Leisy Brewing Co. v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 23 June 1915
• Docket Number: 4401.
• Citation: 225 F. 753
• Parties: LEISY BREWING CO. v. ATCHISON, T. & S.F. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

225 F. 753

LEISY BREWING CO. v. ATCHISON, T. & S.F. RY. CO.

No. 4401.

United States Court of Appeals, Eighth Circuit.

June 23, 1915

I. J Ringolsky, of Kansas City, Mo. (Harry L. Jacobs, of Kansas City, Mo., E. E. Blake and A. T. Boys, both of Oklahoma City Okl., and M. L. Friedman, of Kansas City, Mo., on the brief) for appellant.

Samuel W. Hayes, of Oklahoma City, Okl. (J. R. Cottingham, of Oklahoma City, Okl., on the brief), for appellee.

This is an appeal from a decree sustaining a motion to dismiss the complaint of the plaintiff, a brewing company, manufacturer of a certain beverage which it calls 'Temp Brew.' The complaint alleges that plaintiff tendered to the defendant railway company a car load of this brew for shipment over its line of railway from Kansas City, Mo., to points in that part of the state of Oklahoma which was formerly the Indian Territory, and also to the Indian country, and in the old Osage Nation; that it tendered the lawful charge therefor but that the defendant refused and still refuses to receive and ship any of this brew over its line of railway from Kansas City to any points in the former Indian Territory or Indian country. It is further alleged that 'Temp Brew' is a drink manufactured and sold extensively by the plaintiff in various parts of the United States; that a copyright for the exclusive use of the words 'Temp Brew,' designating it, has been granted by the United States government; that the plaintiff has complied with the Food and Drug Act of June 30, 1906, and all the rules and regulations promulgated thereunder by the proper officers; that it contains .30 of 1 per cent. alcohol; that although, in part, it passes through a malting process when being manufactured,

yet it contains no malt, and is not a malt liquor or beer; that it is unfermented, and is not detrimental to the health; that it is incapable of producing intoxication when taken by any human being, infant, adult, white, or Indian; that the defendant refuses to carry it from points without the state of Oklahoma, as well as from points within the state of Oklahoma, into the former Indian Territory, Indian country, Indian reservations, and allotments to the Indians, the alienation of which is restricted, claiming that to carry it to those places would be in violation of the acts of Congress and the laws and regulations of the United States. The prayer of the petition is for a mandatory injunction.

The motion to dismiss is based upon the ground that the brew is within the provisions of the acts of Congress prohibiting the introduction of liquors into the former Indian Territory and Indian country.

Before ADAMS, Circuit Judge, and TRIEBER and REED, District Judges.

TRIEBER District Judge (after stating the facts as above).

The statutes which are applicable to the issues involved are the Act of July 23, 1892, 27 Stat. 260, c. 234, amending section 2139, R.S., as again amended by the Act of March 1, 1895, c. 145, 28 Stat. 693, and the Act of January 30, 1897, 29 Stat. 506, c. 109 (Comp. St. 1913, Sec. 4137). The Act of 1895 provides:

'Sec. 8. That any person, whether an Indian or otherwise, who shall, in said territory, manufacture, sell, give away, or in any manner, or by any means furnish to any one, either for himself or another, any vinous, malt, or fermented liquors, or any other intoxicating drinks of any kind whatsoever, whether medicated or not, or who shall carry, or in any manner have carried, into said

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