The Working of the National Prohibition Acts

THE WORKING OF THE NATIONAL PROHIBITION ACTS Enforcement.—The Volstead Act provided for drastic enforce ment. It aimed to give the Government ample powers, through the commissioner of internal revenue of the Treasury Depart ment, to detect and suppress all manner of violations. Congress was at liberty to amend these administrative features and set up any agency of enforcement it chose. It did in fact put the Pro hibition Unit under a new assistant secretary of the Treasury, and by Act of March 3, 1927, created a Bureau of Prohibition in the Treasury Department with a Commissioner of Prohibition responsible directly to the Secretary of the Treasury. (See below.) The regulations under the act which apply to physicians' pre scriptions and the procuring of wine for sacramental purposes were also drastic, and similar provisions were made more so in the Supplemental Prohibition Enforcement Act of Nov. 23, 1921 (42 Stat. 222). This provided that only spirituous or vinous liquor, the latter containing not more than 24% of alcohol by volume, could be prescribed, and that not more than gal. of vinous liquor nor any quantity of liquor containing more than pint of alcohol could be prescribed for the use of any person within ten days, and that no physician might have more than 100 permits within 90 days unless to meet emergency needs, to be demon strated to the satisfaction of the commissioner who issues such permits. These restrictions on physicians' prescriptions were up held as constitutional by the Supreme Court (Lambert v. Yellow ley, 272 U.S. 581).

Other provisions of the Supplemental Act gave the enforcing authorities control over importations for non-beverage purposes; provided that both the Supplemental and the National Prohibition Acts applied not only to the United States but to all territory sub ject to its jurisdiction, that liquor laws in force when the National Prohibition Act was adopted and not in conflict therewith, should continue in force, and also made it unlawful for any U.S. officer to search any private dwelling without a search warrant. However, the Supreme Court in 1925 (Carroll v. U.S., 267 U.S. 132) upheld the search of an automobile or vehicle of transportation without a warrant where the search was not malicious or without probable cause, and the same court sustained, as within the police powers of the States, a Georgia statute which prohibited the possession of liquor which had been legally acquired—that is, before pro hibition (Samuels v. McCurdy, 69 L. ed. 371). The Department of Justice approved the wider use of the padlock and abatement of nuisance provisions of Section 22, and other sections of the National Prohibition Act. The methods employed in the enforce

ment of law of this character necessarily involved, as in the case of tariff and revenue laws and other laws where there is a strong motive to defeat their purpose, many nice questions of constitu tional guarantees of liberty and protection of innocent persons.

The Supreme Court, however, in its decisions, with the possible exception of one case in which it held Section 35 of the National Prohibition Law invalid because of the denial of a trial by jury in the collection of a tax which was a penalty for a crime, went very far to sustain the Government and Congressional policies.

The Concurrent Power.

The theory of enforcement of the i8th amendment and laws pursuant thereto was that of co-opera tion of the Federal and State Governments under the "concurrent power" granted in the second section of the amendment and the meaning of "concurrent power" was settled by the Supreme Court in Rhode Island v. Palmer (253 U.S. 35o [1920] ). The court held that prohibition as embodied in the i8th amendment was within the amending power, a part of the Constitution and "must be respected and given effect the same as other pro visions of that instrument," was "operative throughout the entire territorial limits of the United States" 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 forbids." "Concurrent power" did not enable Congress or the several States to defeat or thwart prohi bition, but only to enforce it by appropriate legislation. Moreover, these words did not mean joint power or require that legislation thereunder by Congress to be effective should be approved or sanc tioned by the several States or any of them. Neither did the words "concurrent power" mean that the power to enforce is di vided between Congress and the several States along the lines which separate or distinguish foreign and interstate commerce from intrastate affairs. The power confided by the second sec tion of the amendment to Congress, while not exclusive, was ter ritorially co-extensive with the prohibition of the first section, embraced manufacture and other intrastate transactions as well as importation, exportation and interstate traffic, and was in no wise dependent on or affected by any action or inaction on the part of the several States or any of them.