William Jameson & Co. v. Morgenthau

• Decision Date: 22 December 1938
• Docket Number: No. 440.,440.
• Citation: 25 F. Supp. 771
• Parties: WILLIAM JAMESON & CO. Inc., v. MORGENTHAU, Secretary of the Treasury, et al.
• Court: U.S. District Court — District of Columbia

25 F. Supp. 771

WILLIAM JAMESON & CO. Inc., v. MORGENTHAU, Secretary of the Treasury, et al.

No. 440.

District Court of the United States for the District of Columbia.

December 22, 1938.

John F. Moore, of Washington, D. C. (Debevoise, Stevenson, Plimpton & Page, of New York City, of counsel), for plaintiff.

David A. Pine, U. S. Atty., of Washington, D. C., Thurman W. Arnold, Asst. Atty. Gen., Berkeley W. Henderson, Sp. Asst. to Atty. Gen., and John Paulding Brown, Atty. Federal Alcohol Administration, of Washington, D. C., for defendants.

Before VINSON, Associate Justice, United States Court of Appeals for the District of Columbia, and WHEAT, Chief Justice, and ADKINS, Justice, District Court of the United States for the District of Columbia.

ADKINS, Justice.

Plaintiff William Jameson & Company, Inc., a Delaware corporation, is engaged in the business of importing whiskey into the United States and of selling the same in interstate commerce.

In June, 1938 plaintiff having imported from Scotland five cases of whiskey labeled "Sandy Ross Brand Blended Scotch Whiskey" made demand on the Collector of Customs at New York City for the release of said whiskey; two certificates of age and origin accompanying the request and signed by an officer of Customs and Excise of the British Government stated that the spirits involved were 50% Scotch whiskey and 50% Northern Irish whiskey.

By direction of defendant Wilford S. Alexander, Administrator of the Federal Alcohol Administration, the Collector of Customs refused to release the whiskey on the ground that it was improperly labeled Scotch whiskey.

This suit is filed to restrain defendants from refusing to release the whiskey.

From the complaint it appears that the Sandy Ross whiskey is a blend of equal parts of grain spirits distilled in Northern Ireland and of Scotch whiskey distilled in Scotland from malted barley, the blending being done in Scotland.

Defendants contend that the name "Scotch Whiskey" is applicable only to whiskey all of which has been distilled in Scotland. Plaintiff asserts that the expression "blended Scotch whiskey" means only that it shall be composed in part of whiskey distilled in Scotland from malted barley, and that the grain spirits used as a diluent may be distilled in Ireland, England, or Wales.

Defendants contend that their position is in accord with the Federal Alcohol Administration Act, 27 U.S.C.A. §§ 201-211, and with Regulations No. 5 promulgated thereunder by the Administrator with the approval of the Secretary of the Treasury.

The Federal Alcohol Administration Act (approved August 29, 1935; 49 Stats. 977; amended June 26, 1936, 49 Stats. 1965, 27 U.S.C.A. § 205(e), authorizes in Section 5 (e) the Administrator to make regulations "* * * requiring, at time of release from customs custody, certificates issued by foreign governments covering origin, age, and identity of imported products: * * *".

Section 46 (a) of Regulations No. 5 relating to labeling and advertising of distilled spirits provides that Scotch whiskey, whether blended or unblended, shall not be released from customs custody for consumption unless accompanied by a certificate issued by a duly authorized official of the British Government certifying that the particular spirits are Scotch and have been manufactured in compliance with the laws of the government regulating the manufacture of whiskey for home consumption.

The officials of the Custom and Excise Office of Great Britain, in issuing such certificates, require that all the spirits contained in whiskey to be certified as Scotch whiskey shall be distilled in Scotland.

Plaintiff contends that the Regulation is invalid because it exceeds the authority conferred by the statute, and also because it delegates to a foreign government the determination of what is Scotch whiskey; that the effect of the Regulation is to deprive plaintiff of its lawful right to import into the United States the whiskey here involved as Scotch whiskey, and thereby to deprive plaintiff of its property without due process of law.

Plaintiff further contends that the 21st Amendment to the Constitution, U.S.C.A. Const. Amend. 21, transfers to the states all power with respect to alcoholic liquors, including foreign and interstate commerce therein, and that therefore the Federal Alcohol Administration Act is beyond the powers of Congress and unconstitutional.

This case is heard upon plaintiff's application for a preliminary injunction to restrain the enforcement of the Federal Alcohol Administration Act and Regulations No. 5 thereunder; and also upon defendants' motion to dismiss the complaint.

1. The Constitutional Questions.

a. The 21st Amendment does not deprive Congress of all power to regulate foreign and interstate commerce in intoxicating liquors.

The 21st Amendment to the Constitution provides: "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited".

In support of their contention that this amendment transfers from Congress to the states all control over foreign and interstate commerce in intoxicating liquors plaintiff's counsel rely on State Board of Equalization of California v. Young's Market Company, 299 U.S. 59, 57 S.Ct. 77, 81 L. Ed. 38 and Mahoney v. Joseph Triner Corporation, 304 U.S. 401, 58 S.Ct. 952, 82 L. Ed. 1424.

In State Board of Equalization of California v. Young's Market Company, 299 U. S. 59, 57 S.Ct. 77, 81 L.Ed. 38, a state statute imposing a license fee for the privilege of importing beer into California was sustained as a valid exercise of the state's authority under the 21st Amendment. It was held that a classification recognized by the 21st Amendment could not be deemed void under the equal protection clause of the 14th Amendment, U.S.C.A.Const. Amend. 14.

This conclusion was followed in Mahoney v. Joseph Triner Corp. 304 U.S. 401, 58 S.Ct. 952, 82 L.Ed. 1424. There a Minnesota statute provided that no licensed manufacturer or wholesaler should import any brand of intoxicating liquors containing more than 25% of alcohol by volume and ready for sale without further processing, unless such brand was registered in the Patent Office. While this might result in a discrimination in favor of liquor processed within Minnesota, the statute was held to be within the power given to the state by the 21st Amendment.

We are of opinion that these cases do not support plaintiff's contention, and that the Amendment does not destroy the power of Congress to regulate foreign and interstate commerce in intoxicating liquors, but that such power continues except as modified by the Amendment.

b. As a condition of permitting the importation of distilled spirits as Scotch whiskey, Congress may require the importer to produce certificates issued by the British Government that in fact such whiskey is Scotch whiskey.

The power to regulate commerce extends to the prohibition of shipments in such commerce. United States v. Carolene Products Co., 304 U.S. 144, 147, 58 S.Ct. 778, 82 L.Ed. 1234; Lottery Case, Champion v. Ames, 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492.

In Buttfield v. Stranahan, 192 U.S. 470, 493, 24 S.Ct. 349, 354, 48 L.Ed. 525, in holding that Congress could forbid the importation of teas which were not equal to certain standards, it was said: "* * * no individual has a vested right to trade with foreign nations, which is so broad in character as to limit and restrict the power of Congress to determine what articles of merchandise may be imported into this country and the terms upon which a right to import may be exercised". (Italics supplied)

It follows that Congress has the constitutional right to impose the condition that whiskey may be imported into this country only upon the production of evidence of a specified kind establishing the identity of such whiskey.

c. While we decide against plaintiff on the Constitutional questions, we think the complaint does attempt to restrain the enforcement of an act of Congress on the ground that the act, as well as the Regulations thereunder are repugnant to the Constitution. We conclude that the hearing is properly held by a three-Judge-court under the provision of Section 3 of the Act of August 24, 1937, 50 Stats. 752, 28 U.S.C.A. § 380a.

2. The Regulations Are Within the Framework of the Statute.

In Panama Refining Co. v. Ryan, 293 U. S. 388, 389, 55 S.Ct. 241, 79 L.Ed. 446, the Supreme Court—with respect to the power of Congress to authorize executive officers to make regulations—said: "So also, from the beginning of the government, the Congress has conferred upon executive officers the power to make regulations—`not for the government of their departments, but for administering the laws which did govern.' United States v. Grimaud, 220 U.S. 506, 517, 31 S.Ct. 480, 55 L.Ed. 563. Such regulations become, indeed, binding rules of conduct, but they are valid only as subordinate rules and when found to be within the framework of the policy which the Legislature has sufficiently defined" (page 428, 55 S.Ct. page 252).

We think Regulations No. 5 are within the framework of the policy defined by Congress in the Federal Alcohol Administration Act.

In addition to the purpose of protecting the revenue, the policy of Congress in that statute is to prevent unfair competition among manufacturers and dealers and to protect the consumer from deception, and to provide him with adequate information as to the identity and quality of the products offered for purchase.

By that statute the Federal Alcohol Administration was created as a division of the Treasury Department for the purpose of executing the law. The Administrator is directed to prescribe, subject to the approval of the Secretary, such rules and regulations as may be necessary to carry out his powers and duties (Sec. 2(a)...