New-York tribune., 1919-04-09
Federal District Attorney
Asks Court to Dismiss
Action by Brewer to In.
validate the ''Dry" Law
Wilson's Speech Quoted
Plaintiff Holds Hostilities
Are Over and Brewing
Industry Can Resume

uPOH Vic question WNeCnef America is
still at war.
Assistant United States District At
torney Earl 8. Barnes in the Federal
District Court yesterday in the action
begun by Elihu Root and William D.
Guthrie for the Jacob Hoffman Brew
ing Company to test the validity of
the law prohibiting the manufacture
of beer after July l next, set up as
answer to the complaint that the war
existing on August 10, 1917, and No
vember 21, 1918, still continues.
One of the points in the complaint
Of the brewing company is that war
prohibition, following the signing Of
the armistice, is Invalid. The COM
plant quotes President Wilson's state
ment to Congress:
"1he war thus comes to an end, for
having accepted these terms of arms-
tice, it will be impossible for the Ger
man command to renew it."
Mr.. Barnes appeared yesterday in
behalf OF Mark Eisner named as a
defendant in the injunction suit
brought by the Jacob Hoffman Brew
ing Company and sued as Collector of
internal Revenue Of the Third district.
Mr.. Barnes's answer says that on
March 10 last, President Wilson ac-
cepted Eisner's resignation as Collec-
tor of Internal Revenue, and on March
23 he severed his connection with the
Treasury Department.
Caffey Asks Dismissal
With the answer also was filed, by
United States District Attorney Fran
els c. Caffcy and William c. Fits,
special assistant to Attorney General
miss the complaint, as far as it con-
Germs Prosecutor Caffey. 1t is as
serted among other things that the
suit should be dismissed because it is
in effect an action against the United
States, and that the complaint does
not aver Or show that the United
States has consented to be sued; also
that the complaint shows it is
sought to enjoin and restrain the
ern district of New York from per-
forming his official duty with respect
to the enforce mont of criminal stat
utes of the United States of gen
eral and public character.
1t is asserted further that the Fed
cral court has no jurisdiction to grant
the relief prayed for and that the COM
plaint does not disclose a cause of ac-
ton equita BILE in it's nature:
The papers say also that "the war ex-
isting on August 10, 1917, and Novem-
Der 21, 1918, still continues and there
has been no proclamation of the ex-
change of ratitications of the treaty of
peace and rehabilitation has not ter
minated, nor has the President pro-
claimed the date of the termination of
rehabilitation, and of these facts the
court should take judicial notice to
negative the allegation in paragraph
9 of the bill of complaint that the war
was practically concluded prior to No
vember 21, 1918, and this allegation
should be stricken out and dismissed
from the bill of complaint as mani
testify unfounded and unpertinent."
Presidents Speech Quoted
The brewing company, contending
that the war ended when the armistice
was signed, says:
The complainant further alleges
that at the time the act of Congress of
November 81, 1918, was approved by
the President, the armstce Of Novem-
Der II, 1913, had been signed by Ger
many and was Immediately thereafter
accepted and acted upon both by Ger
many, and the President Of the United
States addressed both branches of the
Congress, and after reading to them
tho tnrynQ of tho orrn niut;co etotoI a.,
follows:
"'Ihe war thus comes TO an end
for, having accepted these terms Of
ormistice. it will be impossible for the
German command to renew it. 1t is
not now possible to assess the conse-
qucnccs of this great consummation.
We know only tha, this tragcal war,
whose consuming flames swept from
one nation to another until all the
world was on fire, is at an end, and
that it was the privilege Of our own
people to enter it at its most critical
juncturc in such fashion and in such
force as to contribute In way Of
which we are all deeply proud Of tho
great result. We know, too, that the
object Of the war Is attained, the OBJ
jcct upon which all free men had set
their hearts, and attained with
sweeping completeness which, oven
now. we do not realize.
Copy OF Armisticc Exhibited
"a copy Of the nrmstce as actually
signed is hereto annexed rs exhibit /,
and reference thereto Is prayed. Com
plainant is advised hy counsel and
therefore AYERS that. although tetinl-
cally the state Of war with Germany
and Austria did not cease upon tho
signing Of the armisticc, nevertheless
the war was thcrcupon practically con-
cluded because fighting was at an end
and Germany and Austria were pros
tratc and their military and naval
power had been overthrown and
destroyed"
Paragraph of the complaint fur
ther says that "thcre was not, on
November 81, 1918, or at any time
since then, any emergency or ncces-
sity, military or otherwise, calling
for the prohibition throughout the
United States of the use Of grains.
cereals, fruit pr other food product
in the Manufacture of beer or other
malt liquor for beverage purposes aft
or May i, 1919, nor any emergency
nor necessity calling for the prohi-
bition Of the sale Of beer or other
malt liquor for beverage purposes
after June 30, 1919, and that neither
Of said prohibitions was necessary or
proper in any sense within the in
tent and meaning of the Constitution
Tor carrying into execution any power
vested by tn Constitution in the gov.
nrpr want NJ TIM TI,;t,J