New-York tribune., 1919-06-27

signed to restrain that official from in
terfering with the monufacture and
sale of the beverage, which the brewers
contend is Misunderstanding:
Yesterday, by the prevailing decision
of Judge Henry G. Ward. of the United
States Circuit Court of Appeals, the in
junction granted to the brewers re-
straining United States Attorney Fran
els G. Caffey and Collector McElligott
and sale of the 2.75 beer was modified
by striking out the temporary injunc-
tion against Colonel Caffey. The in
junction as granted by Federal Judge
julius NJ. Mayer restrained the prose-
cutor from proceeding against the
brewers under. the war prohibition act.
Now that this restraining instrument
has been removed it is expected that
Colonel Caffey will start prosecution
against, some of the brewers as a test.
He declined to say yesterday what ac-
tion he contemplated.
Is Victory for Brewers
Emory R. Buckner, Of counsel for the
brewing interests, asserted last night
must be construed as victory for his
clients. He explained that he and his
colleagues were not concerned much
with the modification of the order dis
solving the restraining instrument as
against Colonel Caffey.
"The only real issue left in the liti-
cation which the courts must decide is
whether wartime prohibition prohibits
the sale of all beer or merely intoxi-
eating beer," said Mr.. Buckner. eve
have contended from the beginning
that the 2.75 per cent beer is not in
toxicating, and we will be able to es-
tablish this fact before any tribunal
in the future by expert testimony
"The decision of the Circuit Court
upholds the contention of the brewers
that they are permitted to sell nom
Intoxicating beer. The United States
ion act prohibited the manufacture and
sale of all beer, no matter what its al
cohoic content. This contention has
now been ncgatived by the Appellate
Court.
eve are now free to try out in the
United States District Court the ques-
tion whether or not 2.75 beer is intoxi-
eating" continued Mr.. Buckner. "The
brewers attorneys stated in court that
they are ready at any time to try out
this question Of fact"
In removing Prosecutor Caffcy as a
defendant the opinion reads
eve are sure that the United States
Attorney will cooperate with the COM
plainants to have the kuestions involved
determined as speedily and in the
with their business as possible.
because the suit, so far as the de-
fcndant Caffey, United States Attorney,
is concerned, is against the United
States, and there is no direct injury to
the complaints property rights, and
the act of Congress under which it is
charged he is threatening to proceed
is constitutional and in so proceeding
he will not transcend his authority
under the act, the order of the court
below is modified by striking out the
injunction pendente lite against him
and, so modified. is affirmed"
The brewers attach great Importance
to the paragraph above quoted, VIII ch
seems to be suggestion from the
court that Colonel Cafiey not interfere
with the business of the brewers pend
ing the settlement by the court of the
pending litigation.
Justice Rogers Dissents
Justice Rogers disscnted from the
prevailing opinion, summarizing his
conclusions as follows:
81. The acts of Congress herein in
volved are constitutional
"2. They relate to liquors which are
intoxicating.
49, Whether liquor which contains
2.75 per cent of alcohol in weight is
intoxicating is question of fact which
will be determined as such when the
case reaches final hearing, the majority
of the court having decided that the
bill should not be dismissed except as
against the United States Attorney.
"a. That the bill should have been
dismissed not only as against the
United States Attorney, butalso as
against the Acting and Deputy Collec-
tor of Internal Revenue
"5. That United States Attorney
under certain circumstances may be
restrained from instituting criminal
proceedings under an unconstitutional
law.
&C. That under the circumstances
existing in this case he cannot be re-
strained from insttuting such proceed
ings under a constitutional law the con-
struction of which it is alleged he mis-
apprehends."