269 F. 184 | S.D.N.Y. | 1920
(after stating the facts as above). Although the réason for the decision of the Commissioner in rejecting the applications and refusing the permits does not appear, it would seem to be due to the fact that neither applicant was willing ta
The defendants insist that section 1 of title 2 of the Volstead Act governs the case, and that no product of any kind can be manufactured which contains or may contain more than one-half of 1 per centum of alcohol by volume. In this connection they particularly insist upon the provisions of section 3 of title 2, which forbid the manufacture or sale of any intoxicating liquor after the Eighteenth Amendment to the Constitution became effective, and refer to the fact that “intoxicating liquor,” as defined by section 1, includes all liquors “containing one-half of 1 per centum or more of alcohol by volume which are fit for use for beverage purposes.” It is important to note, however, that section 3, supra, in spite of the prohibition clause, and the clause providing for a liberal construction of all the provisions of the act, in order to prevent the use of intoxicating liquor as a beverage, contains a careful limitation of its sweeping prohibitions in the words, “except as authorized in this act.”
If defendants are sound in their position, what becomes of the broad exception of section 4 of title 2 that:
“The articles enumerated in this section shall not, after having been manufactured and prepared for the market, be subject to the provisions of this act if they correspond with the following descriptions and limitations, namely : * * *
“(f) Vinegar and preserved sweet cider.”
Both parties seem to rely on what I think is the inconclusive effect upon the construction of the act of the discussions and proceedings when it was before Congress. Such sources of interpretation ought only to be resorted to where the act itself is not clear, and the words of title 2, section 4, of the statute seem to me to bear hut one meaning. If the article manufactured corresponds with the description of “preserved sweet cider,” it is ex vi termini not subject to the provisions of the act.
The statute very necessarily requires a permit in order to manufacture a liquor which is subject to fermentation, so that no manufacturer shall put out an article which does not correspond with the description of section 4, supra. It may well be that the Commissioner, in issuing permits to manufacture, has the right in a reasonable way to direct the mode of preserving the apple juice, and as part of the regulation of manufacture intrusted to his care to specify the kind of containers which shall be used to prevent fermentation of the cider, and the way in which they shall be sealed. It may be that preserved cider, made out of apples the juice of which has so fermented in the apples that it contains more than one-half of 1 per centum of alcohol by volume, is not preserved sweet cider within the meaning of the statute, because other apple juice as a practical matter can be obtained. These, however, are in my opinion matters ox fact, of which this court cannot take judicial notice.
The bills allege that the complainants’ products are made from the unadulterated juice of apples, are preserved in the usual way, are in
Defendants argue that, though all the allegations of the complaints be true, though the liquor sought to be manufactured is to be manufactured in the only known way, though it is in fact “preserved sweet cider” of the only known kind, and though it can never be intoxicating in fact, it is yet lawful for them to exclude it. Such a position is in the very face of the provisions of section 4, supra, and leaves nothing for subdivision (f) of that section to operate upon. It is clearly untenable.
The regulation of the Department seems to have been complied with by the applicants in all respects except tiróse in which they say compliance is impossible. The requirement that an applicant can use only juice from apples that contain a liquid having less than one-half of 1 per cent, of alcohol by volume, that he so preserve, encase and seal the juice that it never can have a higher percentage of alcohol, may or may not, after the facts are known, be a valid regulation. What in truth is the natural alcoholic content of the juice of the apple when first extracted, what is the best practical' mode of preserving the juice, in order so far as possible to prevent fermentation, may be doubtful questions of fact, tire investigation of which will show that the regulation is valid. If the defendants can disprove the facts alleged, they can do so after answer. The complainants, however, say in their bills of complaint that their products are made from unadulterated juice of apples, and that they are preserved in the best way practicable, and that their product is “preserved sweet cider.” These allegations, admitted by the motions to dismiss, show an unreasonable and unwarranted refusal hy the defendants to grant permits.
The decision of Houston v. St. Louis Packing Co., 249 U. S. 479, 39 Sup. Ct. 332, 63 L. Ed. 717, is not in point, for there the action of the department was held by that court, after a trial, to be justifiable. In the present case, which arises on demurrer, there appears no ground for defendants’ position, except their legal theory that section 4 (f), supra, is limited by the preceding section 1. With that theory I wholly differ. If preserved sweet cider was to be subject to the limitations of sections 1 and 3 of title 2, there was no reason for inserting it in section 4,- where it is in express terms taken out of the provisions of the Volstead Act. To place it in section 4, and then by the provisions of section 1 prohibit its manufacture in the only practicable way would be an almost incredible species of self-repugnant and nugatory legislation.
The motions to dismiss are denied, and leave is granted to answer within 20 days.