The Five & Ten

Andrew J. Volstead, once an inconspicuous Minnesota lawyer, has never deeply regretted the fame that came to him when he tagged his name upon the National Prohibition Act. It was a nuisance, of course, when intoxicated traveling salesmen called Mr. Volstead up in the middle of the night to curse him, and it was not altogether pleasant to feel that a large portion of his fellow countrymen regard him as a wizened fanatic. But Mr. Volstead has surmounted these drawbacks by

1) concealing his telephone number; and

2) shrugging his shoulders and remembering all the good people who admire his Act.

Wesley Livsey Jones of Washington, the senatorial sire of the Five & Ten Act, doubtless never gave a thought to the publicity he would come in for. But last week he made it clear he resented joining Mr. Volstead's category. Emphatically he protested: "There is no Jones law!" By this he meant, hairsplitting, that his measure, increasing prohibition penalties to five years' imprisonment and $10,000 fine, was merely an amendment to the Volstead Act and should therefore be anonymous.

But the distinction was too fine. An "Act to amend" is still an "Act," a law. And so, although "Five & Ten" was rapidly replacing "Jones Law" as the measure's name, Senator Jones tried to escape his misery by calling in company. He pointed out that the measure had had a co-author in the House of Representatives, Congressman Gale H. Stalker of New York, who was being deprived of his share of the credit. In fact the Stalker Bill, he said, had been introduced nine days before the Jones Bill. Insisted Mr. Jones: "I hope the proper term will be used in referring to this . . . legislation and it will be known as the Jones-Stalker. ..."

A large, loose-knit man born 65 years ago in Bethany, Ill., Senator Jones has never taken a drink (that he knows of), has never smoked tobacco, has seen, he says, only one drunken man in all his life. His range of legislative interest has by no means been confined to prohibition. No smooth speaker, never brilliant, his name is nevertheless upon the latest Merchant Marine Act (Jones-White) under which eleven great Shipping Board vessels were recently sold (TIME, Feb. 18). All day every day during Senate sessions he can be found in his aisle seat, behind an embankment of papers and books, hard at work. No hail-fellow-well-met, he is not on easy, congenial terms with the average handshaking, backslapping Senators. His Republican colleagues preferred Indiana's easy-going Watson to him as Republican leader to succeed Charles Curtis.

Senator Jones's unhappiness over the Five & Ten Act was increased last week when New York's volunteer committee of lawyers to defend Five & Ten victims unearthed and republished a statement made by Senator Jones in 1921 on the Senate floor. He had said:

"An objection is made to the Prohibition Law that it infringes the personal liberties of the individual. . . . Mr. President, there is no such thing as personal liberty in a republic!"

This declaration prompted Cartoonist Windsor McCay to paraphrase John Trumbull's famed painting of the signing of the Declaration of Independence hanging in the Capitol rotunda. Above in the McCay cartoon was the quotation: "We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain inalienable Rights; that among these are Life, Liberty and the pursuit of Happiness," etc. Entering the august gathering was Senator Jones, with the Five & Ten bundle under his arm and his 1921 Senate declaration on his lips. Historic faces turned sourly upon him -John Adams's, John Hancock's, Thomas Jefferson's -their mouths drawn into ludicrous expressions of disgust.

Legal sparring for a primary advantage under the Five & Ten continued through out the U.S.

In Manhattan, as test cases, three men were indicted for dispensing liquor : Ernest Dougall, U.S. citizen and one time Army officer, was hired as a chef in a foodless restaurant. His liquor sales had amounted to $2.40 when U.S. agents seized him. He pleaded guilty before U.S. District Judge Frank J. Coleman, no admirer of the Five & Ten. He was sentenced to three months in jail and lost his U.S. citizenship.

Michael Feldodorff, diminutive Russian checkroom boy, was arrested for selling one drink of whiskey. To his aid hurried Frederic Rene Coudert Jr., organizer of the Lawyers' Volunteer Defense Committee. Followed a great squaring off for the legal fray. Then suddenly U.S. District Attorney Ulysses S. Grant* retired to his corner, had the indictment quashed, permitted Feldodorff to plead guilty to the minor offense of liquor possession, not covered by the Five & Ten penalties. A three-month sentence was doled out by Judge Coleman -and then suspended.

The U.S. then prepared its initial Five & Ten attack, upon Arthur Daniel, proprietor of the establishment where Feldodorff was employed. His trial was postponed and with it the first test of Five & Ten jury sentiment in Manhattan.

Federal Judge Coleman of the New York Southern District announced last week the prohibition penalty scale he would follow under the Five & Ten

1) For employes of liquor-selling resorts who plead guilty -six months in prison.

2) For employes convicted by trial -a much heavier sentence.

3) For proprietors who plead guilty -sentences heavier than the employes', i.e., more than six months.

4) For proprietors convicted by trial -the severest penalties of all.

In Scranton, Pa., U.S. Commissioners began holding liquor suspects in $2,000 bail instead of the customary $1,000. The Five & Ten was given as the reason.

In Philadelphia, emulating the Coudert Committee in New York, lawyers last week commenced to band together to defend "worthy cases" enmeshed in the Five & Ten. This group, known as the Voluntary Committee of Lawyers, will take care, said Harry Kaufman, its secretary, not to offer its free services to "wealthy bootleggers" or to "owners of disreputable clubs."

In Washington, as a moral offset to the anti-Five & Ten legal committees, steps were taken to organize a "Bar of the United States," composed of lawyers in Federal practice pledged to all law enforcement including Prohibition. Charles William Freeman headed the organizing committee, with William R. Vallance, Assistant Solicitor of the Department of State and president of the Federal Bar Association, as chief assistant. Only "earnest advocates" of law enforcement are eligible, though on Prohibition, "personal beliefs" would not be considered.

The New York Evening Post surveyed the U.S. on the Five & Ten last week. Its sub-headlines told the story: "Plenty in Chicago"; "High Frisco Prices"; "Detroit Trusts Grow"; "New Orleans Still Wet"; "Baltimore Gets Cautious"; "Florida Doesn't Worry"; "Millennium in Boston"; "Warfare in Los Angeles"; "Albany Much Drier"; "Denver Bootleggers Scared"; "Profiteering in Cincinnati"; "Washington Dealers Careful"; [Texas] "Not Jones But Hoover"; "Deaths in St. Louis"; "Corn in Kansas City"; "Moonshine in Louisville"; "Pittsburgh Dealers Quit"; "Cleveland Undismayed"; "Rhode Island Calms Down"; "Indianapolis Unafraid"; "Atlanta Little Affected."

* No kin of, and not to be confused with, Lieut. Col. Ulysses S. Grant III (see p. 13).