The sun. [volume] (New York [N.Y.]) 1916-1920, 1919-06-27
WARTIME DRY LAWS
LEGALITY SUSTAINED
Continued from First Pogo.


may sell II after June 80 are liable 10
prosecution as violstors Of the law"
The counsel for the brewing interests
| exhibited particular interest and adj
| mittedly attached much Importance to a
paragraph In the prevailing opinion
written by Judge Ward which said
We are sure that the United States
Attorney Will cooperate with the COM
pisinants to have the question involved
determined as speedily and In the mean
| time with as little interference with
their business as possible"
This the brewers were inclined to
construe as suggestion to the District
Attorney to bring n test case in which
the Intoxicating potentially of 2.75 per
cent beer might be established in fact
with as little delay as possible. This
development may. therefore. be ex-
pected to follow an arrest and Indict-
ment OF At least one brewer for the
manufacture Of 2.75 per cent. beer since
April 30 and a similar action with re-
spect to retailers who may continue to
| sell the article after June 80.
So far as acting Collector McElligott
Ia concerned the decision in effect COM
pels him to do what he Is already doing.
namely to continue to issue licenses and
revenue tax stamps to brewers until final
decision IL taken, although the possess
| sion of such stamps and licenses In no
| way renders the holders thereof immune
| from prosecution and provides for no
rebate OF taxes so paid by brewers or
! retailers.
In his opinion Judge Ward wrote:
ut is perfectly well settled that the
United States may not be sued except
upon its own consent. Such consent II
ho OIL ht,. ntae tstA iCt, n
not apply to the case under considera-
! ton. There Is no difference between the
1 States and the United States in respect
| to this immunity from suit. II Is an
| attribute of every sovereign. recognized
/ by all sovereigns A criminal suit in
! the Federal courtF must be brought in
the name OF the United States and can
| only be brought by the United States
| Attorney.
"A suit in equity to enjoin the United
| States Attorney from instituting crimi-
| nal proceedings under a statute Of the
United States is manifestly n suit against
the United states. In such a case the
United States Is sued as effectively as
II II were a defendant by name.
There Is. however. a well recognized
| exception to the rule. viz, II property
, rights are invaded and the statute In
question Is unconstitutional It is void
10 to be treated as non-existent and
so no defence to the United States At
.orney. When instituting criminal pro-
| ceedings under It he Is to be regarded
not as representing the United States
in his official capacity but as acting in
dividually.
Both Conditions Necessary.
80 II. under a valid statute. he threat
4 IL
| 20 complainants' property rights and not
authorized by the statute. he transcends
his authority. does not represent the
, United States. is not protected by the
| statute and may be enJoined. Irrepar-
| ablo injury alone Is not enough Both
| these conditions must exist. Obviously
In such cases the constitutionality of
the statute or the question whether the
United States Attorney has transcended
!iis authority must be determined by
! the court before 1t can determine whether
| the particular suit Is or Is not against
the United States.
tion of tho statute by the court below
and assume that the United States At
torney will institute criminal proceed
ings, we do not think the court had
power to stay him by injunction from
doing SO. The proper place for deter
mining whether such criminal proceed
ings are maintainable Is not in a court
| OF equity. but upon an indictment tried
! In a criminal court before a jury. For
any error then committed there will be
| an adequate remedy by writ of error.
we recognize the Importance Of the
| interests at stake and that the COM
plainants and others In like case. II not
content to manufacture beer containing
an alcoholic content not eQuallIng or
| exceeding one-half OF 1 per cent. by
volume. must choose between discontin-
uing their business or carrying It on at
| the risk OF punishment under the act OF
! November 81. 1913, II they continue after
1 May 1. 1919. to manufacture and after
June 80, 1919. to sell beer containing not
| more than as per cent. OF alcohol by
| weight.
The question, however. is not one OF
| convenience or OF discretion, but OF the
| power Of the court and We think such an
| extension of judicial power. to meet what
seems to be a hard case. to the domain
! of the executive department and OF the
| courts Of common law would be an In
| jury to our system of Jurisprudence still
4 more serious"
Judge Rogers concurs with his as
| soclates in general. except that he con-
| cludes that the suit also should be dis
missed against the Collector. In re-
gard to the percentage OF alcohol that
makes a beverage Intoxicating he said:
10 a number Of the States the stat
| utes prohibit the use of all alcoholic
liqours for beverage purposes. In a
large number the standard OF an intox-
icating beverage is fixed at one-half OF
per cent. And for nearly twenty
years the Bureau OF Internal Revenue
has treated beer containing one-half OF
l per cent or more Of alcohol as a
malt liquor. and the brewers OF the
country have acquiesced in this dehni-
1 tton OF beer. And II is reasonable Ia
expect that the present Congress In
enacting a prohibition enforcement bill
under the Eighteenth Amendment will
define what Is intoxicating liquor. and
II IL does II may TX the standard OF one
half of l per cent. In accordance with
the rule established for SO many year,
in the Bureau of Internal Revenue.
| Question OF Fact Alone.
But in the absence of some defini-
tive legislation the meaning of the term
Intoxicating liquors must be a question
| OF fact and not OF law. and the court
cannot undertake TO say. as matter OF
law. that liquor which contains AIS per
cent. OF alcohol by weight Is not intox-
icating. And neither the opinion OF my
associates nor the opinion of the dis
trict Judge contains anything to the
contrary. In the opinion OF the distric,
Judge he expressly declared that the
question whether beer having ATS per
cent. OF alcohol 10 Intoxicating was no,
before him for decision"
A paragraph in the prevailing opinion
gave nrst impression that the court
/ ruled in favor Of 2.75 beer as non-in-