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Show oras IN P1JJ SWT Federal Judge Denies Motions Mo-tions for Dismissal of Their Action. Government Loses First Bout in Legal Fight Over Prohibition Law. NEW YORK, May 17. United States Judgo Augustus N. Hand today denied motions made on behalf of the government govern-ment asking for dismissal of the injunction in-junction suit brought by tho Jacob Iloffmau Brewing company for the purpose of restraining federal officials from performing their duties in enforcing en-forcing the prohibition laws of the United Slates. Tho motions, setting forth that the United States court was without jurisdiction juris-diction in the situation, wore made a few weeks ago by Francis G. Caffey, United Htates district attorney, and Itichard J. McElligott, acting internal revenue collector. The Hoffman suit is designed to prevent pre-vent the government from interfering with the manufacture of beer containing contain-ing not more than 2.75 per cent by weight of alcohol, and challenges the constitutional ily of the wartime prohibition prohi-bition law. The action is tho first of a series of such suits brought by brewing brew-ing concerns in this district. District Attorney Caffey argued that the Hoffmann complaint did not state sufficient facts to constitute a cause of. action, that the United Slates cannot be sued without its consent and that the complainant company had no right to ask the federal court to enjoin officials , from performing their duty of enforcing enforc-ing the laws of tho United States. Judge Hand's Ruling. Although upholding tho constitutionality constitution-ality of the wartime prohibition law, Judge Hand held that the suit "is not against the United States and may bo entertained against the United States attorney because it affects the right -of property and because the complainant, if his contentions be sound on the merits, mer-its, has no ad-juate remedy at law.;' "Ample juridirtiou, " he continued, "is siiown over the acting colic-tor of internal revenue," who, he held, was without authority to define an intoxicant. intoxi-cant. "Not only does The original bill allege that his predecessor was threatening threat-ening to enforce various pains and penalties, including forfeiture of property, prop-erty, but the supplemental bill alleges that ho refused to issue stamps which the act of February 4, 1919, requires shall be placed upon fermented liquor containing oue-haif per cent or more alcohol. For failure to affix such stamps penalties are imposed by law, and it is perfectly clear, 1 think, that the beer can also be forfeited." Traced Proclamations. Judge Hand traced the various proclamations proc-lamations of the president under authority au-thority of the food conservation act of August 10, 1917, to the proclamation of January 30, 1919, in which the president presi-dent announced, ho said, that "the prohibition pro-hibition of the use of grain in the manufacture man-ufacture of beverages which are not intoxicating was no longer essential in order to assure an adequate and continuous con-tinuous supply of food," and "modified "modi-fied the former proclamation to the extent of permitting the use of grain in the manufacture of beverages which are not intoxicating." Thereafter, on November 21, 1913 ho continued, congress passed an act 'to enable the secretary of agriculturo to carry out tho food conservation act of August 10, 1917," and on February 6, 1919, the internal revenue commissioner "interpreted the act of November 21, 1918, that 'within tho intent of that act, a beverage containing one-half of one per cent or more of alcohol w-ill be regarded as intoxicating.' " Only Intoxicating Beer. The internal revenue commissioner's announcement was in itself, ho continued, contin-ued, an interpretation similar to his own, that tho wartime prohibition law "prohibits only intoxicating beer." "Suppression of a. drink confessedly harmless in itself cannot be implied from general language prohibiting intoxicating in-toxicating liquors," he declared. "Moreover, the prohibition of importation importa-tion in tho act is limited to intoxicating intoxi-cating malt liquor and the authorization authoriza-tion of the president to establish zones where certain liquors are prohibited is directed to tho prohibition of intoxicating intoxi-cating liquor, and it can be said that the interpretation of the word 'beer' in the act as any beer, whether intoxicating intoxicat-ing or -not. is borne out." Within Congress's Powers. Touching on the constitutionality of the act Judge Hand declared he could -have "no doubt that the construction of the act contended for by tho government, gov-ernment, if in fact correct, would be within the powers of congress. ' "It is not necessary to, say," he concluded, "that the -question of whether beer having 2.75 per cent of alcohol is intoxicating is not before me for decision. Thei complaint alleges that such beer is not intoxicating and tho motion by the United States attorneys attor-neys and the acting collector seeks to dismiss it on the ground that even if this is so, the complainant has no right to restrain them because the complainant complain-ant is forbidden by statute to brew any beer whether intoxicating or not and because in the case of the United States attorney, no suit against him can properly be brought. "For the reasons I have given, I am of the opinion that the act onlv prohibits pro-hibits the manufacture of beer that is ; in fact intoxicating and that upon the allegation of the bill both defendants are subject to suit." Emory Buckner, of counsel for the Hoffman brewery, discussing the decision, de-cision, said: "The next question to be decided, which comes up next Friday, is whether 2 3-4 per cent beer is intoxicating. On that day, affidavits by prominent chemists, chem-ists, physicians and employers of labor will .be submitted. These authorities emphatically declare that 2 3-4 per cent beer is not intoxicating. "If the court holds that the beer named is not intoxicating, then he must issue an injunction restraining the district dis-trict attorney and the collector of internal in-ternal revenue from interfering with the manufacture of 2 3-4 per cent beer." Palmer is Silent. WASHINGTON, May 17. Attorney General Palmer has declined to render an opinion to the internal revenue bureau bu-reau on the question of whether manufacture manu-facture of hard cider is legally forbidden. for-bidden. He stated that the revenue bureau bu-reau did not have authority to regulate traffic in any liquor except wine and consequently was not empowered to make any ruling on production of hard cider. Efforts to secure the enactment by July 1 of legislation necessary for the enforcement of wartime prohibition and national prohibition under the constitutional consti-tutional amendment are to be made by prohibition leaders in the senate. Senator Sen-ator Sheppard of Texas announced on his return to Washington today that a bill was being prepared by the Anti-saloon Anti-saloon league of America and would be introduced in the senate both by himself him-self and Senator Jones of Washington, another prohibition leader. |