Hannah & Hogg v. Clyne

• Citation: 263 F. 599
• Decision Date: 17 November 1919
• Docket Number: 1338.
• Court: U.S. District Court — Northern District of Illinois
• Parties: HANNAH & HOGG v. CLYNE, Dist. Atty., et al.

263 F. 599

HANNAH & HOGG v. CLYNE, Dist. Atty., et al.

No. 1338.

United States District Court, N.D. Illinois, Eastern Division.

November 17, 1919

After allegations sufficient to confer jurisdiction upon this court, the bill charges:

That on November 21, 1918, there was enacted by Congress and approved by the President of the United States the so-called War Prohibition Act (chapter 212, 40 Stat. 1046, 1047) containing the following provisions:

'That after June 30, 1919, until the conclusion of the present war and thereafter until the termination of demobilization the date of which shall be determined and proclaimed by the President of the United States, for the purpose of conserving the man power of the nation, and to increase efficiency in the production of arms, munitions, ships, food, and clothing for the army and navy, it shall be unlawful to sell for beverage purposes any distilled spirits, and during said time no distilled spirits held in bond shall be removed therefrom for beverage purposes except for export. ' And further that: 'Any person who violates any of the foregoing provisions (which includes the provision hereinabove set forth) shall be punished by imprisonment not exceeding one year, or by fine not exceeding $1,000, or by both such imprisonment and fine.'

That the National Prohibition Act was passed by both houses of Congress, and on October 19, 1919, presented to the President of the United States; that on October 27, 1919, it was returned to Congress by the President with his objections and veto; and that afterwards, and on October 28, 1919, the bill was passed over the President's veto by the necessary two-thirds vote of each house.

That title 1 of the National Prohibition Act (Act Oct. 28, 1919, c. 85, Secs. 2-5) provides, among other things:

'The Commissioner of Internal Revenue, his assistants, agents, and inspectors, shall investigate and report violations of the War Prohibition Act to the United States attorney for the district in which committed, who shall be charged with the duty of prosecuting, subject to the direction of the Attorney General, the offenders as in the case of other offenses against laws of the United States.'

'The Commissioner of Internal Revenue, his assistants, agents, and inspectors, and all other officers of the United States whose duty it is to enforce criminal laws, shall have all the power for the enforcement of the War Prohibition Act or any provisions thereof which is conferred by law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquors under the laws of the United States.'

'Any room, house, building, boat, vehicle, structure, or place of any kind where intoxicating liquor is sold, manufactured, kept for sale, or bartered in violation of the War Prohibition Act, and all intoxicating liquor and all property kept and used in maintaining such a place, is hereby declared to be a public and common nuisance, and any person who maintains or assists in maintaining such public and common nuisance shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than $100 nor more than $1,000, or be imprisoned for not less than thirty days or more than one year, or both.'

'The United States attorney for the district where such nuisance as is defined in this act exists, or any officer designated by him or the Attorney General of the United States, may prosecute a suit in equity in the name of the United States to abate and enjoin the same.'

The bill further charged:

That the United States on April 6, 1917, declared 'that a state of war exists between the Imperial German Government and the government of the people of the United States. ' That the war continued with actual combat until November 11, 1918, when an armistice was officially declared and established. That the United States through its various departments, since the date of the Armistice, has completely suspended and abandoned all its wartime activities in the production of arms, munitions, ships, food, and clothing for the army and navy, and also has disposed of in excess of $2,000,000,000 in value of stores accumulated for the successful prosecution of the war.

That on July 14, 1919, the War Trade Board Section of the Department of State officially announced the resumption of trade with Germany. That the Federal Reserve Board simultaneously officially announced the resumption of exchange with Germany. That on the same day the War Trade Board Section further officially announced that all commodities had been removed from the export conservation list. That there are now no restrictions upon trade between the United States and those countries with which it and the Allied Governments had been at war. That all censorship of postal, telegraphic, and wireless communication between the United States and those countries was removed on June 21, 1919. That demobilization of the armed forces of the United States has been terminated.

That on November 11, 1918, the President of the United States, in addressing a joint meeting of the two houses of Congress, after summarizing the terms of the armistice, said: 'The war thus comes to an end; for, having accepted these terms of armistice, it will be impossible for the German command to renew it. * * * We know, too, that the object of the war is attained, the object upon which all free men had set their hearts, and attained with a sweeping completeness which even now we do not realize.'

That on September 30, 1919, the War Department officially announced that 'in general the accident of war and the progress of demobilization are at an end, ' that the army and navy were below their peace time strength, and that recruits were being sought for both.

That the message of the President of the United States vetoing the National Prohibition Act, among other things, stated: 'It has to do with the enforcement of an act which was passed by reason of the emergencies of war and whose objects have been satisfied in the demobilization of the army and navy, and whose repeal I have already sought at the hands of Congress. Where the purposes of particular legislation arising out of war emergency have been satisfied, sound public policy makes clear the reason and necessity for repeal.'

That on July 10, 1919, the President of the United State submitted to the Senate the Treaty of Peace with Germany, which he had theretofore, in cooperation with the representatives of the Allied nations, negotiated at Paris, France, and that treaty is now under consideration.

That on December 3, 1917, Congress adopted and submitted to the Legislatures of the several states a joint resolution proposing the adoption of an amendment to the Constitution of the United States, known as the Prohibition Amendment, and which amendment prohibits the manufacture, sale, or transportation within, or the importation into or the exportation from the United States and all territory subject to its jurisdiction of intoxicating liquors for beverage purposes, one year after its date of ratification by the states. That on January 29, 1919, an official proclamation was made by the acting Secretary of State to the effect that the amendment had been adopted.

That the plaintiff does an annual business of over $2,000,000, and has been engaged in distilling, manufacturing, storing, distributing, buying, and selling whisky, alcohol, and other distilled spirits for beverage purposes. That it has complied with all of the laws of the United States, and all of the internal revenue regulations made under or pursuant thereto, and has always duly paid the special tax or license fee required by law to be paid by it as a rectifier of and a wholesale and retail dealer in intoxicating liquors.

That the defendants have publicly threatened to enforce the provisions of the War and National Prohibition Acts, and to bring numerous criminal prosecutions, as well as civil suits to enforce the same, and have notified the plaintiff that, if it sells or attempts to sell any of its floor stock, the property so sold and purchased will be confiscated, and that the defendants would enforce against the plaintiff, its officers, salesmen, and agents, the various pains and penalties specified in the law.

Plaintiff asks that the court by its decree declare unconstitutional both the War Prohibition Act and title 1 of the National Prohibition Act, and grant a temporary injunction or other appropriate relief, to the end that the plaintiff may be immediately restored to the use and benefit and the right of sale in the United States for beverage purposes of its 6,261.13 gallons of floor stock whisky, pending final hearing. It also prays for general relief.

Mayer, Meyer, Austrian & Platt, of Chicago, Ill. (Levy Mayer, of Chicago, Ill., of counsel), for plaintiff.

Charles F. Clyne, U.S. Dist. Atty., and Frederick Dickinson, Asst. U.S. Dist. Atty., both of Chicago, Ill., for defendants.

Before CARPENTER and FITZHENRY, District Judges.

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

Defendants object to the form of action on three grounds: First, the suit is in effect one against the United States, and the United States has not given its consent to be sued; second, a court of equity cannot entertain jurisdiction to enjoin the enforcement of a criminal statute; third, a court of equity cannot restrain the United States attorney from performing his statutory duty. Defendants also move to dismiss for want of equity.

A government cannot act, save through its duly constituted officers and agents, and a suit, therefore, against an officer or agent of the government specially charged by law with the enforcement of the federal statutes, clearly is a suit against the United...