Pine Bluff daily graphic. (Pine Bluff, Ark.) 1893-1942, 1919-06-27
MANUFACTURE OF
ITS PCT. Beer
WILL CONTINUE
L. s. Circuit Court of Appeals
Upholds Injunction in
Case.
BOTH SIDES TO SUIT
ARE CLAIMING VICTORY
In Absence of Law Defining What
is Intoxicating" Liquor,
Court Refuses to Dis
solve Order.

New York, June 26.-Attorncy
for both the brewers and the federal
government claimed tonight to have
gained a victory through an opinion
handed down by the United States
circuit court of appeals modifying
Judge Mayors preliminary injunction
against interference with the manu-
facturc or possession and sale of beer
containing not more than 2.75 per
cent alcoholic contents.
The original order restrained
Richard J. McElligott, acting col
lector of internal revenue, from in
terfering with the manufacture or
sale of PTS per cent beer, pending
a legal decision as to whether it was
Intoxicating. 1t also forbade Uni
ted States Attorney f. G. Catfey
from prosecuting the brewers and re
tailers of such beer. The appellate
court decision strikes out the injunc-
ton ''pending lite" against the fed
eral prosecutor, making it possible
for him to proceed as he sees fit, but
continued in force the injunction
against McElligott. regarding whom
the court makes this observations g
"The injunction against the acting
collector of internal revenue can do
no harm"
VIII 1t IntoXicate?
Emery r. Buckner, counsel for
the brewing interests declared the
APPELLATE court decision was clear
victory for his clients and that the
right to manufacture and sell 2.75
per cent beer after July 1 was as
sured. The brewers were ready to
prove, he said, that beer of that
potency was notwithstanding" and
it was now up to the courts to de-
eide whether wartime prohibition
forbade the sale of all beer, or mere
ly Intoxicating beer.
Cornelius J. Smyth, assistant dis
trict attorney, one of the drafters of
the governments brief in the pend
ing litigation, maintained the APP
pellate court decision gave the brew
ers less of an advantage than they
possessed under the original injunc-
ton. He characterized as "optimis-
tic" the statements by counsel for the
brewers that the latter could con-
tinue manufacturing PTS per cent
beer. The decision, he pointed out
would not exempt the brewers or re-
tailers from prosecution under the
federal wartime prohibition act
which provides years Imprisonment
or $1,000,000 fine, or both, in event
of conviction.
Judge Hough, one of the appellate
judges, in partly dissenting opin-
ion discussed the opinion of the in
ternal revenue department of the
treasury to the "intent to enforce {
starined construction of the act OF
November Fl, 1918, by preventing
brewers from complying with pre-
existing and unrepealed laws.
Holds Order Estops Indictments.
$50 far as l can see, the injunction
against the acting collector stops tt
plan and l regard the relief OBJ
tanned below against the United
States attorney as, in effect, precent
ing that official from asking at tn,
hands of grand jury Indictment.
for offenses created only by the &C
of November 81 itself Such possibl,
indictments would not involve prelim
mary seizure of plant and tools ant
and they should be left to thei
course at common law except under
circumstances of extreme necessit,
not here shown. This dissent then
is limited to the reason assigned fol
a result to which l agree"
Judge Rogers, who joined will
Judge Hough, in partial dissent, dis
cussed the question of non-intoxicat
ing beer. He said that for more thar
twenty years the department of in
ternal revenue had treated beer con
tanning one-half per cent or more Of
alchohol as malt liquor, and thai
during that time the brewers of thu
country had acquiesced in that direc
ton. Congress had not yet defined
what per centage of alchohol made
beer Intoxicating, he said, but it was
reasonable to expect that it would dc
so.
"But in the absence of some defin
lite legislation" said Judge Rogers
"the meaning of the term 'intoxicat.
ing liquors must be question OF
fact and not of law. The court can
not undertake to say as matter OF
law that which contained 2.75 pei
cent of alchohol by weight is NOT in.