Griesedieck Bros. Brewery Co. v. Moore

• Decision Date: 21 November 1919
• Docket Number: 5207.
• Citation: 262 F. 582
• Parties: GRIESEDIECK BROS. BREWERY CO. v. MOORE, Internal Revenue Collector, et al.
• Court: U.S. District Court — Eastern District of Missouri

262 F. 582

GRIESEDIECK BROS. BREWERY CO. v. MOORE, Internal Revenue Collector, et al.

No. 5207.

United States District Court, E.D. Missouri, Eastern Division.

November 21, 1919

Edward C. Crow, John T. Fitzsimmons, Charles A. Houts, Edgar R Rombauer and W. K. Koerner, all of St. Louis, Mo., for plaintiff.

Walter L. Hensley, U.S. Atty., and Benj. L. White, Asst. U.S. Atty both of St. Louis, Mo., for defendants.

POLLOCK District Judge.

The above entitled and numbered suit arose out of the consolidation, for the purpose of hearing and decision, of five like suits, brought, respectively, by the Independent Breweries Company, St. Louis Brewing Association, Griesedieck Bros. Brewery Company, Schorr-Kolk-Schneider Brewing Company and Louis Obert Brewing Company, against defendants, the collector of internal revenue for the First district of the state of Missouri, and the United States attorney for the Eastern district of the state of Missouri, to restrain and enjoin said defendants from enforcing or attempting to enforce against complainants certain provisions of an act of Congress entitled the National Prohibition Act, approved October 28, 1919 (chapter 85). The specific ground on which such injunctive relief is demanded is the alleged want of constitutional power in Congress to enact said legislation therefore the act, in so far as challenged by complainants, affords defendants no warrant of law to do the injurious acts by them threatened to be done unto complainants in their persons and property rights, as set forth in the bills of complaint.

To the several complaints so filed defendants have appeared, and interpose separate motions to dismiss for want of jurisdiction in the court to entertain them, and, further, for want of equity. The several complainants have applied for a temporary injunction to protect the status of the parties until the constitutional validity of the act may be finally determined and decreed. On said motions and applications the consolidated cause stands argued and submitted for decision on the pleadings, motions, and proofs in the form of affidavits filed by the complainants.

From the pleadings and proofs certain facts are deducible beyond all controversy. Complainants, each and all, were on the day said act by its terms became effective engaged in brewing, manufacturing, selling, and distributing within the jurisdiction of this court certain beverages containing not to exceed 2 3/4 per cent. alcohol, in pursuance of and in strict conformity with the provisions of the acts of Congress of August 10, 1917 (40 Stat.c. 53), and of November 21, 1918 (40 Stat.c. 212), and all other acts of the Congress, and in strict compliance with and conformity to all the laws of the state of Missouri, and under permission or license received from the lawfully constituted authorities of the state of Missouri. In the conduct of said lawful business under the laws of the state complainants engaged many workmen, employes, and laborers at vast expense, employed vast amounts of capital invested in buildings, machinery, materials, and products specially devoted to the conduct and carrying on of said business, and for the purpose of obtaining the permission of and a license from the state of Missouri to engage in and conduct said business. Complainants for years had been, and were at the time said act became operative according to its terms, compelled to and did pay to the state large amounts of money by way of revenues collected and used by the state. Such beverages so being manufactured by the complainants are not in truth and fact intoxicating liquors or drinks, as the word 'intoxicating' is defined or employed in its common acceptation among men, or as defined or employed in scientific language or treatise on the subject. That the enforcement by defendants against complainants and their properties, plants, and apparatus so employed of the provisions of said act of October 28, 1919, in so far as applicable to the period of one year after ratification of the Eighteenth Amendment to the national Constitution by the states, will operate to confiscate the property of complainants, will deprive complainants of the use, benefit, and value of the same without just compensation and without due process of law, etc. Therefore complainants pray injunctive relief against the threatened acts of irreparable injury, loss, and damage provided for in said portion of the act.

Coming, now, first to a consideration of the separate motions of defendants filed against the complainants to dismiss the same for want of jurisdiction, it may be said:

It is perfectly obvious this court has jurisdiction to hear and determine the question raised as to the constitutional validity of the provisions of the act of Congress challenged, for such issue is a judicial, and not a legislative, question, and on the decision of this one issue depend all others in this case; for, if the act in so far as challenged be within the constitutional power of the Congress to enact into law, the complainants, and all others, including the defendants, must obey and enforce its terms. On the contrary, if the provisions of the act challenged by complainants are found and decreed as a matter of law to lie without and beyond the constitutional power of the Congress to enact into law, then the act is not a law. It has no office to perform, has no binding force or effect upon any citizen of the republic, and defendants in enforcing it, or in attempting or threatening to enforce its provision against complainants or their property and property rights, to their irreparable loss, injury, and damage, are not officers of the law, acting within the scope of their lawful authority, but are, when so engaged, mere private individuals, volunteers, and intermeddlers, whose injurious acts ought to and in justice should be restrained. To such extent and end go all the authorities on the subject. Osborn v. United States Bank, 9 Wheat. 737, 6 L.Ed. 204; Dobbins v. Los Angeles, 195 U.S. 223, 25 Sup.Ct. 18, 49 L.Ed. 169; Ex parte Young, 209 U.S. 123, 28 Sup.Ct. 441, 52 L.Ed. 714, 13 L.R.A. (N.S.) 932, 14 Ann.Cas. 764; Wes. Un. Tel. Co. v. Andrews, 216 U.S. 165, 30 Sup.Ct. 286, 54 L.Ed. 430; Herndon v. Chi., Rock Island & Pac. Ry., 218 U.S. 135, 30 Sup.Ct. 633, 54 L.Ed. 970; Philadelphia Co. v. Stimson, 223 U.S. 605, 32 Sup.Ct. 340, 56 L.Ed. 570; Truax v. Raich, 239 U.S. 33, 36 Sup.Ct. 7, 60 L.Ed. 131, L.R.A. 1916D, 545, Ann. Cas. 1917B, 283; Wilson v. New, 243 U.S. 332, 37 Sup.Ct. 298, 61 L.Ed. 755, L.R.A. 1917E, 938, Ann. Cas. 1918A, 1024; Hammer v. Dagenhart, 247 U.S. 251, 38 Sup.Ct. 529, 62 L.Ed. 1101, Ann. Cas. 1918E, 724; Jacob Hoffman Brewing Co. v. McElligott, 259 F. 525, . . . C.C.A. . . .; Scatena et al. v. Caffey and Edwards (Southern District of New York, August 20, 1919) 260 F. 756.

The court has jurisdiction to consider and determine the constitutional validity of the act in question. If valid the court must so declare, and being valid the law must be obeyed. If void for want of constitutional power, the courts to which that question is lawfully submitted must so declare; and, if such result be decreed, neither the government, the defendants herein nor any right-minded citizen will desire its enforcement, and the courts to which this question is lawfully submitted can neither decline nor escape decision of the question raised.

Is the act of October 28th, in so far as by complainants challenged in this controversy, constitutional and valid? The act on its face is divided into two distinct parts: First, one having relation to the continued enforcement of what is known as the War-Time Prohibition Act of November 21, 1918, as changed, modified, and amended, until the conclusion of the treaty of peace between this country and the German allies, or at least until that time is reached at which the President by his proclamation shall declare the war at an end. The other part of the act deals with the enforcement of national prohibition after the prohibitory amendment to the Constitution shall by its terms become operative. With this second part of the act this controversy does not concern itself, but does involve alone the first part or provision of the act.

That the right of complainants to manufacture, barter, sell, dispose of, or use the beverages by them produced, whether in their nature intoxicating or nonintoxicating, within the territorial limits of the state of Missouri, in time of peace, in the absence of the Eighteenth Amendment to the national Constitution, can be prohibited or regulated alone by the exercise of the sovereign police power of the state, none can well deny. As under the national Constitution, formed by the union and consent of the several states in existence when it was formed, and to which the subsequently admitted states have irrevocably bound themselves by the act of admission, all police power is expressly reserved to be exercised by the sovereign states in such manner and form as they may lawfully ordain and prescribe by law, it is too clear for argument no power or pretended power of Congress in the enactment of the act in question can or may be traced to any such source. If permissible, at this late date, to cite authorities in support of this position, the following may be noted: Kidd v. Pearson, 128 U.S. 1, 9 Sup.Ct. 6, 32 L.Ed. 346; Vance v. Vandercook, 170 U.S. 438, 18 Sup.Ct. 674, 42 L.Ed. 1100; Keller v. United States, 213 U.S. 128, 29 Sup.Ct. 470, 53 L.Ed. 737, 16 Ann.Cas. 1066; Hammer v. Dagenhart, 247 U.S. 251, 38 Sup.Ct. 529, 62 L.Ed. 1101, Ann. Cas. 1918E, 724.

Indeed the state of Missouri, in the lawful exercise of its undoubted reserve police power, has ordained complainants in this case may do, and has legalized complainants in the...