Evening journal., 1919-06-27

upon its own consent. Such consent Il
has given by various statutes which do
not apply 10 the case under considera-
ton. There Is no difference between
the States and the United States in re-
spect 10 this immunity from suit It is
an attribute OF every sovereign. recog-
nlzed by all sovereigns. A criminal suit
in the federal courts must be brought
In the name OF the United STATES and
can only be brought by the United
states attorney.
"A suit in equity 10 eninin the United
States attorney from instituting crimi-
nal proceedings under q statute Of the
United States is manfestly a suit
against the United States. In such a
case the United States is sued as ef-
feciively as II 1t were a defendant by
name ~
There Is. however a well recognized
exception 10 the rule, viz. II property
rights are invaded and the statute in
question is unconstitutional 10 Is void.
Is 10 be treated as nOn-exisient and
so no defense 10 the United States at
torney When instituting criminal pro
ceedings under IL is TO be regarded
not as representing the United States
In his official capacity but as acting in
dvidually.
Both Conditions Necessary.
$50 II, under a valid statute. he threat
ems TO proceed in a manner Injurious
10 complainants property rights and
not authorized by the statute. ne tran
scends his authority does not represent
the United States. is not protected by
the statute and may be enioined. IRE
parable injury alone Is not enough
Bom these conditions must exist. OBJ
Nlously In such cases the constitution
atty Of the statute or the question
whether the United States attorney
mas transcended his authority must be
determined by the court before 10 can
determine whether the particular suit
Is or IS not against the United Stales.
Mihough We concur in the CON
sruction Of the statute by the court
below and assume that the United
states Attorney will institute criminal
proceedings, we do not think the court
had power TO stay him by Injunction
from doing so. The proper place for
determining whether such criminal
proceedings are mainiainable is not in
a court OF equity. but upon an indici-
ment tried IN a criminal court before
a jury. For any error then commit
ted there will be an adequate remedy
by writ Of error.
'Ne recognize the Importance OF the
interests at stake and that the rom-
painants and others in like case. II
not content 10 manufacture beer con-
tanning an alcoholic content not equal |
ling or exceeding one-half OF 1 per
cent by volume. must choose be- |
tween disseminating their business or |
carrying 10 on at the risk Of punish |
nent under the act Of November 2i |
1915 II they continue after May 1. 1919 /
10 manufacture and after June 81.
1919 10 sell beer containing not more
han 2.75 per cent. Of alcohol by
weight.
"The question. however, Is not one
" convenience or OF discretion. but
VI the power Of the court and we
hink such an extension 0f judicial
power. TO meet what seems TO be 4
lard case. 10 the domain OF the eXecu-
i've department and OF the courts Of
common law would be an injury 10 II
,ur system Of jurisprudence slill mtre
Judge Rogers concurs with his as
sociates in general, except that he CON
rludes that the suit also should be dis
missed against the collector. In regard |
TO the percentage Of alcohol that makes |
a beverage intoxicating he said
I'm a number Of States the statutes |
prohibit the use 81 all alcoholic |
liquors for beverage purposes. In a
large number the standard Of an in |
toXicating beverage is fixed at one-half |
Of per cent And for nearly 20 years /
the Bureau OF Internal Revenue has |