exactly the same constitutional status which existed before the adoption of national constitutional prohibition.

The second change was made with respect to liquors in interstate commerce. The second section of the amendment provided:

"The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."

This provision has now been interpreted by the Supreme Court of the United States in the following cases:

Premier-Pabst Sales Co. v. Grosscup ( (1936), 298 U. S. 226, 80 L. Ed. 1155). State Board of Equalization v. Youngs Market Co. ((1936), 229 U. S. 59, 81 L. Ed. 38).

Mahoney v. Jos. Triner Corp. ((1938), 304 U. S. 401, 82 L. Ed. 1425). Indianapolis Brewing Co. v. Liquor Control Commission of Michigan ((1939), 305 U. S. 391, 83 L. Ed. 243).

Finch v. McKittrick (305 U. S. 395, 83 L. Ed. 246 (1939)).
Ziffrin & Co. v. Reeves (308 U. S. 132, 84 L. Ed. 128 (1939)).

Duckworth v. Arkansas (314 U. S. 390, 86 L. Ed. 294 (1941)).

Carter v. Commonwealth of Virginia (321 U. S. 131, 88 L. Ed. 605 (1944)). Jameson & Co. v. Morgenthau (307 U. S. 171, 83 L. Ed. 1189 (1939)). Collins v. Yosemite Park Curry Co. (304 U. S. 518, 82 L. Ed. 1502 (1936)). Johnson v. Yellow Cab Transit Co. (321 U. S. 383, 88 L. Ed. 814 (1944)). As construed by the Court, this section of the amendment grants to the States complete autonomy to fix the conditions upon which liquors may be imported or transported into the State for delivery or use therein. The States may now exact license fees for the privilege of importation, may exclude either conditionally or entirely liquor manufactured in other States, or pass retaliatory legislation against States which discriminate against its domestic liquors.

STATUS OF LIQUOR IN INTERSTATE COMMERCE DIFFERENT FROM OTHER COMMODITIES Another effect of the amendment was to impose a limitation upon the constitutional power of Congress (either through failure to act or by positive legislation) to authorize the introduction of liquors into a State for delivery or use therein in violation of State policy. In this respect it placed intoxicating liquors under the commerce clause in a different constitutional category from other commodities. The privilege of engaging in the liquor business is still subject to the police power of the States and its interstate aspects are subject to congressional regulation subject to the above limitation.

The adoption of the 21st amendment gave to the liquor traffic no added right to engage in the business beyond the mere privilege which it enjoyed before the adoption of the 18th amendment. It is still subject to the police regulation of the States and to the now added constitutional authority of the State to regulate importations for use within the State. This principle was held in decisions by the Supreme Court construing the amendment. Thus, in Premier-Pabst Sales Co. v. Grosscup ((1936), 298 U. S. 226, 80 L. Ed. 1155), the Court said in discussing the effect of a license issued by the State of Pennsylvania :

"For even if a license was valid when issued, the state had power to terminate it. Mugler v. Kansas (123 U. S. 623, 31 L. Ed. 205, 8 S. Ct. 273), and as we construe the act of 1935, it did so."

More recently, in Mahoney v. Jos. Triner Corp. ((1938), 304 U. S. 401, 82 L. Ed. 1425), the Court declared:

"The fact that the Joseph Triner Corp. had, when the statute was passed, a valid license and a stock of liquors in Minnesota imported under it, is immaterial. Independently of the 21st amendment, the State had power to terminate the license. Mugler v. Kansas (123 U. S. 623, 31 L. Ed. 205, 8 S. Ct. 273); Premier-Pabst Sales Co. v. Grosscup (298 U. S. 226, 80 L. Ed. 1156, 56 S. Ct. 754)." One of the cases construing the amendment, that of Carter v. Commonwealth of Virginia ((1944), 88 L. Ed 605), Mr. Justice Black said in his concurring opinion :

"The 21st amendment has placed liquor in a category different from other articles of commerce."

These rulings and the citations of the earlier decisions of Mugler v. Kansas indicate that so far as engaging in the manufacture and sale of liquor is concerned, it is still a privilege and not a right.

Illustrative of the viewpoint of the State courts since the ratification of the 21st amendment is the following from the Court of Errors and Appeals of Con

necticut in the case of Francis v. Fitzpatrick (30 A (2) 552, 129 Conn. 619, 145 A. L. R. 505), in which it was declared:

"The privilege of engaging in the traffic of intoxicating liquors was not a right but merely a franchise which the State may grant or withhold at will. * * * The scope of the legislature's power to regulate the business of manufacturing, transporting, selling or possessing intoxicating liquor is much broader than the case of the regulation upon the ordinary lawful business essential to the conduct of human affairs."

Thus in Goesaert v. Cleary ((1948) 335 U. S. 464, 93 L. Ed. 163), the United States Supreme Court upheld the Michigan statute forbidding the employment of women as bartenders. See also Dundalk Liquor Co. v. Tawes ((1953) Md. 92 A. 2d. 560).

THE 21ST AMENDMENT DID NOT DIVEST CONGRESS OF AUTHORITY TO REGULATE TRANSACTION WITH RESPECT TO LIQUOR IN INTERSTATE COMMERCE AFFECTING MORE THAN ONE STATE

The precise issue of whether the 21st amendment had deprived Congress of power to regulate liquor transactions in interstate commerce was before the Supreme Court in United States v. Frankfort Distilleries ((1945) 324 U. S. 293, 89 L. Ed. 951). The question was whether, after the 21st amendment, an indictment would lie for an alleged conspiracy entered into by retailers in Colorado with wholesalers and producers outside to restrain commerce in violation of the Sherman Act by raising, fixing, and maintaining retail prices on alcoholic beverages sold within the State. In that case the Court said:

"It is argued that the 21st amendment to the Constitution bars this prosecution. That amendment bestowed upon the States broad regulatory power over the liquor traffic within their territories. It has not given the States plenary and exclusive power to regulate the conduct of persons doing an interstate business outside their boundaries. Granting the State's full authority to determine the conditions upon which liquor can come into its territory and what will be done with it after it gets there, it does not follow from that fact that the United States is wholly without power to regulate the conduct of those who engage in interstate trade outside the jurisdiction of the State of Colorado."

More recently-1945-the United States Supreme Court refused a writ of certiorari in Old Monastery Co. v. United States (326 U. S. 734, 90 L. Ed. 1025), the circuit court of appeals in this case ((1945) (147 Fed. 2d 905)) declared: "We cannot agree with Monastery's broad contention that the repeal of the 18th amendment to the Constitution of the United States utterly deprived the Congress of power to legislate in the field of intoxicating liquors. In Washington Brewers Institute v. United States (9 Cir., 137 Fed. 2d, 964, 967), Circuit Judge Healy aptly said: 'But we think the amendment does not deprive the National Government of all authority to legislate in respect to interstate commerce in intoxicants. There is nothing in the verbiage of the provisions and little in its legislative history to support so broad a view. That Congress construed the amendment more narrowly is evidenced by its prompt passage of the Federal Alcohol Administration Act, August 29, 1935 (49 Stat. 977; 27 U. S. C. A., sec. 201, et seq.).

See also Schwegmann Bros. v. Calvert Distillers Corp. (1951, 341 U. S. 384, 95 L. Ed. 1035). This involved the Louisiana Fair Trade Act that permits a contract for the sale or resale of a commodity to provide that the buyer will not resell "except at the price stipulated by the vendor." The distillery sought an injunction to prevent a retailer who refused to sign such an agreement from selling whisky at less than the minimum price. The retailer defended on the ground that the agreement, permissible under State law, was violative of the Sherman Act. The distillery contended that the Miller-Tydings Act of 1937 had the effect of modifying the Sherman Act where such agreements were legalized by State law. Six members of the Court held that the enforcement of the price arrangement against a nonsigner of the agreement would violate the Sherman Act, since only voluntary price arrangements were excepted by the Miller-Tydings Act. Three justices dissented as to the interpretation of the Miller-Tydings Act. The question whether the 21st amendment placed liquor in a different category from other commodities was not raised by the litigants and was not considered by the Court. The net result was that the Federal Antitrust Act under the record in the case was given the effect of invalidating a pricefixing arrangement with respect to liquor that was legal under State law. (Schwegmann Bros. v. Calvert Dist. Corp., rehearing denied, 341 U. S. 956, 95 L. Ed. 1377).

WAR POWERS OF CONGRESS UNAFFECTED BY 21ST AMENDMENT

Equally strong are the words of Circuit Judge Simons in Jatros v. Bowles (6 Cir., 143 Fed. 2d 458, 455), upholding the constitutionality of the Emergency Price Control Act of 1942, enacted under the war powers of Congress, fixing maximum retail sales prices of liquors. The State of Kentucky had enacted a liquor control law. It was contended that the Federal Price Control Act violated the 21st amendment. The Court said:

"Followed to its logical conclusion, the appellant's construction, if valid, would mean that the Federal Government no longer has power to punish theft of intoxicants from interstate shipments of alcoholic beverages under the authority of the so-called Car Seal Act, nor to regulate or prohibit unfair trade practices in respect to such commodities through the Federal Trade Commission, nor to regulate tariffs through orders of the Interstate Commerce Commission, nor to prohibit unfair labor practices affecting commerce in intoxicants by brewers or distillers under the authority of the National Labor Relations Act (29 U. S. C. A., sec. 151, et seq.), nor to prescribe minimum wages or maximum hours for employees in such enterprises under the authority of the Fair Labor Standards Act (29 U. S. C. A., sec 201, et seq.). These implications demonstrate the tenuousness of the appellants' broad contentions." [Italics ours.] See also United States v. Chicco ((1944) (D. C. S. C.) 59 F. Supp. 211).

PRECEDENT FOR THE LEGISLATION FOUND IN PRESENT LAW WHICH PROHIBITS THE BROADCASTING OF ADVERTISEMENTS OF LOTTERIES

The Penal Code, title 18, sec. 1304, prohibits the use of the radio for the advertising of lotteries:

"Whoever broadcasts by means of any radio station for which a license is required by any law of the United States, or whoever, operating any such station, knowingly permits the broadcasting of any advertisement of or information concerning any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance, or any list of the prizes drawn or awarded by means of any such lottery, gift enterprise, or scheme, whether said list contains any part or all of such prizes, shall be fined not more than $1,000 or imprisoned not more than 1 year, or both.

"Each day's broadcasting shall constitute a separate offense." (June 25, 1948, c. 645, 62 Stat. 763.) (Construed as to Giveaway programs in Federal Communications Commission v. American Broadcasting Co., Inc. (1954) 247 U. S. 284, 98 L. Ed. 699.)

The constitutional authority of Congress to prohibit the use of the facilities of interstate commerce in the promotion of the sale of lottery tickets was settled by the Supreme Court in Champion v. Ames ((1903), 188 U. S. 321, 47 L. Ed. 492, 23 S. Ct. 321). There it was said:

"As a State may, for the purpose of guarding the morals of its own people, forbid all sales of lottery tickets within its limits, so Congress, for the purpose of guarding the people of the United States against the 'widespread pestilence of lotteries' and to protect the commerce which concerns all the States, may prohibit the carrying of lottery tickets from one State to another."

CONGRESS NOW PROHIBITS OR REGULATES OTHER FORMS OF ADVERTISING IN INTERSTATE COMMERCE

Title 18, section 1462, United States Code, prohibits the importing and transporting in interstate commerce of obscene books, etc.:

"Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly deposits with any express company or other common carrier, for carriage in interstate or foreign commerce—

"(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture, film, paper, letter, writing, print, or other matter of indecent character; or

"(b) any obscene, lewd, lascivious, or filthy phonograph recording, electrical transcription, or other article or thing capable of producing sound; or "(c) any drug, medicine, article, or thing designed, adapted, or intended for preventing conception, or producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made; or

"Whoever knowingly takes from such express company or other common carrier any matter or thing the depositing of which for carriage is herein made unlawful—

shall be fined not more than $5,000 or imprisoned not more than 5 years, or both." This act has been upheld in the following cases:

Clark v. United States ((N. D., 1914), 211 Fed. 916, 128 C. A. A. 294). (Not unconstitutional as an abridgment of the press.)

United States v. Popper ((D. C., 1899), 98 Fed. 423).

Title 18, section 1464 provides a penalty for broadcasting obscene language. Title 18, section 1465, extended the prohibition to phonograph recordings, electrical transcriptions, etc.

Title, section 1301, United States Code, prohibits importation or transportation in interstate commerce of lottery tickets or advertisements thereof:

"Whoever brings into the United States for the purpose of disposing of the same, or knowingly deposits with any express company or other common carrier for carriage, or carries in interstate or foreign commerce any paper, certificate, or instrument purporting to be or to represent a ticket, chance, share, or interest in or dependent upon the event of a lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance, or any advertisement of, or list of the prizes drawn or awarded by means of any such lottery, gift enterprise, or similar scheme; or knowingly takes or receives any such paper, certificate, instrument, advertisement, or list so brought, deposited, or transported, shall be fined not more than $1,000 or imprisoned not more than 2 years, or both."

The constitutionality of this act was upheld in Champion v. Ames ((1903), 188 U. S. 321, 41 L. Ed. 492).

The Federal Trade Commission Act, as amended (title 15, sec. 52 U. S. C.), prohibits false and misleading advertisements of foods, drugs, cosmetics, or devices, and section 53 authorizes injunctive relief against such practices.

"TITLE 15, SECTION 52 (a). It shall be unlawful for any person, partnership, or corporation to disseminate, or cause to be disseminated, any false advertisement

"(1) By United States mails, or in commerce by any means, for the purpose of inducing, or which is likely to induce, directly or indirectly the purchase of foods, drugs, devices, or cosmetics; or

"(2) By any means, for the purpose of inducing, or which is likely to induce, directly or indirectly, the purchase in commerce of food, drugs, devices, or cosmetics.

"(b) The dissemination or the causing to be disseminated of any false advertisement within the provisions of subsection (2) of this section shall be an unfair or deceptive act or practice in commerce within the meaning of section 45 of this title."

"TITLE 15, SECTION 55 (a). FALSE ADVERTISEMENT.-The term 'false advertisement' means an advertisement, other than labeling, which is misleading in a material respect; and in determining whether any advertisement is misleading, there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, sound, or any combination thereof, but also the extent to which the advertisement fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the commodity to which the advertisement relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual. No advertisement of a drug shall be deemed to be false if it is disseminated only to members of the medical profession, contains no false representation of a material fact, and includes, or is accompanied in each instance by truthful disclosure of, the formula showing quantitatively each ingredient of such drug."

The constitutionality of this act was sustained in the following case:

Seven Cases v. United States ((1916), 239 U. S. 510, 60, L. Ed. 411, 36 S. Ct. 190).

Title 27, section 205 (f), United States Code, provides, in the Alcohol Administration Act:

"SEC. 5. It shall be unlawful for any person engaged in business as a distiller, brewer, rectifier, blender, or other producer, or as an importer or wholesaler, of distilled spirits, wine, or malt beverages, or as a bottler, or warehouseman and bottler, of distilled spirits, directly or indirectly or through an affiliate: * * * "(f) ADVERTISING.-To publish or disseminate or cause to be published or disseminated by radio broadcast, or in any newspaper, periodical or other publication

or by any sign or outdoor advertisement or any other printed or graphic matter, any advertisement of distilled spirits, wine, or malt beverages, if such advertisement is in, or is calculated to induce sales in, interstate or foreign commerce, or is disseminated by mail, unless such advertisement is in conformity with such regulations, to be prescribed by the Secretary of the Treasury. (1) as will prevent deception of the consumer with respect to the products advertised and as will prohibit, irrespective of falsity, such statements relating to age, manufacturing processes, analyses, guaranties, and scientific or irrelevant matters as the Secretary of the Treasury finds to be likely to mislead the consumer; (2) as will provide the consumer with adequate information as to the identity and quality of the products advertised, the alcoholic content thereof (except the statements of, or statements likely to be considered as statesments of, alcoholic content of malt beverages and wines are prohibited), and the person responsible for the advertisement; (3) as will require an accurate statement, in the case of distilled spirits (other than cordials, liqueurs, and specialties) produced by blending or rectification, if neutral spirits have been used in the production thereof, informing the consumer of the percentage of neutral spirits so used and of the name of the commodity from which such neutral spirits have been distilled, or in case of neutral spirits or of gin produced by a process of continuous distillation, the name of the commodity from which distilled; (4) as will prohibit statements that are disparaging of a competitor's products or are false, misleading, obscene, or indecent; (5) as will prevent statements inconsistent with any statement on the labeling of the products advertised. This subsection shall not apply to outdoor advertising in place on June 18, 1935, but shall apply upon replacement, restoration, or renovation of any such advertising. The prohibitions of this subsection and regulations thereunder shall not apply to the publisher of any newspaper, periodical, or other publication, or radio broadcaster, unless such publisher or radio broadcaster is engaged in business as a distiller, brewer, rectifier, or other producer, or as an importer or wholesaler, of distilled spirits, wine, or malt beverages, or as a bottler, or warehouseman and bottler, of distilled spirits, directly or indirectly or through an affiliate. ***

"In the case of malt beverages, the provisions of subsections (a), (b), (c), and (d) shall apply to transactions between a retailer or trade buyer in any State and a brewer, importer, or wholesaler of malt beverages outside such State only to the extent that the law of such State imposes similar requirements with respect to similar transactions between a retailer or trade buyer in such State and a brewer, importer, or wholesaler of malt beverages in such State, as the case may be. In the case of malt beverages, the provisions of subsections (e) and (f) shall apply to the labeling of malt beverages sold or shipped or delivered for shipment or otherwise introduced into or received in any State from any place outside thereof, or the advertising of malt beverages intended to be sold or shipped or delivered for shipment or otherwise introduced into or received in any State from any place outside thereof, only to the extent that the law of such State imposes similar requirements with respect to the labeling or advertising, as the case may be, of malt beverages not sold or shipped or delivered for shipment or otherwise introduced into or received in such State from any place outside thereof. "The Secretary of the Treasury shall give reasonable public notice, and afford to interested parties opportunity for hearing, prior to prescribing regulations to carry out the provisions of this section."

The question of constitutionality of the basic permit requirement was raised in Arrow Distilleries v. Alexander (C. C. A. (1940) 109 F. 2d 397 (certiorari denied, 310 U. S. 646, 84 L. Ed. 1412)).

The court said:

"We are of the opinion that the enactment of the Federal Alcohol Administration Act was a valid exercise by Congress of its constitutional powers to regulate interstate and foreign commerce.

**** In view of the history of legislative and administrative efforts to regulate the evils which are inseparable from unregulated and unrestricted traffic in intoxicating liquors, the regulatory device of licenses or permits is an obvious and reasonable one."

In Chicago, I. & I. Co. v. United States ((1911) 219 U. S. 486, 55 L. Ed. 305), the Supreme Court held that the provisions of the Interstate Commerce Act of February 4, 1887, prohibiting carriers from accepting payment for interstate transportation furnished in anything but money invalidated a State statute authorizing a railway company to issue transportation in payment for printing and advertising furnished it by a publisher.