Friday, June 1, 1923. New York calls it quits on Prohibition

The State of New York voted to cease enforcing prohibition.  This did not repeal Prohibition, which was of course a Federal law, but ceased New York's participation in the effort to enforce it.

Monday, May 21, 1923. Delmonico's closed.

The original family owned Delmonico's restaurant closed.  The restaurant had been in business, in more than one location, since 1827 and had become one of the most famous restaurants in New York.  It was a favorite of Theodore Roosevelt.

It was not able to survive Prohibition.

Not surprisingly, the famous name had cache and there were subsequent operations that used it, having some connection with the original, but not owned by the original family.  There are plans to reopen a restaurant in the location late this year.

The restaurant is the claimed originator of a variety of famous dishes, the best known being the Delmonico's Steak.  Roosevelt favored the double lamb chops.

The  Labour and Socialist International, an organization of socialist and labor parties, was formed and became the largest organizational union of those entities.  It ceased to exist in April, 1940.

Monday, April 30, 1923. Booze on the High Seas

 

In Cunard Steamship Co., Ltd. v. Mellon, the U.S. Supreme Court, declared that American ships could sell booze on the "high seas" more than three miles beyond U.S. territory.  Foreign ships, however, couldn't dock with it.

The decision was rendered by Justice Van Devanter, which is somewhat ironic as he was appointed to the bench from Wyoming, and it was Wyoming that had put the Volstead Act up over the top.

The decision reads:

U.S. Supreme Court

Cunard Steamship Co., Ltd. v. Mellon, 262 U.S. 100 (1923)

Cunard Steamship Co., Ltd. v. Mellon

Nos. 659-662, 666-670, 678, 693, 694

Argued January 4, 5, 1923

Decided April 30, 1923

262 U.S. 100

APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF NEW YORK

1. The words "transportation" and "importation," in the Eighteenth Amendment, are to be taken in their ordinary sense, the former comprehending any real carrying about or from one place to another, and the latter any actual bringing into the country from the outside. P. 262 U. S. 121.

2. The word "territory," in the Amendment (in the phrase "the United States and all territory subject to the jurisdiction thereof") means the regional areas, of land and adjacent waters, over which the United States claims and exercises dominion and control as a sovereign power, the term being used in a physical, not a metaphorical, sense, and referring to areas and districts having fixity of location and recognized boundaries. P. 262 U. S. 122.

3. The territory subject to the jurisdiction of the United States includes the land areas under its dominion and control, the ports, harbors, bays, and other enclosed arms of the sea along its coast, and a marginal belt of the sea extending from the coast line outward a marine league, or three geographic miles, and this territory, and all of it, is that which the Amendment designates as its field of operation. P. 262 U. S. 122.

4. Domestic merchant ships outside the waters of the United States, whether on the high seas or in foreign waters, are part of the "territory" of the United States in a metaphorical sense only, and are not covered by the Amendment. P. 262 U. S. 123.

5. The jurisdiction arising out of the nationality of a merchant ship, as established by her domicile, registry, and use of the flag, partakes more of the characteristics of personal than of territorial sovereignty, is chiefly applicable to ships on the high seas where there is no territorial sovereign; and, as respects ships in foreign territorial waters, it has little application beyond what is affirmatively or tacitly permitted by the local sovereign. P. 262 U. S. 123.

6. The Amendment covers foreign merchant ships when within the territorial waters of the United States. P. 262 U. S. 124.

7. A merchant ship of one country, voluntarily entering the territorial limits of another, subjects herself to the jurisdiction of the latter. The jurisdiction attaches in virtue of her presence, just as with other objects within those limits. During her stay, she is entitled to the protection of the laws of that place, and correlatively is bound to yield obedience to them. The local sovereign may, out of considerations of public policy, choose to forego the exertion of its jurisdiction, or to exert it in a limited way only, but this is a matter resting solely in its discretion. P. 262 U. S. 124.

8. The Eighteenth Amendment does not prescribe any penalties, forfeitures, or mode of enforcement, but, by its second section, leaves these to legislative action. P. 262 U. S. 126.

9. The only instance in which the National Prohibition Act recognizes the possession of intoxicating liquor for beverage purposes as lawful is where the liquor was obtained before the act went into effect and is kept in the owner's dwelling for use therein by him, his family, and his bona fide guests. P. 262 U. S. 127.

10. Examination of the National Prohibition Act, as supplemented November 23, 1921, c. 134, 42 Stat. 222, shows

(a) That it is intended to be operative throughout the territorial limits of the United States, with the single exception of liquor in transit through the Panama Canal or on the Panama Railroad,

(b) That it is not intended to apply to domestic vessels when outside the territorial waters of the United States,

(c) That it is intended to apply to all merchant vessels, whether foreign or domestic, when within those waters, save as the Panama Canal Zone exception provides otherwise. Pp. 262 U. S. 127-129.

11. Congress, however, has power to regulate the conduct of domestic merchant ships when on the high seas, or to exert such control over them when in foreign waters as may be affirmatively or tacitly permitted by the territorial sovereign. P. 262 U. S. 129.

12. The antiquity of the practice of carrying intoxicating liquors for beverage purposes as part of a ship's sea stores, the wide extent of the practice, and its recognition in a congressional enactment, do not go to prove that the Eighteenth Amendment and the Prohibition Act could not have been intended to disturb that practice, since their avowed and obvious purpose was to put an end to prior practices respecting such liquors. P. 262 U. S. 129.

13. After the adoption of the Amendment and the enactment of the National Prohibition Act, Congress withdrew the prior statutory recognition of liquors as legitimate sea stores. Rev.Stats., § 2775; Act of September 21, 1922, c. 356, Tit. IV, and § 642, 42 Stat. 858, 948, 989. P. 262 U. S. 130.

14. The carrying of intoxicating liquors, as sea stores, for beverage purposes, through the territorial waters or into the ports and harbors of the United States by foreign or domestic merchant ships is forbidden by the Amendment and the act. P. 262 U. S. 130.

284 F. 890 affirmed.

285 F. 79 reversed.

Appeals from decrees of the district court dismissing, on the merits, as many suits brought by the appellant steamship companies for the purpose of enjoining officials of the United States from seizing liquors carried by appellants' passenger ships as sea stores and from taking other proceedings against the companies and their vessels, under the National Prohibition Act.

MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.

These are suits by steamship companies operating passenger ships between United States ports and foreign ports to enjoin threatened application to them and their ships of certain provisions of the National Prohibition Act. The defendants are officers of the United States charged with the act's enforcement. In the first ten cases, the plaintiffs are foreign corporations and their ships are of foreign registry, while in the remaining two the plaintiff's are domestic corporations, and their ships are of United States registry. All the ships have long carried and now carry, as part of their sea stores, intoxicating liquors intended to be sold or dispensed to their passengers and crews at meals and otherwise for beverage purposes. Many of the passengers and crews are accustomed to using such beverages and insist that the ships carry and supply liquors for such purposes. By the laws of all the foreign ports at which the ships touch, this is permitted, and by the laws of some it is required. The liquors are purchased for the ships and taken on board in the foreign ports and are sold or dispensed in the course of all voyages, whether from or to those ports.

The administrative instructions dealing with the subject have varied since the National Prohibition Act went into effect. December 11, 1919, the following instructions were issued (T.D. 38218):

"All liquors which are prohibited importation, but which are properly listed as sea stores on vessels arriving in ports of the United States, should be placed under seal by the boarding officer and kept sealed during the entire time of the vessel's stay in port, no part thereof to be removed from under seal for use by the crew at meals or for any other purpose."

"Excessive or surplus liquor stores are no longer dutiable, being prohibited importation, but are subject to seizure and forfeiture."

"Liquors properly carried as sea stores may be returned to a foreign port on the vessel's changing from the foreign to the coasting trade, or may be transferred under supervision of the customs officers from a vessel in foreign trade, delayed in port for any cause, to another vessel belonging to the same line or owner."

January 27, 1920, the first paragraph of those instructions was changed (T.D. 38248) so as to read:

"All liquors which are prohibited importation, but which are properly listed as sea stores on American vessels arriving in ports of the United States, should be placed under seal by the boarding officer and kept sealed during the entire time of the vessel's stay in port, no part thereof to be removed from under seal for use by the crew at meals or for any other purpose. All such liquors on foreign vessels should be sealed on arrival of the vessels in port, and such portions thereof released from seal as may be required from time to time for use by the officers and crew."

October 6, 1922, the Attorney General, in answer to an inquiry by the Secretary of the Treasury, gave an opinion to the effect that the National Prohibition Act, construed in connection with the Eighteenth Amendment to the Constitution, makes it unlawful (a) for any ship, whether domestic or foreign, to bring into territorial waters of the United States, or to carry while within such waters, intoxicating liquors intended for beverage purposes, whether as sea stores or cargo, and (b) for any domestic ship, even when without those, waters to carry such liquors for such purposes either as cargo or sea stores. The President thereupon directed the preparation, promulgation, and application of new instructions conforming to that construction of the act. Being advised of this and that, under the new instructions, the defendants would seize all liquors carried in contravention of the act as so construed and would proceed to subject the plaintiffs and their ships to penalties provided in the act, the plaintiffs brought these suits.

The hearings in the district court were on the bills or amended bills, motions to dismiss, and answers, and there was a decree of dismissal on the merits in each suit. 284 F. 890; International Mercantile Marine v. Stuart, 285 F. 79. Direct appeals under Judicial Code § 238 bring the cases here.

While the construction and application of the National Prohibition Act is the ultimate matter in controversy, the act is so closely related to the Eighteenth Amendment, to enforce which it was enacted, that a right understanding of it involves an examination and interpretation of the amendment. The first section of the latter declares, 40 Stat. 1050, 1941:

"Section 1. After one year from the ratification of this article, the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited."

These words, if taken in their ordinary sense, are very plain. The articles proscribed are intoxicating liquors for beverage purposes. The acts prohibited in respect of them are manufacture, sale, and transportation within a designated field, importation into the same, and exportation therefrom, and the designated field is the United States and all territory subject to its jurisdiction. There is no controversy here as to what constitutes intoxicating liquors for beverage purposes; but opposing contentions are made respecting what is comprehended in the terms "transportation," "importation" and "territory."

Some of the contentions ascribe a technical meaning to the words "transportation" and "importation." We think they are to be taken in their ordinary sense, for it better comports with the object to be attained. In that sense, transportation comprehends any real carrying about or from one place to another. It is not essential that the carrying be for hire, or by one for another, nor that it be incidental to a transfer of the possession or title. If one carries in his own conveyance for his own purposes, it is transportation no less than when a public carrier, at the instance of a consignor, carriers and delivers to a consignee for a stipulated charge. See United States v. Simpson, 252 U. S. 465. Importation, in a like sense, consists in bringing an article into a country from the outside. If there be an actual bringing in, it is importation, regardless of the mode in which it is effected. Entry through a custom house is not of the essence of the act.

Various meanings are sought to be attributed to the term "territory" in the phrase "the United States and all territory subject to the jurisdiction thereof." We are of opinion that it means the regional areas -- of land and adjacent waters -- over which the United States claims and exercises dominion and control as a sovereign power. The immediate context and the purport of the entire section show that the term is used in a physical, and not a metaphorical, sense -- that it refers to areas or districts having fixity of location and recognized boundaries. See United States v. Bevans, 3 Wheat. 336, 16 U. S. 390.

It now is settled in the United States and recognized elsewhere that the territory subject to its jurisdiction includes the land areas under its dominion and control, the ports, harbors, bays, and other enclosed arms of the sea along its coast, and a marginal belt of the sea extending from the coast line outward a marine league, or three geographic miles. Church v. Hubbart, 2 Cranch 187, 6 U. S. 234; The Ann, 1 Fed.Cas., p. 926; United States v. Smiley, 27 Fed.Cas., p. 1132; Manchester v. Massachusetts, 139 U. S. 240, 139 U. S. 257-258; Louisiana v. Mississippi, 202 U. S. 1, 202 U. S. 52; 1 Kent's Com. (12th ed.) *29; 1 Moore, International Law Digest, § 145; 1 Hyde, International Law, §§ 141, 142, 154; Wilson, International Law (8th ed.) § 54; Westlake, International Law (2d ed.) p. 187 et seq; Wheaton, International Law (5th Eng. ed. [Phillipson]) p. 282; 1 Oppenheim International Law (3d ed.) §§ 185-189, 252. This, we hold, is the territory which the amendment designates as its field of operation, and the designation is not of a part of this territory, but of "all" of it.

The defendants contend that the amendment also covers domestic merchant ships outside the waters of the United States, whether on the high seas or in foreign waters. But it does not say so, and what it does say shows, as we have indicated, that it is confined to the physical territory of the United States. In support of their contention, the defendants refer to the statement sometimes made that a merchant ship is a part of the territory of the country whose flag she flies. But this, as has been aptly observed, is a figure of speech, a metaphor. Scharrenberg v. Dollar S.S. Co., 245 U. S. 122, 245 U. S. 127; In re Ross, 140 U. S. 453, 140 U. S. 464; 1 Moore International Law Digest § 174; Westlake, International Law (2d ed.) p. 264; Hall, International Law (7th ed. [Higgins]) § 76; Manning, Law of Nations (Amos), p. 276; Piggott Nationality, Pt. II, p. 13. The jurisdiction which it is intended to describe arises out of the nationality of the ship, as established by her domicile, registry, and use of the flag, and partakes more of the characteristics of personal than of territorial sovereignty. See The Hamilton, 207 U. S. 398, 207 U. S. 403; American Banana Co. v. United Fruit Co., 213 U. S. 347, 213 U. S. 355; 1 Oppenheim International Law (3d ed.) §§ 123-125, 128. It is chiefly applicable to ships on the high seas, where there is no territorial sovereign, and as respects ships in foreign territorial waters, it has little application beyond what is affirmatively or tacitly permitted by the local sovereign. 2 Moore International Law Digest, §§ 204, 205; Twiss, Law of Nations (2d ed.) § 166; Woolsey, International Law (6th ed.) § 58; 1 Oppenheim International Law (3d ed.) §§ 128, 146, 260.

The defendants further contend that the amendment covers foreign merchant ships when within the territorial waters of the United States. Of course, if it were true that a ship is a part of the territory of the country whose flag she carries, the contention would fail. But, as that is a fiction, we think the contention is right.

The merchant ship of one country voluntarily entering the territorial limits of another subjects herself to the jurisdiction of the latter. The jurisdiction attaches in virtue of her presence, just as with other objects within those limits. During her stay, she is entitled to the protection of the laws of that place, and correlatively is bound to yield obedience to them. Of course, the local sovereign may out of considerations of public policy choose to forego the exertion of its jurisdiction or to exert the same in only a limited way, but this is a matter resting solely in its discretion. The rule, now generally recognized, is nowhere better stated than in The Exchange, 7 Cranch 116, 11 U. S. 136, 11 U. S. 144, where Chief Justice Marshall, speaking for this Court, said:

"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 complete 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."

"* * * *"

"When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes 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 jurisdiction of 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 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."

That view has been reaffirmed and applied by this Court on several occasions. United States v. Diekelman, 92 U. S. 520, 92 U. S. 525-526; Wildenhus' Case, 120 U. S. 1, 120 U. S. 11; Nishimura Ekiu v. United States, 142 U. S. 651, 142 U. S. 659; Knott v. Botany Mills, 179 U. S. 69, 179 U. S. 74; Patterson v. Bark Eudora, 190 U. S. 169, 190 U. S. 176-178; Strathearn S.S. Co. v. Dillon, 252 U. S. 348, 252 U. S. 355-356. And see Buttfield v. Stranahan, 192 U. S. 470, 192 U. S. 492-493; Oceanic Steam Navigation Co. v. Stranahan, 214 U. S. 320, 324 [argument of counsel -- omitted]; Brolan v. United States, 236 U. S. 216, 236 U. S. 218. In the Patterson case, the Court added:

"Indeed, the implied consent to permit them [foreign merchant ships] to enter our harbors may be withdrawn, and if this implied consent may be wholly withdrawn it may be extended upon such terms and conditions as the government sees fit to impose."

In principle, therefore, it is settled that the amendment could be made to cover both domestic and foreign merchant ships when within the territorial waters of the United States. And we think it has been made to cover both when within those limits. It contains no exception of ships of either class, and the terms in which it is couched indicate that none is intended. Such an exception would tend to embarrass its enforcement and to defeat the attainment of its obvious purpose, and therefore cannot reasonably be regarded as implied.

In itself, the amendment does not prescribe any penalties, forfeitures, or mode of enforcement, but, by its second section, [Footnote 1] leaves these to legislative action.

With this understanding of the amendment, we turn to the National Prohibition Act, c. 85, 41 Stat. 305, which was enacted to enforce it. The act is a long one, and most of its provisions have no real bearing here. Its scope and pervading purpose are fairly reflected by the following excerpts from Title II:

"Sec. 3. No person [Footnote 2] 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 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 prevented."

"* * * *"

"Sec. 21. 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 maintaining the same, is hereby declared to be a common nuisance."

"* * * *"

"Sec. 23. That any person who shall, with intent to effect a sale of liquor, by himself, his employee, servant, or agent, for himself or any person, company, or corporation keep or carry around on his person, or in a vehicle, or other conveyance whatever . . . any liquor . . . in violation of this title is guilty of a nuisance. . . ."

"* * * *"

"Sec. 26. When the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law."

Other provisions show that various penalties and forfeitures are prescribed for violations of the act, and that the only instance in which the possession of intoxicating liquor for beverage purposes is recognized as lawful is where the liquor was obtained before the act went into effect and is kept in the owner's dwelling for use therein by him, his family, and his bona fide guests.

As originally enacted, the act did not in terms define its territorial field, but a supplemental provision [Footnote 3] afterwards enacted declares that it "shall apply not only to the United States but to all territory subject to its jurisdiction," which means that its field coincides with that of the Eighteenth Amendment. There is in the act no provision making it applicable to domestic merchant ships when outside the waters of the United States, nor any provision making it inapplicable to merchant ships, either domestic or foreign, when within those waters, save in the Panama Canal. There is a special provision dealing with the Canal Zone [Footnote 4] which excepts "liquor in transit through the Panama Canal or on the Panama Railroad." The exception does not discriminate between domestic and foreign ships, but applies to all liquor in transit through the canal, whether on domestic or foreign ships. Apart from this exception, the provision relating to the Canal Zone is broad and drastic like the others.

Much has been said at the bar and in the briefs about the Canal Zone exception, and various deductions are sought to be drawn from it respecting the applicability of the act elsewhere. Of course, the exception shows that Congress, for reasons appealing to its judgment, has refrained from attaching any penalty or forfeiture to the transportation of liquor while "in transit through the Panama Canal or on the Panama Railroad." Beyond this, it has no bearing here, save as it serves to show that, where in other provisions no exception is made in respect of merchant ships, either domestic or foreign, within the waters of the United States, none is intended.

Examining the act as a whole, we think it shows very plainly, first, that it is intended to be operative throughout the territorial limits of the United States, with the single exception stated in the Canal Zone provision; secondly, that it is not intended to apply to domestic vessels when outside the territorial waters of the United States; and, thirdly, that it is intended to apply to all merchant vessels, whether foreign or domestic, when within those waters, save as the Panama Canal Zone exception provides otherwise.

In so saying, we do not mean to imply that Congress is without power to regulate the conduct of domestic merchant ships when on the high seas, or to exert such control over them when in foreign waters as may be affirmatively or tacitly permitted by the territorial sovereign; for it long has been settled that Congress does have such power over them. Lord v. Steamship Co., 102 U. S. 541; The Abby Dodge, 223 U. S. 166, 223 U. S. 176. But we do mean that the National Prohibition Act discloses that it is intended only to enforce the Eighteenth Amendment and limits its field of operation, like that of the amendment, to the territorial limits of the United States.

The plaintiffs invite attention to data showing the antiquity of the practice of carrying intoxicating liquors for beverage purposes as part of a ship's sea stores, the wide extent of the practice, and its recognition in a congressional enactment, and argue therefrom that neither the amendment nor the act can have been intended to disturb that practice. But in this they fail to recognize that the avowed and obvious purpose of both the amendment and the act was to put an end to prior practices respecting such liquors, even though the practices had the sanction of antiquity, generality, and statutory recognition. Like data could be produced and like arguments advanced by many whose business, recognized as lawful theretofore, was shut down or curtailed by the change in national policy. In principle, the plaintiffs' situation is not different from that of the innkeeper whose accustomed privilege of selling liquor to his guests is taken away, or that of the dining car proprietor who is prevented from serving liquor to those who use the cars which he operates to and fro across our northern and southern boundaries.

It should be added that, after the adoption of the amendment and the enactment of the National Prohibition Act, Congress distinctly withdrew the prior statutory recognition of liquors as legitimate sea stores. The recognition was embodied in § 2775 of the Revised Statutes, which was among the provisions dealing with customs administration, and when, by the Act of September 21, 1922, those provisions were revised, that section was expressly repealed, along with other provisions recognizing liquors as legitimate cargo. C. 356, Title IV and § 642, 42 Stat. 858, 948, 989. Of course, as was observed by the district court, the prior recognition, although representing the national policy at the time, was not in the nature of a promise for the future.

It therefore is of no importance that the liquors in the plaintiffs' ships are carried only as sea stores. Being sea stores does not make them liquors any the less; nor does it change the incidents of their use as beverages. But it is of importance that they are carried through the territorial waters of the United States and brought into its ports and harbors. This is prohibited transportation and importation in the sense of the amendment and the act. The recent cases of Grogan v. Walker & Sons and Anchor Line v. Aldridge, 259 U. S. 80, are practically conclusive on the point. The question in one was whether carrying liquor intended as a beverage through the United States from Canada to Mexico was prohibited transportation under the amendment and the act, the liquor being carried in bond by rail, and that in the other was whether the transshipment of such liquor from one British ship to another in the harbor of New York was similarly prohibited, the liquor being in transit from Scotland to Bermuda. The cases were considered together, and an affirmative answer was given in each, the Court saying in the opinion, p. 259 U. S. 89:

"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 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 forbidden already, and the provision applied to liquors already lawfully made. See Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U. S. 146, 151, note 1 [argument of counsel -- omitted]. 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 though that, if they let it in, some of it was likely to stay. When, therefore, 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 permit such a transit for special reasons in the Canal Zone, it permitted it in express words. Title III, § 20, 41 Stat. 322."

Our conclusion is that, in the first ten cases, those involving foreign ships, the decrees of dismissal were right, and should be affirmed, and in the remaining two, those involving domestic ships, the decrees of dismissal were erroneous, and should be reversed, with directions to enter decrees refusing any relief as respects the operations of the ships within the territorial waters of the United States and awarding the relief sought as respects operations outside those waters.

Decrees in Nos. 659, 660, 661, 662, 666, 667, 668, 669, 670 and 678, affirmed.

Decrees in Nos. 693 and 694, reversed.

MR. JUSTICE McREYNOLDS dissents.

[Footnote 1]

The second section says: "The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation." For its construction, see United States v. Lanza, December 11, 1922.

[Footnote 2]

The act contains a provision (§ 1 of Title II) showing that it uses the word "persons" as including "associations, copartnerships, and corporations" when the context does not indicate otherwise.

[Footnote 3]

Section 3, Act November 23, 1921, c. 134, 42 Stat. 222.

[Footnote 4]

The pertinent portion of § 20 of Title III, relating to the Canal Zone, is as follows:

"Sec. 20. That it shall be unlawful to import or introduce into the Canal Zone, or to manufacture, sell, give away, dispose of, transport, or have in one's possession or under one's control within the Canal Zone, any alcoholic, fermented, brewed, distilled, vinous, malt, or spirituous liquors, except for sacramental, scientific, pharmaceutical, industrial, or medicinal purposes, under regulations to be made by the President, and any such liquors within the Canal Zone in violation hereof shall be forfeited to the United States and seized: Provided, that this section shall not apply to liquor in transit through the Panama Canal or on the Panama Railroad."

MR. JUSTICE SUTHERLAND dissenting.

I agree with the judgment of the court insofar as it affects domestic ships, but I am unable to accept the view that the Eighteenth Amendment applies to foreign ships coming into our ports under the circumstances here disclosed.

It would serve no useful purpose to give my reasons at any length for this conclusion. I therefore state them very generally and briefly.

The general rule of international law is that a foreign ship is so far identified with the country to which it belongs that its internal affairs, whose effect is confined to the ship, ordinarily are not subjected to interference at the hands of another state in whose ports it is temporarily present, 2 Moore, Int.Law. Dig., p. 292; United States v. Rodgers, 150 U. S. 249, 150 U. S. 260; Wildenhus' Case, 120 U. S. 1, 120 U. S. 12; and, as said by Chief Justice Marshall, in Murray v. Schooner Charming Betsy, 2 Cranch 64, 118: " . . . An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains. . . ."

That the government has full power under the Volstead Act to prevent the landing or transshipment from foreign vessels of intoxicating liquors or their use in our ports is not doubted, and therefore it may provide for such assurances and safeguards as it may deem necessary to those ends. Nor do I doubt the power of Congress to do all that the Court now holds has been done by that act, but such power exists not under the Eighteenth Amendment, to whose provisions the act is confined, but by virtue of other provisions of the Constitution, which Congress here has not attempted to exercise. With great deference to the contrary conclusion of the Court, due regard for the principles of international comity, which exists between friendly nations, in my opinion, forbids the construction of the Eighteenth Amendment and of the act which the present decision advances. Moreover, the Eighteenth Amendment, it must not be forgotten, confers concurrent power of enforcement upon the several states, and it follows that, if the general government possesses the power here claimed for it under that amendment, the several states within their respective boundaries, possess the same power. It does not seem possible to me that Congress, in submitting the amendment or the several states in adopting it, could have intended to vest in the various seaboard states a power so intimately connected with our foreign relations and whose exercise might result in international confusion and embarrassment.

In adopting the Eighteenth Amendment and in enacting the Volstead Act, the question of their application to foreign vessels in the circumstances now presented does not appear to have been in mind. If, upon consideration, Congress shall conclude that, when such vessels, in good faith carrying liquor among their sea stores, come temporarily into our ports, their officers should, ipso facto, become liable to drastic punishment and the ships themselves subject to forfeiture, it will be a simple matter for that body to say so in plain terms. But interference with the purely internal affairs of a foreign ship is of so delicate a nature, so full of possibilities of international misunderstandings, and so likely to invite retaliation that an affirmative conclusion in respect thereof should rest upon nothing less than the clearly expressed intention of Congress to that effect, and this I am unable to find in the legislation here under review.

The paper also noted the death of Emerson Hough, author and conservationist.  Hough had started off as a lawyer, which had taken him to New Mexico, before becoming a professional writer, which is what he did for most of his career.

And it noted the mayor of Powder River had died.  Powder River no longer has a mayor, and is now an unincorporated very small town.

IRA Chief of Staff officially called a ceasefire in the Irish Civil War and called on his troops to relinquish their weapons, effectively amounting to a surrender.

Washington, D. C. experienced a major flood.

Friday, April 20, 1923. End of the Irish Civil War.

The Irish Civil War ends with the elevation of Frank Aiken to Chief of Staff of the Irish Republican Army and the vote of the Executive Board to halt further action.

Prohibition failed to secure passage in Parliament.

The pro Nazi journal Der Stürmer was first published.

Friday, March 23, 1923. The booze cache.

 

Thursday, November 10, 1922. Erskine Childers arrested by the Free State.

Erskine Childers, Ango Irish, English-born, Protestant, Irish Republican, was captured by the Irish Army in a nationwide roundup of IRA members.  

Childers was an Irish revolutionary figure who went from being an ardent supporter of the British Empire who served in the Boer War, into a revolutionary.  He was a member of the Anglo Irish aristocratic class, a lawyer, and a writer, who originally fit into the classic role of the period of English Empire loyalists, a view which he moved away from following the Boer War.

He helped smuggle German rifles into Ireland before the Great War, as he was by that time a supporter of home rule. When World War One came he was recalled into service and served first in the Royal Navy and then in the Royal Air Force.  His nationalism known, he was already a figure in Irish efforts to secure independence, and following the war he ended up the secretary of the delegation which negotiated with the British for independence.  He was an ardent opponent of the treaty with the UK.

He followed De Valera out of the Dail and published a pro-Republican journal following that while being a figure within Irish Republicanism.  He was not popular, however, among the Republican rank and file who regarded him as English, not without some good reasons. He was not trusted with a military role in spite of being vastly experienced in the same.

He was arrested for carrying a .32 handgun and put to death under the Army Emergency Powers Resolution which made carrying a firearm without a license a capital offense, a supremely ironic law for a government that had come into existence through doing just that.  He was executed on November 24, in what should be regarded as a supremely unjust act.  He was 52 years of age 

The Greek city of Saranta Ekklisies ("Forty Churches") in Thrace was turned over to the Turks, who renamed it at first "Kirk Kilise" ("Forty Churches").  Today it is Kirklareli, "The Place of 40"

The Marine Corps League was established.

The US released twenty vessels seized on the seas for carrying alcohol.

Tuesday, November 7, 1922. The Election of 1922.

Today In Wyoming's History: November 7:1922.  Democrat William B. Ross won election to the Governor's office, defeating John W. Hay, a Republican who had defeated the incumbent Republican Governor Robert D. Carey for the GOP ticket.

Ross.

The Republican Party was split due to the extremely contentious primary race and Ross was able to use this to appeal to Carey's supporters through his strong Prohibition stance.  The 48 year old Carey was a lawyer by profession.

Democrat John B. Kendrick won a second term to the Senate, defeating Congressman Frank W. Mondell who was the Majority Leader of the U.S. House of Representatives at the time.

Replacing Mondell was Charles E. Winter, a lawyer from Casper who had also been a State District Court judge.

Winter.

Winter would serve in that role until 1929, as in 1928 he reprised Mondell's path and attempted unsuccessfully to move to the Senate.  He was thereafter the Attorney General of Puerto Rico and then returned to Casper, where he died in 1948.  One of my aunts worked for him in his later years, and his son, who lived to be nearly 100, was a lawyer who practiced in the office building which I do and still was when I first worked there.

Winter wrote the lyrics for the song Wyoming, which is one of the two state songs.  He was also a novelist.

Nationwide, in the same year, the Democrats made big gains in the House and Senate. 

Sunday, November 1, 1942. Excapes

Japan's Ministry of Colonial Affairs ceased to exist, its functions going to the Ministry of Greater East Asia.

From Sarah Sundin's blog:

Today in World War II History—November 1, 1942: US War Department designates Japanese aircraft with human names, initially with male names for fighters and female for all others.

This came about later than I'd realized.  She has a set of playing cards depicting Japanese aircraft up on her blog as well.

She also notes:

 US ceases production of liquor—warehouses contain a four-year stock.

I was completely unaware of that.  Note that this pertains to hard alcohol, not beer.

Films produced in this era routinely show casual drinking, which would at least suggest it was relatively common, and at least personal recollections I've heard suggest that very much was at the time.  The cessation of production should have had no immediate effect on prices for anything aged, which would have been most hard alcohols.

Alcohol had only become legal, once again, in 1932, and even then it was readily available, as some later depictions suggest.  Prohibition had a devastating impact on the production of Rye, which had predominated the quality American production prior to 1919 and which has never really fully recovered.

The Marines launched the Matanikau Offensive on Guadalcanal.  It would run for four days and secure Koli Point.

The Germans took Alagir in North Ossetia, in the USSR.

Four German sailors broke out of Fort Stanton, New Mexico. They'd soon be captured by a mounted posse, during which one of them was wounded.

Portugal held elections, but as it was a one party state, the victory of the National Union Party was somewhat foreordained.

Pornographer Larry Flynt, who was responsible for Hustler magazine, was born on this day.  Huslter followed in the wake of Playboy and Penthouse, and was cruder than either two, that avenue having been opened up for glossy smut due to Playboy.

It was the Solemnity of All Saints, as it is now, which is a Catholic Holy Day of Obligation.  Given as this one fell on a Sunday, there would have been no requirement for attendance at an extra Mass for Catholics on this week in 1942.

Saturday, October 21, 1922. Fall

Country Gentleman appeared at the stands with a Fall theme.

The Shriners held a huge barbecue in Washington, D.C.  Presumably the Budweiser was alcohol free.

The Saturday Evening Press had a fall theme too, but it was less obviousl

And there was the news of the day.

Friday, October 6, 1922. Expanding Prohibition on the Sea and Setting Records in the Air.

The United States issued an order requiring all American flagged ships to be free of alcohol, and all foreign ships entering U.S. waters to be alcohol-free as well.  The order went into effect on October 14.

These photos of a confiscated still were taken on the same day.

Two U.S. Army pilots set a new record by remaining in the air for two days in a Fokker T-2. The endurance feat took place at Rockwell Field, California.

Fokker T-2.

The plane had been modified to allow for dual controls and extra fuel.  When it took off, its weight exceeded its maximum normal payload.  Only two T-2s were made, and both were acquired by the U.S. Army.

Saturday, September 2, 1922. Anthracite Coal Strike Ends.

 

Country Gentleman, for its Saturday issue, ran the second part of a story that it started the week prior.

It's interesting to note, FWIW, that in depictions of rural children from this era, such as this one, they're commonly depicted sans shoes.  A lot of these illustrations, while romanticized, are fairly accurate, which would suggest that farm children, at least in some parts of the country, did typically omit footwear in the summer.   That certainly doesn't ever seem to have been the case here, however.

The Saturday Evening Post came out with a portrait by Charles A. MacClellan of an attractive, but very serious looking, woman which is apparently entitled "Back To School"

Judge went to press with certainty that at least beer was going to be exempted from Prohibition.

Judge was correct, of course.  Not only beer, but alcohol in general, would come back starting a decade later, although not all at once with a sudden repeal of Prohibition at the national level, as so often imagined.

Interestingly, this has a modern parallel in that what had been constitutionalized, a ban on alcohol, was reversed even though not everyone was in favor of that reversal, leaving the states to sort it out, which they did, but not instantly.  The Dobbs decision effectively does that with another issue.

Whether allowed or not, today, even eventually, it's not now for me, as this is colonoscopy day.  

I've been dreading it and really pondering changing course.  It's not so much the procedure itself, it's the medications they require the day and early morning of which cause . . well. . . diarrhea.  I hate being sick, and I'm not sure if it's worth it.

Having said that, according to something I read, 1 in 23 men get colorectal cancer, which sounds like a lot.  But that's 4.35%, which doesn't.  In an abstract fashion, I feel that everyone ought to get this simple diagnostic tool, but I'm hypocritical enough to be reconsidering it.

Again, it's the diarrhea medication that I'm dreading at the time I type this out.  I'd rather skip eating several days prior, which seems like it ought to do the same thing.

The United Mine Workers and the Policy Committee of the Anthracite Coal Operators came to an agreement for a year, which brought to an end the dangerous strike that had been going on for some time.

Friedrich Ebert, President of the German republic, declared the Deutschlandlied to be the national anthem, but only the third stanza of the song.  It remains the German national anthem today, having regained that position in the Budesrepublik in 1952, again starting with the third stanza.  The militant first stanza was used during the Third Reich.

Saturday, August 19, 1922. Tariffs and Gun Battles.

The U.S. Senate, in a Saturday Session, passed the Fordney-McCumber Tariff Act, which would ultimately lead to major unintended losses in the farming sector.  The act was conceived of as pro business, which of course nearly all tariff laws are.

The Country Gentleman came out with a relaxing bear theme.

Treasury Agent Robert Stuart Rumsey, Jr. was killed in the line of duty near Mirando City, Texas, interdicting a load of tequila.  Treasury Agents had seized the shipment but were stopped by an armed party bringing the shipment in and were outgunned, as they only carried pistols. Two other Treasury agents escaped.

Thursday, August 17, 1922. Flying boats, watermelons, and medals.

On this day, the Sampaio Correia, a H-16 Curtiss Flying boat, prepared to make the long journey to Brazil from New York for an expedition in Rio De Janero.

 Secretary of War Weeks presided over the awarding of medals to a collection of Army officers.

Watermelon boats were photographed delivering their loads to transportation at dockside.

Forest fires raged in Minnesota, leaving six dead and hundreds homeless.

Byzantine Catholic Priest Vladimir Abrikosov was arrested by Soviet authorities for persuading Russians to become Catholic.  He was at first sentenced to death, but was ultimately expelled.

The Bureau of Prohibition warned establishment owners that they could be held criminally liable for breaking the prohibition laws if they allowed their patrons to bring alcohol in themselves is flasks.

Venerdì, 11 Agosto, 1922. Violenza

Ground was broken on Chicago's Soldier Field.

A Communist member of Italy's Chamber of Deputies declared that a recent general strike had failed as the proletariat was not sufficiently armed. This provoked a Fascists reaction during which fascist Francesco Giunta, who was armed, pulled out a revolver.  The session was suspended.

Umberto "the Ghost" Valenti, age 30, originally from Sicily, was shot and killed in a New York café under orders of the Genovese crime family.  Valenti, who was a hit man for the D'Aquila crime family, had killed a member of the Morello crime family removing the Camorra as a contender for the illegal liquor trade, but also meaning that competing Mafia crime families were now vying for that role.

Giuseppe Morello.  Probably completely unrelated, but while I was at the University of Wyoming, I twice had calculus classes taught by a graduate student with the last name Morello.  He was an excellent teacher.

This was part of a mob war with interesting aspects.  The Genovese family was part of the legendary "five families" of the New York mafia, but the Morello family was part of the Camorra.  Guiseepe Morello, the unfortunate victim of Valenti, was only recently out of prison at the time of his mob execution and the war turned to control of the former Comorrista's liquor business.  Valenti's murder, ordered by Giuseppe "Joe" Masseria, who had personally lured Valenti into the place of execution, settled the matter with the Genovese's coming out the victors.

Giuseppe "Joe" Masseria.  Masseria died in a hit ordered by Lucky Luciano in 1931.

Wednesday, July 26, 1922. Regular courts, regular limits, combating prejudice.

The U.S. submarine S-50 in port, photographed on this day in 1922.

The Provisional Government of Southern Ireland suspended all sessions of the nationalist established Dáil Courts in favor of the courts of the Irish Free State.  A pre independence tactic had been co-opting the features of regular civil life in a new nationalist system.

The British rejected an American proposal to search British vessels for alcohol outside the country's three-mile territorial limit.

Greek immigrants to the United States, facing racism and bigotry, established the American Hellenic Educational Progressive Association (Order of AHEPA) with the mission of promoting unity and assimilation into their new home country’s society.  Like immigrants from various Catholic countries, the largely Orthodox Greek immigrants were the targets of nativist hatred.

Thursday, June 15, 2022. The dropping toll of booze and the constitution of the Free State.

Ralph Day, Director of the U.S. Bureau of Prohibition, noted a 79% decrease in alcohol related deaths since the advent of Prohibition in statistics provided to the New York City Department of Health.

A draft of the constitution of the Irish Free State was made public.  Women were granted the franchise and the oath of allegiance to the king was maintained.

Thursday, February 23, 1922. Booze sniffing hounds, Naval San Diego, Communist Theft, Japanese Suffrage.

Dog trained to sniff alcohol, February 23, 1922.

Lenin issued a decree authorizing confiscation of valuables from the Russian Orthodox Church as a relief measure for the famine caused by his failed economic policies.

The degree to which Communism was and is criminal can hardly be exaggerated.  The moronic economic policies forced upon Russia depressed its economy for decades, with it taking decades for certain sectors of it to return to pre Communist output, particularly agriculture.  It also resulted in massive famine. Theft from the Church was not going to relieve that, and more than anything else expressed the degree to which the criminal enterprise could now freely act against it.

The Church appealed the decision, but unsuccessfully.

The U.S. Navy established San Diego as a U.S. Destroyer Base, San Diego, forever altering the character of the city.

Worth noting, if San Diego had been fully retained as the headquarters for the Pacific Fleet between the wars, the attack at Pearl Harbor would have really had much less impact than it did, assuming that it would have occured at all.

The Japanese parliament rejected universal suffrage, which resulted in a riot that evening.

Tuesday, January 10, 1922. Liquor Raids in Cheyenne, Bears in Arizona, Arthur Griffith in Ireland.

As we discusssed here on our companion site; Today In Wyoming's History: January 10: 1922  The Laramie County Sheriff conducted a series of raids on stills.  Attribution:  Wyoming State Historical Society.

 Southern Tariff Association at White House who visited White House on this day i 1922.

Arthur Griffith was elected President of Dáil Éireann.  Already overworked, he'd hold the post until his death at age 51 in August, effectively a casualty of the civil war in the country which had already broken out.

Friday, January 6, 1922. De Valera makes the vote personal, The Literary Digest writes about Japan, and the Feds raid Oshkosh.

The debate had been ongoing in the Dáil over the peace treaty that had been negotiated and already now approved by the British Parliament.  Irish President Éamon de Valera had taken a hands off approach during those negotiations, but now was opposing ratification of the treaty, hoping instead for full separation with no oath.  

On this day, perhaps sensing that the debate was swinging against him, he declared that he "could not carry on until I know if I have the support of this Dáil ... I appeal to this House to re-elect me, give me a vote of confidence so that I can stand on the rock of an independent Irish republic. If you want this treaty you can elect someone else".

The Wyoming State Tribune was correct, Ireland was teetering on the brink of civil war, and over an issue that would have been incomprehensible as recently as 1914.  It frankly made no sense, except in the heated atmosphere of post World War One Irish politics.

De Valera's proclamation suggested that he'd accept the results of the vote, however, and that he'd not lead his supporters personally into a civil war.

The Wyoming State Tribune ran a full page for an advertisement about another island nation, Japan.

Or, more precisely, it ran an advertisement for The Literary Digest's upcoming issue on Japan.

Japan had been a looming issue for American foreign policy for at least a couple of decades, but by the early 1920s its modern navy, prior defeat of Russia in the Russo Japanese War, and its role as an Allied power, albeit a highly self-interested Allied power in the Great War was causing increasing concern.

Revenuers raided Oshkosh, Wisconsin:

Raid! When the Feds Hit Oshkosh in 1922

Friday December 30, 1921. Cheyenne gets gas.

Brattleboro, Vt. from Mt. Wantastiquet.

 

On this day in 1921, the Rock Springs newspaper published reports of the recent big raid in that town.

In Cheyenne, the exciting news was that natural gas, an abundant resource in the state, was coming to the city.