The sun. [volume] (New York [N.Y.]) 1916-1920, 1919-06-27
WAR TIME DRY
LAWS LEGALITY
ISSUSTAINED
Court Of Appeals Decision
Makes Brewers Liable
to Prosecution.
VETS WIN ONE POINT
Judges Rule Jury Should De-
eide Whether 2.75 Beer Is
intoxicating.
VETS WIN ONE POINT

ny ueCision uhHuco uOWu ytsteT-
day by tho United States Circuit Court
Of Appeals the constitutionality of the
war time prohibition measure, az the
rider to the so-called food stimulation
bill is popularity known, was sustained
ard the way opened for the Federal
District Attorney to prosecute alleged
violations Of the law.
The opinion was written by Judge
Henry G. Ward and was concurred in
for the most part by Judge Charles NJ
Hough. On certain phases of the opin-
ion Judge Henry w. Rogers dissented.
By the opinion. from which there ap-
pc ars little opportunity for the brewers
to appeal effectively before the ma
tional prohibition amendment becomes
operative next January. the Question
Of whether 2.75 per cent. beer is in
toxicating and may be sold becomes a
matter Of fact for decision by jury
and not question OF law.
Legal representatives Of the brewing
interests declared last night that the
decision was distinct victory for them
In this respect, while, on the other
hand. Francis @. Carey. United States
Attorney. held. that the Government
had won in that the implied attempt
Of the brewers to exempt themselves
from prosecution for the manufacture
and sale Of beer with an alcoholic con-
tent Of 2.75 per cent. had been de-
feated.
The opinion modifies the recent or
der of Federal Judge julius N. Mayer
which temporarily restrained United
States Attorney Caffey from prosecut-
ing alleged violations Of the law and
also restrained Richard J. McElligott.
acting and Deputy Collector Of Inter-
nal Revenue, from refusing to issue
Federal tax stamps and licenses for
tho period subsequent to June 80.
Features of the Decision.
The chief features Of the Circuit Court
Of Appeals decision are that 1t estab-
fishes:
1. That the Federal District Attorney
cannot he eajoined from prosecuting nj.
legged offenders.
2. The eonstitutionality OF the wartime
prohibition measure, thereby sounding
the death knelI for traffic in hard liquors.
3. That the determination OF what
proportion OF alcoholic content makes
beer intoxicating is matter for jury
decision on fact.
Much difference of opinion was ex-
pressed in legal circles last night as TO
whether the decision would prove OF
greater advantage to the vets than the
crys. In his argument and briefs oppos-
ing the application for the temporary
order restraining him from prosecuting
Mr.. Caffey did contend that beverages
with any alcoholic content whatever
were intoxicating and came within the
purview of the law. To the extent that
this opinion is declared erroneous the
decision Is a victory for the brewing in
terests. But inasmuch as the litigation
Is regarded as ansattempt to achieve for
themselves immunity from prosecution
the brewers appear TO have lost.
Emery r. Buckner of counsel for the
Jacob Hoffman, Brewing Company,
which with the Clausen- Flanagan Brew
cry and Jacob Rupert are the COM
plainants, made the following statement:
The decision Of the Circuit Court Of
Appeals upholds the contention OF the
brewers that they are permitted to sell
non-intoxicating beer The contention
OF tho District Attorney was that the
war prohibition statute forbids any kind
Of beer even though II is non-intoxicat-
ing. This contention has now been Mega
lived by the Appellate Court
I'VE are now free to try out in the
United States District Court the Ques-
tion whether or not the so-called war
beer, which contains not more than 2.7b
per cent. OF alcohol, Is Intoxicating. The
position of the brewers has all along
been that this war beer Is non-intoxicat-
ling. The brewers attorney stated in
court that they were ready at any time
TO try out this question OF fact.
THE Appellate Court has affirmed the
decision OF the District Court not only on
the question OF the construction of the
war time prohibition statute, which was
the important point in tho case. but also
on the technical point OF the right to have
the Collector Of Internal Revenue en-
Joined
Another technical point in the case
involved the right to have an injunction
against the Distrit Attorney. On this
pOiIt u Noo hoio that tno pleA III
these cases such an injunction was not
obtainable.
"On the merits OF the case the decision
| of the Circuit Court OF Appeals is a VIC
tory for the brewers.
Brewers Liable to Prosecution.
The effect Of the decision is to leave
the constitutionality OF the statute un-
! questioned. which means that brewers
who have manufactured 2.76 per cent
bear ainca ApTil 30 and retailars uhn