The sun. [volume] (New York [N.Y.]) 1916-1920, 1919-03-16
Elihu Root Appears as
Counsel for Joseph E.
Everard.
BIG ISSUE rs MADE
Attack on Measure Begun
i'm g. S. Court on Consti-
tutiOnal Grounds.
WAR PHASE Is INVOLVED
Making Of Beverage Contain
ing 2 81 Per Cent. Alcohol
the Main Issue.
WAR PHASE Is INVOLVED

The constitutionality of the act Of
Congress OF November 21, 1918, which
Incorporated into the food law the pro-
vision which will make the country
dry on next July /. is attacked in an
action begun yesterday in the United
States District Court. and at the same
time the court is asked to rule
whether malt liquor containing no
more than 2& per cent. alcohol is an
intoxicant within the meaning and
contemplation Of the act.
The suit Is brought by Joseph E.
Everard, naming the board of direc-
tors OF the James Everard Breweries
corporation as defendants and alleging
that at meeting held last Thursday
hey voted not to continue the bust
ness OF brewing after June 80, 1919.
He asks the equitable relief Of an or
der restraining them from closing the
oreweries, declaring that II they sus-
pend their plant and equipment will
become of so little money value as to
leave him without remedy at law. His
attorneys of record are Guthrie, Bangs
G. Van Sinderen, but the name OF Elihu
Root appears as OF counsel on the bill
Of complaint, and 1t is assumed that
he will represent the plaintiff upon his
day in court.
The defendants are all interested with
the complaint in the brewing and vend-
ing OF malt liquors, and the complaint
carries no inference that they are likely
TO put UP a spirited contest or that they
may be expected 10 stand In the plain
tits way Of an early trial The com
plant asks that they be directed to an
swer. .'but not under oath. the answer
under oath OF each Of them being hereby
expressly waived"
What Is an Intoxicantf
That part of the complaint which is not
taken up with a recital Of facts neces-
sary to establish a cause of action and
recital OF the grounds upon which
plaintiff considers himself entitled to
equitable relief Is devoted wholly &c
raising the question of fact as TO what
constitutes an intoXicant, and the ques-
ton of law whether the act of November
II, 1915, passed ten days after the
arrIstice, is an invasion of the plain
tiffs constitutional right to brew mali
liquor.
Copies OF the armistice. of the Law
complained of and Of President Wilson'S
address TO Congress following the armis'
tice are attached to the complaint az
exhibits. In an early paragraph The
complaint sets forth
This is a suit Of civil nature aris
ing under the Constitution and laws o
the United States and presents con
troversy between citizens of differen
states. The suit is brought In gooC
faith and is not a colusive one to confer
on a court OF the United States turis
diction of n case of which said cour
would not otherwise have jurisdiction
or cognizance."
Demands Continuance OF Business
Setting forth in the next instance tina
the Everard brewing business was incor
porated in 1895, owns three large par
cells OF real estate wholly devoted e
brewing, has done an average bushes
of $1,50O,000 n year and last year pait
$3622eo In Federal and S156,549 II
State liquor taxes, 1t goes on to say:
"Since the enactment and approval o
the act OF Congress OF November 81
1918. and the making and publication o
said regulations or decisions of the Com
missioner Of Internal Revenue. the com
r,la has heaD ipfnFT1nnd and Npril'
believes that the defendants herein hav
declared theiT purpose and Intentions.
cease and suspend the business OF tn
corporation from and after May |, 1915
until the termination of the demobiliza
ton of the United States army and navy
as the same may be and when deter
mined and proclaimed by the Presiden
OF the United States, because OF tn
terms provisions and penalties con
tained in said act of Congress OF Novem
Der 81, 1918. and said regulations or de
cisions OF the Commissioner OF Interna
Revenue and the penalties of 1ne an
imprisonment imposed in and by sal
act.
complainant alleges that IL the de
PENDANTS should carry out their said pur
pose and intention. the valuable bushes
and good will OF the defendant corpora
tion will be destroyed, future profit
therefrom will be rendered impossible
the value OF the property Of the defend
ant corporation as going concern wi
he disslpated, its business and staff wi
be disorganiZed, and the value of Il
plant and physical assets be at once ds
preciated TO its junk or salvage valu
only. to the great and irreparable In
Jury and damage of the defendant col
poration and Its stockholders. and sue
injury and damage would be incapable {
being admeasured and adjudicated In a
action at law. The next annual meetin
of the stockholders Is to be held Januar
/. 1920. II would therefore be futll
for the complainant to seek relief at
stockholders meeting.
Claims Exemption Under Act.
Complaint is Informed and verify bt
lieves that beers and malt liquors whic