Campbell v. Galeno Chemical Co Same v. Paul Co, s. 443 and 444

• Decision Date: 26 May 1930
• Docket Number: Nos. 443 and 444,s. 443 and 444
• Citation: 50 S.Ct. 412,74 L.Ed. 1063,281 U.S. 599
• Court: U.S. Supreme Court
• Parties: CAMPBELL, Federal Prohibition Adm'r, et al. v. GALENO CHEMICAL CO. et al. SAME v. D. P. PAUL & CO. Inc

281 U.S. 599

50 S.Ct. 412

74 L.Ed. 1063

CAMPBELL, Federal Prohibition Adm'r, et al.

v GALENO CHEMICAL CO. et al.

SAME

v. D. P. PAUL & CO. Inc.

Nos. 443 and 444.

Argued April 25, 1930.

Decided May 26, 1930.

The Attorney General and Mr. G. A. Youngquist, Asst. Atty. Gen., for petitioners.

[Argument of Counsel from page 600 intentionally omitted] Messrs. John Fletcher Caskey and Charles Dickerman Williams, both of New York City, for respondents.

Mr. Justice BRANDEIS delivered the opinion of the Court.

These cases deal with the power of the Commissioner of Prohibition to revoke basic permits to use intoxicating liquors in the manufacture of medicinal preparations. Section 6 of the National Prohibition Act, October 28, 1919, c. 85, title 2, 42 Stat. 305, 310 (27 USCA § 16), declares: 'No one shall manufacture, sell, purchase, transport, or prescribe any liquor without first obtaining a permit from the commissioner so to do. * * * All permits to manufacture, prescribe, sell, or transport liquor, may be issued for one year, and shall expire on the 31st day of December next succeeding the issuance thereof: Provided, * * * That permits to purchase liquor for the purpose of manufacturing or selling as provided in this chapter shall not be in force to exceed ninety days from the day of issuance.'

Section 4 of title 2 of the act (27 USCA § 13) provides that the 'articles' therein enumerated, including toilet, medicinal and antiseptic preparations, although containing intoxicating liquor, 'shall not, after having been manufactured and prepared for the market, be subject to the provisions of' the act; and that the use of intoxicating liquor in the manufacture of such 'articles' is authorized under certain restrictions. Manufacturers are required under this section to procure two permits: One, the basic permit here involved, granting general authority to manufacture such preparations with an alcoholic content; the other, a supplemental permit granting special authority to purchase liquor for that purpose and limited by section 6 to not more than ninety days from the date of issuance. Treasury Dept., Bureau of Internal Revenue, Regulations 60 (1924), §§ 200, 201, 221, 403; Prohibition Bureau, Regulations 2 (1927) §§ 201, 203, 404.

Section 5 of title 2 of the act (27 USCA § 14) prescribes that, upon due notice and hearing, the Commissioner of Internal Revenue (after Act of March 3, 1927, c. 348, 44 Stat. 1381 (5 USCA § 281 et seq.)), the Commissioner of Prohibition) may revoke permits granted under section 4 for failure to conform the manufactured 'articles' with the 'descriptions and limitations' of that section; and gives to the manufacturer the right to have the action of the Commissioner reviewed 'by appropriate proceeding in a court of equity.' Section 9 of title 2 (27 USCA § 21) provides that, upon due notice and hearing, the Commissioner may revoke the permit of 'any person who has a permit' and who 'is not in good faith conforming to the provisions of this chapter, or has violated the laws of any State relating to intoxicating liquor'; and subjects the action of the Commissioner to judicial review as provided in section 5. Compare Ma-King Products Co. v. Blair, 271 U. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046.

For some years prior to October 1, 1927, the plaintiffs in these two cases had been engaged in the business of manufacturing medicinal preparations and held basic permits issued under section 4 of the act. Each permit authorizes the use of whisky in the manufacture of a particular product in accordance with a special formula; was issued pursuant to regulations in force at the time of issuance; and declares that it shall remain in force 'until revoked, suspended or renewed as provided by law or regulations.'¹ On September 2, 1927, the Treasury Department, Bureau of Prohibition, issued Regulations 2, effective October 1, 1927, in which it is provided by section 218 that 'all permits issued and in force and effect on the effective date of these regulations shall expire on December 31, 1928, unless renewed in the manner hereinafter specified, * * *' and that thenceforth only annual permits shall be issued. ² The provision was made ap- plicable to the basic permits issued under section 4 of the act to persons engaged in the business of manufacturing medicinal preparations 'that are unfit for use for beverage purposes.' The plaintiffs, without indicating any intention to waive their rights under existing permits and for the purpose of safeguarding themselves, accordingly filed applications for renewal of their permits.

On December 1, 1928, the Commissioner of Prohibition, having concluded that the use of whisky by such permittees under section 4 was susceptible of grave abuse and that proper supervision of manufacturing operations involving the use of whisky could not be maintained by the inspection force, instructed all federal prohibition administrators to grant hearings to applicants for renewal of such permits for the purpose of determining whether or not whisky is a necessary ingredient in the articles produced by them; to afford them an opportunity to present such evidence as they could to establish that alcohol or other spirits would not properly serve for extraction and solution of the ingredients contained in their products and for the preservation thereof; and to deny permits for the use of whisky after December 31, 1928, unless its indispensability was clearly demonstrated. The Federal Administrator for the district, acting on these instructions notified the several plaintiffs accordingly and fixed dates for their hearings. Compare Liscio v. Campbell (C. C. A.) 34 F.(2d) 646.

These suits were then brought by the permittees in the federal court for Southern New York, against the Prohibition Administrator, the Commissioner of Prohibition, and the Secretary of the Treasury to enjoin them from enforcing section 218 of Regulations 2; from proceeding with the proposed hearings concerning the use of whisky; and from otherwise interfering with the permits held by them. The plaintiffs alleged that their permits contained no date of expiration and had never been revoked, canceled, or surrendered; that they were entitled to have their permits remain in force until they should be revoked pursuant to proceedings under sections 5 and 9; and that no proceeding for such revocation had been brought. They charged that in so far as Regulations 2 purported to revoke, limit, or suspend, without the hearing provided for in sections 5 and 9, permits theretofore granted to the plaintiffs, it is void as in violation of the act; that the proposed hearings are without legal warrant; and that the threatened action of denying the further use of whisky is unauthorized and illegal. The trial court granted an injunction in each case. ³ The decrees were affirmed by the United States Circuit Court of Appeals for the Second Circuit.⁴ Lion Laboratories, Inc. v. Campbell, 34 F.(2d) 642. This court granted writs of certiorari. Campbell v. Galeno Chemical Co., 280 U. S. —, 50 S. Ct. 85, 74 L. Ed. —.

First. The government contends that section 1, title 2, of the act (27 USCA § 4), defines the word 'liquor' as meaning not only the beverages specifically named but also any liquids 'containing one-half of 1 per centum or more of alcohol by volume which are fit for use for beverage purposes'; that liquids which are not immediately fit for use as beverages are yet 'fit for use for beverage purposes' if they can be made potable by a simple process; that plaintiffs' preparations are of that character;⁵ that they are expressly excluded from the act only 'after having been manufactured and prepared for the market'; that at the time of manufacture and before preparation for the market, they fall within the term 'liquor' as used in the act; that permits to manufacture the 'articles' enumerated in section 4 of the act are, therefore, permits to manufacture 'liquor' within the meaning of the provision in section 6 that 'permits to manufacture, prescribe, sell, or transport liquor * * * shall expire on the 31st day of December next succeeding the issuance thereof'; and that, although by their own terms the plaintiffs' permits are to be in force 'until revoked, suspended or renewed as provided by law or regulations,' they have expired ere this by the operation of section 6. Cywan v. Blair (D. C.) 16 F.(2d) 279; Chicago Grain Products Co. v. Mellon (C. C. A.) 14 F.(2d) 362.⁶

We are of opinion that the quoted provision of section 6 is inapplicable to the permits held by the several plaintiffs. Whether or not the preparations manufactured by the plaintiffs are 'liquor' while being manufactured and before they are prepared for the market is wholly immaterial. We are not here concerned with the nature of the preparations in their varying stages of development. Our concern is with the object of the permits. This object, and the permission granted, is not simply to manufacture varyingly unfinished products; but to manufacture specified articles containing whisky, alcohol, or other spirits. The products are, by section 4, called 'articles' and are expressly excluded from the effect of the term 'liquor.' Moreover, section 4 authorizes the issuance of permits for the use of whisky, etc., in the manufacture of medicinal and other preparations only 'that are unfit for use for beverage purposes'; while 'liquor' is defined in section 1 as meaning liquids, in addition to those enumerated, 'Which are fit for use for beverage purposes.' The two definitions are mutually exclusive. If the article to be manufactured is fit for use for beverage purposes, and therefore liquor, a permit under section 4 cannot be issued; and vice versa. By express and obvious enactment, therefore, the permits held by the plaintiffs are not permits to manufacture liquor and are not within the expiration limit prescribed by section 6.

Second. The government contends also that because p...