Ma-King Products Co. v. Blair

• Decision Date: 09 February 1925
• Docket Number: No. 3254.,3254.
• Citation: 3 F.2d 936
• Parties: MA-KING PRODUCTS CO. v. BLAIR, Com'r of Internal Revenue.
• Court: U.S. Court of Appeals — Third Circuit

3 F.2d 936 (1925)

MA-KING PRODUCTS CO. v. BLAIR, Com'r of Internal Revenue.

No. 3254.

Circuit Court of Appeals, Third Circuit.

February 9, 1925.

Louis Little, of Pittsburgh, Pa., and B. D. Oliensis and Francis Shunk Brown, both of Philadelphia, Pa., for appellant.

Walter Lyon, U. S. Atty., and George V. Moore, Sp. Asst. U. S. Atty., both of Pittsburgh, Pa., for appellee.

Before BUFFINGTON and WOOLLEY, Circuit Judges, and BODINE, District Judge.

BUFFINGTON, Circuit Judge.

In the court below the Ma-King Products Company, a corporate citizen of New Jersey, filed a bill in equity against David H. Blair, Commissioner of Internal Revenue. It alleged it had duly made application, accompanied by proper bond, to said commissioner for a permit to operate an alcohol denaturing plant; that under the law he was empowered and authorized to grant such permit, but he had "arbitrarily, illegally, and without any reason or warrant in law or in fact" disapproved the application and refused to issue the permit. The bill prayed the court to revoke the finding and disapproval of the Commissioner, and ordered him to decree that he approve and grant the permit prayed for. Traversing the foregoing allegations of arbitrary and illegal conduct, the Commissioner made answer, and further set forth that he, "as the result of an investigation conducted by respondent's agents, is informed that Harry J. Bogash and Joseph H. Klutsch, respectively, president and secretary-treasurer of the petitioning company, are not individually, or as officers of said petitioner, entitled to be intrusted with a permit of the nature and kind set forth in said bill of complaint, or any other permit under the provisions of the National Prohibition Act, and that therefore your respondent, upon said information, acted under full warrant of law and fact in disapproving the application of the petitioning company and declining and refusing to issue the permit prayed for by the petitioners."

Testimony was taken by both sides, and the case heard by Judges Thomson and Schoonmaker, of the Western District of Pennsylvania, who concurred that there was nothing in the record to justify them "in finding that the Commissioner of Internal Revenue, in refusing the application of the plaintiff for the permit for the establishment of a denaturing plant, abused the wide discretion vested in him by the act of Congress." From a decree dismissing the bill, this appeal is taken.

After an examination of the proofs in the case we are...