New-York tribune., 1919-06-18
Alcoholic Content Unin1-
portant, Says Col. Caffey,
Since Congress Prohibited
Its Manufacture by Name
Judges Reserve Decision
Messrs. Root and Guthrie
Present Arguments and
File Briefs With Court

tOrney FRANCIS U. carey presented
the governments side yesterday in the
United States Circuit Court in the
suit of the brewers, designed to pre-
vent interference with the manu-
facture of 2&l per cent beer. Mr.. Caf-
fey and Richard J. McElligott, charged
with enforcing the dry laws, appealed
from the decision of the Federal Dis
trict Court granting preliminary in
functions to the brewers.
After hearing the argument, Judges
Ward, Hough and Rogers reserved de-
rsion. Regardless of their decision,
,he case will be taken to the United
statcs Supreme Court. The decision
cf the Circuit Court is expected be-
fore July l.
The Jacob Hoffman Brewing Com
pany, the Clausen Flanagan Brewery
and the other complainants behind
shese test cases were represented by
h.ihu Root and William D. Guthrie.
Besides Colonel Caffey, the govern
lnent was represented by William
Fits, Assistant Attorney General, and
Assistant United States Attorneys
Vincent RothweIl and Cornelius j.
Smith Each side was given two and
one-half hours for argument.
Can't Be Enjoined
Colonel Catley argued that the Fed
eral District Court was without power
to grant an injunction to enjoin him
as United States Attorney. He asserted
that there was no invasion of property
rights by the United States Attorney
and no proof had been submitted to
indicate that he contemplated any such
invasion as alleged in the complaint.
II>o further declared that the bill of
complaint failed to show any ground
for the interpositinn Of equity and
should have been dismissed by the
lower court
Colonel Caffey spoke Of the quasi
judicial functions of the United States
Attorney, and declared Federal prose
cutting officer had never been restrained
by injunction unless he had acted un-
der statute that was unconstitutional.
Judge Hough at this point inter
rupted the speaker and asked for en-
lightenment. The prosecutor quoted
cases and decisions to substantiate his
position. Continuing, Colonel Cafey
said:
The act of November 81, 1918, prop
erly construed, applies to all beer The
contention Of the government is that
beer and wines are prohibited articles,
whether Intoxicating or not. The words
beer and wine as used in this statute
must be taken in their ordinary signifi-
canoe, which denotes beverages having
some alcoholic content. 1t may safely
be assumed that these words were in
tended by Congress to have a certain
and definite meaning.
Reasons for Reversal
"We respectfully submit that the de-
crees awarding the injunctions are
erroneous and should be reversed" said
Colonel Caffey.
First, because the bills are wanting
in those elements Of equity which can
support the proceedings and ultimately
entltle the complainants TO the relief
prayed.
Second, because, on the facts as
they were made to appear at the time of
the orders appealed from, there was not
only no necessity for the issuance Of
the preliminary writs of injunction, but
the same were inprovidentty and er-
roneousiy granted"
Referring to~the contention of the
brewers that 2.75 per cent beer was
not Intoxicating Colonel CaFey de-
clared that, however slight its alco-
holic content, if person drank
enough of it it would prove intoxicat-
ing. All the afhdavits submitted bv
the brewers designed to show that
thelr product was a Notwithstanding
beverage were evidence that beer is
poison, Colonel Caffey argued
| The complainants' afidavits,r he
sald, proceed upon the erroneous no.
| ton that when a human being is
shown to have been once completely
| flled with beer and able ito carry it
without lntoXlcatlon the innocence OF
the beverage is thereby conclusively
established They make no allowance
for the fact, after all is said and done,
that alcohol is indisputably and dis
tlnctly q poison.
Habit Forming Poison
'They do not take into account that
alcohol is habit forming poison and
that the disposition Of one to be re-
filled with the beverage will reassert
itself and that from the oft repeated
drinking the system will imbibe more
and more of the poison Thus the blood
and tissues will become soaked with it,
thereby producing a condition in which
the user may never be quite visibly in
foxlcated, but is constantly saturated
Mr. Guthrie, for the brewers, said his
Clients not only face lrrext, but also
the seizure OF their plants if Attorney
General Palmer carries out his threat
10 enforce the law before the courts
nave rendered their final decision in
the actions now pending After telling
OF the indictment of brewers in Balti-
more and Philadelphia for making 2as
per cent beer, Mr.. Guthrie called NJ
tentlon to the fact that the Collector of
Internal Revenue in Chicago had de-
ciared that he viii not issue starnps or
grant licenses to brewers after .Iulv
IN his district.
Guthrie Uses Some Figures
Mr.. Guthrie declared that the 1880
establishments now engaged in the
manufacture of malt liquors employ
1000 persons and paid taxes to the
United States in the year ended Juno
~. 1913, amounting to sl2s,235.857. He
said under the present tax of ss
barrel, their tax for 1919 would be
| S201,722,7 2,72G.
The truth ss," said Mr.. Guthrie
That we arc being selected for sacri-
fice under the plea of war measures