The Wheeling intelligencer. [volume] (Wheeling, W. Va.) 1903-1961, 1919-06-27
MODIFY ORDER
AGAINST BEER /:
IN n. !. COURT.
ATTORNEYS DIFFER !
ON ORDERS EFFECT.
Council For Breewrs Claim A.
-VictoryFederal Counsel ;.
Says They Are Wrong (

NEW YORK, June -26-AttorneyS. tor
both the brewers and tho federal gev<
ernmcnt claimed tonight to have eain19
victory through an opinion handed
down by the United States circuit court
Of appeals. modifying 'Sdge. Aeyer.a
preliminary injunction against intsRs
ference with or prosecution for tfie. pscs7
duction and sale Of beer containing not;
more than 2.75 per cent alcoholic con-.
tent. ......-ft.
The original order restrained RicAaT1
]. McElligott acting collector ofstnter.
nal revenue, from interfering With the
manufacture or sale Of 2.76 per cent
beer. pending q legal decision a. 70
whether 1t was Intoxicating" It also
forbade United States Attorney Ffancaa
G.. Caffey from prosecuting tho bHeWNsp
and retailers Of such beer. The A.
pellate court court decision strikes oya'
the injunction. "pendente lite" 4SainAe
the federal prosecutor. making Il poes
sible for him to proceed as he sees hts
hut continues In force the in3unctieH
against McElligott. regarding whom thR
court makes this observation:
THE Injunction against the acting
collector Of internal revenue can do M
a
HARM" - )
brewing interests. declared the apDelE
late court decision was cleAr, rtetoSV
for his clients, and that the ft1nt ~
manufacture and sell 2.7s per can't 49,
after July / was assured. The hfSveSe
/ were ready to prove, he said. that boef
OF that potentcy was ''non-intoxioatine.H
and It was now up to the courts TO dos
eide whether wartime prohibition fota
bade the sale Of ali bear. or merely tHS.
| toxicating beer.
Cornelius J. smyth. ASSISTANT uhitsd
| States. district attorney. one Sf4the
| drafters Of the governrneAt'G ostef - thA
! pending litigation. rnaintAtnOd Aet ths
| appellate court decision rave the nveWs-
| ers less Of an advantage -than thoZ poer
.essed under the original injuncti6ncdt
, characterized Al optimistic" tAe Staee:
nents by counsel for the brewers thsn>
the latter could continue nanuftetr
275 per cent beer. i
! The decision ne pointed out, v II
not exempt tho brewers or retANeeA
from prosecution under the federal VA:
, time prohibition act, which provides =
years Imprisonment or $1,000 ina %
both, in event Of conviction. Z
Judge Housh. one Of tho appaiiate
Judges. in a partly d1Esanttng opinion
| said: ...a ~
The wrong hero complained Of W.
and Is that Of Tho internal revenue 81
partment Of the treasury. UDdee LAVE
in force long before 1918 every 6feNtff
individually. brewed on suferanes of the
commissioner. As July I. 1918. ~.
preached, that official threatenod 70 ~
fuse the licenses and stamps witho~l
which browing Is absolutely Illicit as11
subject the brewer to conhsestoty pre-
ceedings and penalties Of extreme SsSeP.
ity. The plain intent was to enforce o.
strained construction Of the act Of No-.
vember 81, 1918. by preventing br0Wsfs.
from complying with pre-existn1 ana
unrcpcalcd laws. ..', y
SO far as can now see, the inJunot
ton against the acting collector STOW
; that plan. and regard tho relief obtaiA-
ed below against the United States at
torney as in effect preventing that ofa-
cial from asking at the hands Of Eran4
jury indictments for offenBeS created
only by the act Of November q tt0el&t
Such possible indictments would not IL.
voivc preliminary seiIure Of plant an1
tools and they should be left to the1a
! course at common law except under ciDs
cumstances Of extreme necessity not hefa
shown. This dissent then 10 limited 70
the rcaso Unassigned for . result to which
/ agree"
Judge Rogers, who Joined with Jpdg0
Hough in a partial dissent, Discussed
the question Of "non-fntoxicatinH' beae.
He said that for more than 20 years tho
department Of internal revenue has treat.
ed beer containing one-half Of PER cent
or more Of alcohol as malt liquor and
that during that time the brewers Of the
country had acouiesced in that de1)oi.
ton. Congress had not yet defined
what percentage Of alcohol made beer
Intoxicating" he said. but It was reas-
enable to expect II would do %. >,
But in the absence Of some de6nits
legislation" said Judge ROBBERS, the
meaning Of the term intoxicating liquort
must he a question Of fact and not ,of,
law. The court cannot undertake to ~,
as A matter Of law. that liquor which I!
contained 2.7s per cent Of alcohol ~
weight is not Intoxicating" t'