The New Jersey Law Journal, Volume XLV, No. 3, March 1922

VOLUME XLV FEBRUARY, 1922 No. 2
Happily it is not such a frequent occurrence as may be supposed that the Judges of our Court of Errors and Appeals split apart so curiously as they did in determining that the Van Ness Enforcement Act should be declared unconstitutional. The result only shows that, like the doctors, Judges cannot all think alike. On the subject of whether whiskey is useful as a medicine or not our New Jersey doctors, on a canvass, split, 520 to 308, or 490 to 319, according as one interprets the replies. In the Nation at large it ran 51 per cent. to 49 per cent., a closer margin. But only half of those who were interrogated by the “Journal of the American Medical Association” responded; what the rest thought we do not know. So on the legal questions involved in the Van Ness Act, counting those Judges who approved the Act as constitutional in the Supreme Court, the difference between a yea and nay vote appears to have been only one. On the subject of whether the Act could be sustained because it took away from defendants the right of trial by jury, which was the great burden in objections made by defendants themselves, the Court held what this Journal has held, that the Legislature had the power to direct that trials might be by magistrates without a jury. It had done so over and over again in other matters and could do so in liquor legislation as well. On other points there were various differences of opinion. However, since the Act as a whole is declared unconstitutional, on the ground that it does not conform to the Federal Act, which declares that the illegal possession, sale, etc., of liquors constitute a crime, instead of disorderliness, the Legislature has passed new statutes which alter the basis of a conviction from a disorderly proceeding to a criminal proceeding. There is no hope in this for bootleggers, except as it permits them to escape by jury disagreements or “not guilty” verdicts. If no law were enacted the Federal Courts would be filled with cases, and the results there would give no hope to criminals. Generally speaking, the upsetting of the Van Ness Act is unfortunate, because jury trials are expensive as well as uncertain; trials before Judges as magistrates are more certain and far less expensive. In the end, however, bootleggers will not win in the game.