New-York tribune., 1919-05-18

sumption of food, but to in
crease the production Of all things
which might contribute to national ef-
fciency by prohibiting intoxicants
Only Against lntoxicants
"To single out Notwithstanding beer
for prohibition and leave non-intox-
icating ale, stout and porter to be
manufactured and sold would involve
construction Of the act too unrca-
sonable to be entertained" read an
other section of the decision.
ut is also to be observed that :he
provisions of the act as to importa-
ton provide that No distilled, malt,
vinous or other intoxicating liquors
shall be imported 1t is not contend
ed, as | believe, that the word malt
in this clause is not qualified by 'in-
toxicating, and yet this clause is in
the same act as the clause under con-
sideration, and both should indubita-
bly, be construed in the same way
If the word beer does not mean in
toxicating beer no meaning is given
to the word other preceding the words
Intoxicating malt or vinous liquors,
and the entire prohibition act is rem
dered inconsistent and the meaning
of the words forced and unnatural.
"Where a statute is intended to pro-
hibit the use of liquors, in themselves
harmless, it can easily say so in un-
mistakable terms and will be unheld
by the courts. This was clearly done
by the President in his proclamation
of September 49, 1918.
Courts Bear Out Construction
II think it can be fairly said that the
general rules Of construction enun-
ciated by the United States Courts
bear out the Interpretation of the
statute, which / have arrived at. The
results which the state courts have
reached in interpreting their liquor
laws have been most divergent but
their decisions furnish abundant
authority for the construction | have
adopted, and the reasons for it ap-
pearing in the act itself seem to me
most convincing.
"The matter as to which | have had
the most serious question is whether
suit will lie against the United States
Attorney, and at the slime of
the argument, l did not think the de-
cisions of the Supreme Court had gone
as far as find, by examination, that
they have. 1t is undoubtedly true that
if chancery can in the protection of
business and property determine what
beer shall be regarded as Intoxicating
court by means of it's injunctive
powers may in effect prevent the
prosecution for crime of persons who
manufacture or sell liquor of an
alcoholic content, which the court has
determined to be Notwithstanding. and
may consequently deprive the govern
ment of the right to submit to a jury
the question whether beer is intoxi-
eating which does nod fail within the
judicial definition Of that term.
"But some tribunal must render the
decision, and it would seem at least
to make for uniformity if the stand
ard to be applied is not left to depend
upon the varying verdicts of juries in
numberless criminal actions. The
method of decision sought to be en-
ployed is calculated to render the law
certain and to apprize the persons Of
their precise rights.
ut is unnecessary to say that the
determination by court of chancery
would deprive no defendant charged
with a violation of the statute of a
right to have jury pass on whether
the liquor he manufactured or sold
was in fact intoxicating. 1t would
only inhibt prosecution in a certain
class OF cases where the alcoholic con-
tent had been decided by the courts
to be insufficient to bring the liquor
within the provisions of the act.
1T is unnecessary to say that the
question whether beer having 2.75 per
cent of alcohol is intoxicating is not
before me for decision.
Denies Motive to Dismiss
"The bill of complaint alleges that
such beer is not Intoxicating and the
motion by the United States Attorney
and the acting collector seeks to dis
miss it on the ground that even if this
is so the complainant has no right
to restrain these officials from en-
forcing the act of November 81, 1918.
because the complainant is forbidden
by the statute to brew any beer
whether intoxicating or not and be-
cause in the case of the United States
Attorney no suit against him can
properly be brought
"For the reasons l have given am
Of the opinion that the act only pro
hibits the manufacture and sale of
beer that Is in fact intoxicating and
that upon the allegations of the bill
both defendants are subject to suit.
"The motion to dismiss Is therefore