Appellees. |

om -

THE ROYAL MAIL STEAM PACKET COMPANY,

Appellants,

against

ANDREW W. MELLON, et. al,

Appellees,

UNITED STEAMSHIP COMPANY OF COPENHAGEN (SCANDI-

NAVIAN AMERICAN LINE),

Appeiiants,

against |

ANDREW W. MELLON, et. al,

Appellees

eerste

THE PACIFIC STEAM NAVIGATION COMPANY,

Appellants,

against

ANDREW W. MELLON, et. al,

Appellees

NAVIGAZIONE GENERALE ITALIANA, °

: Appellants,

against

ANDREW W. MELLON, et. al.

Appellees, J

eee rerteensccnsccinteeminsianesinimasinsennenniniensieeeeesemnens

= 666,

=bb/.

668,

= 669.

= 670.

+678.

We apse CECT A, (OD A Thal OP RM AEE Atom Ae FIN ANG A HN Heat

PLease Take Notice that on Monday, November

13, 1922, at twelve o’clock noon, or as soon there-

after as counsel may be heard, the appellants

herein will submit to the Supreme Court of the

United States a motion, a copy of which is hereto

annexed, petitioning said Court to advance the

above entitled cause for early hearing.

Dated, November 1, 1922.

GEORGE W. WICKERSHAM,

Counsel for Appellants,

Office and P. O. Address,

No. 40 Wall Street,

Borough of Manhattan,

City of New York.

How. Harry M. Davenerry,

Attorney General of the United States,

Attorney for Appellees.

In THE

SUPREME COURT OF THE UNITED STATES

Ocroser Term, 1922

THE CUNARD STEAMSHIP COMPANY, LTD... and ANCHOR )

LINE (HENDERSON BROTHERS) LTD.,

Appellants,

against

ANDREW W. MELLON, et. al.,

Appellees,

OCEANIC STEAM NAVIGATION COMPANY, LTD.,

Appellants,

against

ANDREW W. MELLON, et. al.

Appellees,

INTERNATIONAL NAVIGATION COMPANY, LITD.,

Appellants,

against

HENRY C. STUART, et. al.,

Appellees,

COMPAGNIE GENERALE TRANSATLANTIQURE,

Appellants,

against

ANDREW W. MELLON, et. al,

Appellees,

THE NETHERLANDS AMERICAN STEAM NAVIGATION COM-

PANY (HOLLAND AMERICAN LINE),

Appellants,

against

ANDREW W. MELLON, et. al.

Appellees,

LIVERPOOL BRAZIL AND RIVER PLATE STEAM NAVIGATION

COMPANY, LTD.,

Appellants,

against

ANDREW W. MELLON, et. al.,

Appellees,

PACKET COMPANY,

Appellants,

THE ROYAL MAIL STEAM

against

ANDREW W. MELLON, et. al,

Appellees

UNITED STEAMSHIP COMPANY OF COPENHAGEN (SCANDI-

NAVIAN AMERICAN LINE),

Appellants,

against

ANDREW W. MELLON, et. al.,

—— Appellees

THE PACHTIC STEAM NAVIGATION COMPANY,

Appellants,

against

ANDREW W. MELLON, et. al.

Appellees.

NAVIGAZIONE GENERALE ITALIANA,

Appellants,

against

ANDREW W. MELLON, et. al.,

Ajppeiioes

a aaneermesatcesecpeees: Atctmeeesceceosiecneeeeensionieee.

659.

+660.

+661.

1. hath

+662.

666.

O68,

= 669.

+670,

+678,

phe sek ae ennnce ade ac ed at a A ST «alt: ONAN AE WN shat Bn) NB ~~

On Appeal from The District Court of The United

States for The Southern District of New

York.

The Appellants move that these causes be ad-

vanced for hearing at an early date. These

appeals are taken from final decrees of the District

Court of the United States for the Southern Dis-

trict of New York in each case, dismissing the bill

of complaint.

The bills of complaint prayed for an injunction

restraining defendants from enforcing, or at-

tempting to enforce against the various com-

plainants, any of the forfeitures or penalties pro-

vided for in the National Prohibition Act by

reason of the carriage by their vessels within the

territorial waters of the United States of in-

toxicating liquor as sea stores intended for the

use of passengers and crew of said vessels out-

side the territorial waters of the United States.

Complainants are foreign corporations and their

vessels all fly foreign flags and are owned and

registered in foreign countries.

The bills of complaint were filed to restrain the

threatened acts of the defendants to make and

carry out orders following an Opinion of the At-

torney General of the United States, which held

that foreign vessels were viclating the provis-

ions of the Eighteenth Amendment and_ the

National Prohibition Act by keeping on board

while in the territorial waters of the United States

sea stores including intoxicating liquors intended

for use by passengers and crew without the juris-

diction of this country.

This ruling is contrary to the opinion of a prev-

mp ty

PET AGI SEARO a PPV RIES SBE Sa ne i eA SREY

ious Attorney General and to existing regulations

of the Secretary of the Treasury.

The necessary jurisdictional facts appear in the

Bills of Complaint and the Secretary of the Treas-

ury voluntarily appeared and submitted himself

to the jurisdiction of the court.

The decision of the District Court, from which

this appeal is taken, affects all foreign vessels of

every nation touching at ports of the United

States.

Due notice of the presentation of this motion

has been given to the Attorney General of the

United States, counsel for appellees.

An early hearing of this appeal is therefore de-

sirable in the public interest, as well as in the

interest of complainants and all other foreign

steamship lines similarly situated.

GEORGE W. WICKERSHAM,

Counsel for Appellants.

INDEX.

Page.

Ne OP CAMB. 20.5056. cece ec cancncnccevccsesccccccucccnece 1

EN ARR xRS NEAR SN dn SRN Sh GRA Ha cneny sb aenhuednccccesaiccg 4

BROUMENT. . ......-- 2-2 cee eee c cee cece cn nn ee 5-29

I. The Eighteenth Amendment and che Nationa! Prohibition

Act require the application of prohibition to every place

where the United States may exercise its jurisdiction.... 5-19

The enforcement statutes............................ 6-11

The purpose of the Amendment...................... 11-19

National Prohibition Act.............................. 25-29

IV. Summary and Conclusion. .............................. 30

| Arrenvix (Opinion of the Attorney General of October 6, 1922)...... 31-51

CITATIONS.

Cases:

Anchor Line v. Aldridge, decided May 15, 1922................. 15

Craig v. Missouri, 4 Pet. 410..........200.0000000 000 12, 30

Crane v. Campbell, 245 U.S. 304.22... 200.2000 0oee 33

Crapo v. Kelly, 16 Wall. 610...........0..000.000.000........ 34, 40

Cherokee Nation v. Georgia, 5 Pet..1............0.-0.-00.-...... 37

Civil Rights Cases, 109 U. 8. 3.0.2.2... 00 c eee... 39

Ss SO OP OU BBs ceca ssasceccssccaseccses.:.... 48

Exchange, The, 7 Cranch, 135.............. soe aS eevee 48

NN Gh ai. in'wsnnnocdsnncnchinns\eviesaxeaacce 17, 18

Gloucester Ferry Co. v. Comm. of Pa...........2..2........... 46

Grogan v. Walker, decided May 15, 1922...................... 15

Hawaii v. Mankichi, 190 U.S. 197.............0............ 37

Kendall v. United States ex rel. Stokes, 12 Pet. 524............. 12

King against Brizac and Scott, 4 Easts Term Reports, 164...... 41

; v. International Navigation Co., 117 Fed. 170....... 35

v. Comm. of Mass., 139 U.S. 340.................. 41

Marwell v. Dow, 176 U.S. 581.........00.0.000000000 12

McCulloch v. Maryland, 4 Wheat. 316...................... 12

National Prohibition Cases, 253 U. S. 350..................... 19, 32

Old Dominion Steamship Co. v. Gilmore, 206 U.S. 402......... 41

Olson v. San Francisco, 82 Pac. 850........................ 40

People v. Commissioner @ Fane, 00 0. ¥. 202................ 40

St. Clair v. United States, 154 U. S$. 134............ 36

v. Dollar Steamship Co., 245 U.S. 122........... 43

Scotia, The, 14 Wall, () See pS au ooe 6 690.0948 OREN ONE RESS 5 KS 34

WE PHPNE OU oass hennpdinnseaccsaecss. 14

25494221 @)

SRA eAIONN ta meTAE I Ri ste aS eS NR NES O C PL A UOC ot ati eStore

Cases—Continued,

United States v. 254 Bottles of Intoxicating Liquors, So. Dist. of

Texas, May 4, 1922.... 2.2... 6. e ee eee ee ee eee ee eee ee eens

United States v. Bowman, decided Nov. 18, 1922............... 20-23

United States v. 24 Coils Cordage. . . ....- 0... cece eee e eee eeeees

United States v. Diekelman, 92 U.S. 520... . 2. 6.6 eee ee eens,

United States v. Hawkins, So. Dist. of N. Y.........-------.08,

United States v. 1 Hempen Cable, 27 Fed. Cas. 26. .............

United States v. Gratiot, 14 Pet. 526............-.-- see eee eens

United States v. Greathouse, 4 Savoy 457... .... 6... 6.2 eee eee eee

United States v. Rodgers, 150 U.S. 249. 2... - 6. eee ee eee eee ees

United States v. Smiley, 6 Sawyer 640... .... 2.6.22 eee esses

Wilson v. McNamee, 102 U.S, 572... eee eee eee eens

STATUTES:

Dinh Or WIRD: BTID Sc isc ca cvinwescecawese sen eanservuscens

Act of October 28, 1919 (National Prohibition Act), 41 Stat.

BT. BOB a a isu npasnnvccsnrcdsshivccctactvessatessicens

Rant SB TRG TE. 5 cians ve ncanecnvnwnwdesdeasacesanns

Section 7, Title IT... 0... neces ccc cc cc ecceeeeecencennes

Et Abt) eee irr eT Teer erent Ty |

Section 18, Title TL. . occ. ccc sc ccccccew sence ee ececeeneses

Section 20, Title TL. ... .......ceccccccccccuersunsensuswas

Section 21, Title IL... 2... ccc cece ccc eee c ence swecceess

Saction 25. Tile E20... oc. cc vcccvsnaecseccccsnucessncesss

Section 33, Title TE... once ccc ccsencccncsg essences

Act of November 23, 1921, c. 184 (Supplemental Act). ........

ee i cucqantucenharcdseseectaenes Cu bncessacens

ans Kc uhhh kee UsRe neh nape bas UKs 649 5x SEN EE

Act of Sept. 21, 1922 (Tariff Act).......--------+--ee se eee ee

Criminal Code—

ee. vc kawuckGsGbsahbdddxe KARE ESEESS SES ERSES

REBT sy vc cu canes cnucccavkscenbes eee ch CUCERGSA ERIN IS

Judicial Code—

EG Rec chau nn kc At ekbEO KEN Chee RS REA CAN ESS RENE SEEN.

Revised Statutes—

Bantion SITE... viaccess ceccinctewceteuewenececuasecannns

ee ti eet ere eee eee? eee.

ee eee reer rer Tare Gere ty

aS | ee re Terese er eee TET er

Section 2806. ......... iuieeiedans Dens ae sae

US nee rere re Tey Tere i

eRe ID oo 5x cK a wks vod bs nto Seka ws ARS USARSRERRAE

MISCELLANEOUS:

Corpus Juris, vol. XVI... .....-.-- +e eee e sere eee rete

Letter of Mr. Bayard, Secretary of State, to French Minister, 1885.

Moore’s Law Digest, vol. 1... ..---.. ene eee rece reece een seen

Seale’s Cases on Conflict of Laws......... 6... - 6. eee cere eee

Standard Dictionary, The. . .........----- essen eee reer ee ee

Watson on the Constitution, vol. 21.............-----eee ee ee

Wahetor’s Works wol. 6........sccnvecedesscecesssccccncsecss

Wharton’s State Trials... 2.2... cece we cece eee c weer e nn cneees

Inthe Supreme Court of the United States,

OcroBER TERM, 1922.

INTERNATIONAL MERCANTILE MARINE Com-)

pany, appellant,

v. No. 693.

H. C. Stuart, Actine CoLiector, ETC.,

et al.

Unirep AMERICAN LINEs, INCORPORATED; }

Atlantic Mail Corporation, American

Ship & Commerce Navigation Corpora-

tion, et al., appellants, .No. 694.

Heyry C. Sruarr, ActTinG COLLECTOR,

ete., et al. ;

APPEALS FROM THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

BRIEF ON BEHALF OF APPELLANTS.

These are appeals from final decrees of the United

States District Court for the Southern District of

New York dismissing bills of complaint filed against

the defendants who are officers of the United States

charged with the duty of enforcing the National

Prohibition law.

(1)

ee Ke

The relief asked in No. 693, the International Mer

cantile Marine Company case, is an injunction restrain-

ing the defendants (1) from enforcing or attempting

to enforce against the complainant or its steamships

any of the seizures, pains, forfeitures, and penalties

provided in the National Prohibition Act or in laws,

or in regulations of the Secretary of the Treasury;

(2) from arresting and prosecuting the compisinant,

its officers, etc., for or on account of the alleged

violations by them of the regulations or of acts of

Congress on the ground or claim of having intoxicat-

ing liquors on board complainants’ vessels as sea

stores while in the port of New York; (3) from

refusing to issue to the complainants or its ships

permits for clearance from the port of New York, ot

in any way interfering with the arrival or departure

of the steamships with liquor on board sealed as sea

stores; (4) from seizing, molesting, or otherwis

interfering with the complainants in the peacefil

possession of said intoxicating liquors on board its

vessels as part of their sea stores; (5) from enforcing

against the complainant or its steamers any of the

penalties provided in the acts of Congress or the

regulations of the Secretary of the Treasury by

reason of any sale of liquor carried as sea stor

which may be made on the high seas or in foreig

ports.

The relief asked in the bill in No. 694, the Unile

American Lines case, is substantially the same, a0

in addition asks an injunction against the defendasis

from arresting and prosecuting the complainants

their officers, agents, etc., or from attempting any

seizure or forfeiture of any intoxicating liquors

carried as sea stores on board certain-named steam-

ships of the complainants, or the said steam

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