Enforcement

2 - ENFORCEMENT

(a) Enforcement With Respect to Importation and Manuf acture

(1) THE SOURCES OF ILLICIT LIQUOR

There are five main sources of illicit liquor: importation, diversion of industrial alcohol, illicit distilling, illicit brewing, and illicit production of wine. In addition, a minor source, narnely,, diversion of medicinal and sacramental liquor has at times and in p aces assumed considerable proportions and must always be borne in mind as a potential mode of supply.

(i) Importation

Importation is chiefly f rom Canada, both directly and indirectly, since Canada is a large producer and is exceptionally convenient, by proximity and by geographical conditions and conditions of transportation, as a base for sinuggling operations. Recently St. Pierre and Miquelon, a group of small islands off Newfoundland, belonging to France, have been growing rapidly in importance as bases for that purpose, both through importations from Canada and as a depot for importations from France. In the Bahamas, Bimini, an island of nine square miles, has become a heavy importer of Canadian whisky, as a depot for Florida, and has been to some extent a depot for supply of rum from the West Indies. The West Indies supply directly a certain amount. Mexico and Central America have been depots for Canadian whisky. Belize in British Honduras in particular is a depot for supply of the Gulf Coast. Finally, a certain amount, chiefly wines and brandies has been coming from Europe, mostly from France.

Transportation is by land, by water, and by air. Smuggling of liquor by land is by rail or motor, mostly from Canada, and to some small extent by pack animals on the southwestern border. Smuggling by rail takes place chiefly by concealment in or mixing with legitimate freight coming into the United States. It has also been carried on by manipulation of seals and substitution of content or of cars while freight trains were in transit through Canada from one part of the United States to another. Such smugglings of liquor are not easy to prevent because of the importance of not unduly delaying legitimate freight. In order to put a stop to it cooperation of the railroads is needed, and all companies have not always cooperated. Smuggling by motor trucks and automobiles is well organized and is the main factor in land transportation. The conditions of travel today on the main arteries crowd the existing customs facilities beyond the possibility of any adequate control. As to the secondary roads and trails, adequate supervision is substantially impracticable. The organized smugglers are well provided with depots, have excellent equipment, thorough knowledge of the terrain and efficient spies upon the enforcing agencies. Very largely they have neighborhood sympathy behind them. Moreover, there is continual pressure f rom tourists and travelers to bring in even considerable quantities.

Water transportation is by sea-going vessels, by specially designed or equipped small vessels or boats, by so-called mother boats -with which small craft make connections, -or from which thev o forth at sea beyond the limits of activity of the Coast Guard, and by river boats. In sea-(roina vessels liquor comes concealed about the ship for example, mixing cases of

or mixed with the legitimate cargo, as,

liquor falsely labeled with cases of properly labeled freight. It is difficult for the customs authorities to deal with such things at the more important ports because legitimate freight should not be delayed in transit. because of lack of space in croivded docks for adequate examination, and for lack of enough inspectors. The usual course is to hold for examination one-tenth of all cases, bales, or bundles, taken at random. But substitution by longshoremen or dock workers and other devices have been used to defeat this method.

Small motor boats may go direct between points on the great lakes, between the Bahamas and the Florida coast, at times from St. Pierre and Miquelon to New England, and on Puget Sound. There has been a high development of special boats for this purpose. Also smuggling throuah so-called mother boats has been highly developed along all coasts. This form of transportation has been elaborately organized, often -with special craft, with radio stations, and with efficient service for soliciting business, directing the movements of boats, ascertaining the movements of enforcement agents, and giving warning of their activities. It has developed all manner of ingenious apparatus, using the newest methods of engineering and of science. The organizations can operate profitably if thev can land one boat load of five. The margin of profit is more than enough to take care of all ordinary activities of enforcement agencies. When an organization of this sort is broken up, it is quickly set up again by reorganization of experienced violators knowing exactly what to do and how to do it.

River boats have been active in the past at Detroit and Buffalo, and were especially effective at Detroit. Co-ordination of the enforcement services at Detroit made a noteworthy change there. But there is evidence that the real effect was to change the locus of smuggling. The figures as to decreased declarations opposite DeA. troit are impressive until one observes that the deficiencies were more than made up by increases at other points in the long and difficult river boundary between Lake Huron and Lake Erie. it is easy for smugglers to shift the base from one point to another and the shiftings are hard to keep up with. It is recognized that this particular Yreatly changed by Che friendl

situation has been g _y action of the

Canadian Government in7enactina the law effective July 1, 1930, prohibiting the declaration of withdrawals of liquor for direct exportation fo the United States.

As to air transportation, it is shown to have (Yone on at several distinct points in widely distant sections during the present year. It is noCunlikely to increase and to call for additional preventive measures.

Whisky, either directly or indirectly from Canada, forms the bulk of illicit importation. A considerable quantity of beer also comes from Canada and some wines and brandy. Rum comes in from the West Indies, and occasionally certain amounts of brandy from France and gin from Holland. An unknown amount of wine comes from France, both direct and by way of St. Pierre and Miquelon. That this is by no means inconsiderable is shown by the extent to which these -wines are possessed and seem to be procurable not merely alom, the Atlantic Coast but in cities well in the interior.

It is not easy to estimate with assurance the amount imported. Bu-@ estimates on the basis of the declarations for export from Canada to the, United States, prior to the recent action of the Canadian uovernment, are fallacious. In three years ending in 1929, while the re-exports 'of whisky, all of which but a negligible few gallons bad oone to the United States, had multiplied by between four and five, the amounts of Canadian whisky declared f or export

anent of denaturing, and control of use. Control of production -was added -,where befo@6'probibition the government had sought only to control distribution and use for other than beverage purposes.

Control of production is had throucyli the system of basic permits, throu-1i annual limitation of the quantity to be produced, and throuah supervision of the process of production. The basic permit

,system as now organized seems adequate to its purpose. Formerly there was much j@olitical interference and at one time there were cases of such permits which should not have been granted and were used for unlawful purposes. Today these permits are held by less than thirty companies operatiDcr about fifty p@ants. This concentra-

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tion in relatively few hands makes it much easier for the government

to control production.

Limitation of the q ' uantity to be produced -was put in effect in 1928. The quantity to be produced during the calendar year is fixed arbitrarily by the government and each plant is allotted its proportionate share. Recessarily the q ' uotas have been fixed within somewhat generous limits in the interest of business. But in view of the obvious i-nenace of over-production beyond the needs of industry, this limitation of production is a (Treat gain for enforcement, and seems reasonably adequate to its purpose.

Supervision of production is had through prescribing the construction of plants, before granting, basic permits, so as to insure proper safeguards and facilities for inspection, by an elaborate system of reports, and by physical control of the apparatus of production. In practice it is difficult or even impossible to make the reports conform to the requirements of the system. The industrial alcohol plant of today operates on a scale and at a speed which gives little time for the required tests. Likewise an accurate estimation of the amount

bei d, under recent methods, requires a knowledge of

ph@ mistry beyond what storekeeper-craugers may reason-

ab] ted to possess. Hence the present system of reports

is I tive check.

Physical control of the apparatus of production is provided by requiring all outlets to be under lock and requiring a Government

storekeeper-gauger to be present during all operations. But here again the machinery of control has been outstripped by the development of manufacturing methods. Without unduly hampering the process of manufacture, it is not practicable for the number and type of men employed as storekeeper-gaugers to make this physical control what it sliould be.

Control can be bettered by improvement and increase of the personnel in charge thereof Under present conditions a more real security against large diversions of industrial alcohol at the source is the integrity. of the producers. It is in careful administration of the basic permit system and limiting production to a few carefully investigated, thoroughly substantial, well organized manufacturers. As things have been recently, there is no reason to doubt that this reliance on the honesty of the large producers has been justified. But it involves seriou; possibilities. Whenever the pressure upon other sources of illicit liquor su"crests to organized law breakers recourse to industrial alcohol, the apportun@iies -,afforded by the ineffectiveness of control by reports and by supervision of operation

may be taken advantage of.

Denaturing takes place by adding to potable alcohol materials making it unfit for use as a bevera(ye. It is said to be completely denatured when treated with substan'ces which make it impossible to be used internally. When so denatured, alcohol may be sold and used without permit. A's soon as it is completely denatured it passes out of the purview of the National Prohibftion Act. But a denaturing beyond possibility of renaturing is not wholly feasible. Stimulated by th6 enormous margin of p"rofit, chemical skill may be employed in defeating as well as in perfecting the denaturing process. It is conceded that a skilled chemist can recover alcohol from almost any mixture, given resources and facilities which are easily commanded whenever there is strong pressure of enforcement upon other sources of supply.

Even more is this true of special denaturing, that is, treating in such wise as to permit of use in specialized arts and industries in which complete denaturants would make the alcohol unfit. Special formulas are necessary to meet the requirements of legitimate businesses. But the special denaturants are more easily removed and it is necessary to put specially denatured alcohol under strict check. To this end-it can onl be withdrawn under permit. The great bulk of diversion of iiiZustrial alcohol takes place here. Yet in" the nature of the case this category of specially denatured alcohol cannot be gi en up without putting an end to a (yreat variety of legitimate

IV tD industries and businesses'

Denaturing -oes on either at the distilleries or in independent

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plants. pe@vision at the distilleries is subject to difficulicies sucySu ZD

gested above in connection with supervision of production. Here also a large reliance must be had upon the honesty of the companies operating the distilleries and of tfieir employees. Occasional large quantities have escaped at this point, but relatively it is not a serious point of diversion. On the other hand, the independent denaturing plant has been a prolific source of diversion. There is little legitimate occasion for'the existence of these plants. Few of them f-lave been bona fide institutions. Happily they have been reduced to a minimum in the past few years. But there is always danger that under pressure to dispose of or to obtain alcohol, specious business reasons may be foun(f for permits for such plants. It would seem that they sfiould be forbidden.

Control of use is brought about bv a system of permits for withdrawal of specially denatured alcoh@l, the completely denatured being regarded as so far unusable for illicit purpose's as to require no supervision. The granting of these permits, formerly subject to grave abuses, has now been tn put on a better basis. Prob@bly a; much has been done as we may reasonably expect in the way of endeavor to confine them to persons and companies conducting 6ona fide businesses. Here again it is not easy to reach a just bal@nee between the requirements of prohibition and the demands of business. It is difficult to follow the product beyond a sale by the permittee and look into its ultimate destination in advance O', f violation, without limitations on the amount of business done by users and inquisitorial interferences to which American business men are not accustomed. Yet without this there can be no thorough-going assurance that, under pressure of the enormous profits involved, large diversions will not yo on. Here again reliance is placed upon the honesty

of the large and well established concerns which have permits to withdraw. Most of the businesses in which specially denatured alcohol is used are well organized in business or trade associations, which cooperate with the Commissioner of Industrial Alcohol in the endeavor to minimize abuse of permits. On the whole, this has proved advantageous. But there are disadvantages as well as advantages in this system of cooperation between the regulated and the regulator.

As to the amount diverted in the heyday of diversion of industrial alcohol in 19261 it had reached very large proportions. Two causes have operated to change this condition: first, improvement in control through better regulations, better organization of the permit system, and elimination of politics; and second, development of new and efficient methods of illicit distilling and new and cheap materials for illicit distilleries so that there is less occasion to look to industrial alcohol as a source of supp@y. But the conspiracies which come to light from time to time give abundant evidence of continued diversion. Estimates of the extent of diversion are based on the amount withdrawn under certain formulas ebiefly susceptible of misuse, on the proportion of recovered denatured Alcohol found in seizures, and on the presumed legitimate requirements of businesses using industrial alcohol. They must be I they do not allow for considerable potentia have been found and prosecuted from the to the present; and the calculation on the I

jectural. Also

· sorts which 0 prohibition ples of seized

liquor rather than on the volume seized in ea( case is very unsatisfacAory. The estimate of the Director of Prohibition thaf 9,000,000 proof gallons were diverted in the year ending June 30, 1930, and

that of a statistician fixing the amount at 1'1"'1'0' proof gallons, made in each case on careful consideration of the several sources

of leakage, show that the amount is much too large.

Moreover, there is grave danger of renewed pressure to divert industrial alcohol because of the discovery and rapid development of processes of makina synthetic alcohol as by-products in connection with oil and natural'gas. This can be made so cheaply that it bids fair at once to su plant completely denatured distilfed alcohol in its chief market. 90, much is invested in distilleries and their accessories that they may not be expected to give up without finding some compensating outlet.

Much as the present situation is an improvement upon the bad conditions of some years ago, it is still far from satisfactory from the standpoint of prohibition. There are too many opportunities for leaks. There is not the force, and the force is scarcely competent to exercise -full supervision over production. The best assurance of stopping diversion would lie in some plan which would do away with the enormous profits of the illicit trade.

(iii) Illicit Distilling

Moonshining had gone on in the region of the Appalachian r from the federal excise law of 1791 down to the Nadonal Prohib= Act. The unproductiveness of soil, the lack of occupational opportunities, and ihe difficulty of utilizin@@ otherwise scanty harvests of corn in that region, made illicit distilling, in defiance of the federal

revenue laws, a settled feature of mountain life. Xfter prohibition

this practice got a great impetus. For a time illicit distilling went

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on in the old way. There were simply more of the well known t e

of small producers. But presently it spread to all parts of the land

and reached a high deff ree of development not only in the region where moonshining had always gone 01-1, but also in and about the large cities and in remote districts everywhere. In 1913 the Commissioner of Internal Revenue reniorted the seizure of 2,375 stills, said to indicate a " slialit, abatement " of the practice. In 1929, in one state alone, the state seized more than this number and the federal government half as many more. For the whole country, the federal seizures of stills were six times as many as in 1913, and the total of state and f ederal seizures was well over twelve times as many. Just as the steadily growing market for industrial alcohol led to improved methods and use of new raw materials admitting of greater speed and quantity of -production in legitimate distilling, so the growing demand for distilled liquor after the National Prohibtion Act led to discovery of new and improved apparatus, new methods and new materials for illicit production. In particular, it has led to discovery of new inethods of speedy ageing whereby liquor of good quality may be made in a very short time. The methods of the pre-prohibition moonshiner are as obsolete as those of the pre-prohibiti6n legitimate distiller.

With the discovery and perfection of these new methods, illicit distilling has become for the time being the chief source of supply. In place of the small still operated by the individual moonshiner, there are plants of a capacity fairly comparable to the old-time lawful distillery and all gradations, according to conditions of the locality, between these and the individually operated still turning out but a few gallons. These plants, often elaborately guarded a ainst discovery 7 if operated but a short time pay for themselves a 0 make large profits. When destroyed they are promptly

r he business of maintaining and well

0 has found how to shift locations has

I calculate for seizures and destr part

of the overhead. The employes are assured of counsel in i ase of

prosecution. If convicted, their fines are paid for them. If im-

prisoned, their families are cared for and they are reemployed on

release. As it was put by one observer, there is a " revolving per-

sonnel " of experienced operators. Even where Federal and State

authorities join in a zealous campaign of enforcement, they have

been unable to keep up with the setting up and operation of these

unlawful plants. The number of seizures, Federal and State, great

as it has become, appears to leave the total in operation at the end

of any period at least no less than bef ore. The enormous and in-

creasing number of seizures of apparatus and material indicates, not

necessarily more rigid enf orcement but quite as much increased

production.

In consequence of the high development of illicit distilling, a steady volume of whiskey, much of it of good quality, is put in circulation; and the prices at which it is obtainable are a convincing testimony to the ineffectiveness of enforcement as against this source of supply. The improved methods, the perfection of organization,

the case of production, the cheapness and easy accessibility of materials, the abundance of localities where such plants can be operated with a minimum risk of discovery, the ease with which they may be concealed, and the huge profits involved have enabled thi@ business to become established-to an extent whicli makes it very difficult to put to an end.

(iv) Production of Beer

At the time of the National Prohibition Act, brewing was a strong, well organized industry. It had been originally an industry of local brewers supplying local trade and of i@umbjrs of small breweries in large cities. But towards the end of the nineteenth century came consolidations and reorganizations on modern lines and elimination to a large degree of local and small breweries. Thus, althou,rh the number of breweries in the United States had increased nearly two and one-half times between 1860 and 1880, by 1918 the number had fallen back very nearly to that of fifty-eight years before. This falling off was by no means due wholly to the spread of prohibitory laws. That it was largely due to changed organization of the industry is indicated by the circumstance that in the more populous states where prohibition did not obtain before the Eighteenth Amendment, there had been substantially the same increase in number between 1860 and 1880 and decrease between 1880 and 1918. The weaker enterprises had been for the most part merged with the stronger or abandoned. Moreover, the stronger breweries with modern organization and management had set up a vigorous national oro,anization which is still maintained. Under the National Prohibition Act the distilleries were enabled to go on as producers of industrial alcohol or of medicinal whisk hile the brewers were

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put out of business, except as they could produce cereal beverage of less than one-half of one per cent of alcohol. They had to devise and work up a new demand or go out of existence. Obviously such a situation was full of possibitities. of trouble.

After a brief period of making by arrested fermentation, the government allowed cereal bevera(re"to be produced by making beer and dealcoholizina. Beer is made and stored and the alcohol is taken out

age is requ

as cereal bever ired. Under such circumstances, control of

@he production of cereal beverage is clearly necessary. This control is provided for in two ways: (1) permits for production, granted and revoked under provisions of the statute and regulations much as in the case of industrial alcohol, and (2) supervision of production.

There is no physical control of the process of production as in the case of distilling. The supervision takes the form of inspection of plants and of auditing of returns and reports made by producers. There is a right of continual inspection of plants havi@g permits. But inspectors are not kept constantly at the plants, as in the case of distilleries. It would take a force, large enouah to police each plant, to insure completely against frequent escap"e of considerable quantities of real beer. As to the returns and reports, while they are audited frequently by plant inspectors, they are easily made so as not to reveal ill erations and are not of themselves an effec-

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tive check. Unhappilypthe result of revoking a permit is not unlikely to be a greater latitude for the unlawful production of beer.

The plant may go on ostensibly devoted to some other use. After the permit has been revoked, inspectors may only enter by virtue of a search -warrant, which cannot be had except upon evidence hardly obtainable without access to the plant.

Abuses in the production of cereal beverage grow chiefly out of the method whereby large . ' tiantities of beer are stored at all times, affording many opportunities for it to get into circulation without having been dealcoholized. Employees, whether, with or without the authority or connivance of the employer, have only to put a hose to a tank, fill cereal beverage kegs with real beer, and send it out as cereal beverage. This practice has been hard to detect and has at times been a prolific source of unlawful beer. Sometimes it has been the real or chief business of the brewery. There are producers above suspicion, and -since national prohibition the Brewers' Association has urged action against breweries which engage in unlawful competition with the legitimate cereal beverage. But the

system which leaves so much to reliance on the integrity of producers and their employees has unfortunate possibilities. Moreover, when the extracted alcohol is sent from one warehouse to another, or to a denaturing plant, there is opportunity for hijacking and other modes of escape. Also there have been cases of realcoholizing of cereal

beverage by insertion of alcohol therein.

Other agencies producing beer are unlawful and socalled wildcat breweries and alley breweries. The former are large-scale breweries operated without permits, either breweries whose permits have been revoked, or brewery plants supposed to have been abandoned or to have been converted to new uses, or unauthorized new plants. The alley breweries are smaller, yet often worthy to be called plants and of considerable capacity. Usually they are in the cellar of what appears to be a dwelling. Sometimes they are fitted up in connection with ostensible filling 4ations, so as to permit of tanks going back and forth without question, with a well organized system of bottling Plants, covered by an apparently legitimate bottling business, and Of so-called " drops " for distribution. These are made possible by the development of production of " wort," or cooled boiled mash. As it contains no alcohol, it is outside of effective control under the National Prohibition Act. In consequence since that Act, permittees and others have produced and sold it in large quantities. Prepared in condensed form for fermentation, requiring nothing more than the addition of yeast, it has made the process of alley brewing simple and easy. One state has imposed a tax upon wort, and the resulting statistics show a very large production.

In some parts of the country enormous sums of money are derived from the business of illicit beer. The profits from illicit beer are the strength of gangs and corrupt political organizations in many places. In more than one locality beer rings and beer barons have made f ortunes out of it. They have been able to go on in defiance of law and despite the eff orts of enforcement officers. Moreover, an increased demand has been in evidence recently in several large cities, and the effect is seen in increased activity in illicit production. The making of cereal beverage is a legitimat; business and cannot

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reasonably be eliminated. But so long as it is carried on and there is demand for beer in the large cities, the gross margin of profit in

supplying beer, the possibilities of escape, front the plants, and the

manufacture of 'wort -will (rive trouble for effective enforcement of t__

prohibition. To limit the production of the materials going into beer, manv of them admitting of proper uses, involves serious difficulties., to be considered in another connection.

(v) Production of Wine

Wineries are no-w operated under basic permits granted by the Bureau of Industrial Alcohol. They are subject to a constant inspection by the Bureau. The -wine is stored in bonded -warehouses and there are periodical inventories by government inspectors. There has been little trouble here. But there is a potential source of trouble in the manufacture of grape juice, which is not subject to federal control. If enforcement presses heavily on other sources, a leak might well develop here. As in the case of wort and malt syrup, incident to the production of cereal beverage, and as in the case of ethyl acetate, a question is presented how far it is advisable to limit or regulate the production of materials which, on the one hand may have proper uses, and yet, on the other hand, may be or are used toward violations of the National Prohibition Act.

(vi) Production in HoMe8

Home production of liquor takes three forms; home brewing of beer, home wine-making, and home distilling.

At one time there was an increasing amount of home brewing of

beer amonr the avera e city dwellers, made possible by the produc9

tion and sale of malt syrup. The beer had a-high alcoholic content, for a light beer can be made only by top f ermentation, which is not practicable in homes or in small-qi@antity production. Today there seems to be less of this than formerly because of the inconvenience, the poor quality of the product, and the low cost of procuring whisky. But the recent increased demand for beer in some sections has led to the development of home brewing by people of lesser means not solely for home use but also for sale. The line between this and alley brewing is easily crossed. One may make for himself and a nei(,hbor or neighbors. and another for neighbors and for sale. This type of brewing is hard to get at.

Home wine-making involves an anomalous provision of the National Prohibition'@Lct. The last clause of Section 29 of Title II reads: " The penalties provided in this Act shall not apply to a person for manufacturing non-intoxicating cider and f ruit juices exclusively for use in his home, but such cider and fruit juices shall not be sold or delivered except to persons having permits to manuf acture vinegar. For the general purposes of & Act, intoxicating liquor is de6ned by Section I as containin- one-half of one per cent. or more of alcohol by volume. In view of Section 3. enacting that all the provisions of the Act shall be liberally construed to tfie end that the use of intoxicating liquor as a bevera'ge shall be prevented, it miaht be held that non-inioxicatino, in Se@7ction 29 means nonintoxicating as defined in Section 1. Federal courts in some districts have so construed the Act. Other federal courts consider

Section 29 independent of Section 1 on the ground that if the definition in Section 1 extends to the provision in question, Section 29 would be rendered unnecess This view has been taken by one of the Circuit Courts of Yp4eals. The Government appears to have acquiesced in that construction of the Fact by refraining from seeking a final interpretation by the Supreme Court of the United States. As the matter stands, then, when wine is produced in the home for home use, whether or not the product is intoxicating is a question of fact to. be decided by the Jury in each case. If this view stands, it becomes impracticable to interfere with home wine making, and it appears to be the policy of the Government not to interfere with it. Indeed the government has gone further. Prepared materials for the purpose of easy home wine making are now manufactured on a large scale -with federal aid. Much of home-made wine gets into circulation. The possibilities of leakage, when there is pressure on other sources of supply, are always considerable. Moreover, it would seem that Se@eion 29, as its construction is now acquiesced in, is a serious infringement of the @olicy of Section 3.

Rome distilling hasgone on from the inception of prohibition and in some localities has @t one time or another reached large proportions. Few things are more easily made than alcohol. A homemade apparatus will suffice, and with the variety of materials available and the ease of procuring those materials, any one may carry on home distilling on a small scale. The product is of poor quality, but it is cheap. The line between distilling in the home for home use, distilling for neighbors, distilling in part for neighbors and in part for sale and distillin for bootleggers is not definite and is easily

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overpassed. Also the fact that much home production of liquor goes on everywhere facilitates use of -what appear to be dwellings as cloaks for illicit manufacture.

But there is more to be considered than the difficulties of detection without invasions of homes and violations of constitutional guaranties. The bad effects of such operations, on the verge of or in violation of law, carried on in the home, are self evident. Xddults living in such an atmosphere of evasion of law and law breaking and children brought up in it are an obstruction to the present enforcement of the law and a serious threat to law and order in the future.

The difficulties presented by home production differ from those arising in other phases of the general situation in that they involve the arousing of resentment through invasion of the home and interference with home life.

Necessity seems to compel the virtual abandonment of efforts for effective enforcement at this point, but it must be recognized that this is done at the price of nullification to that extent. Law here bows to actualities 7 and the purpose of the law needs must be accomplished by less direct means. An enlightened and vigorous, but now long neglected, campaign of educAion must constitute those means. Through this there can be brought into the home the knowledge of the moral, physical, financial, economic, and social benefits arising from liquor abstinence, and the thought can be impressed that law observance is one of the prime requirements of good citizenship and of the preservation of public and private security. It is not too much to expect that such knowledge will have a very large effect in

supplying what the law itself can not furnish and result in a decided and steady diminution of home violations. If such a situation should be reached, the fact that such violations might never completely cease would present only a condition similar to that obtaining in reaard to other law, s which are commonly considered as being satisf actorily observed.

Whenever substantial law observance is attained, the need ceases for the power of law enforcement.

(vii) Diversion of Medicinal and Sacramental Liquor and Scien-

tife Alcohol

There is division of opinion in the medical profession as to the therapeutic value of alcohol.

Originally the statute allowed physicians to prescribe any kind of liquor, if duly licensed and in active practice, upon obtaining @a permit. It was forbidden to prescribe except after a careful examination or, if that was impracticable, upon the best information obtainable and belief in ood faith that use of the liquor as a medicine would afford relief from some known ailment. Not more than a pint of spirituous liquor every ten days might be prescribed. The physician was required to keep a record of prescriptions and the prescriptions were to be upon blanks furnished by the government and under regulations whereby strict supervision was possible. In 1921, the Willis-Campbell Act imposed further stringent limitations. The provision for prescribing malt liquors was eliminated. No vinous liquor containing more than 24 per cent. of alcohol by volume was to be prescribed, nor more than a quart of vinous liquor, nor any vinous or spirituous liquor containing separately, or in the aggregate, more than one-half pint of alcohol (equivalent to one pint of spirituous liquor) for use by one person within any period within ten days, nor for more than one hundred prescriptions in ninety days.

For a time there was much resentment at this act on the part of the medical profession. But more recently the profession generally has accepted the situation to the extent of admitting the need of some regulation. Physicians still protest, however, against three features of the act and reaulations, namely, the limitation of the

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amount below -what they feel may well be necessary, the limitation on the number of prescriptions a physician may make, and the requirement that the ailment for which liquor is prescribed be set forth on the blank which goes on file in the office of the supervisor of permits and is accessible to the public. This requirement runs counter to fundamental conceptions of professional ethics.

An additional embarrassment exists in the diversity of state laws on the subject and the divergence between the state laws in many jurisdictions and the federal statutes and regulations. There are no less than four well marked types of state law, ranging from states which -wholly forbid prescribing of liquor in any form for any disease, throuah different limitations of kind and quantity, to those which impose no restrictions as to what is 'bed or for what purposes

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or how. Naturally, the medical profession resents the proposition

that a lay legislative body may tell physicians what to prescribe and

how much. Yet there have been serious abuses which have led to such legislation. While the bulk of the profession have undoubtedly been scrupulous in adherence to the law, prosecutions have, been necessary from time to time and palpable evasions or violations come, tolightcontinually. Recentlyinonecity,thefederalgrandjurycallecI attention to the disproportionate increase in liq ' uor prescriptions with no apparent legitimate reason. Moreover, many physicians feel that however unfortunate it may be on principle to regulate by law what may be prescribed for the sick, it is a protection to the honest practitioner to relieve him from the pressure of those who seek prescriptions f or beverage purposes. On the other hand, there is evidence that many general practitioners will not take out permits because of the inconvenience and disagreeable features, but advise patients on occasion that they should t:ike this or that amount or kind of liquor and leave it to them to obtain it as they can.

As in other situations already discussed, a balance between the needs of medical practice and the demands of prohibition is called for and is far from easy to attain. But we are satisfied that in several particulars the causes of resentment on the part of the medical profession operate against a f avorable public opinion to such an extent as to outweigh the advantages to enforcement.

We recommend: (1) Abolition of the statutory fixing of the amount which may be prescribed and the number of prescriptions; (2) abolition of the requirement of specifying the ailment for which liquor is prescribed upon a blank to go into the public files of the supervisor of 'permits, leaving this matter to appear on the physician's own records and accessible to the inspector; (3) leaving as much as possible to regulations rather than fixina detail's by statutes and reliance upon cooperation of the Bureau of-Industrial Alcohol with medical associations, national and state, in the same manner in which the Bureau cooperates with distillers and with trade associations; (4) enactment of uniform state laws on this subject, or, in the alternative, repeal of state laws and leaving the whole matter to federal statutes and regulations.

As to the diversion or unlawful use of sacramental wines, there seems now to be no serious blem.

pro

With respect to the use Of alcohol for scientific and educational purposes, the language of the statute is unfortunate and should be revised and amplified to cover all such purposes. In order to meet legitimate uses it invites loose construction and consequent potential evasions. To some extent irritation has resulted. Also some alcohol withdrawn for scientific purposes has escaped through thef t, and some

171

leaks have occurred through fraud or conspiracy. But there has been no serious trouble at this point.

(2) THE MATERIALS OF ILLICIT MANUFACTURE

Illicit manufacture has had the effect of stimulating production of materials which are beyond the reach of regulation under the National Prohibition Act, yet are used largely or even chiefly, in unlawful manufacture; thus making enforcement much more difficult than it would have been had materials and methods remained what they were when the act was adopted. The most significant

.tn

items in this connection are malt syrup, wort, corn sugar and other corn products and grapes and grape products. Malt syrup and wort have made home brewing and alley brewing practicable. Wort has little legitimate use. One state taxes malt syrup and wort, except -%vIiere malt syrup is used in medicine or wort in baking. It appears that some is used in candy makinz and some in makin(, certain

I Zn

breakfast foods. But on inquiry it developed that these uses, as revealed by the payment of taxes, were insignificant and that almost all upon Which tax was paid was used in making beer. There is every indication that such is the case generally. Even more serious is the enormous growth in the production of corn sugar. The legitimate uses are f ew and not easy to ascertain. The bulk appears to go into illicit whisky; and the ease with which it is procurable in any quantity and the advantages of clean production, with no odor and no ash. which it affords. have made it a chief factor in the development of unlawful distilling. Since the National Prohibition Act, the output of corn sugar has gone forward by leaps and bounds. In the ten years between 1919 and 1929, it ha(f multiplied by six. As to grap@ production, the proportion of legitimate use is large. But here also the production has increased steadily far beyond any normal use. Unfortunately, this growth in production' of materials which may be used for unlawful making of liquor has had the effect of giving to large numbers of influential and otherwise law-abiding citizens a strong pecuniary interest adverse to effectual enforcement of the NationafProhibition Act.

(b) Enforcement With Respect to Sale

Bootlegging had gone on for at least a generation before the National Prohibition Act, on reservations where sale of liquor was prohibited, in communities which had taken advantage of local option, and in states which had adopted prohibition. But that bootle(r(rincr stands to the bootlegging of today where the pre-prohibi-

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tion moonshinincr stands to the illicit production of today. It is

common knowledge, and a general cause of dissatisfaction -with enforcement of the National Prohibition Act, that the big operators or head men in the traffic are rarely caught. Agents may discover a still or a speakeasy. They deal mostly with si'-ngle cases of illicit making and distribution. But these apparently isolated single violations are seldom such in fact. The large still is part of an organized system of production and distribution. Those who are found distillin,,, or transporting, or selling are merely employes. Behind

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them are the heads of an organization, supplying the capital, making the plans, and reaping the large profits. It is clear enough that the real problem is to reach these heads of the unlawful business. Experience has taught them to carry on their business with impunit

and it is in evidence that they are harder to reach than formerly.

To catch them calls for a much higher type of enforcement organi-

t15

zation and a higher and more experienced type of agents than have been available in the past. Moreover, the means available for catching the employees, namely, information from neighbors, patroling roads, watching suspicious places where men loiter, talking with persons occasionally met and learning where liquor may be bought and bu-Vlii(r it, are Generally not effective to catch the men higher up.

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These leaders are often at a Iono, distance from the sin(,Ie act of viola-

tion discovered by the prohibition agent. In the investigation made by the grand jury in Philadelphia in 1928-29, it -was found that the ramifications of a highly organized system of illicit distribution extended from New York to Minnesota, and the financial operations reached from Philadelphia to Minneapolis.

When conspiracies are discovered from time to time, they disclose combinations of illicit distributors, illicit producers, local politicians, corrupt police and other enforcement agencies, making lavish payments for protection and conducting an elaborate system of individual producers and distributors. H6w' extensive such systems may be is illustrated by some of the conspiracies recently unearthed in which 219 in one case, 156 in another, and 102 in another were indicted and prosecuted. Organized distribution has outstripped organized enforcement.

These things have been particularly evident in the distribution of beer.

It must be obvious that increased personnel and equipment are demanded if the enforcement agencies are to cope with this situation, and an increase in the corps of special agents whose function it is to work up the evidence to expose such conspiracies, affords the most hopeful means of substantial accomplishment in the enforcement field. Destruction of alley breweries and padlocking of beer flats and speakeasies has little effect. It gives an appearance of enforcement without the reality.

Speakeasies, blind pigs and blind tigers existed also before natioi@al prohibition, wherever local option, or statewide prohibition, or state li laws, unacceptable to a local population, gave an opening. ruotrthese also were quite different things from the speakeasy in the city of today. At the present time, the term speakeasy covers a wide range from something not much different from the old-time saloon and the speakeasies with a high grade of regular

patronage at one pole to the lowest grade of joint selling bad whisk-

or bad gin at the other. They are sometimes hardly disZuise4 and obviously operating under official protection. At other times and in other places, they are thinly disguised or thoroughly camouflaged according to local conditions of enforcemen as cafes, soft drink stands pool rooms, clubs, drug stores, or thing stations. The number closed each year by prosecution or injunction is large. But the number does not decrease on that account. Indeed, it is evident that along with the occasional isolated individual keeper, the type which has come down from the era before prohibition and the type most easily caught, there is a thoroughly organized business which replaces its retail selling agencies as fast as they are discovered and closed up. The number of theses places notoriously existing throughout the country, with public tolerance, demonstrates the extent to which experience and organization have carried retail distribution.

Speakeasies, even where they approximate the old-time open saloon, have few of the attractions which were used to brinu customers to those drinking places and induce them to stay there and spend their money. Probably a much greater number of those who patronize them can afford to do so than was true in case of the saloon. Thus the closing of the saloon has been a gain even if speakeasies abound. But the saloon was not an unlawful institu..

tion. Where it was not carried on in defiance of law its patrons were not assisting in maintaining an unlawful enterprise. Against

the gain in eliminating the saloon must be weighed the demoralizing effect of the regime of more or less protected speakeasies upon re ard 9 for law and upon law and order generally. Unless the number of

speakeasies can be substantially and permanently diminished, enforcement can not be held satisfactory.

In some cities night clubs have notoriously sold to a steady and considerable patronage. At times they have been very bold and some cases, given wide publicity, in which Jury trials have resulted in acquittal of well-known persons in ch@rje of them, have had an unfavorable effect on public opinion. Commonly, they are operated

tinder a system whereby patrons must be identified, to the extent -it least of satisfying those in charge that they are not law enforc ment agents, bef@re @aining admittance. At times a card identifying the guest as a regular patron is required.

From time to time and in places, drug stores have been f ound to

be engaged in illeaal sale. Some have purchased the permit books

Z!5 17

of physicians with the prescriptions ready signed and have used them as a protection for sale for beverage purposes. Some have split permit liquor with bootleg liquor and thus have been able to dispose of amounts not appearing on the records. More often they have been able to carry on an illicit business by withdrawin pure alcohol for wj@

manufacturing purposes, the ultimate use of 1ch is beyond the reach of the checks provi ed by statutes and regulations. Some have even been found dispensing bootleg liquor as -well as filling prescriptions. The drug trade is well organized and no doubt reliance is properly placed upon the organized business and the well-established dealers. But the number of drug stores has increased out of proportion to the increase in population. With the pressure of competition

and pressure of enforcement upon other agencies of distribution there

will always be a. large potential difficulty at this point.

Development of motor transportation had a great impetus durin the World War. Unfortunately, that development reached its higg point at the time when it became convenient to use motor transportation in violation of the National Prohibition Act. The truck and the automobile are the chief agencies of transportation, although rail, water, and air are used in domestic transportation much as has been seen in connection with smuggling.

In the early years of prohibition, hi -jackin and banditry also developed. These things had a bad effect on enforcement. Another unfortunate feature, in view of recent conditions of transportation, is the necessity of interference with legitimate use of the roads if enforcement is to be thoroughly effective. The truck driver and motorist of today resent delay. Yet it is obvious that there cannot be absolute assurance that a violation is going on as to every vehicle which g have to be stopped and examined. Some state laws give in

state en oreement agents ver wide powers of searching vehicles, which may be, and have been@ exercised in a way exasperating to the public. Federal prohibition enforcement and state e_nforce@n'ent are not dissociated in the public mind. They are regarded as parts

of one system. The bad features of state enforcement in several jurisdictions are attributed in the public mind to national prohibition.

In view of the general and convenient use of motor transport for carrying illicit liquors, completely effective enforcement of prohibition requires a high degree of potential supervision, P@Wer of inspection, and systematizes watching of motor vehicles using the roads.

(d) Evasion in Places Used for Drinking

Not the least demoralizing feature of enforcement of national prohibition, is the development of open or hardly disguised drinking winked at by those in charge in respectable places where respectable people gather. People of wealth, professional and business men, public officials and tourists are drinking in hotels, cafes and tourist camps under circumstances where at least knowledge on the part of those in charge that the liquor comes in unlawfully is an inescapable inference. Sometimes this becomes so flagrant that for a time pressure is brought to stop or to limit it. But on the whole it goes on throughout the country in spite of the rulings that furnishing the accessories for drinkina with knowledge of how they are to be used is an offense. The pressure from patrons, the state of public opinion, and the difficulty of obtaining proof make it almost impossible to reach these things.

(e) Evidence of Prices

A fair index of the effectiveness of enforcement is furnished by the prices at which liquor may be had in different localities. As to this, there is sifrnificaiitl uniform evidence that while certain kinds of imported wines command high prices and now and then the pressure of enforcement raises all prices for a time at some one spot, whisky of good quali is obtainable substantially everywhere at prices not extravaganttfor persons of means. It is true many cannot afford these prices and for them a large amount of cheap, poor grade, or even poisonous, liquor is constantly produced and is in general circulation. The conclusion is that enforcement is not reachino, the sources of production and distribution so as materially to affec't the supply.

(f) State Cooperation as Evidenced by the Enforcement Situation in

Various Localities

At the time of the adoption of the Eialiteenth Amendment, thirtythree states had adopted prohibition by law or constitution; after the Eighteenth Amendment, twelve other states enacted prohibition laws and eighteen added to or amended their laws generally to correspond with the National Prohibition Act. In many of the first class of states the laws were quite generally enforced before national prohibition. In those states fair cooperation with the federal prohibition forces at first was given, but there has been in recent years a growing tendency, even in states with prohibition laws, to let the federal government carry the burden of enforcement. On May 31, 1923, the New York Legislature repealed its prohibition act. In the same year Nevada repealed its statute and enacted the California,

prohibition law in its stead. This act was held unconstitutional by the Sup@reme Court of the State for a defect in its title. No new s@atute has been enacted and in,1926 the people of the State voted for repeal of the Eighteenth Amendment. Montana repealed its prohibition law in 1926, Wisconsin its law in 1929, and Massachusetts its law by referendum in 1930. In 1930 the people in Illinois and Rhode Island voted for repeal of their state laws. Such action of course seriously affects the attitude of the local authorities in those states respecting the apprehension of violators of the national law.

Conditions are not wholly the same from year to year anywhere. Upheavals in local politics, changes of administration, varying policies in policing, the activities of Zn strong or inactivities' of weak personalities in executive positions, contribute to make the course of state enforcement, at least in the average urban locali , fluctuating,

tn tY

vacillating, or even spasmodic. Thus the burden upon federal enforcement, is not uniform from year to year in any locality. No precise data are obtainable as to state cooperation. In only a few states does the state maintain a separate department for the enforcement of the prohibition laws. In all of the remaining states @avin,r enforcement statutes, enforcement of the prohibition laws

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is a part of the duties of the general law enforcement officers, and there are not available segregated official fi.1yures showing arrests, convictions and seizures under the prohibition laws. Except in the few states maintaining separate prohibition departments, this information could be obtained only by inspection of the records of each county and city in the state, since in no states other than the few maintaining separate prohibition departments are there available printed fig@res covering the entire state sufficient to permit any accurate figures upon state cooperation or any comparison coverino, the area of the entire state as to prosecutions for violations of state liquor laws since the adoption of the Eighteenth Amendment as compared with prosecutions before its adoption, or as compared with prosecutions in the federal courts. But the evidence sustains certain general conclusions. The states may be grouped conveniently in four categories (1) Those where there was

t" prohibition before the National Prohibition Act in which public opinion might have been

expected to demand and sustain an active state enforcement and zealous co-operation with the federal government; (2) those where there was prohibition before the National Prohibition Act in which public opinions either in the state as a whole or in the chief centers, is less vigorous, so that there is on the avera e perfunctory or spaslcew@

modic state enforcement, and at most lu arm co-operation with the federal government; (3) those which did not have prohibition before the National Prohibition Act, but have state statutes conforming to or in support of it; (4) those in which there was no prohibition before the National Prohibition Act, and there are no state statutes of like effect.

(1) An example of the first type is Virginia, a state as to which happily excellent official statistics are available. Virginia has been a

t!)

zealous prohibition state since 1914. There is not only a stringent state law reinforcing the federal law, but also a special state enlorcing machinery forWhieh considerable'appropriations have been made annually. The testimony is uniform that the federal administrator has been more than ordinarily efficient and determined. The state

officers likewise have been under exceptional pressure to do their whole duty. They state that the state machinery of enforcement is as efficient as it can be made within the practicable limits of expenditure. It works in entire harmony -with the federal agencies. The number of convictions under the state law is impressive, and of seizures thereunder no less so. Yet the number of arrests for drunkenness in Richmond has been growinLy steadily and has increased by more than one-third in five years. Also the te@timony shows that the amount of liquor in circulation has grown steadily. Prices tell the same story. It cannot be said that there is a reasonably effective enforcement in Richmond, and the evidence as to Norfolk and Roanoke is to the same effect.

Another -ood example of the first type is Kansas. Kansas has had state prohibition for over fifty yea@s. The preponderant sentinient is unquestionably for strict enforcement of the law. There is a drastic state statute, going much beyond the National Prohibition Act. In 1929 a state appropriation was made providing a fund for appointment of special attorneys to enforce prohibition. In March 1930 a prohibition survey of Kansas was made by direction of the United States Commissioner of Prohibition. A map contained in that survey setting forth the situation county by county, marks enf orcement as " bad " or at most " fair " in the cou@ties containina the chief cities of the state, as " bad " in the mining regions and as-" fairly normal " in the remainder of the state, consisting 07 101 out of 105 counties. It discloses three east-and-west and four north-and-south through highways giving trouble. It marks enforcement in the chief city of the state a-s " fair " because there is no evidence of " big open saloons "; but admits there is " considerable evidence of liq ' uor traffic " and that " bootlegging is persistent."

T cc

A.nthesecondlargestcityenforcementisfranklypronounced bad." It is significant that the death rate in Kansas f rom alcoholism and causes attributable to alcohol, which had f allen to a very low level between 1917 and 1920, has risen to the level of 1917.

(2) In the second type of state, which had prohibition before the National Prohibition Act, the conditions are less satisfactory. In too many of these states there has been a tendency to leave enforcement primarily, or as far as possible, to the federaf Government, either as a policy of the state, or as a policy in the cities, which often were opposed to prohibition when it was adopted as a regime for the state. By compafrison of the prosecutions for violation of the state law before and a ter national prohibition, and comparison with the constantly rising number of fiederal prosecutions in these jurisdictions, a growing tendency in states of this type to give over at least a large measure of their former activities is -plainly shown. In view of the admission of the federal prohibition authorities that there can be no effective federal enforcement without state co-operation, this tendency is significant.

(3) A lil6e tendency may be seen in the third type of state which did not have prohibition before the National Prohibition Act, but adopted state stautes in furtherance of it. On the whole, in these jurisdictions state enforcement has become distinctly less active than it was in the beginning, and in some it has substantially broken down for the more important centers. Thus Illinois, which had not

34402'-H. Doe. 722, 71-3

had prohibition prior to the Eighteenth Amendment, adopted in 1923 an act modeled on the National Prohibition Act intended to establish a uniformity of state and federal laws on the subject. But state appropriations for enforcement of prohibition, which were made for a time, have ceased, and the survey made by direction of the United States Commissioner of Prohibiti-On in 1930 says frankly that "a breakdown of state enforcement work is apparent." As a result 2 this survey shows that enforcement of the federal and state laws is bad in twenty-seven counties and unsatisfactory in sixteen more; is very bad in-the chief city of the state, and is bad in every urban community of much importance.

New Jersey, another state which did not have prohibition before the EighteeiA Amendment, enacted in 1922 a statute on the lines of the National Prohibition Act. That state has an effective state police and has always had an enviable record in its handling of crime. But the evidence is clear that state enforcement of prohibition in New Jersey has fallen down.

In Missouri likewise, a state which did not have state prohibition before the Eiahteenth Amendment, a state law reinforcing the national act was adopted in 1923. The rural population of the state favors prohibition. But the character of state enforcement of the state law in the large cities may be judged by reference to a study of criminal cases in the courts of St. Loul-s made for the Missouri Xssociation for Criminal Justice as a special report in connection with the Missouri Crime Survey. From that study it appears that in 1925 but 6.44 per cent of the liquor misdemeanor cases ended in carrying out of a sentence and but 3.88 per cent in carrying out of the sentence unmodified; and that in 1926 the percentage of sentences carried out was but 4.47. In the latter year, of 670 liquor prosecutions, in which 476 defendants pleaded guilty and 10 were convicted on trial, but 30 sentences were carri@d ou't. In 93 per cent of the cases in which a fine was imposed the fine was " stayea ", and in 2.67 per cent it was reduced. Thus, in substantially 96 per cent of the cases of convictions resulting in a fine there was no penalty or no substantial penalty. In any event an insignificant total of four out of 4S7 who pleaded guilty or were convicted on trial were imprisoned, and no term exceeded 60 days. The prohibition survey shows that in 1929 conditions were no better. Such results require no comment.

(4) As to the states of the fourth type which did not have prohibition before the Eiahteenth Amendment, and have no state statutes in support thereof, it should be said that both in them and in those which, not having had prohibition originally, have adopted laws to reinforce the fed-eral act, there are localities, which had taken advantage of local option before the National Prohibition Act, in which there is sufficiently strong public opinion to insure not a little co-operation with the federal Government. But for the most part the whole burden is put upon federal enforcement. In this fourth group are some of the most important states of the Union. As to them it is obvious that there is noi effective enforcement of prohibition. (5) In certain localities where there is a large tourist business 9 enforcement fails because of the insistence of -business men and property owners that tourists be given a free hand. In such places

there is not merely no state enforcement and no state cooperation, but all attempts at enforcement are substanially precluded Sy public opinion.

It is true that the chief centers of non-enforcement or ineffective enforcement are the cities. But since 1920 the United States has been preponderantly urban. A failure of enforcement in the cities is a failure in the major part of the land in population and influence. Enforcement is at its best in the rural communities in those states where there was already long established state prohibition before the National Prohibition Act.

Cooperation by state authorities largely depends upon public sentiment in their communities. Yet ifie'federal authorities can often secure cooperation through their own tact and conciliatory attitude. For instance, in Maryland the United States attorney reports, that although there is no state prohibition act and the governor and the state government are hostile to the Eighteenth Amendment, the detective bureau constantly helps to locate offenders and detains them until the federal authorities can take them, and information of the violations of law is given constantly by policemen to the United States attorney. A tactful attitude on the part of the prohibition administrator often secures unexpectedly good results. This has been notably the case in the western district of Pennsylvania and in West Virginia. Even in New York State, a great deal of useful aid is given to the prohibition forces. It is apparent that without genuine co-operation by the state police authorities the federal forces are wholly inadequate thoroughly to enforce the law against "speakeasies", 'bootleggers 71 and small distillers. The internal policing of the states necessary to the proper enforcement of such a law as this can only be accomplished with the active cooperation of the local olice force and can best be enforced by the local agencies alone where they are free from corrupt political influences.