Casper v. Doran

• Decision Date: 31 January 1929
• Docket Number: No. 4781.,4781.
• Citation: 30 F.2d 400
• Parties: CASPER v. DORAN et al.
• Court: U.S. District Court — Western District of Pennsylvania

30 F.2d 400 (1929)

CASPER v. DORAN et al.

No. 4781.

District Court, E. D. Pennsylvania.

January 31, 1929.

Patrick J. Friel, of Philadelphia, Pa., for plaintiff.

R. H. Woolsey and George W. Coles, U. S. Atty., both of Philadelphia, Pa., for defendants.

DICKINSON, District Judge.

This hearing has partaken of a reargument of the question of whether a basic permit, once granted to the manufacturer of a nonbeverage "article," can be revoked otherwise than in the method prescribed by Congress for the revocation of a permit by section 9 of title 2 of the National Prohibition Act (27 USCA § 21). More especially, it is whether such permit can be annulled by the expedient of granting it for a year, so that it will expire by time limitation, thus requiring the permittee to apply for a new permit, and thereby submitting his claims to a permit to the exercise of the discretion of the Commissioner. A number of cases raising the like question were argued together. We dispose of all of them in one opinion.

The permit authorities, for reasons which can be readily sensed, whether avowed or not, attach much importance to this extension of their control over those engaged in the business outlined in section 4 of title 2, 27 USCA § 13. Indeed, many who are interested in the general subject of the enforcement of national prohibition are of the settled opinion that the supply of alcohol to the tribe of outlaws from whom the bootleggers receive their stocks of illicit liquor cannot be effectively stopped unless control of the trade in question is confided to the Prohibition enforcement officers.

Because the question is of such importance, we have been favored with a very full and ably presented argument in support of the lawfulness of the control sought and a most forceful appeal to have this view prevail. A decent respect for the opinion the defendants, along with many others, entertain, as well as for the well-considered arguments advanced by counsel who have so thoroughly studied and ably elucidated the subject, calls and indeed provides us with the only excuse we have for the discussion of the question at greater length than we would otherwise feel justified in doing. Indeed, all which can be said has already been so often said that its reiteration is triteness.

We have already mentioned the contribution to efficiency which would flow from giving to the permit authorities discretionary control over not merely the original issue of permits, but likewise over their continuance. Opposed to this is the very great danger of evils to follow in the wake of the grant of such a power. No one can shut his eyes to the reality of the evils which would be sure to be let loose. Congress, as before often observed, was compelled to make its choice between the risks of two sets of evils and to encounter one or the other. The comment has also often before been made that the question at the bottom is between government by law and government by men.

We are still repeating what has again been often said when we start with the proposition that the Eighteenth Amendment and the national prohibition law are aimed, not at the use of alcohol, but at its use as the basis of a beverage, and not even at its use as a beverage, but at the traffic in it, and not even at the traffic in alcohol, but at the traffic in it for beverage purposes. Alcohol has a wide and important use in the arts, which is in no sense unlawful. The supply of it for this lawful purpose affords opportunity, and doubtless temptation, for its diversion to unlawful uses, and because of this Congress has exercised the power conferred to regulate its lawful use, as well as to forbid the unlawful.

Intoxicating liquor, even in potable form, likewise has its lawful uses. Congress recognized this distinction between potable liquor and liquor which is nonpotable, but which may be rendered potable by unlawful manipulation, and deals separately with each. Potable liquor (including raw alcohol) is defined in the act by enumeration, and designated as "liquor" and nonpotable products, into the manufacture of which alcohol enters as an ingredient, are likewise defined by enumeration and designated and distinguished as "articles." None of these "liquors" (other than alcohol itself) and none of the "articles," can be produced without a supply of alcohol, and there are safeguards against illicit products thrown around each, as well as the production of alcohol itself.

The argument in support of the time limitation of the permit begins and ends with the provision in one clause of section 6 of title 2 of the act (27 USCA § 16), which undoubtedly limits all permits there mentioned to an expiration on the last day of each month. It is just as clear, however, that this clause refers to permits to produce "liquor," as defined in the act, and that it does not refer to permits to manufacture the "articles," the manufacture of which is provided for in section 4 of title 2.

The argument is addressed to us that the quoted clause in section 6 of title 2 must include permits to engage in nonbeverage articles, because otherwise there would be no provision for the appeal to the court in the case of the refusal or revocation of permits granted to manufacturers of nonbeverage articles named...