Pancheri v. Wynne

JOHNSON, District Judge.

On February 7,1930, the plaintiff filed his bill in equity, praying that the defendant be restrained from interference with the operation of his cereal beverage business at premises, 335-337 W. Broadway, Maueh Chunk, Carbon county, Pa. On the plaintiff’s bill a temporary restraining order on the defendant was granted. On February 17, 1930, the defendant filed his answer to the plaintiff’s bill, and on the same date a hearing was had on the issues raised by the bill and answer.

From the bill and answer the following facts appear: On July 24,1928, the plaintiff applied to the prohibition administrator for a permit to operate a cereal beverage plant. On October 10, 1928, tbe plaintiff’s applieation was refused. On January 23, 1929, a hearing was bad on tbe refusal to grant tbe permit, after which tbe administrator again refused tbe application for a permit. Tbe plaintiff filed bis bill for a review of tbe decision of tbe prohibition administrator in refusing to grant tbe permit to tbe plaintiff, and on August 23, 1929, after bearing, this court ordered tbe prohibition administrator to issue tbe permit to tbe plaintiff. On September 9,1929', tbe prohibition administrator issued a permit to tbe plaintiff to operate a cereal beverage plant, limiting tbe duration of tbe permit to December 31, 1929. On November 22, 1929, tbe plaintiff applied for a permit to cover tbe year 1930. On December 19, 1929, tbe plaintiff’s application for a permit for tbe year 1930 was refused. Tbe plaintiff continued to operate bis cereal beverage plant after December 30, 1929, contending that tbe permit granted September 9, 1929, continued, under tbe law, until December 31, 1930. Immediately upon the expiration of the 1929 permit, prohibition agents, under a search warrant, entered tbe plaintiff’s premises, seized the beer, and interfered with the operation of tbe plaintiff’s cereal beverage plant. To restrain, tbe prohibition agents from interference with tbe operation of tbe plaintiff’s cereal beverage plant during tbe year 1930, a bill of complaint was filed, and a temporary restraining order was issued.

The question here raised is whether the permit issued September 9, 1929, terminated December 31, 1929, or December 31, 1930, and this question will be determined by tbe proper interpretation of section 6, tit. 2, of tbe National Prohibition Act, section 16, tit. 27 USCA. Tbe particular part of tbe act of Congress controlling tbe question here raised is as follows:

“All permits to manufacture, prescribe, jell, or transport liquor, may be issued for ¿me year, and shall expire on tbe 31st day of December next succeeding tbe issuance thereof: Provided, That tbe commissioner may without formal application or new bond extend any permit granted under this chapter or laws now in force after August 31 in any year to December 31 of tbe succeeding year.”

Under this provision, tbe Prohibition Commissioner may issue a permit for one year which shall expire on December 31st of that year, provided one calendar year elapses between tbe issuance of tbe permit and tbe 31st day of December following; but, in any event, tbe permit shall expire on December 31st next succeeding the issuance thereof. In other words, tbe Prohibition Commissioner may issue at tbe longest a permit for one year, provided tbe condition as to time will permit, but in no event can be issue a permit to extend beyond tbe 31st day of December next succeeding tbe date of tbe issuance of tbe permit, In limiting tbe permit to December 31, 1929, the Commissioner was only doing what the law prescribed.

Here tbe permit was issued September 9, 1929, and, under tbe provisions of tbe law, tbe permit would expire December 31, 1929, unless extended by the Commissioner. This permit was not extended by the Commissioner to cover tbe year 1930, and therefore tbe plaintiff was without a permit to operate bis cereal beverage plant during any part of the year 1930. His operation of his cereal beverage plant in 1930 was therefore illegal, and the prohibition agents bad a right, under a search warrant, to visit tbe plaintiff’s property and to take charge of tbe same, if tbe plaintiff was illegally operating it.

It follows, therefore, that tbe temporary injunction heretofore issued must be dissolved and the prayer for a permanent injunction refused.

The decision in the case of Dauefer-Lieberman Brewing Co. v. James M. Doran et al. (D. C.) 38 F.(2d) 831, cited by tbe plaintiff to sustain bis position that tbe permit issued September 9,1929, extended by operation of law to December 31, 1930, does not apply in this ease. If this decision is meant to bold in a case like tbe one in band that tbe permit issued September 9, 1929, must extend to December 31, 1930, and did not expire December 31,1929, this court cannot follow such holding.

And now, February 28, 1930, this cause came on to be beard at this term, and was argued by counsel; and thereupon, upon consideration thereof, it is ordered, adjudged, and decreed that tbe temporary injunction, heretofore issued restraining tbe defendant from interfering with tbe operation of the plaintiff’s cereal beverage plant, is dissolved, and tbe prayer for a permanent injunction is refused, and the bill in equity is accordingly dismissed.