New-York tribune., 1919-05-18
Brewers Win
First Slzirnnish
In Legal Fight
Judge Hand Decides That
War Act Prohibits Making
of Only Such Beer as
Is Actually Intoxicating

Anti-prohibition forces Yesterday
won the first step in their fight to pre-
vent the government from prosecuting
-he manufacturers of 2.75 per cent beer
under the wartime prohibition act.
which prohibits the making of "beer,
wine or other intoxicating malt or
vinous liquors" after May 1 until the
conclusion of the war.
The victory was a decision in the
Federal District Court by Judge Au-
gustus N. Hand that wartime prohibi-
ton forbids only the manufacture and
sale of beer that "is in fact intoxi-
eating"
Judge Hand rendered this decision
in denying the motions of United
States District Attorney Francis G.
Caffey and Richard j. McElligott, act
ing Internal Revenue Collector here
for dismissal Of the Jacob Hoffman,
Brewing Companys plea for an injrnc-
tion restraining the Federal officials
from interfering with the manufacture
of beer containing 275 per cent of
alcohol.
Only Intoxicating Liquor
The Hoffman, case was a test suit,
brought by the law firm of Root, Clark.
Buckner & Howland in behalf of 1900
members of the United States Brewers
Association, who have continued the
manufacture of 2.75 beer despite the
Federal statue, maintaining that this
type Of beer was not Intoxicating and
that the wartime prohibition act was
aimed only against beer which was
actually so.
Judge Hand upheld the brsweYs ~
Ihis latter contention, although he re-
marked that the "question whether
peer having 2.75 per cent alcohol is
Intoxicating is not before me for de-
cision''
Emory r. Buckner, of the brewers
counsel, declared, however, that Judge
Hands decision opened the way for the
brewers to 60 into the same court here
next Friday in an attempt to prove
by expert testimony that actual tests
by chemists, physicians and employers
of labor have shown that 2.75 beer is
not intoxicating.
Can Now Get Injunction
Should the court agree with us in
our contention we will get our in
junction and the Federal authorities will
not be able to interfere with the manu-
facture of 2.75 per cent beer, which the
brewers have been making since 1918
under the Presidents conservation
proclamation stating that beer was to
contain that amount of said alcohol"
said the lawyer. eve have had aff-
davits on file to prove this, but we're
waiting for the court to decide that
the wartime prohibition act applied
only to actually intoxicating liquors.
Now we'll 60 ahead with the proof
of this contention"
Among the aff1davits is one from Dr..
Hobart A. Hare, professor in the JEFF
fsrson Medical College, of Phila-
delphia, who based his judgment on
the Notwithstanding qualities Of 2.75
beer on a series Of special experiments,
and another from DR.. Smith Ely Jel-
life, neurologist, who attestcd to the
browers' contention, on the basis Of
research and experiment.
Physicians Back Brewers
DR.. Augustus j. Mitchell, assistant
police surgeon in Newark; DR.. James
j. Walsh and DR.. Frank A. MCGUIRE,
Visiting physician at the Tombs, are
among other medical men who deny
that 2.76 beer can intoxicate.
Employers of labor who make similar
statements on the basis of observa-
tions Of men under them include Rob
ert B. Haywood, president Of the Hey
wood, Strasser & Voight Lithograph
Company; Henry Berg, vice-president
of +. Berg & Co., hat manufacturers, of
Orange, N. j., and Llcyd r. Gear.
superintendent Of the factory Of s. M.
Frank q Co., smoking pipe manu-
facturcrs, Of this city.
Judge Hands decision IL Ia direct
contradiction Of the stand on tho beer
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