tion affecting the liquor traffic, Congress enacted in 1918 prohibition for Hawaii and in 1919 a bone-dry law for the District of Columbia.
National prohibition was proclaimed Jan. 29 1919, and the year of grace allowed by the Eighteenth Amendment for it to go into effect was intended to give liquor manufacturers and dealers time in which to liquidate their business and dispose of their stocks. The so-called wartime Prohibition Act, however, which was enacted 10 days after active warfare had ceased (Nov. 21 1918), became effective on July 1 1919. The production of beer, except “near-beer,” had been stopped at the beginning of the year as a food conservation measure, but even after wartime prohibition became effective, 2.75% beer was manufactured in some states on the assumption that it was a non-intoxicating liquor, and because Congress had not yet defined the quantity of alcohol a beverage might contain without coming within the meaning of the word “intoxicating,” as used in the various laws, regulations and administrative orders. Rhode Island for example, enacted a state law declaring all liquors of less than 4% alcohol to be non-intoxicating.
The questions thus raised, together with the definitions of the Volstead Act declaring all liquors containing one-half of 1% of alcohol or more to be intoxicating and hence prohibited, were taken to the Supreme Court, which finally sustained both the Eighteenth Amendment and the Volstead Act's definition of intoxicating liquor, in two cases (Hawke v. Smith and Rhode Island v. Palmer, 253 U.S.) in which decision was rendered June 12 1920. The Court had previously sustained the War Prohibition Act and the one-half of 1% limit which it specified; but the liquor interests and the liquor-consuming public hoped that greater latitude would be given them by a narrower construction of the first section of the Eighteenth Amendment, which prohibited only intoxicating liquors, and therefore, it was argued, did not warrant legislation forbidding the sale and manufacture of any liquor which was, in fact, non-intoxicating, whether it contained more or less than one-half of 1% of alcohol. The Court, however, without stating or discussing this contention, cited the war prohibition cases in support of the conclusion that while “recognizing that there are limits beyond which Congress cannot go in treating beverages as within its power of enforcement, we think those limits are not transcended by the provision of the Volstead Act.”
The Volstead Act provided for drastic enforcement, and arms the Government, through the Commissioner of Internal Revenue, with ample powers to punish and suppress any evasion. The regulations under this Act governing physicians' prescriptions and the procuring of wine for sacramental purposes are also drastic.
The Act supplementary to the National Prohibition Act approved Nov. 23 1921 contains still more strict enforcement provisions. It forbids physicians to prescribe for medicinal purposes other than spirituous and vinous liquor, and no physician may prescribe or any person sell or furnish on prescription any vinous liquor that contains more than 24% of alcohol by volume and not more than a quarter gallon or any quantity of such liquor containing more than one pint of alcohol for the use of any person within a period of ten days. This may seem to be an unnecessary and unwarranted interference with medical science, but it indicates that no power was likely to be refused that the administration authorities might find necessary to make enforcement effective. Other provisions giving the enforcing authorities control over importations for non-beverage purposes make it clear that both this Act and the National Prohibition Act apply to all territory subject to the jurisdiction of the United States and specifically continue in force all laws in regard to the manufacture and taxation of and traffic in intoxicating liquor and their several penalties as in force when the National Prohibition Act was enacted. Although the effectiveness and justice of these provisions cannot be accurately judged at present, they at least assisted materially towards enforcing national prohibition.
The question of the meaning of “concurrent power” to enforce the Eighteenth Amendment was also settled by the Supreme Court in Hawke v. Smith, in which the Supreme Court held that the provision of the Amendment in this connexion was within the amending power, was a part of the Constitution and “must be respected and given effect the same as other provisions 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 sanctions what the section forbids.” The second section of the Amendment declared that “the Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.” The Supreme Court said that this “does not enable Congress or the several states to defeat or thwart the prohibition, but only to enforce it by appropriate legislation. The words ‘concurrent power,’ in that section, do not mean joint power, or require that legislation thereunder by Congress to be effective shall be approved or sanctioned by the several states or any of them; nor do they mean that the power to enforce is divided between Congress and the several states along the lines which separate or distinguish foreign and interstate commerce from intrastate affairs. The power confided to Congress by that section, while not exclusive, is territorially coextensive with the prohibition of the first section, embraces manufacture and other intrastate transactions as well as importation, exportation and interstate traffic, and is in no wise dependent on or affected by any action or inaction on the part of the several states or any of them.” The prohibitionists could scarcely have hoped for a more sweeping endorsement, and the decision may be fairly considered further evidence of the widespread popular desire for effective national prohibition.
State Action.—Statewide prohibition had existed in 1910 in only nine states—one of them in New England (Maine); three in the middle-west (North Dakota, Kansas and Oklahoma); and five in the south (North Carolina, Georgia, Alabama, Mississippi and Tennessee). Not till 1914 did any greater tendency to statewide prohibition show itself, with the exception of an amendment of the state Constitution of West Virginia in 1912. But during the five years 1914-9 half the states adopted state-wide prohibition, and these represented every section of the country, although they did not include some of the most populous states with large urban centres. In 1914 statewide prohibition was adopted by Colorado, Oregon, Virginia, Washington; in 1915 by Alabama, Arizona, South Carolina; in 1916 by Arkansas, Idaho, Iowa, Michigan, Montana, Nebraska, South Dakota; in 1917 by the District of Columbia, Indiana, New Hampshire, New Mexico; in 1918 by Florida, Nevada, Ohio, Utah; in 1919 by Kentucky and Texas.
From 1910 to 1914, and in lesser degree until 1920, there was meanwhile a continued struggle as to local option in states where statewide prohibition was not adopted with considerable fluctuation in the proportion of dry and wet areas or counties or towns, as the case might be, within the several states, and sometimes with the further fluctuation that the same area became dry at one election and wet at the next. Local option seems to have had its first trial in the United States in Indiana as early as 1832; when in 1881 Massachusetts adopted local option after extensive experiment with prohibition and ordinary forms of licence, that state became a model for other states in its local option law; local option in 1910 prevailed in 33 states. In Pennsylvania, where the licences were granted by the courts of quarter sessions and the judges elected by the people, local option virtually obtained, because elections of judges often turned on the question of whether or not licences should be granted in a given community; and in New Jersey some communities, by reason of the provisions of special municipal charters, enjoyed the privilege of local option. It was estimated in 1910 that the extent of the dry areas of the United States was to that of the wet areas approximately as seven is to five. The total pop., however, living in dry areas was approximately 41,500,000 to 46,000,000 in the wet areas.
Outside prohibition areas and local option areas there remained little territory in 1910 under other forms of licence or regulation,
