Thus construed, tile concurrent power clause of the amendment reserved to the States their police power over this question with the single limitation that they could not exercise it to pefmit what the 18th amendment prohibited. It did not grant States any new police power. It might have increased their police power over this question beyond that of their other police powers which were subject to constitutional inhibitions as regards due process, inter state commerce, etc., because of the concurrent power which ex tended to interstate commerce and to importation and exportation of intoxicating liquors. The former policy of strengthening the State police power by removing constitutional barriers (see LIQUOR LAWS) was apparently changed to one of co-operation in which the States and the Federal Government had equal respon sibility and power. The clause, however, did not impose any new obligation on the States to function in the field of enforce ment although Governor Alfred E. Smith, in his memorandum accompanying his approval of the repeal of the New York Prohi bition Law in 1923, said: "After repeal there will still rest upon the peace officers of this State the sacred responsibility of sus taining the Volstead Act with as much force and as much vigor as they would enforce any State law or local ordinance." Administrative Difficulties.—The obstacles to efficient en forcement did not come from the courts but rather from the administrative difficulties due to the lack of enforcement machin ery of the Government and in part to the location of enforcement machinery in several departments of the Government. It was a mistake at the outset not to have put the appointment of all enforcement officers under Civil Service rules. The judicial con ference of the senior circuit judges, with the concurrence of Chief Justice Taft recommended in Nov. 1924, that the prohibition unit be transferred bodily to the Department of Justice and that all the appropriations for enforcement be expended under the attor ney-general, so that "the attempted prosecution of trivial, futile and unimportant cases which now crowd the dockets can be avoided, and only those cases taken up and pressed which will really deter the principal offenders, and in the preparation of which district attorneys will have a personal responsibility." The experience and technique of the Treasury Department in the enforcement of liquor revenue laws were essential for the de tection of violations and should have been more closely co ordinated with prosecutions by the Department of Justice. Both in theory and practice, in the nature of the proceedings in Federal Courts requiring jury trial, and in the absence of Federal police courts to dispose of petty cases, "the resources of the Federal Government in administration and judicial machinery were suf ficient to cope successfully only with what might be called the `wholesale' aspects of the enforcement problem—smuggling (see BOOTLEGGING AND SMUGGLING), including report of arrests, seiz ures, etc., made by Federal prohibition officers, the withdrawals of bonded liquors, the diversion and conversion of industrial alco hol to beverage uses, interstate transportation of liquors and the major conspiracies to violate the law, some of which are of giant proportions." For the rest, State and local machinery must have been relied upon for the purpose of enforcing the law.
Programme and Results of Reorganization of the Prohi bition Prohibition Unit originally under the commis sioner of internal revenue of the Treasury Department was grouped in April 1925, with the customs and coast-guard service under a new assistant secretary of the Treasury appointed for the purpose. A plan of decentralization was adopted at that time and the country divided into 22 districts corresponding to the existing judicial districts, with two additional for Hawaii and Porto Rico, each under an administrator made fully responsible and given ample authority for the enforcement of the law in his district. In order to bring the problems of prohibition enforcement still more directly under the eye of the secretary of the Treasury and the President, Congress enacted upon the recommendation of the sec retary of the Treasury the law of March 3, 1927, to create a Bureau of Customs and a Bureau of Prohibition in the Depart ment of the Treasury. This centralized responsibility for Federal enforcement of prohibition in a commissioner of prohibition directly responsible to the secretary of the Treasury and provided for the appointment of a staff under such commissioner, subject to the provisions of the civil service laws, and as large as the funds granted by Congress would permit. The new Bureau of
Prohibition began operations April 1, 1927. It continued the policy of decentralization of the prohibition service and concentration upon the things which Federal enforcement could do most effec tively, whether State and local authorities did or did not carry out their part. The commissioner of prohibition said that the civil service provisions of this statute brought about a marked improve ment in the personnel and put the service on a much more stable and efficient basis. The Bureau of Prohibition made definite and decided progress in the suppression of the commercialized traffic in liquor, in the enforcement of the criminal provisions of the National Prohibition Law through the Federal Courts and in confining its attention largely to violations relating to source of supply, interstate and international violations.
Treaties to Check Liquor Smuggling.—A series of treaties embodying the so-called 12-mile limit or one-hour run for board ing and examination of private vessels under foreign flags were negotiated, beginning with Great Britain in Jan. 1924, ratified and proclaimed May 22, 1924, and included the principal countries of Europe, and Canada, Cuba, Panama and Mexico among near neighbours. These treaties upheld the principle that three marine miles constitute the proper limits of territorial waters but permit the boarding of private vessels outside territorial waters but not at a greater distance than one hour from the coast. They were liberally construed by the U.S. Supreme Court. (See SMUGGLING.) Civil and Criminal Prosecutions.—Prohibition litigation in dicated by the operations of the Federal Courts as reported by the Department of Justice, was astonishingly large and significant during the entire period of enforcement of the National Prohi bition Act, and revealed the inadequacy of the judicial machinery of the Federal Government for the huge task of prohibition en forcement without the co-operation of the States or even with such co-operation if the Federal Government had to do that which properly belonged to the national rather than the State Govern ments.
Every annual report of the Department of Justice called atten tion to the need for additional assistance both judicial and prose cuting at many points where clogged dockets and a continuous inrush of cases make the speedy and sure administration of justice practically impossible. U.S. attorneys throughout the country were handicapped by insufficient legal and clerical assistance. Also the small penalties provided by the National Prohibition Act were disproportionate to the penalties imposed for the violation of other Federal laws. Additional judges, increased assistance for prosecuting attorneys and increased penalties for violations of the National Prohibition Act were all urged as necessary to bring about increased efficiency in its enforcement.
The heavy load put on the Department of Justice alone is indi cated by the official figures taken from Statistics Concerning In toxicating Liquors, U.S. Treas. Dept., Bu. Ind. Alcohol (Dec. 1933). In addition to the civil cases which numbered from four to ten thousand a year during the five years, July I, 1923 to June 3o, 1928 which resulted in 90 per cent of judgments for the U.S., the Department handled criminal prosecutions as follows : The persistent requests of the Department of Justice led to the passage of the Jones Law by Congress (Public—No. 899— 7oth Congress, approved March 2, 1929), entitled An Act to amend the National Prohibition Act, as amended and supple mented, which provided "that wherever a penalty or penalties are prescribed in a criminal prosecution by the National Prohibition Act, as amended and supplemented, for the illegal manufacture, sale, transportation, importation, or exportation of intoxicating liquor, as defined by Section I, Title II, of the National Prohibi tion Act, the penalty imposed for each such offense shall be a fine not to exceed $1o,000 or imprisonment not to exceed five years, or both: Provided, that it is the intent of Congress that the court, in imposing sentence hereunder, should discriminate between casual or slight violations and habitual sales of intoxicat ing liquor, or attempts to commercialize violations of the law." Section 2 said : "This Act shall not repeal nor eliminate any minimum penalty for the first or any subsequent offense now provided by said National Prohibition Act."