Omaha daily bee., 1919-06-27
Brewers Confident
Right to Make Beer
Will Be Affirmed

the brewing interests, declared the
appellate court decision was clear
victory for his clients and that the
right to manufacture and sell 2.75
per cent beer after July l, was as
sured.' The brewers were ready to
prove, he said, that beer of that po-
tency was Notwithstanding" and it
was now up to the courts to decide
whether wartime prohibition forbade
the sale of all beer or merely intox-
eating beer.
Cornelius J. Smyth, assistant
United States district attorney, one
of the drafters of the governments
brief in the pending litigation. main
tanned the appellate court decision
gave the brewers less Of an advan-
tage than they possessed under che
original injunction. He character
lied as Optimistic" the statements
by counsel for the brewers that the
latter could continue manufacturing
us per cent beer. The decision,
he pointed out, would not exempt
the brewers or retailers from prose-
cution under the federal wartim.
prohibition act, which provides
years Imprisonment or $1,000 fine,
or both, in event of conviction.
Judge Hough, one of the appei-
late judges, in partly dissenting
opinion, said:
"The wrong here complained Of
was and is that of the internal reve-
nue department of the treasury
Under the laws in force long be.
fore 1918, every brewer individually
brewed on suffrance of the COM
missioner. As July |, 1919, ap-
preached, that official threatened to
refuse the licenses and stamps with
out which brewing is absolutely il
licit and subjects the brewer to CON-
fiscatory proceedings and penalties
of extreme severity. The plain in.
tent was to enforce a strained con-
struction of the act of November
II, 1918, by preventing brewers
from complying with pre-existing
and unrepealed laws.
Cannot Ask Indictments.
$50 far as I can now see. the in
junction against the acting col
lector stops that plan and l regard
the relief obtained below against
the United States attorney as in at
feet preventing that official from
asking at the hands of grand jury
indictments for offenses created
only by the act of November 81,
itself. Such possible indictments
would not involve preliminary
seizure Of plant and tools and they
should be left to their course at
common law except under circun-
stances of extreme necessity not
here shown. This dissent then, is
limited to the reason assigned for
a result to which l agree"
Judge Rogers, who joined with
Judge Hough in a partial dissent,
discussed the question of mon
Intoxicating" beer He said that for
more than 20 years the department
of internal revenue had treated
beer containing one-half per cent or
more of alcohol as malt liquor
and that during that time the brew
ers of the country had asquiesced
in that definition. Congress had not
yet defined what per cent of alcohol
made beer Intoxicating" he said,
but it was reasonable to expect it
would do so.
But in the absence of some
definite legislation" said Judge
Rogers, "the meaning of the term
Intoxicating liquors must be
question of fact and not of law. The
court cannot undertake to say, as
a matter of law, that liquor which
contained us per cent of alcohol
by weight is not Intoxicating.