Free trader-journal. (Ottawa, Ill.) 1916-1920, 1919-06-27
VETS FIND RAY Of
HOPE IN APPELLATE
COURTS DECISION
VICTORY is CLAIMED WHEN
BREWERS SECURE INJUNCTION
IN UNITED STATES TRIBUNAL
AGAINST COLLECTOR OF REV
ENUE.

ENUE.
New York. June 27.-Attorneys for
both the brewers and the federal gov
eminent claimed last night 10 have
gained victory through an opinion
handed down by the United States
Circuit Court of Appeals, written by
Judge Henry G Ward modifying
Judge Meyers preliminary injunction
against interference with or prosecu.
ton for the production and sale OF
beer containing not more than 20
per cent alcoholic content.
The original order restrained Rich
ard J. McElligou, acting collector of
internal revenue. from interfering
with the manufacture or sale of 80.
per cent beer pending a legal decision
as TO whether it was intoxicating
1t also forbade United States Attor-
ney Francis G. Caffey from prosecut
ing the brewers and retailers Of such
beer
One injunction Returned.
The Appellate Court decision
strikes out the injunction against the
federal prosecutor making it possible
for him to proceed as he sees fit, but
continues in force the Injunction
against McElligot, regarding whom the
court makes this observation
THE injunction against the acting
collector Of internal revenue can do
no harm"
Emory r. Buckner, of counsel for
the brewing interests, declared the
Appellate Court decision was a clear
victory for his clients and that the
right to manufacture and sell 2.75 per
cent beer after July | was assured.
Both Claim Victory.
The brewers were ready to prove,
he said, that beer of that potency was
Notwithstanding and it was now APP
to the courts to decide whether war
time prohibition forbade the sale Of
all beer or merely intoxicating beer.
Cornelius J. Smyth, assistant United
States district attorney, one Of the
drafters of the governments brief in
the pending litigation maintained the
Appellate Court decision gave the
brewers less of an advantage than
they possessed under the original in
junction.
He characterized as "Optimistic" tho
statements by counsel for the brew
ers that the latter could continue mar
ufacturing 2.75 per cent beer. The de,
cision, he pointed out, would not ex
empt brewers or retailers from prose
cution under the federal wartime pro
hibIion Ani, which provides years
Imprisonment or 81 400 fine, or both
in event of conviction.
Subject to Penalty.
According to the court ruling the
compliments are not subject to any
forfeiture or penalty under the in-I
ternal revenue acts if they pay the
taxes required by law
Judge Hough, one of the Appellate
judges in a partly dissenting opinion
said.
"The wrong here complained Of Is
that Of the internal revenue depart
ment Of the treasury Under laws in
force long before 1918 every brewer,
individually, brewed on sufferance Of /
the commissioner. As July !, 1919
approached that official threatened to
refuse the licenses and stamps With
out which brewing is absolutely Illicit /
and subjects the brewer to ContsCa.
tory proceedings and penalties Of ex-
treme severity.
The plain intent was to enforce a /
strained construction of the act Of
Nov q, 1918, by preventing brewers
from complying with pre-eXisring and
unrepeaed laws
Question of Fact, Not Law.
$50 far as | can now see, the in /
junction against the acting collector
stops that plan and l regard the re-
lief obtained below against the United
States attorney as in effect preventing
that official from asking at the hands
of a grand Jury indictments for Of, !
lenses created only by the act OF.
Nov y itself.
Such possible indictments would
not involve preliminary seizure Of.
land and tools and they should bel
left to their course at common law
except under circumstances Of ex
treme necessity not here shown. This
dissent then is limited to the reason
assigned for result to which !.
agree"
Judge Rogers, who joined with
Judge Hough in a partial dissent, dis.
cussed the question Of "nonintoxicat- /
ing beer He said that for more
than twenty years the department of
internal revenue had treated beer con
tanning one-half OF l per cent or more
of alcohol as malt liquor and that
during that time the brewers of the
country had acquiesced in that defn.-
ton.