regulations of this unit and referring to the requested opinion of the Attorney General as to the allowable per cent of alcoholic strength in cider and unfermented fruit juices, and in reply have to say that I shall be very glad to have assembled and sent to you a copy of 11 existing regulations and decisions governing the administrative business of this unit. As to the opinion of the Attorney General, it has not yet been rendered, but I am to-day informally advised that it may be expected soon, and as early as it is received and printed I shall be glad to furnish you a copy of it also. Very truly yours, R. A. HAYNES, Prohibition Commissioner. MAY 16, 1923. The honorable the SECRETARY OF THE TREASURY, Treasury Department, Washington, D. C. SIR: On October 20, 1922, you advised me that Judge Britt had been directed to construe section 29, Title II, of the Volstead Act for Commissioner Haynes, "but that he preferred to have the Attorney General pass on the matter and promptly referred it to that office. The Department of Justice has this day been directed to expedite opinion. The same day I wired the Attorney General, "The Secretary of the Treasury advises me that he has requested you to expedite this opinion. Will you please wire me. Under section 29, Title II, of the Volstead Act, can cider of an alcoholic content of 2.75 per cent be legally made and used as a beverage in the home?" On the same day I received the following telegram from the Attorney General: "Opinion re alcoholic content cider not yet rendered." On March 5, 1923, in response to further inquiry, Prohibition Commissioner Haynes advised me, "As to the opinion of the Attorney General, it has not yet been rendered, but I am to-day informally advised that it may be expected soon, and as early as it is received and printed I shall be glad to furnish you a copy of this also. It is now seven months since your department asked the Department of Justice to expedite this opinion. Law-abiding citizens in my district are entitled to know what kind of cider and fruit juices they can legally make in their homes as nonintoxicating. I am entirely unable to obtain any information from the Federal Prohibition Commissioner, and am, therefore, writing to you to ask if the Attorney General has rendered the opinion, the expedition of which you requested on October 20, 1922. Very respectfully, JOHN PHILIP HILL, Hon. JOHN PHILIP HILL, 712 Keyser Building, Baltimore, Md. TREASURY DEPARTMENT, MY DEAR CONGRESSMAN: Replying to your letter of May 16 relative to an opinion of the Attorney General on the right to manufacture cider and nonintoxicating fruit juices, I have to say that request was made several months ago for an opinion on the law involved in the subject by the Attorney General. For some reason this opinion seems not to have been rendered, and Mr. James J. Britt, counsel for the prohibition unit, has been directed to prepare an opinion on the subject, and I am informed that regulations embodying the subject are being formulated by the prohibition unit which will be available in time for the cider season for this summer and fall. Very truly yours, The PROHIBITION COMMISSIONER, Treasury Department, Washington, D. C. A. W. MELLON, Secretary of the Treasury. AUGUST 22, 1923. SIR: On June 4, 1923, in answer to my repeated inquiries as to the meaning of section 29 of the Volstead Act, the Secretary of the Treasury advised me that "regulations embodying the subject are being fromulated by the prohibition unit which will be available in time for the cider season for this summer and fall." On July 26, Article V of regulations 60 was amended and new regulations published, in accordance with this statement. Under these regulations, before any person can make in his or her home any amount of fruit juice "any part of which may ferment so as to contain as much as one-half of 1 per cent of alcohol" notice must be given on Form 1541 to the collector of internal revenue, a copy of this notice filed with the director, and one copy retained by the producer. The production of the smallest amount otherwise is declared to be a violation of the Volstead Act. Your regulations further provide that only "a head of a family" may make such fruit juices, the right to make such being denied to "a single person" and to "a married man living apart from his family.' As head of a family and living with such family, I have therefore to-day forwarded to the collector of internal revenue the following notice, serving also a copy upon the prohibition director, and retaining another copy for myself, as required: (Form 1541) TO COLLECTOR OF INTERNAL REVENUE, District of Maryland. SIR: I, John Philip Hill, 3 West Franklin Street, Baltimore, Md., hereby give notice that on or about noon, September 7, 1923, I intend to commence producing nonintoxicating fruit juices exclusively for use in my home and not to be otherwise removed, consumed, sold, or delivered, and that I do not intend to produce more than 200 gallons of such fruit juices during the year for which this notice is given and is in effect. I further state that if I produce or have on hand at any one time more than 200 gallons of fruit juices containing as much as one-half of 1 per cent of alcohol by volume I will give timely notice thereof on Form 698 and execute a bond, as required by T. D. 2765, and will further comply with the provisions of the internal revenue and prohibition laws and regulations of the United States. Dated at Baltimore, August 22, 1923. JOHN PHILIP HILL. These regulations provide for the manufacture of a beverage containing "as much as one-half of 1 per cent of alcohol." For nearly two years I have been attempting to ascertain from you the meaning of the word nonintoxicating" as used in Title II, section 29, of the Volstead Act. I expected a ruling on this matter in accordance with the advice of the Secretary of the Treasury contained in his letter to me of June 4. The new regulations, however, after quoting section 29 of the Volstead Act in reference to nonintoxicating cider and fruit juices, merely define "nonintoxicating" as "nonintoxicating.' Your regulations contemplate that these juices will be subject to "alcoholic fermentation." At what point must I or other married heads of families "prevent further alcoholic fermentation"? Will you please advise me what per cent of alcohol is permitted in "nonintoxicating" cider and fruit juices under your new regulations? Yours very truly, Hon. JOHN PHILIP HILL, JOHN PHILIP HILL, TREASURY DEPARTMENT, INTERNAL REVENUE SERVICE, House of Representatives, Washington, D. C. DEAR SIR: I wish to acknowledge receipt of your communication, received August 22, signed by you, to the following effect: "I, John Philip Hill, 3 West Franklin Street, Baltimore, Md., hereby give notice that on or about noon, September 7, 1923, I intend to commence producnig nonintoxicating fruit juices exclusively for use in my home and not to be otherwise removed, consumed, sold, or delivered, and that I do not intend to produce more than 200 gallons of such fruit juices during the year for which this notice is given and is in effect. I further state that if I produce or have on hand at any time more than 200 gallons of fruit juices containing as much as one-half of 1 per cent of alcohol by volume, I will give timely notice thereof on Form 698 and execute a bond, as required by Treasury Decision 2765, and will further comply with the provisions of the internal revenue and prohibition laws and regulations of the United States. MY DEAR CONGRESSMAN: Receipt is acknowledged of your letter of August 22, 1923. Reference is made to your understanding that under the new regulations (Treasury Decision 3498) providing that only "a head of family" may make nonintoxicating fruit juices for use in the home, the right to make such is denied to "a single person.' You are respectfully advised that this office has construed the term "head of a family" to include a single person who is a bona fide head of a family living with his immediate relatives, for example: His parents or sister, etc., for whom he provides a home. In reply to your inquiry as to what point the alcoholic content of nonintoxicating fruit juices made in the home may be reached before further fermentation must be arrested, you are advised that the alcoholic content of nonintoxicating cider and fruit juices made exclusive for use in the home under the exempting provision of section 29 of Title II of the national prohibition act has not been fixed by law or regulation. Sincerely yours, JAMES E. JONES, JAMES E. JONES, [Telegram] Acting Prohibition Commissioner. BALTIMORE, September 4, 1923. Acting Prohibition Commissioner, Washington, D. C.: Your letter of September 1 just received, in which you say that the alcoholic content of nonintoxicating cider and fruit juices has not been fixed by law or regulation. I direct your attention to section 1, Title II, of the Volstead Act, which states that the phrase "intoxicating liquor" shall be construed to include any vinous or fermented liquor by whatever name called containing one-half of 1 per cent or more of alcohol by volume which are fit for use for beverage purposes. Do I understand from your letter that this definition does not apply to apple juice and fruit juices? I desire to begin making not more than 200 gallons of fruit juices for use in my home and request immediate advice. As I read the Volstead Act, I can make legally nothing containing as much as one-half of 1 per cent of alcohol, whereas your recent regulations apparently contemplate as legal a beverage of at least one-half of 1 per cent of alcohol. Reply by wire requested. JOHN PHILIP HILL, Member of Congress. (Official business.) TREASURY DEPARTMENT, OFFICE OF FEDERAL PROHIBITION COMMISSIONER, Hon. JOHN PHILIP HILL, M. C., 712 Keyser Building, Baltimore, Md. MY DEAR SIR: I have the honor to reply to your telegram of September 4, in which you state that you desire at once to begin the making of not more than 200 gallons of fruit juices for use in your home, and refer to section 1 of Title II of the Volstead Act, and ask whether this unit holds that this section applies to fruit juices, and I have to advise as follows: Section 4 of Title II of the national prohibition act names six classes of articles which, when manufactured and prepared for the market, are not subject to the provisions of the act, and subsection (f) of this section names as the sixth class "vinegar and preserved sweet cider." Section 29 of this act, after providing penalties for violations of the various provisions of the act, provides that: "The penalties provided in this act against the manufacture of liquors without a permit shall not apply to a person for manufacturing nonintoxicating cider and fruit 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 manufacture vinegar." These are the only references in the national prohibition act to the manufacture, sale, or use of cider and nonintoxicating fruit juices, from which it would appear that it is a reasonable inference, both moral and legal, that it was the intention of Congress not to include cider and nonintoxicating fruit juices, as ordinarily made and used, within the purview of "intoxicating liquor," but it was no doubt the intention so to include them should they become reasonably susceptible of use as an intoxicating beverage, or as material for distillation into an intoxicating beverage. It is manifest from these exceptions that it was the intention of Congress to interfere as little as possible with an old, well-recognized, and generally harmless privilege of the citizens of the United States. In the draft of Treasury Decision 3498, the controlling regulations on the manufacture of sweet cider and nonintoxicating fruit juices, two things were kept steadily in view, namely: (1) To avoid authorizing the manufacture of an article which would itself be fit for intoxicating beverage use or would be susceptible of unlawful distillation into beverage spirits; and (2) To interfere as little as possible with the generally recognized right of farmers to manufacture cider for home use and sale to vinegar manufacturers, or with the rights of the manufacturers of cider where there was no intention to violate the national prohibition act. It is believed that these two purposes have been carried out in Treasury Decision 3498. While iti s, of course, both the duty and intention of this unit to prevent the use of the cider and fruit juice manufacturing privilege from being perverted to the manufacture of intoxicating liquors for beverage purposes, nevertheless the prevailing customs and practices in the manufacture of this simple, domestic article are such that it is believed that to attempt to fix a definite prohibited per centum of alcoholic strength, which was apparently not the intention of Congress, would have the effect to confuse, hinder, and delay the plain farmers of the country in the enjoyment of a long-enjoyed right, and one which it is believed Congress bever intended should be denied them. Careful attention was given to safeguarding this privilege against abuse by requiring the addition of benzoate of soda to arrest the development of alcohol before it had reached any appreciable degree in the manufacture of commercial beverage cider, and requires the usual home precautions in case of cider and fruit juices. In doing this the long experience of the Department of Agriculture was availed of, as well as the experience of experts on the subject generally, and no pains were spared to prevent opportunity for violations. Compared with the abuses arising from the manufacture of distilled spirits and fermented liquors, violations of the national prohibition act arising from the practices of farmers and of manufacturers of cider and fruit juices are practically inconsequential, and but few violations of any consequence have ever been brought to the attention of this unit. Should there be a disposition by farmers and manufacturers to abuse the privileges thus granted, this unit will avail itself of the department's regulatory power to arrest such tendencies. It is believed that a careful reading of Treasury Decision 3498 in connection with the considerations herein submitted will convince you that an effort has been made to do the best possible thing in the premises, both in light of prohibition law enforcement and in the interest of the public. Very truly yours, R. A. HAYNES, Prohibition Commissioner. SEPTEMBER 28, 1923. Mr. R. A. HAYNES, Federal Prohibition Commissioner, Treasury Department, Washington, D. C. SIR: Yesterday at my home two of your chemists, with the use of an embulliometer, tested the fruit juices, the ingredients of which I assembled on September 7, in accordance with notice to you. Their tests showed that the fruit juices from Anne Arundel County grapes, sugar, and water had in 19 days developed an alcoholic content of 11.8 per cent, while the same grades, without sugar, had developed, in the same time, an alcoholic content of 3.27 per cent; there being however, no prohibition contained either in the Volstead Act nor in your regulations against the use of sugar in making homemade fruit juices. At the same time the keg of fruit juice purchased by me and from which the bung was removed on September 7, showed an alcoholic content of 12.64 per cent. All the above fruit juices, in accordance with your ruling, are entirely legal, it being the purpose of the Volstead Act to exempt the plain farmer from its operation as to such juices. According to your ruling, 12 per cent fruit juice is legal, whereas one-half of 1 per cent of hop juice, or beer, is illegal. I suggest that you propose to the conference of governors, which is soon to be held on the subject of prohibition, the question of whether law enforcement will not be greatly facilitated if the Volstead Act is so modified as to give to the plain mechanic the privileges enjoyed by the plain farmer. I am, however, doubtful of the legality of your interpretation of section 29 of the Volstead Act. I can not conceive that Congress intended that there should be more than one definition of "intoxicating." I therefore ask that you request the Secretary of the Treasury to obtain from the Attorney General an opinion as to the meaning of section 29, Title II, of the Volstead Act, in order that you may have the opinion of the highest authority to submit to the impending conference of governors on this subject. Yours very truly, JOHN PHILIP HILL, P. S.-I am sending a copy of this letter to the governors of the several States, together with copy of your letter to me of September 7, and my reply thereto. Mr. CROUNSE. Doctor Schiefselin is the next witness. He is expresident of the W. J. Schiefselin Co. STATEMENT OF DR. W. J. SCHIEFSELIN Doctor SCHIEFSELIN. Mr. Chairman, and gentlemen, I represent the National Wholesale Druggists' Association and also my own house, which is, I believe, the oldest house in the country. It was founded in 1794. I am the fifth generation, and my son, now president of it, is the sixth generation of the members of the family who have conducted the business from father to son, which I am very proud of. What has been said about this bill and the reasons we oppose it requires, I think, a few more statements of fact to render the reasons perfectly clear. The distinction between policing and deciding scientifically how alcohol should be denatured and how much alcohol can properly be used are so distinct that a commissioner fitted to prosecute one can hardly be expected to be fitted to decide the other. In listening to the discussion this morning on the questions, it occurred to me that the opponents of the bill did not make it entirely clear why, if we do suffer and are suffering so much, we are opposed to any change. The fact is that nearly all of the suffering we have endured the past three or four years has been caused by regulations which have been put forward by the Prohibition Department and finally on appeal of lawful permittees amended or entirely repealed by the Commissioner of Internal Revenue. |