United States v. Eilert Brewing & Beverage Co.

• Decision Date: 26 December 1921
• Docket Number: 643.
• Citation: 278 F. 659
• Parties: UNITED STATES v. EILERT BREWING & BEVERAGE CO.
• Court: U.S. District Court — Northern District of Ohio

278 F. 659

UNITED STATES v. EILERT BREWING & BEVERAGE CO.

No. 643.

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

December 26, 1921

E. S Wertz, U.S. Atty., of Cleveland, Ohio.

Reed Meals, Orgill & Maschke, of Cleveland, Ohio, for defendant.

WESTENHAVER District Judge.

This bill of complaint is filed under favor of sections 21 and 22, title 2, Act of Congress approved October 28, 1919, known as the National Prohibition Act (41 Stat. 314). The relief sought is the abatement as a common nuisance of certain premises therein described, and enjoining the further use thereof for the illegal manufacture and sale of intoxicating liquors. The defendant, called herein the Eilert Company, has answered, denying generally all the allegations of illegal manufacture and sale. In the hearing before me, and on argument, no question has been raised or discussed, except these issues of fact.

The premises in question, including the buildings, machinery, and equipment, were formerly owned and used by the Excelsior Brewing Company for the manufacture and sale of beer. After prohibition became legally effective, the Eilert Company acquired the same, and have since been, and were at the time the transactions under investigation took place, used ostensibly for the manufacture and sale of cereal and other nonalcoholic beverages. The government's evidence shows that on May 14, 1921, two prohibition enforcement agents bought from the defendant's sales manager and its cashier and head bookkeeper four cases of beer, found by analysis, made the first week in June following, to have an alcoholic content of 1.25 per cent. by volume. Three cases were taken from the defendant's bottling room from a large stack of similar cases. The purchase and sale was transacted at defendant's office and place of business with its sales manager, the money was paid to and received by its cashier and head bookkeeper, and sales memos made out by him and placed in a special wallet in the office safe. The price paid therefor was the sum of $5 a case, whereas the customary price for nonalcoholic or near-beer, it is admitted, was only $1.50 a case.

This evidence further shows that on May 19 these same agents bought another case of beer, found upon analysis to contain an alcoholic content of 2.86 per cent. by volume. This sale was transacted at the same place, in the same manner, with the same persons, and at the same price. The witnesses however, say that, when they went to defendant's bottling room and inquiry was made for beer, it was found that there was on hand less than a case, and therefore, at the direction of defendant's sales manager, its cashier went elsewhere in an automobile, returning in about five minutes with a full case of beer. Again, on May 25, these same agents bought two cases of beer, one found upon analysis to contain 2.86 per cent. of alcohol by volume, and the other 3.21 per cent. These purchases were likewise made at the same place, in the same manner, of the same persons, and at the same price, and an employee of defendant was sent by its sales manager in an automobile therefor, and returned with the cases within a period of six or seven minutes. Again, on June 11, the same witnesses bought another case of beer, found upon analysis to contain an alcoholic content of 2.58 per cent. by volume. This sale was also transacted at the same place, in the same manner, with the same persons, and at the same price, and again an employee of defendant was sent by its sales manager after the same in an automobile, returning within a short time with the beer. On June 14 defendant's premises were seized by federal prohibition officers, and several samples of its product were taken at random from a large number of bottles in its bottling room, and three of them were at once analyzed. Of these, one showed an alcoholic content by volume of 51 per cent., and two an alcoholic content by volume of 71 per cent.

The witnesses making these purchases testify to numerous conversations characterizing the transactions then in progress. They say that they asked for real beer; that defendant's sales manager, its cashier and head bookkeeper, and its president were present on some, if not all, of the occasions, and knew and understood what the witnesses desired; and that defendant was selling alcoholic and not near-beer, and also that the beer thus sold was manufactured by defendant at its place of business, and was being thus manufactured and sold along with the nonalcoholic or near-beer. It appears that in the process of manufacturing near-beer, alcoholic beer is first produced, and later the alcohol is extracted therefrom, until the remaining alcoholic content is reduced to the limit permitted by law. The chemists say that a variation of 10 points is a sufficient allowance for errors in an ordinary chemical analysis; that is to say, that an alcoholic content ranging from 45 to 55 would not evidence an intention to produce and sell beer containing more than 50 per cent. of alcohol by volume.

It is the government's contention that defendant illegally and surreptitiously, under cover of its permit to manufacture and sell cereal beverages, near-beer, and other nonalcoholic drinks, was manufacturing and selling some part of its product of a higher alcoholic content, charging therefor a price of $3.50 a case higher than the...