The sun., 1919-03-20
BREWERSASK
COURT TO HALT
BONE DRY LAW
Action Aimed to Involve
q. s. Officers Who En-
force Prohibition.
WANT PERCENTAGE RULE
Seeking Of Injunction in Ad-
vance Of Proceedings Is E
Unusual Feature.

A new move was made yesterday by
me brewers in the fight to save light
beers, whom the Jacob Hoffman, Brew
ing Company. mo, instituted injunction
proceedings in tho Federal District Court
against Mark Eisner. a. Internal Reve-
nue. Collector for the Third New York
District. and Francis @. Carey, as
United States Attorney for the South
srn District Of New York, to restrain
them from carrying out the bone dry
prohibition rider of November 81, 1918.
An extraordinary feature of the suit is
that II seeks an injunction in advance
and in anticipation of any attempt by
the Government agents to enforce the
law.
This action Ii n test suit challenging
the constitutionality of this statute, in
which feature II resembles the suit In
stituted on Saturday in the Federal court
by Joseph Z. Everard, a minority stock
holder. against the board OF directors Of
the James Everard Breweries Corpora
ton. with the aim OF restraining them
In their decision to cease brewing after
June so, as directed by law.
Purposes OF Action.
But the two main purposes of the
present proceeding, which distinguish 1t
from that suit, are first, to involve di-
rectly in litigation the officers Of the
Government charged with putting into
effect the bone dry provision, and sec
ondly, to obtain court ruling on what
percentage Of alcoholic content makes a
beverage intoxicating.
In the Everard case the Government
was not involved, and the contention
that beer with 2& percentage Of alcohol
was permissible was brought in only as
secondary matter. In this case the
burden Of the complaint is focused upon
II. In both cases the complainants are
represented by the same counsel, headed
by Elihu Root and William ID. Guthrie.
This case is looked upon as an out
growth OF the opinion they gave to the
Lager Beer Brewers Board of Trade on
Monday. In this the special counsel
declared that Daniel C. Roper. Com
missioner OF Internal Revenue, had no
legal authority for fixing the non-intoxi-
eating limit OF beverages at one-half OF
/ per cent. of alcohol and advised injunc-
ton proceedings to prevent the prohibit
ton law from being interpreted in this
way.
The action begun yesterday Is called
a friendly suit: as the office of the
internal revenue collector is represented
as anxious to obtain a decision from the
bench on the limit of non-intoxicants
before determining on its future course.
Most Of the brewers. pending this de-
eision. are holding up their preparations
to go ahead with the production of "a
per cent. beer. following the Root-Guth-
RE opinion, though the Jacob Rupert
Brewing Company is said to be already
in a position to market this product.
The United States Brewers Associa-
ton in sending out copies of the Root
Guthrie opinion made no general recon-
mendation. simply leaving it to the In
dividual Judgment of their members as
to how they should act on 1t. 1t was
the unofficial conviction OF some of the
legal representatives OF the brewers that
they would have TO start separate &C
tions at law and would not be allowed
TO Join as compliments in the present
case in the event that they decided to
night out the issue in court.
Tho papers filed yesterday are in the
nature of a bill in equity, signed and
sttested by William Hoffman, as presi-
dent Of the complaining company. Elihu
Root. William D. Guthrie and William
L. Marbury are counsel for the COM
plainant. The bill recues the following
preliminary facts:
The company was incorporated in
1887. succeeding the brewing business
established in 1857 by Jacob Hoffman,
All its officers and directors are citizens
of this State.
Business Plans Outlined.
1t has outstanding capital stock o!
It's business in the manufacture and sale
of beers and other malt liquors prior
to January l, 1918, amounted to $1,000
900 a year. The company owns foul
parcels OF real estate in the city, which
are used for its brewery business and
have an aggregate assessed Valuation
Of s411,00o. Its plant and other per
sonal property have present boob
value in excess of S750.000.
During the last three years it has
sold its wares to 255 customers each
year and during that. period 1t solo
the following number of barrels: II
1916 171,7s2, 1895 in 1917 and 49,
$50 in 1918. 1t employs more than sew
enty men, with a total monthly payroll
Of $4,000. The average net profit
during the three year period we're ap'
proximately $4,000 per annum.
The bill does not call into question
the Eighteenth Amendment TO the Con
stitution.
In addition to asserting that the sign
ing of the armistice--a copy Of which Il
appended--removed the necessity fol
conserving cereals EHd gTGiTR 10 cara
on the war, and that regulations ISSUED
since that time are in no sense act
FOR the national defence" the bill o
complaints AYERS: That beers ant
other malt liquors which contain no
TO exceed 2% pei cent. OF alcohol b!
weight are not in fact intoxicating whei
used for beverage purposes, and there
fore were not and are not within thu
intent, scope and purview OF the salt
act of Congress OF November 81. 1918
as will fully appear by reference to thu
terms and provisions OF section of salt
act and that all and singular the bee
manufactured and sold by complainant
since August 10. 1917, has contained
not to exceed IN per cent. OF aicoho
by weight, which Is equivalent TO g.
per cent. by volume.
Intent of Act shown.
complainant Ia advised by counsel
and therefore AYERS that according Il
the true intent and meaning Of said &C
of Congress- OF November Fl, 1918, tn
manufacture and sale Of non-intoxicat
3nE beers or other Notwithstanding NAL
liouov for beyAraRe purposes were no