Evening journal., 1919-06-27
BREWERS GAIN ON
COURT DECISION
Attorney Says i, Means
They May Make 2 3-4
Per Cent Beer
QUESTION TO BE
FOUGHT ON MERITS

NEW YORK. June 27.-By a decision
handed down yesterday by the United
states Circuit Court Of Appeals the con
siitutionaity Of the war time prohibi-
tion measure. as the rider TO the so
called food stimulation bill is popularity
known. was sustained and 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 VI,
Hough. On certain phases Of the opin-
ion Judge Henry w Rogers dlssented.
BY the opinion, from which there ap-
pears little opportunity FOR the brewers
10 appeal effectively before the national
prohibition amendment becomes opera
tive next January. the question Of
whether 2.75 per cent beer Is intoXcat-
ing and may be sold becomes a matter
OF fact for decision by a jury and not
a question Of law.
Legal representatives Of the brewing
interests declared last night that the
decision was a distinct victory for them
In this respect, while. on the other
hand Francis G. Caffey, United States
Attorney, held that the government had
won in that the implied attempt Of
the brewers 10 exempt themselves
from prosecution for the manufacture
and sale Of beer with an alcoholic
content Of 2.75 per cent had been de-
feated
The opinion modines the recent order
OF Federal Judge julius NJ Mayer
which temporarily restrained United
States Attorney Caffey from prosecuting
alleged violations Of the law and also
restrained Richard J McElligott, acting
and Deputy Collector Of Internal Rev
enue, from refusing 10 issue Federal
tax stamps and licenses for the period
subsequent TO June 30
The chief features Of the Circuit
Court Of Appeals decision are that IL
establishes:
T. That the Federal District Attor-
ney cannot be enioined from prosecut-
ing alleged offenders.
2. The constitutonality OF the war
time prohibition measure, thereby
sounding the death knell for traffic in
hard liquors.
3. That the determination % what
proportion OF alcoholic content makes !
beer intoxicating is a matter for jury
decision on fact
Much difference Of opinion was ex-
pressed In legal circles last night as
90 whether the decision would prove
OF greater advantage to the VETS than
the drys. In his argument and briefs
opposing the application for the tenn
porary order restraining him from
prosecuting Mr.. Caffey did contend
that beverages with any alcoholic con-
tent whatever were intoxicating and
came within the purview OF the law.
To the extent that this opinion is de
clared erroneous the decision Is a VIC
tory for the brewing interests. But
inasmuch as the litigation Is regard
ed as an attempt 10 achieve for them
selves immunity from prosecution the
brewers appear toN have lost
Z Emery r. Buckner Of counsel for
the Jacob Honmsnn Brewing Com
pany which with the Clausen-Flana- !
gan Brewery and Jacob Rupert are
the complainsnts, made the following |
statement:
"The decision Of the Circuit Court Of
Appeals upholds the contention OF the
brewers that they are permitted TO
u
teniion OF the District Attorney was
that the war prohibition statute for
bids any kind Of beer even though II
is non-intoXicating This contention
has now been negatived by the Ap-
peliate Court.
Eve are now free 10 try out IN the
United states District Court the ques-
ton whether or not the so-called war
beer which contains not more than
275 per cent Of alcohol, Is intoXicat-
ing. The position Of the brewers has
an along been that this war beer is
non-.ntoxicsting The brewers attor-
ney stated in court that they were
ready at any time TO try out this ques-
tion OF fact
"The appellate court has affirmed
the decision Of the District Court not
only on the question or the construc-
tion Of the wartime prob 10 tion
Statute. which was the important point
In the case. but also OF the technical
point OF the right 10 have the Col
lecior Of Internal Revenue enloined.
"Another technical point in the case
involved the right TO have an injunc-
ton against the district attorney. On
this point it was held that under the
plea in these cases such an Injunction
was not ohtainable
"0n the merits Of the case the deci-
sion Of the Circuit Court Of Appeals Is
victory for the brewers
Brewers Liable 10 Prosecution.
The effect Of the decision Is to
leave the constitutionality OF the
statute unquestioned, which means that
brewers who have manufactured 275
per cent. beer since April 80 and re-
tailers who may sell - after June 80
are liable TO prosecution as yiolators
Of the law
The counsel for the brewing inter
ests exhibited particular interest and /
admittedly attached much Importance !
to a paragraph In the prevailing opin- /
ion written by Judge Ward which said |
I'VE are sure that the United states /
Attorney Will cooperate with the COM |
plainants 10 have the question involved /
determined as speedily and in the mean |
time with as little Interference with /
their business as possible"
This the brewers We're inclined 10 |
cOnstrue as a suggestion TO the district /
attorney 10 bring a test case in which |
the intoxicating poteniialitv Of 2.75 per /
cent beer might be established in fact /
with as little delay as possible. This |
development may, therefore, be eX- /
pecfed 10 follow an arrest and indict- [
ment Of at least one brewer for the
Of 275 per cent. beer since
April 80 and a similar action with re-
'pect 10 retailers who may continue to
'ell the article after June 80.
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