Liscio v. Campbell
| Decision Date | 01 July 1929 |
| Docket Number | No. 352.,352. |
| Citation | 34 F.2d 646 |
| Parties | LISCIO v. CAMPBELL, Federal Prohibition Administrator, et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Charles Dickerman Williams, of New York City, for appellant.
Charles H. Tuttle, U. S. Atty., of New York City (U. S. Grant, Asst. U. S. Atty., of New York City, of counsel), for appellees.
Before MANTON, L. HAND, and CHASE, Circuit Judges.
L. HAND, Circuit Judge (after stating the facts as above).
On what theory the plaintiff applied for a decree compelling the administrator to grant him a license pendente lite we cannot understand. Section 6 (27 USCA § 16) is the measure of his rights, and, while it provides for a suit in equity, it does so only by reference to section 5 (27 USCA § 14), which says that "during the pendency of such proceedings" the court "may restrain the manufacture, sale, or other disposition of such article." Nowhere is it suggested that the court shall issue an ad interim permit; on the contrary, the section presupposes that the permit has been already revoked, and the language quoted precludes the notion that the permittee may reverse the revocation before final decree. Furthermore, section 9 (27 US CA § 21), which gives a general right to review revocations, expressly declares that pendente lite the permit shall remain revoked. It would require strong language in any event to justify the power to grant what is in substance a preliminary mandamus, the starkest of solecisms; but these clear indications to the contrary would be enough, were it a usual procedure, and we need not consider the general jurisdiction of a court of equity to grant affirmative relief in limine.
As the final hearing upon the bill must in any case be limited to the proceedings before the administrator (Ma-King Products Co. v. Blair, 271 U. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046), we are now in as good a position to decide the issues as we should ever be, and we proceed to the merits. The circular letter of the Prohibition Commissioner of December 1, 1928, in effect prohibited the use of whisky for manufacturing whenever it was not necessary as an extractive, solvent, or preservative. The reason given was the difficulties which had arisen from its misuse, presumably because the limitations prescribed for the direct dispensing of whisky did not apply. While it is only when a condiment that the commissioner forbids it, this is how the plaintiff wished to use it, for he made no pretense of showing that he was within the compass of the circular. His complaint really is that whisky aids his sales, which we can well understand, and that people think his drugs help them more if they get a little liquor with them, which is also credible.
Section 1101 of Regulation II allows the use of "alcohol and other distilled spirits and wines" in making drugs, and while section 1103 limits the use of alcohol to so much as may be necessary as a solvent, an extractive, or a preservative, it does not apply to whisky (subdivision (e), § 10, Regulation II), and, if it did, would not forbid its use altogether. Therefore, so far as the decision depends upon the circular letter of December 1, 1928, it has no support either in the statute or in the regulations, because, when Congress gave power to the commissioner and the Secretary concurrently to make regulations, neither one could exercise it alone. In the absence of any regulation, it would...
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RONDINELLA v. Campbell
...reasons and not an arbitrary exercise of discretion, and further because the court is without power to grant the motion (Liscio v. Campbell C. C. A. 34 F.2d 646), but a preference will be granted and the case placed on the calendar for trial this On March 17, 1930, on a motion for judgment ......