Evening Star Newspaper, December 18, 1930, Page 4

ATTORNEYS PRAISE - DRY LAW DECISON Nine Legal Points Are Cited | @s Raised in Ruling of Fed- o2 £ " eral Judge Clark. By the Assoclated Press. NEW YORK, December 18.—Four at- torneys, who represented ~Willlam Smue. defendant in the test case Wi was dismissed Tuesday by Fed- eral Ji Clark in Newark with a rul- ing that the eighteenth amend- ‘was {irregularly ratified, Juld‘fis opinion in & joint statement night. lawyers, Selden Bacon, former o el ¥, Cohalan, Jullus Henry CO‘HI and Frederic M. P. Pearse, said the, following legal ints were raised by Judge Clark’s rul 3 “Pirst—He decides that the questions raised by the defendant's counsel in the e case have not yet been upon by the Supreme Court of United States. “Second—He decides that Congress has not an arbitrary and unrestricted right to select a method for ratification of a constitutional amendment. Convention Only Method. “Third—He decides that the conven- thod of ratification is the only method that could be applied to a pro- posal like the eighteenth amendment. “Fourth—He decides that the eight- eenth amendment inyolves the grant of powers over the ple of the respective States u‘x:l fiob:n hwhmn:‘tler wmclh ly given by e people :?:gx&wnvenmm and not by the gislatures. “PFifth—He agrees with counsel that this is a fundamental question of capi- tal government and goes to the root of our American system, and in this Tespect the proposition involves a much broader question than the policy in- volving the eighteenth amendment. “Sixth—] brings sharply into re- -He lief the issue of Federal usurpation of powers which are essentially within the contol of the people themselves and are within the reserve powers of the le. %fib—l}efendlnt's counsel _ar- ed that article five (of the Constitu- ) did not grant an arbitrary and unrestricted choice to Congress to select the method of ratification of amend- ments to the Constitution. Judge Clark farther than counsel for the de- fense and finds support for their views only in the historical and inter- ciples of political science that should govern the whole system of American ‘Government as embodied in the United Btates Constitution. Cities Power Limits. “Eighth. Judge Clark makes it clear in his exhaustive and learned opinion that 'heret therehls a Xedmlthform of government, such s ours, there are necessary limits thereto. Under our system the limitation upon the function- ing of any branch of the Federal Gov- ernment is found in the Constitution itself. Up to the time of its presenta- tion in this case the ice of the provision in article 5, dealing with the Tatification by constitutional conven- tions, instead of by legislatures, had never been presented as it has been pre- EX-GOLF LEADER QUITS Recurring Heart Attacks Force Fownes to Give Up Game. PINEHURST, N. C., December 18 (#). —William C. Fownes, §r., of Pittsburgh, former president of the United Golf Association and 1920 national amateur champion, has been forced to give up golf because of recurring heart attacks, He was first stricken and 1s now confined e W.C.T.ULCERTAI ORY LA SLEGAL Opportunity for Real Test Is “Hailed With Joy”—Ask Wets for Remedy. three weeks to ‘his bed at By the Assoclated Press. CHICAGO, Dcember 18—The Na- tional Woman's Christian Temperance Union today issued a statement express- ing the belief that “the Supreme Court of the United States will uphold the eighteenth amendment as having been legally adopted and ratified.” Commenting on the recent decision of Federal Judge William Clark of Newark, N. J., that the amendment is invalid, the statement, sent to all State and local W. C. T. U, organizations, said that the W. C. T. U. hailed “with joy the opportunity for the Supreme Court of the United States to uphold this great reform once more.” Ready to Begin Again. “If we are wrong,” the statement added, “we will start all over again to put the liquor traffic out of business. * * * In the meantime, we ask the wets once more what they are going to do 1f prohibition is held unconstitutional. What is their plan by which they prom- ise Utopia through the establishment of the legalized liquor business? “We have been told at each step we have taken from r.ledze signing, edu- cation, State regulation, local regula- tion, local option, State prohibition and national prohibition, that we were wrong, Our challenge to them is: To Demand Remedy. “What do you propose to do to justi- fy your elaims of crusading and re- form?” The statement also said that the W. C. T. U. knew Judge Clark’s ruling was pending and “our feeling was that Judge Clark would make just the sort of de- cision he made.” ‘The judge's decision, meanwhile, was used in Chicago as a basis for a plea in Federal Court to quash an indictment against an alleged liquor law violator. The case, intended to test the legality of the eighteenth amendment, was filed by attorneys representing George Morris. sented now in the Sprague case. While Judge Clark has not accepted in toto our reasoning in regard to the effect of the tenth amendment, it is wholly con- sistent with his opinion. “Ninth. He further points out that the function exercised by Congress in selecting a mode ‘of adoption of a con- stitutional amendment is an exercise of an administrative function, which the courts are competent to review.” Fill the stockings . . . trim the tree ... with these special children’s candies Why not ‘make sure your children's candy is of the purest. Your Whitman dealer can show you the many popular novelties by Whitman's o brighten up the day—hard candies, sticks, pure chocolate, Whitman's’ Wonder Box with a fairy tale on the cover is a joy—25¢ per box (Set of 12—§$3). THE EVENING STAR, WASHINGTON, D. C, THURSDAY, DECEMBER 18, 1930. STINNES DAUGHTER MARRIES FEW EXPECT JUDGE < TOWINONDRYLAW Adverse Ruling Is Believed Doomed When Supreme Tribunal Takes It Up. BY MARK SULLIVAN. The practically universal belief of those in’ Washington best qualified to have worthwhile opinion is that the de- cision of Judge Clark of the New Jersey District Court invalidating the prohibi- tion amendment is most unlikely to be upheld by the Supreme Court of the United States. This belief is expressed as often by lawyers whose personal convictions are strongly opposed to prohibition as by others. Lawyers familiar with the sub- Jject-matter say it is true that the pre- cise point raised by Judge Clark has never been Brought before the Supreme Court and therefore never passed upon by that body. These authorities add, however, that points very close to Judge Clark’s and points almost overlapping it have been passed upon and have been decided in a maner adverse to the stand taken by the New Jersey district judge. Judge Clark’s point may be expressed roughly in two sentences. He says first that regulation of liquor belongs in the area of powers which the States did not transfer to the Federal Government, but retained for themselves when the Constitution was first written. He says second that a power originally retained by the States for themselves cannot now be transferred to the Federal Gov- ernment except by one process, which process must consist of State conven- tions called for that purpose. Action Was by States. The actual ratification by the States of the Eighteenth amendment was in fact in the form of actions by the State Legislatures. The Supreme Court in past cases arising in connection with other amendments has tended strong- ly to uphold ratifications made by State Legislatures. In connection with the eighteenth amendment and also in con- nection with the woman suffrage amend- ment, attempts have been made before the court to deny the lity of rati- fications made by State tures. In such cases the court has tended s ly to uphold the validity of the Legisiatures’ actions. In an Ohio case the point was raised that ratification by the Legislature of the prohibition amendment was not binding unless and until the Legislature’s action should be indorsed by a popular referendum. The Supreme Court decided, however, that action by the Legislature was sufficient Fraulein Clarenore Stinnes, only daughter of the late Hugo Stinnes, once regarded as the industrial dictator of Germany, and Carl Axel Sonderstrom, Swedish film producer, were married yesterday. Miss Stinnes met her future hus- band on her world tour, which ended last year, when Mr. Sonderstrom went along to take pictures of the motor trip. eral other ‘ifs,’ then the Supreme Court might conceivably avail itself of the opening Judge Clark offers to hold the prohibition amendment invalid.” While the opinion of competent au- thorities is almost universally adverse to Judge Clark’s decision, there is very great interest in it. Probably no de- cision by a Federal district judge in many years will be read so widely or so closely. Not only does the opinion deal with a conspicuously controversial question. It is extremely unusual in form and substance. It contains rather more than the usual number of legal citations familiar in all decisions. In addition, and quite extraordinarily, Judge Clarke’s decision contains a larger number of quotations from and allu- sions to books of history and other non- legal books than any court decision and was binding. All the comment adverse to Judge Clark’s decision is made with complete respect for his action and for the argu- ment with which he sustains his ac- tion. 1t is the extreme fineness of Judge Clark’s point that makes it likely to suffer an adverse fate in the Su- preme Court. Several “Ifs” Stated. A lawyer sympathetic to Judge Clark's point of view put it thus: “If Judge Clark had raised his point when the prohibition amendment was first enact- ed, and if the Supreme Court was desperately anxious as a matter of pub- lic policy to hold the amendment un- constitutional, and if there were sev- within the memory of the oldest lawyer. Much Material Covered. If Judge Clark has read and digested all the books he mentions, he must be the most erudite man who ever sat on a Federal bench. The names of the books quoted would fill half a column of this newspaper. They include such volumes as Beard’s “American Levia- than,” published a few webks ago, as well as practically every old and estab- lished book about American or English history and on back to Cicero’s “‘De Republica” and even farther back to the maxims of Confucius. In the course of this Mississippi flood of serious lore he throws off little A. P. Photo, lsun-les like the one about the Chief Justice of Georgia who “once remarked that courts of last resort live by cor- recting the errors of others and ad- hering to their own.” This story as ‘well as the general atmosphere of Judge Clark’s decision seems to hint an in- vitatian to the Supreme Court to re- verse its whole attitude on prohibition. Persons who read Judge Clark’s novel opinion are a little puzzled whether to smile at it or take it with extreme seriousness. There is specula- tion about the personality of the youth- ful judge and as to whether he will go a long distance of whether his ultimate fame will be confined to the outburst of discussion arising over this one opinion. et e 0 WIFE FREES PRISONER NAPLES (N.AN.A).—Giacomo Mar- tucchi, convicted of the murder of his son in 1920, was released from prison recently because of the death-bed re- pentance of his wife. The child, Martucchi’s wife said, was killed accidentally by a fall from a win- dow instead of being thrown out, as she had testified at her husband’s trial. She explained that the reason she had perjured herself was that she didn't like her husband. (Copyright, 1930. by North American News- paper_Alliance.) RATIFICATION SSUE CONSIDERED N 1900/ Question Brought Up in New|n Decision Involved Before in Court Ruling. Like a beacon in a heavy fog, a de- cision handed down 10 years ago by the United States Supreme Court loomed today through the controversy stirred up by Federal Judge Clark’s ruling tha‘t the eighteenth amendment is in- d. ‘The contention of the 38-year-old Newark, N. J., jurist that the prohib- tion policy 1is unconstitutional because the eighteenth amendment was not adopted by conventions in the several States, apparently was ruled upon by the highest tribunal in its decision of June 1, 1920, sustaining the authority of Congress to determine how proposed constitutional amendments shall be submittted. ‘The effect of the court’s opinion was to record the Supreme Court as recog- nizing the authority of Congress to submit the eighteenth amendment as it did, to the legislatures of the several States. No Dissenting Opinion. “All of the amendments to the Con- stitution have been submitted with a requirement for legislative ratification; by this method all of them have been adopted,” Justice Day stated in handing dov\;n the opinion. There was no dis- sent. “The fifth article is & grant of au- thority by the people to Congress,” the opinion stated. ‘“The determination of the method of ratification is the exer- cise of a national power specifically granted by the Constitution; that power is conferred upon Congress, and is lim- ited to two methods of action by the Legislatures of three-fourths of the States or conventions in a like num- ber of States. The framers of the Constitution might have adopted a dif- ferent mef Ratification might have to some authority of government other than that selected. language of the article is plain and admits of no doubt in its interpretation.” ‘The text of this decision was studied by Department of Justice officials today while Philip Forman, United States Attorney for New Jersey, prepared to 1 from Judge Clark’s de- 'he appeal is to be taken the Supreme Court, under provisions of the United States code, and as a direct appeal will have a pre- ferred status. It was expected at the Justice Department that the court would assign the case for an early hearing, probably in March after the tribunal Treconvenes in January. New Points Brought Up. Students of Supreme Court decisions pointed out foday that especially since 1912 when the greater number of so- called trust cases were decided, the court has leaned close to a determina- tion of the will of the people as re- vealed by the Constitution. Dry leaders, in support of their belief that the Supreme Court would follow such a policy in the present case, &aimed to this statement of the court in its 1920 opinion: “There can be no question that the framers of the Constitution clearly un- been left to a vote of the people or |, purpose. Ranged against this view, however, was the opinion of some students, cluding members of Congress, that Judge Clark had raised some ts in hlsxt ruling which the Supreme has o on Another factor taken into considera- tion by both schools of thought was that the personnel of the Supreme Court has changed since the major prohibi- tion decisions were handed down. Five of the nine judges are new, Chief Justice Charles Evans Hughes and Associate Justices Plerce Butler of St. Paul; Harlan F. Stone of New York, George Sutherland of Salt Lake City and Owen J. Roberts of Phila- delphia. AUTHORITIES MOVE TO HASTEN APPEAL OF DRY LAW RULING (Continued From First Page.) the case of Louls E. Thibault of Wind- sor, Vt., who was found guilty of pos- session and sale of two pints of liquor. The case was argued before the Court of Appeals by Daniel F. Cohalan, Selden Bacon and Prof. Leslie J. Tomp- kins of New York University, who were associated in presenting the Sprague case before Judge Clark. Raids Go On in New Jersey. In Providence, R. I, a demurrer to indictments against Jack .. s and his son-in-law, Tony Maurice, is before Judge Ira Lloyd Letts in Federal Court. The question of validity of the eigh- teenth amendment was raised when the dependants were arraigned before United States Commissioner Fred A. Otis, who referred the case to the court. Federal liquor raids were made in New Jersey after Col. Amos W. Wood- cock, prohibition director, wired Deputy Administrator Louis J. Tutt at Newark ul'.slg‘;\m on despite Judge Clark's de- cf 22N SR SR RN SR e SR SR SR S | 25 ARE CONVICTED INWET CONSPIRAGY Montana Police Chief and Three Other Officers Among Those Found Guilty. By the Assoclated Press. GREAT FALLS, Mont., December 18. ~—Chief of Police Ray M. Gaunt and 24 other persons, including three members of the Great Falls police force, yester- day were fined for conspiring to vio- late Federal liquor laws in the enforce- ment of & “nuisance” ordinance. Witnesses at the trial, which yester- day ended in conviction of the de- fendants, testified bootleggers were al- lowed to operate as long as they pald a $100 fine into the city treasury every two months. Commenting__on the convictions, J George M. said: “In a_way, it am confident there was no corrupt intent on the of Ray M. Gaunt, the chief of police, but the means em- was such as the law condemns.” Montana has no State dry law. All the defendants gave notice of Later the police officers faced - tation of their case to the City Police Comimission, Defense attorneys flm with the contention that the icers, were guilty only of committing misde- meanors, and therefore could not be re- moved from office und!lmflw State law OPEN TONIGHT De Moll’s Extra Friday Special $3.50 CARD TABLES Sturdily and Finely Built 2.25 ‘Will make an ideal Christmas present. Visit our gift and novelty furniture department, where you will find a number of very useful presents. 0. J. De Moll & Co. Twelfth and G Sts. Sampler One gift that’s sure to make a hit The Sampler is America)s favorite box of candy—beloved from coast to coast. How naturally its famous quaint cross-stitch design embodies the spark- ling holiday spirit! Of course it's welcome, the safe choice, every time. Send a Sampler—17 0z, 2, 3 or 5 lbs. at $1.50 the pound. Your Whitman Agency will be glad to mail any Whitman packages for you by parcel post. Give him your list! 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