Mr. DYER. I am sure that the committee is very glad to have had Mrs. Willebrandt, because we have very great confidence in her recommendations-this committee has because she has given very careful attention to this work and we want to help her enforce the law. There is no division of the committee on that question.

STATEMENT OF HON. WAYNE B. WHEELER, GENERAL COUNSEL ANTISALOON LEAGUE, WASHINGTON, D. C.

Mr. WHEELER. Mr. Chairman and gentlemen of the committee. Some of the members of this committee, I think, will recall that when the original Volstead Act was before the committee there was a division upon these penalties. The original draft carried heavy penalties. The argument was made that it was a new policy of the Government and if imprisonment was made mandatory in certain sections where the sentiment in favor of prohibition was weak, you would never get the first conviction. Therefore, you had better start with small penalties and increase them as you go forward. I think that is the reason for having small penalties in this law. But in the enforcement of this law, just as in the State enforcement laws, we find that as the people realize that it takes a heavy penalty to enforce the law, State legislatures and Congress have increased these penalties. Two changes suggested by Mr. Stalker's bill-H. R. 728-provide first, for increasing those penalties; second, for fixing a minimum fine.

I think both of those are in the right direction. But I think it would be very helpful if the committee could see its way clear to change one or two offenses, which come in the latter part of section 29, to the first paragraph. For instance, transportation of intoxicating liquors is one of the serious offenses-on page 3 the first five or six lines of section 29. Put into that first paragraph both illegal transportation and the forging of permits. One of the most difficult. offenses with which the Government is dealing is this forging of permits and it was thought at the time of the passage of the original act that it was covered in the last half of the section, but the courts have not thus far construed it to be covered at all.

Mr. MONTAGUE. Would it be covered by the general law respecting forgeries?

Mr. WHEELER. We thought about that also. The courts have failed to so construe it.

Mr. MONTAGUE. Have the courts had that precise question under consideration?

Mr. WHEELER. It has been brought to their attention in a few cases but we have not yet been able to so apply it. I think that inasmuch as it was clearly within the intent of the law to stop that, and it being such a serious offense, it should be covered. For instance, for a time these criminals would telegraph for a forged permit and large amounts would be given to people who claimed that they had gotten a legal permit $10,000, $15,000, and up were paid for them. If you could forge those permits and dispose of them without any serious penalty being attached to it, you can readily see how the illegal withdrawal and distribution of liquor got encouragement.

A bill has been introduced in the Senate, I think, by Senator Willis, to make it a felony to forge a permit to withdraw liquors in violation of the law.

Mr. HERSEY. Is not there something in the present law about forging permits?

Mr. WHEELER. No; it does not cover it.

Mr. HERSEY. And does it not say anything in there about forging permits to withdraw liquor-in the present law?

Mr. WHEELER. No. There is nothing, other than in the latter part of section 29 it says that

Any person violating the provisions of any permit who makes any false record, report, or affidavit required by this title or violates any of the provisions of this title.

And it was thought at the time that would cover it, but the courts have refused to so construe it, and it seems to me that it ought to be made clear that it does cover that kind of offense.

Then, consider the transportation end of it. Big trucks and highpowered machines, that take large quantities of liquors across the country; $100 fine does not mean anything to them, or a $500 fine; and yet they come within the second paragraph of section 29, which provides for a fine only for a first offense. The judges and district attorneys who are trying to enforce the law have complained about that. They say that these violators ought to be punished more severely than almost any other, but there is no adequate penalty in the law to accomplish that purpose.

Mr. FOSTER. Your suggestion is to throw those two offenses into the first paragraph of section 29 and make 10 years or 20 years?

Mr. WHEELER. I think that would be very helpful, indeed, in bringing about a better enforcement of the law. Mrs. Willebrandt has brought to your attention how better enforcement of the tax laws has required far more severe penalties than the fine and imprisonment in the present prohibition law.

Mr. DYER. I will say that it has always been a mystery to me why the enforcement act was not made more severe. I came to the conclusion-perhaps I am not right-that the officers did not want it enforced, is that right?

Mr. WHEELER. You are mistaken about that. If you will look at the original drafts which were submitted from time to time you will find that they were a great deal more severe than the Judiciary Committee were willing to report, and some of the reasons for it I have given you this morning with the idea of refreshing your

memory.

For instance, it was said that on this Eastern Shore, where they are not familiar with the enforcement of the prohibition law, if you should put a penitentiary sentence for the first sale of beer or whisky that you would not find a jury that would convict at all, but if there were just a small penalty for the first offence and that person was brought back before that court, showing that he was an habitual criminal or offender, they would not hesitate then to give him the imprisonment along with the money fine. It was not done for the purpose of defeating the enforcement of the law.

We faced a condition such as we faced in many of the States, where they started in the same way, making a money fine for the first

offence and then for a second offence" fine or imprisonment or both,” and for a third offence, "fine and imprisonment." Later they made the penalty very severe. I think you will find that that was the experience through which we went in many of the States. I know the attitude of some members of the committee when they were trying to determine what sort of penalties should be in this law.

Mr. HERSEY. You will remember that we had hard work in the committee in getting an enforcement law through that prohibited the sale of intoxicating liquors. They wanted it 2.75 or higher.

Mr. WHEELER. Yes; there were a number of obstacles presented at that time which made the enactment of this law not an easy task. Mr. FOSTER. They made the penalties in certain sections low because in certain sections of the country we had not a very strong sentiment for it.

Mr. WHEELER. That was true and those who were opposed to it were not interested in having higher penalties imposed. I have also embraced here in the notes a few of the penalties in other laws that Mrs. Willebrandt did not refer to, and I will hand these to the stenographer so that you will have them in the record.

I think heavier penalties should attach to the violation of a constitutional provision than a mere tax regulation and with this long list of laws that carry not only fines but fines and imprisonment for a very serious offence, when we come to the enforcement of a provision written into our Constitution, it does seem, after four years of experience, we ought to be ready to harmonize our Federal law with that of State laws and other Federal laws dealing with this same subject matter.

You will find in the Attorney General's report a list of the cases that have been tried by the Federal judges, and while the Federal judges are increasing the penalty, under these options to-day, sending them to jail for a longer time and imposing heavier penalties, yet in many sections the judges are taking that discretionary power which they have for imposing even $1 fines on a bootlegger, who has probably made many thousand or even hundreds of thousands of dollars and who comes to that court and can pay out of a half day's sales many times what that fine would be. That list of cases shows what is going on along this line.

Mr. MONTAGUE. Are there many instances of that sort?

Mr. WHEELER. There are many instances of very low fines, $10, $25, and something of that size. There are instances of $1 fines being imposed, but I should say they are very rare.

Mr. MONTAGUE. Were there aggravated cases or were they cases where there were extenuating circumstances you think?

Mr. WHEELER. In some cases there might have been extenuating circumstances, but not often. For instance, showing how this thing varies in a country where we are aiming at uniformity.

Mr. MONTAGUE. Were they Federal judges or State judges?

Mr. WHEELER. Federal judges I am speaking of now. In Michigan, in 1923, the average jail penalty is 169 days; the first seven months of 1924 it is 185 days.

The western district of Michigan, where the average jail sentence for 1923 was 123 days and in 1924, 179 days, as compared with the courts having the lowest average jail sentences.

As compared with that, as a matter of record, note what happened in the western district of Kentucky where the average for 1923 was only 0.08 day, and the seven months of 1924 was 0.03 day, and Rhode Island, where the average in 1923 was five days, and for the seven months of 1924 there had been no jail sentences at all.

I will leave with you some of these tables which give you from the various districts just how these finds are running, showing that it ranges all the way from six months an adequate penalty-down to one which makes the law really a farce.

Mr. DYER. The stenographer will make those statements a part of the record.

(The statement submitted is as follows:)