If you take time to sum up, the opponents are going to be given time to sum up, equal time.

If you want to take 10 minutes for summing up by Mr. Johnson, or yourself, you are very welcome to do it.

First, however, there is a young woman here who wants to make a brief statement.

Go around to the witness chair, please.

STATEMENT OF MISS BERYL DILL, ARLINGTON, VA.

Miss DILL. My name is Beryl Dill. My address is Arlington, Va. A lot of the other girls have not had the opportunity to study and know what alcohol is and what it does. They do not realize the results and the end thereof after using alcoholic beverages. They do not realize that it does not make for such a happy or desirable home as the glamourized liquor advertisements try to make it appear.

A nice teen-ager does not appreciate and is getting tired of going to parties where beer and cocktails are served. Teen-agers do not care to have their escorts' brains fogged by even one drink to the point that he cannot be considered 100 percent reliable.

We are tired of seeing and hearing alcoholic beverage ads make it appear that we accumulate our charm and our unbounded intelligence by the use of certain brands.

I beg you, as the future homemakers, to protect tomorrow's home from alcohol advertising by the passage of the Capper bill, S. 265. Senator REED. Now, Mr. Johnson, do you wish to take your 10 minutes?

I think you had better come around here, if you please.

FURTHER STATEMENT OF HENRY M. JOHNSON, PRESIDENT, NATIONAL TEMPERANCE AND PROHIBITION COUNCIL, LOUISVILLE, KY.

Mr. JOHNSON. First, there are a few papers here which I desire to get into the record.

One is a brief prepared on the legal and constitutional questions involved in the bill, prepared by Mr. Edward B. Dunford, associate counsel, in this case, for the proponents.

Senator REED. How long is that, Mr. Johnson? We do not want to burden the record too much.

Mr. JOHNSON. I understand that. This particular document is 32 pages.

Senator REED. All right. We will let it appear.

Mr. JOHNSON. The last gentleman who appeared directed his attention to that phase of it. Of course, we could probably abbreviate and condense it.

Senator REED. No, we let Mr. Digges read his statement, and he was the first witness who has dealt with the legal and constitutional points. I thought he made a very intelligent discussion on his viewpoint. You are entitled to answer him if you want to, so we will incorporate that into the record.

(The brief referred to is as follows:)

BRIEF IN SUPPORT OF THE CONSTITUTIONALITY OF S. 265, A BILL "TO PROHIBIT THE TRANSPORTATION IN INTERSTATE COMMERCE OF ADVERTISEMENTS OF ALCOHOLIC BEVERAGES, AND FOR OTHER PURPOSES"

By Edward B. Dunford

PROPOSITION OF LAW SUPPORTED BY THIS BRIEF

This brief is submitted in support of the constitutional authority of Congress to enact S. 265, by Senator Arthur Capper, entitled, "A bill to prohibit the transportation in interstate commerce of advertisements of alcoholic beverages, and for other purposes."

OBJECT OF THE BILL

The general purpose of the bill is to prevent the use of the facilities controlled by the Federal Government for the dissemination of advertisements of alcoholic beverages, or the solicitation of orders therefor, when done in the manner proscribed therein. It relates to interstate transportation, radio broadcasting, and the use of the mails.

WHEN INTERSTATE TRANSPORTATION OF ADVERTISEMENTS ILLEGAL

Sections 1 and 2 would make it unlawful for any person engaged in the sale of alcoholic beverages, or for any publisher, or the agent of either, to cause to be transported in the mails or otherwise from any State or Territory or the District of Columbia to any other State or Territory or the District of Columbia, any newspaper, periodical, news reel, photographic film, or record for mechanical reproduction advertising alcoholic beverages or containing the solicitation of an order for alcoholic beverages. Such advertising which originates and is circulated within a single State would not be affected, since being wholly intrastate, it would be subject to State law.

The denial of the right of interstate transportation would also apply only to specifically enumerated types of advertising or solicitation, namely, that contained in newspapers, periodicals, news reels, photographic films, or records for mechanical reproduction; but if they contained the prohibited advertising or solicitation, then their interstate transportation would be barred throughout the United States, without regard to the state of the law in the community to which they are consigned.

The provisions of these sections relating to interstate transportation would seemingly not apply to the interstate transportation by express, freight, or air of circulars, pamphlets, or other types of communication advertising alcoholic beverages or containing the solicitation of an order therefor. This type of advertising is governed by section 5, which would withdraw the mailing privilege therefrom when addressed or directed to any place in which by local law it is made unlawful to advertise or solicit orders for alcoholic beverages. A penalty would also be provided for such unlawful mailing.

The penalties against mailing or interstate transportation of newspapers, periodicals, and other publicity media named in sections 1 and 2 advertising alcoholic beverages or containing the solicitation of an order therefor, are applicable only to the sellers of such beverages, the publishers of such advertising, or their agents; that is, those persons engaged commercially in the dissemination of the interdicted advertising or solicitation.

WHEN TRANSPORTATION BY COMMON OR PRIVATE CARRIERS FOR HIRE UNLAWFUL Section 3 provides a penalty against any common carrier or private carrier for hire who shall transport from any State or Territory or the District of Columbia to any other State or Territory or the District of Columbia, any newspaper, periodical, news reel, photographic film, or record for mechanical reproduction advertising alcoholic beverages or containing the solicitation of an order for alcoholic beverages. This section relates wholly to interstate transportation and would not affect intrastate transportation of the enumerated types of advertising or solicitation.

BROADCASTING OF ALCOHOLIC-BEVERAGE ADVERTISING UNLAWFUL

Section 4 would make it unlawful to broadcast by means of any radio station for which a license is required any advertisement of alcoholic beverages or the solicitation of an order therefor. This would apply to all radio licensees throughout the United States.

WHEN LETTERS, POSTCARDS, CIRCULARS, AND PAMPHLETS ADVERTISING ALCOHOLIC BEVERAGES NONMAILABLE AND UNLAWFUL

Section 5 would make letters, postcards, circulars, and pamphlets containing any advertisement of alcoholic beverages or the solicitation of an order therefor nonmailable if addressed or directed to any place in any State, Territory, or the District of Columbia, if at the time it was made unlawful by local law to advertise or solicit orders therein for such beverages. It would be made unlawful also for any person to deposit such mail for delivery in any place contrary to local law. The Postmaster General would be required to issue annual bulletins giving the names of the States in which it is unlawful to advertise or solicit orders for alcoholic beverages. The language of this section, applicable to letters, postcards, circulars and pamphlets, is substantially the same as that contained in the Jones-Randall antiadvertising amendment in section 5 of the Post Office Appropriation Act approved March 3, 1917.

The undoubted purpose of the section is to deny the right to mail letters, postcards, circulars, or pamphlets advertising alcoholic beverages or containing the solicitation of orders therefor to be sent into those local areas within a State which have voted no-license and in which it is unlawful at the time to solicit orders for such beverages or to advertise them.

Attention is respectfully called, however, to the fact that in the directive to the Postmaster General he is authorized to issue bulletins giving the names of the States in which it is unlawful to advertise or solicit orders for alcoholic beverages. For the purpose of clarification, and to make section 6 conform to the language of section 5, it is suggested that he should be required to issue annual bulletins or notices giving the names of the States and also the names of the places therein in which it is unlawful to advertise or solicit orders for alcoholic beverages.

Article I, section 8 of the Constitution provides that Congress shall have power

* to regulate

Commerce

"To establish Post Offices and Post Roads;

among the several States

"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers

* *

Article VI of the Constitution provides:

"This Constitution, and the Laws of the United States the supreme Law of the Land

* *

shall be

POWER TO REGULATE INCLUDES POWER TO PROHIBIT IN APPROPRIATE CASES

While formerly disputed, it is now well settled by many decisions of the United States Supreme Court that the power to regulate includes also the power to exclude, deny, or prohibit the facilities of interstate commerce to articles, commodities, or the use of its facilities for practices deemed inimical to the general welfare. The fact that legislation enacted by Congress pursuant to the commerce clause may have the characteristics of an exercise of the police power constitutes no objection to its validity.

The principles and authorities dealing with this subject are set forth in the opinion of the Supreme Court in the recent case of Kentucky Whip & Collar Co. v. Illinois Central Ry. Co. (1937) (299 U. S. 334; 81 L. Ed. 270). In this case the Court upheld the constitutionality of the act of Congress of July 24, 1935, making it unlawful to knowingly transport in interstate commerce convict-made goods into a State where such receipt was unlawful. There the Court said:

"FIRST. The commerce clause (art. I, sec. 8, pt. 3) confers upon the Congress the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution' (Gibbons v. Ogden, 9 Wheat. 1, 196, 6 L. Ed. 23, 70). By the act now

120

The question is whether before us, the Congress purports to establish a rule governing interstate transportation, which is unquestionably interstate commerce. this rule goes beyond the authority to 'regulate.'

"Petitioner's argument necessarily recognizes that in certain circumstances an absolute prohibition of interstate transportation is constitutional regulation. The power to prohibit interstate transportation has been upheld by this Court in relation to diseased livestock, lottery tickets, commodities owned by the interstate carrier transporting them, except such as may be required in the conduct of its business as a common carrier, adulterated and misbranded articles, under the Pure Food and Drugs Act, women for immoral purposes, intoxicating liquors, diseased plants, stolen motor vehicles. and kidnapped persons.

"The decisions sustaining this variety of statutes disclose the principles deemed to be applicable. We have frequently said that in the exercise of its control over interstate commerce, the means employed by the Congress may have the quality of police regulations (Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 29 L. Ed. 158, 166, 5 S. Ct. 826, 1 Inters. Com. Rep. 382; Hoke v. United States, 227 U. S. 308, 323, 57 L. Ed. 523, 527, 33 S. Ct. 281, 43 L. R. A. (N. S.) 906, Ann Cas. 1913E, 905; Seven Cases v. United States, 239 U. S. 510, 515, 60 L. Ed. 411, 415, 36 S. Ct. 190, L. R. A. 1916D, 164). The power was defined in broad terms in Brooks v. United States (267 U. S. 432, 436, 437, 60 L. Ed. 699, 700, 701, 45 S. Ct. 345; 37 A. L. R. 1407). 'Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm to the people of other States from the State of origin In doing this it is merely exercising the police power for the benefit of the public, within the field of interstate commerce.'

"The anticipated evil or harm may proceed from something inherent in the subject of transportation as in the case of diseased or noxious articles, which are unfit for commerce (Hipolite Egg Co. v. United States, 220 U. S. 45, 55 L. Ed. 364, 31 S. Ct. 364; Oregon-Washington R. & Nav. Co. v. Washington, 270 U. S. 87, 99, 70 L. Ed. 482, 487, 46 S. Ct. 279). Or the evil may lie in the purpose of the transportation, as in the case of lottery tickets, or the transportation of women for immoral purposes (Lottery Case (Champion v. Ames), 188 U. S. 321, 358, 47 L. Ed. 492, 502, 23 S. Ct. 321; Hoke v. United States, 227 U. S. 308. 57 L. Ed. 523, 33 S. Ct. 281, 43 L. R. A. (N. S.) 906, Ann. Cas. 1913E, 905, supra; Caminetti v. United States, 242 U S. 470, 486, 61 L. Ed. 442, 453, 37 S. Ct. 192, L. R. A. 1917F, 502, Ann. Cas 1917B, 1168). The prohibition may be designed to give effect to the policies of the Congress in relation to the instrumentalities of interstate commerce, as in the case of commodities owned by interstate carriers (United States ex rel. Atty. Gen. v. Delaware & H. Co., 213 U. S. 366, 415, 53 L. Ed. 836, 851, 20 S. Ct. 527). And, while the power to regulate interstate commerce resides in the Congress, which must determine its own policy, the Congress may shape that policy in the light of the fact that the trans(Brooks v. United portation in interstate commerce, if permitted, would aid in the frustration of valid state laws for the protection of persons and property. States, 237 U. S. 432, 69 L. Ed. 699, 45 S. Ct. 345, 37 A. L. R. 1307, supra; Gooch v. United States, 297 U. S. 124, 80 L. Ed. 522, 56 S. Ct. 395).

"The contention is an admission that the act of Congress is invalid merely because the horse collars and harness which petitioner manufacturers and sells are useful and harmless articles. The motor vehicles, which are the subject of the transportation prohibited in the National Motor Vehicle Theft Act, are in themselves useful and proper subjects of commerce but their transportation by one who knows they have been stolen is 'a gross misuse of interstate commerce' and the Congress may properly punish it 'because of its harmful result and its defeat of the property rights of those whose machines against their will (Brooks v. United States, supra, 267 U. S., are taken into other jurisdictions.' p. 439, 69 L. ed. 702, 45 S. Ct. 345, 37 A. L. R. 1307). Similarly, the object of the Federal Kidnaping Act is to aid in the protection of the personal liberty of one who has been unlawfully seized or carried away (Gooch v. United States. supra; compare United States v. Wheeler, 254 U. S. 281, 65 L. ed. 270, 41 S. Ct. 133).

"On the same general principle, the Congress may prevent interstate transportation from being used to bring to a State articles the traffic in which the State has constitutional authority to forbid, and has forbidden, in its internal commerce. In that view we sustained the acts of Congress designed to prevent the use of interstate transportation to hamper the execution of State policy with reOn the contrary, they were spect to traffic in intoxicating liquors. This was not because intoxicating liquors were not otherwise legitimate articles of commerce. recognized as such 'by the usages of the commercial world, the laws of Congress

and the decisions of the courts' (Leisy v. Hardin, 135 U. S. 100, 110, 34 L. ed. 128, 132, 10 S. Ct. 681, 3 Inters. Com. Rep. 36; Re Bahrer (Wilkerson v. Rahrer), 140 U. S. 545, 556, 35 L. ed. 572, 574, 11 S. Ct. 865; Louisville & N. R. Co. v. F. W. Cook Brewing Co., 223 U. S. 70, 82, 56 L. ed. 355, 358, 32 S. Ct. 189). It was because intoxicating liquors were legitimate subjects of commercial intercourse that the States were powerless to interfere with their transportation in interstate commerce (Bowan v. Chicago & N. W. R. Co., 125 U. S. 465, 489, 31 L. ed. 700, 708, 8 S. Ct. 689, 1062, 1 Inters. Com. Rep. 823; Leisy v. Hardin, supra (135 U. S. pp. 110, 113 34 L. ed. 132, 133, 10 S. Ct. 681, 3 Inters. Com. Re. 36); Rhodes v. Iowa, 170 U. S. 412, 42 L. ed. 1088, 18 S. Ct. 664; Vance v. W. A. Vandercook Co., 170 U. S. 438, 42 L. ed. 1100, 18 S. Ct. 674; Louisville & N. R. Co. v. F. W. Cook Brewing Co., 223 U. S. 70, 56 L. ed. 355, 32 S. Ct. 189, supra). But because of the effects ascribed to the traffic in intoxicating liquors, the States in the exercise of their police power in relation to their internal commerce could restrict or interdict that traffic without violating the Federal Constitution (Foster v. Kansas, 112 U. S. 201, 206, 28 L. ed. 629, 696, 5 S. Ct. 8, 97; Mugler v. Kansas, 123 U. S. 623, 657-659, 31 L. ed. 205, 209, 210, 8 S. Ct. 273). To aid the States in securing the full protection they desired, Congress brought into play its power to regulate interstate commerce.

"By the Wilson Act of August 8, 1890, intoxicating liquors transported into any State were subjected upon arrival to the operation of state laws to the same extent as though they had been produced within the State although still in the original packages. This act was upheld in Re Rahrer (Wilkerson v. Rahrer) (140 U. S. 545, 35 L. Ed. 572, 11 S. Ct. 865, supra). But the statute did not apply until the transportation was completed by actual delivery to the consignee (Rhodes v. Iowa, supra, 170 U. S. p. 426, 42 L. Ed. 1096, 18 S. Ct. 664; Adams Exp. Co. v. Kentucky, 214 U. S. 218, 222, 53 L. Ed. 972, 973, 29 S. Ct. 633; Louisville & N. R. Co. v. F. W. Cook Brewing Co., 223 U. S. 70, 56 L. Ed. 355, 32 S. Ct. 189, supra). As the right to receive' was not affected by the Wilson Act, 'such receipt and the possession following from it and the resulting right to use' remained protected by the commerce clause (Clark Distilling Co. v. Western Maryland R. Co., 242 U. S. 311, 323, 61 L. Ed. 326, 327, 37 S. Ct. 180, L. R. A. 1917B, 1218). In this situation the Congress passed the Webb-Kenyon Act of March 1, 1913, which prohibited the transportation of intoxicating liquors into any State when it was intended that they should be 'received, possessed, sold or in any manner used,' in violation of its laws. The Court upheld the constitutional validity of this act as a regulation of interstate commerce (Clark Distilling Co. v. Western Maryland R. Co., supra). It was supplemented by Act of March 3, 1917, known as the Reed Amendment (United States v. Hill, 248 U. S. 420, 424, 63 L. Ed. 337, 339, 39 S. Ct. 143).

*

*

*

"The course of congressional legislation with respect to convict-made goods has followed closely the precedents as to intoxicating liquors. By the HawesCooper Act of January 19, 1929, the Congress provided that convict-made goods (with certain exceptions) transported into any State should be subject upon arrival, whether in the original package or otherwise, to the operation of State laws as if produced within the State. In Whitefield v. Ohio (297 U. S. 431, 80 L. Ed. 778, 56 S. Ct. 532), petitioner was charged in the State court in Ohio with selling convict-made goods in violation of the State law. It appeared that the goods had been sold in the original packages as shipped in interstate commerce and that there was 'nothing harmful, injurious, or deleterious' about them. But this Court said that the view of the State of Ohio, that the sale of convict-made goods in competition with the products of free labor was an evil, found ample support in fact and in the similar legislation of a preponderant number of other States. The Court observed that the Congress had prohibited the importation of the products of convict labor. All such legislation, State and Federal, proceeded upon the view that free labor, properly compensated, cannot compete successfully with the enforced and unpaid or underpaid convict labor of the prison.' The Court upheld the power of the State, so far as the Federal Constitution is concerned, to base non-discriminatory legislation upon that conception, and as it appeared that the Ohio statute would be unassailable if made to take effect after sale in the original package, the statute was held to be equally unassailable in the light of the provisions of the Hawes-Cooper Act. As to the validity of the latter Act, the Court followed the decision in Re Rahrer (Wilkerson v. Rahrer) (140 U. S. 545, 35 L. Ed. 572, 11 S. Ct. 865, supra), in relation to the Wilson Act.

"The Ashurst-Sumners Act as to interstate transportation of convict-made goods has substantially the same provisions as the Webb-Keyon Act as to intoxi