UNITED STATES v. STANDARD BREWERY, inc. SAME v. AMERICAN BREWING CO.

These causes are here under the Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat. 1246 (Comp. St. § 1704), and require the construction of the so-called 'War-Time Prohibition Act' of November 21, 1918, c. 212, 40 Stat. 1045, 1046, 1047.

In No. 458 the Standard Brewing Company was indicted for unlawfully using certain grains, cereals, fruit, and other food products on the 4th of June 1919, in the manufacture and production of beer for beverage purposes which, it is charged, contained as much as one-half of 1 per cent. of alcohol by both weight and volume. In No. 474 the American Brewing Company was indicted for the like use on the 26th day of June, 1919, of certain grains, cereals and food products in the manufacture and production of beer containing a like percentage of alcohol.

In the indictment in No. 474 it was charged that at the time of the alleged offense the termination of demobolization had not been determined and proclaimed by the President.

In each case a demurrer was sustained by the District Court.

Before considering the construction of of that portion of the act involved in these cases it will be helpful to give a short history of the preceding legislation that let up to it. The Food Control Act of August 10, 1917, 40 Stat. c. 53, pp. 276, 282, authorized the President to prescribe and give public notice of limitations, regulations, or prohibitions respecting the use of foods, fruits, food materials or feed, in the production of malt or vinous liquors for beverage purposes, including regulations for the reduction of the alcoholic content of any such malt or vinous liquor, in order to assure an adequate and continuous supply of food, and promote the national security and defense. Whenever notice should be given and remain unrevoked no person, after a reasonable time prescribed in such notice, could use any food, fruits, food materials or feeds in the production of malt or vinous liquors, or import any such liquors except under license and in compliance with lawfully prescribed rules and regulations. Under the authority thus conferred, the President issued various proclamations. On December 8, 1917, he issued one (40 Stat. 1728, Comp. St. 1918, § 3115 1/8 l, note), forbidding the production of all malt liquor, except ale and porter, containing more than 2.75 per cent. of alcohol by weight. On September 16, 1918, he issued a second proclamation (40 Stat. 1848), prohibiting after December 1, 1918, the production of malt liquors, including near beer, for beverage purposes, whether or not such malt liquors contained alcohol. On January 30, 1919, he issued a third proclamation (40 Stat. 1930), which modified the others to the extent of permitting the use of grain in the manufacture of nonintoxicating beverages, it being recited therein that the prohibition of the use of grain in the manufacture of such beverages had been found no longer essential in order to assure an adequate and continuous supply of food. And on March 4, 1919, he issued a fourth proclamation (40 Stat. 1937) amending his proclamation of September 16, 1918, so as to prohibit the production only of intoxicating malt liquors for beverage purposes.

It thus appears that the President, acting under the act of August 10, 1917, has reduced the prohibition of the use of food materials so that now it is limited to the manufacture of such liquors as are in fact intoxicating.

In the light of all this action we come to consider the proper construction of so much of the act of November 21, 1918, as is here involved, which provides:

'That after June thirtieth, nineteen hundred and nineteen, until the conclusion of the present war, and thereafter until the termination of demobilization, the date of which shall be determined and proclaimed by the President of the United States, for the purpose of conserving the man power of the nation, and to increase efficiency in the production of arms, munitions, ships, food, and clothing for the army and navy, it shall be unlawful to sell for beverage purposes any distilled spirits, and during said time no distilled spirits held in bond shall be removed therefrom for beverage purposes except for export. After May first, nineteen hundred and nineteen, until the conclusion of the present war and therafter until the termination of demobilization, the date of which shall be determined and proclaimed by the President of the United States, no grains, cereals, fruit, or other food product shall be used in the manufacture or production of beer, wine, or other intoxicating malt or vinous liquor for beverage purposes. After June thirtieth, nineteen hundred and nineteen, until the conclusion of the present war and thereafter until the termination of demobilization, the date of which shall be determined and proclaimed by the President of the United States, no beer, wine, or other intoxicating malt or vinous liquor shall be sold for beverage purposes except for export.'

Nothing is better settled than that in the construction of a law its meaning must first be sought in the language employed. If that be plain, it is the duty of the courts to enforce the law as written, provided it be within the constitutional authority of the legislative body which passed it. Lake County v. Rollins, 130 U. S. 662, 670, 9 Sup. Ct. 651, 32 L. Ed. 1060; Bate Refrigerating Co. v. Sulzberger, 157 U. S. 1, 33, 15 Sup. Ct. 508, 39 L. Ed. 601; United States v. Bank, 234 U. S. 245, 258, 34 Sup. Ct. 846, 56 L. Ed. 1298; Caminetti v. United States, 242 U. S. 470, 485, 37 Sup. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168. Looking to the act we find these are its declared purposes: (1) To conserve the man power of the nation; (2) to increase efficiency in the production of arms, munitions ships, and food and clothing for the army and navy. To these ends it is made illegal to sell distilled spirits for beverage purposes or to remove the same from bond for such purposes except for export. And after May 1, 1919, until the conclusion of the war, and until demobilization is proclaimed by the President, no grains, cereals, fruit, or other food products are permitted to be used in the manufacture or production of beer, wine or other intoxicating malt or vinous liquors for beverage purposes.

The prohibitions extend to the use of food products for making 'beer, wine, or other intoxicating malt or vinous liquors for beverage purposes.' These provisions are of plain import and are alimed only at intoxicating beverages. It is elementary that all of the words used in a legislative act are to be given force and meaning, Market Co. v. Hoffman, 101 U. S. 112, 115, 25 L. Ed. 782; and of course the qualifying words 'other intoxicating' in this act cannot be rejected. It is not to be assumed that Congress had no purpose in inserting them or that it did so without intending that they should be given due force and effect. The government insists that the intention was to include beer and wine whether intoxicating or not. If so the use of this phraseology was quite superfluous, and it would have been enough to have written the act without the qualifying words.

This court had occasion to deal with a question very similar in character in the case of the United States v. United Verde Copper Co., 196 U. S. 207, 25 Sup. Ct. 222, 49 L. Ed. 449, where an act permitted the use of timber on the public lands for building, agricultural, mining and other domestic purposes, and held that we could not disregard the use of the word 'other' notwithstanding the contention that it should be eliminated from the statute in order to ascertain the true meaning. So here, we think it clear that the framers of the statute intentionally used the phrase 'other intoxicating' as relating to and defining the immediately preceding designation of beer and wine.

'As a matter of ordinary construction, where several words are followed by a general expression as here, which is as much applicable to the first and other words as to the last, that expression is not limited to the last, but applies to all.' Lord Bramwell in Great Western Railway Co. v. Railway Company, L. R. 9 App. Cas. 787, 808.

The declared purpose of Congress was to conserve the nation's man power and increase efficiency in producing war essentials; and it accordingly undertook to prohibit the manufacture of intoxicating liquors whose use might interfere with the consummation of that purpose. Other provisions of the act lend support to this view. The sale and withdrawal from bond of distilled spirits (always intoxicating) were declared unlawful after June 30, 1919—their manufacture had already been prohibited. The sale of beer, wine and other intoxicating malt or vinous liquors was prohibited after the same date and the importation of all such liquors and also of distilled liquors was made immediately unlawful. The President was empowered at once to establish zones about coal mines, manufactories, shipbuilding plants, etc., and 'to prohibit the sale, manufacture or distribution of intoxicating liquors in such zones.'

The fact that the Treasury Department may have declared taxable under many revenue acts all beer containing one-half of 1 per centum of alcohol is not important. Such rulings did not turn upon the intoxicating character of the liquid, but upon classification for taxation controlled by other considerations. A liquid may be designated as beer and subjected to taxation although clearly nonintoxicating.

'The question whether a fermented malt liquor is intoxicating or nonintoxicating is immaterial under the internal revenue laws, although it may be a very material question under the prohibitory laws of a state or under local ordinances.' T. D. 804.

As to the insistence that the Internal Revenue Department has determined that a beverage containing one-half of 1 per cent. of alcohol should be regarded as intoxicating within the intendment of the act before us little need be said. Nothing in the act remits the determination of that question to the decision of the revenue officers of the government. While entitled to respect, as such decisions are, they cannot enlarge the meaning of a statute enacted by Congress. Administrative rulings cannot add to the terms of an act of Congress and make conduct criminal which such laws leave untouched. Waite v. Macy, 246 U. S. 606, 38 Sup. Ct. 395, 62 L. Ed. 892; United States v. George, 228 U. S. 14, 25, 33 Sup. Ct. 412, 57 L. Ed. 712; United States v. United Verde Copper Co., 196 U. S. 207, 215, 25 Sup. Ct. 222, 49 L. Ed. 449.

Furthermore, we must remember, in considering an act of Congress, that a construction which might render it unconstitutional is to be avoided. We said in United States v. Jin Fuey Moy, 241 U. S. 394, 401, 36 Sup. Ct. 658, 659 (60 L. Ed. 1061, Ann. Cas. 1917D, 854):

'A statute must be construed, if fairly posible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.'

See, also United States v. D. & H. Co., 213 U. S. 366, 29 Sup. Ct. 527, 53 L. Ed. 836.

We held in Hamilton, Collector v. Kentucky Distillery & Warehouse Co., 251 U. S. 146, 40 Sup. Ct. 106, 64 L. Ed. ——, decided December 15, 1919, that the war power of Congress, as applied to the situation outlined in the opinion in that case, enabled it to prohibit the sale of intoxicating liquor for beverage purposes. But the question was neither made nor decided as to whether Congress could prohibit even in time of war the manufacture and sale of non intoxicating beverages.

An indictment must charge each and every element of an offense, Evans v. United States, 153 U. S. 584, 587, 14 Sup. Ct. 934, 38 L. Ed. 830. We cannot say, as a matter of law, that a beverage containing not more than one-half of 1 per cent. of alcohol is intoxicating, and as neither indictment so charges it follows that the courts below in each of the cases correctly construed the act of Congress, and the judgments are

Affirmed.