287 F. 934 | D.N.J. | 1923
The complainant in the above-entitled matter makes application for a preliminary injunction restraining the defendant from refusing to approve his application for the withdrawal of liquor in accordance with the terms of his basic permit, and bases his right to such relief upon two points, viz.:
(1) That the revocation proceedings instituted by the Federal Prohibition Director are illegal, in that the citation to show cause why the permit should not be revoked was neither accompanied by a copy of the sworn complaint or with a statement of the facts constituting the violations charged; and
(2) That the complainant has a right to withdraw liquor for non-beverage purposes until his basic permit has actually been revoked.
This entire matter comes within the purview and terms of title 2, § 9, of the National Prohibition Act, which deals with revocation proceedings, and which provides in part as follows:
“ * s- * if tjj6 Commissioner has reason to believe that any person who has a permit is not in good faith conforming to the provisions of this act, or has violated the laws of any state relating to intoxicating liquor, the Commissioner or his agent shall immediately issue an order citing such person to appear before him on a day named not more than thirty and not less than fifteen days from the date of service upon such permittee of a copy of the citation, which citation shall be accompanied by a copy of such complaint, , or in the event that the proceedings be initiated by the Commissioner with a statement ,of the facts constituting the violation charged,” etc.
“a hearing shall be had unless continued for cause. * * * If it be found that such person has been guilty of willfully violating any such laws, as charged, or has not in good faith conformed to the provisions of this act, such permit shall be revoked, and no permit shall be granted to such person within one year thereafter. Should the permit be revoked by the Commissioner, the permittee may have a review of his decision before a court of equity in the manner provided in section 5 hereof. During the pendency of such action such permit shall be temporarily revoked.”
“Upon receipt of such application for a permit to purchase, the director shall issue the permit as applied for unless * * * (c) revocation proceedings are pending.”
The language of the treasury decision would, if taken by itself, seem to be conclusive in the premises-; but my opinion is that this language, as well as the Commissioner's act in promulgating .the same, -must find its sole authority in the act itself, and my reading of said section 9 does not lead me to the conclusion that the complainant has been placed in such position yet as to warrant the refusal to comply with his application. I believe that a hearing must first be had under the terms of said section 9 of title 2, and a defendant be found guilty as charged, before there can be a revocation of the permit. If any other interpretation is to be given to the language of this section, it will virtually mean that a permittee can to all intents and purposes be adjudged guilty before having any chance whatever to defend himself, and it is entirely possible that this condition might obtain upon irresponsible information. If the permittee upon a hearing shall be found guilty of law violation, or of not having acted in good faith, the clause concerning the revocation of his permit is mandatory in such section; but even then he is given a method whereby he may seek relief, viz. in a review proceeding before a court of equity, which I take it contemplates quite another action, and one which makes applicable the final sentence of said section 9, viz.
“During the pendency of such action suck permit shall be temporarily revoked.”
“It would be unjust and unfair to suspend it [a permit] without hearing, so a hearing was provided for. The authority to arbitrarily prevent the holder of a permit from doing business does not appear to reside in any official. The hearing must first be accorded. This is, I think, the plain meaning of section 9.”