United States v. Westmoreland Brewing Co., Inc.

• Decision Date: 02 March 1923
• Citation: 294 F. 735
• Parties: UNITED STATES v. WESTMORELAND BREWING CO., Inc., et al.
• Court: U.S. District Court — Western District of Pennsylvania

294 F. 735

UNITED STATES v. WESTMORELAND BREWING CO., Inc., et al.

United States District Court, W.D. Pennsylvania.

March 2, 1923

Walter Lyon, U.S. Atty., and A. W. Henderson and George V. Moore Asst. U.S. Attys., all of Pittsburgh, Pa., for the United States.

John Duggan, of Uniontown, Pa., for defendants.

SCHOONMAKER District Judge.

This is a criminal contempt proceeding, under the provisions of section 24, title 2, of the National Prohibition Act (Comp St. Ann. Supp. 1923, Sec. 10138 1/2ll), under the provisions of which, in case of violation of any injunction, temporary or permanent, the court may summarily try and punish the defendant. By the provisions of this section, the proceedings for contempt are commenced by filing, with the clerk of the court from which the injunction issued, information under oath, setting out the alleged facts constituting the violation. The section further provides for the issuing of a warrant, the arrest of the defendant, and his trial, either upon affidavits or upon oral testimony of witnesses.

In this case witnesses were produced and orally examined at the trial. The information filed charges the violation by the defendants above named of the temporary injunction issued by this court, in an action in equity at No. 742, November term 1922, between the United States of America as complainant and the Westmoreland Brewing Company as defendant, wherein and whereby the said defendant, and its officers, agents, servants, assigns, trustees, employees, and all others to whom such temporary injunction should come, were enjoined, pending the hearing and determination of said action in equity, from manufacturing, selling, keeping, or bartering any intoxicating liquor, as defined in section 1, title 2, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, Sec. 10138 1/2), upon the premises of said corporation located at Sutersville, within the Western district of Pennsylvania.

At the trial, before any evidence was offered, the individual defendants above named filed a demurrer to the information against them, alleging that there was no sufficient charge against them as individuals, and alleging, first, that the information charged no contempt against them; second, that the information did not charge them with being officers of the defendant corporation; third, that the affidavit on which this information was based charges no contempt against them; fourth, that the information charges more than one offense; fifth, that the information does not constitute an offense under the laws of the United States; sixth, that the information does not charge that the alleged contemners knowingly violated the injunction order of July 29, 1922.

We believe that the information in this case stated sufficient facts to charge the individual defendants, and demurrer was overruled. No demurrer or answer was filed by the defendant corporation. The trial proceeded with the oral testimony of witnesses, and at the conclusion thereof the individual defendants moved the court for a finding of 'not guilty' as to them. From the testimony produced before the court in the trial of the above case, the court finds:

That the defendant Westmoreland Brewing Company, Inc., and its officers, Louis Brown, president, Maurice Farkas, secretary, and Charles Messner, treasurer, were, on December 27, 1922, guilty of contempt of court, under the provisions of said section 24, title 2, of the National Prohibition Act, in that they, on said date, violated the injunction order issued by the United States District Court for the Western District of Pennsylvania, July 29, 1922, in an action in equity in which the United States of America was complainant, and the Westmoreland Brewing Company, Inc., was defendant, by keeping and manufacturing on the premises of the said company in Sutersville, in the Western district of Pennsylvania, intoxicating liquor, as defined in section 1, title 2, of the National Prohibition Act, as charged in the information filed herein. The court further finds that the defendants Max Friedman, Henry Friedman, Jacob Roth, James Brown, and Louis Farkas were neither officers nor agents of the corporation at the time of the violation of said National Prohibition Act, and that they are not guilty of contempt of court, and that proceedings as to them should be dismissed.

It was strongly urged, upon the trial of this case, that the evidence of the violation of this injunction order was obtained by the general prohibition agents in violation of the defendant's constitutional rights, in the Fourth and Fifth Amendments to the Constitution of the United States; that the evidence in this case was obtained through searches and seizures made without the authority of search warrant. From the evidence, it appears that the general prohibition agents of the United States went to the brewery of the defendant corporation on December 27, 1922, in the daytime, and found the employees of the defendant corporation in the act of loading a freight car on the Baltimore & Ohio siding directly in front of the Westmoreland Brewing Company's racking room. At the time the agents arrived there were barrels of beer on the car, on the paved roadway between the car and the platform in front of the racking room, on the platform itself, and in the racking room. Samples were taken by the general prohibition agents from beer in the freight car, on the roadway, in the racking room, and on the platform. It was found to contain alcohol of over 3 per cent. by volume, with the exception of some samples taken from a barrel in the racking room, which contained less than one-half of 1 per cent. of alcohol.

Under the evidence, there can be no doubt that the beer in the freight car, on the Baltimore & Ohio siding, in the barrels on the roadway between the siding and the platform in front of the racking room, and the beer on the platform itself, contained more than one-half of 1 per cent. of alcohol and was intended for beverage purposes. In fact, no evidence was offered by the defendants to show that the beer in question contained less than one-half of 1 per cent. of alcohol by volume. This beer, therefore, was contraband, and no property right existed in it. National Prohibition Act, Secs. 25, 26, title 2 (Comp. St. Ann. Supp. 1923, Secs. 10138 1/2m, 10138 1/2mm). It was subject to seizure by the United States whenever and wherever it could be lawfully seized. In the seizure itself, in this case, there was nothing unlawful, provided the searches were lawful.

We are of the opinion that the revenue agents in this case had the absolute right of seizure and search under the provisions of law and the Constitution of the United States. The familiar cases of Boyd v. United States, 116 U.S. 616, 6 Sup.Ct. 524, 29 L.Ed. 746; Gouled v. United States, 255 U.S. 298, 41 Sup.Ct. 261, 65 L.Ed. 647; Weeks v. U.S., 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne v. U.S., 251 U.S. 385, 40 Sup.Ct. 182, 64 L.Ed. 319; and Amos v. U.S., 255 U.S. 313, 41 Sup.Ct. 266, 65 L.Ed. 654-- give full and broad effect to the Fourth and Fifth Amendments to the Constitution, and we have not overlooked them. But in the case at bar we have the case of a brewery that was operated, not as a matter of right, but by permission of the Commissioner of Internal Revenue. The government had a direct interest in the articles produced, because they were subject to tax. The permittee gave a bond, conditioned that the permittee would not violate any of the provisions of the National Prohibition Act and regulations promulgated thereunder, or any other laws of the United States respecting distilled, spirituous, or other intoxicating liquors, conditioned further for the payment of all taxes, assessments, fines, and penalties incurred or imposed by law.

Under these circumstances, it seems to be reasonable that the government had the right to enter the premises of the brewery and examine the excisable products, to determine whether the conditions of the permit were or were not being observed. This is not ...