EFTA00191587

646 
181 FEDERAL EXPORTER 2d SERIES 
City's Ordinance No. 3535 against Dur-
ward B. Sutton and Sarah B. Sutton, doing 
business as Sutton Jewelry Company. By 
this appeal the City contends that the Court 
erred in exercising jurisdiction, in granting 
the injunction, and in denying the appel-
lant's motion to dismiss. Under the facts 
of this case and the law properly ap-
plicable thereto, we sustain the contention 
that the Court erred in overruling the mo-
tion to dismiss, and in granting an injunc-
tion. 
The complaint of the appellees, seeking 
a declaratory decree and injunctive relief, 
outlined what was denominated a "unique 
method of doing business and effecting 
sales" of jewelry and other related mer-
chandise, which while it concededly has 
some of the features of a "public auction" 
sale is "materially different from such auc-
tion sales in important respects," these 
claimed differences in law and fact being 
fully stated.' It is alleged that the appellees 
had prepared for inaugurating the proposed 
method of sales by acquiring a substantial 
stock of articles, the disposal of which was 
prevented by the threat of a series of vexa-
tious arrests, any one of which would ir-
reparably damage the good reputation of 
the complainants which they had enjoyed 
in the community since 1925; and that the 
threatened and intended enforcement of 
the ordinance had injuriously restricted 
them in their business and resulted in a 
diminution of their profits. 
A copy of Ordinance No. 3535 of the 
City of Miami, attached as an exhibit to 
the complaint, provides stringent regula-
tions governing the sale and offer to sell 
of jewelry, watches and diamonds "at pub-
lic auction" and requires the securing of a 
permit to conduct such auction; the film-
I. It is stated in the briefs that this 
proposed plan would le operation and 
legal effect be the same as th 
referred 
to and upheld in Zaconick 
City of 
Hollywood, D.C., 85 F.Supp. 
, in which 
the contentions now urged were approved 
by the trial Court Is the present ease 
and the enforcement of an ordinance 
identical with Miami's #3535 enjoined. 
It la apparent that the plan of sale 
proposed to be adopted by the COM. 
PlainIOU is in substantial accord with 
ishing of detailed reports of operations by 
permittees; and subjects violators to a fine 
of not exceeding $500.00 or imprisonment 
not to exceed 60 days, or both) The com-
plaint specifically concedes that fraud is 
likely to occur at auction sales of diamonds, 
jewelry and other like articles conducted 
after nightfall and by artificial light dur-
ing the excitement of competitive bidding. 
when the high bid is final without oppor-
tunity for daylight inspection and examina-
tion. Indeed the selection and proposed 
adoption of "appellees' detailed method" is 
said to be prompted by the desire to elimi-
nate the possibility of fraud or deception. 
Appellees set forth as the controversy be-
tween the parties their contention that the 
provisions of the ordinance, and particular• 
ly specified sections thereof, are not appli-
cable to their proposed method of doing 
business, but if so, are violative of the 
provisions of Amendment 4 and Amend-
ment 14 of the Constitution of the United 
States, whereas the City contends and as-
serts that the ordinance is applicable to ap-
pellee 's detailed method of doing business, 
and the ordinance and all of its provision 
is constitutional. The officials of defendant 
have "threatened to arrest the plaintiffs and 
• 
• • all of their employees and charge 
each of them with a violation of the provi-
sions of such ordinance if and when they 
should conduct their business • • 
• 
within the corporate limits of said defend-
ant municipality between the hours of six 
in the evening of any day and eight in the 
morning of the following day, and if and 
when the plaintiffs employ in the conduct 
of their business the methods detailed here-
inabove. • 
• 
• " The appellees prayed 
that the Court decree the provisions of the 
ordinance and the specific provisions re-
the discussion and rulings of the Court 
there made. 
2. A similar ordinance has been upheld by 
the Florida Courts. 
The opinion in 
Doconiek v. City of Hollywood. supra, 
t 
185 F.Supp. 1 recognises that the Levy 
case (Levy 
Stone), 07 Pia. 458, 121 
So. 583. 585. old "a municipal ordinance 
similar Ili not identical) In Its terms to 
the ordinance here in question" was valid 
as applied to "'auction sale' at night of 
certain dosses of mercbandise." 
EFTA00191907

OITY OF MAXI v. 817TTON 
ea 
at. as 1St lard Set 
!erred to as not applicable to the plaintiffs 
and their proposed method of conduct of 
their business; or if the Court holds the 
provisions of such ordinance applicable to 
the plaintiffs and such methods, it declare 
and decree such ordinance unconstitutional 
and enjoin and restrain the municipality 
and its officers from enforcing or attempt-
ing to enforce the ordinance during the 
pendency of the cause or until the further 
order of the Court, and that upon the final 
hearing the injunction be made permanent 
Eight days after the filing of the com-
plaint the municipality 'responded with a 
motion to dismiss on the grounds: that no 
federal question was involved; that there 
was no matter stated warranting injunc-
S. "It le Ordered and Decreed herein as 
• .follows: 
"1. flat on the plaintiffs compliance 
with the provisions of the paragraph 
hereof numbered 2, and the subject to 
the provisions of the paragraph hereof 
numbered 3. the defendant municipality. 
and each of its officers, agents, servants 
and employes be. and they hereby are, 
enjoined and restrained until the further 
order of the Court, from enforcing or at-
tempting to enforce against the plaintiffs 
any of the provisions of that certain ordi-
nance of the defendant municipality. to-
wit: Ordinance #3635, dated April 7, 
1049. 
"2. That the plaintiffs be, sod they 
hereby are, required to die herein a good 
and sufficient bond in the penal sum of 
$1000.00 with good and sufficient surety 
or sureties. Payable to the defendant. 
and conditioned that the plaintiff will pay. 
or amuse to be paid, to the defendant if 
and in the event the plaintiffs' application 
for this injunctive order shall be later 
held to hero been wrongful, all costs. 
damages and expenses (including reason-
able attorney's fees) which the defend-
ant shall pay or Incur sod which shall 
result from, or be occasioned by, such 
wrongful application: and the injunctive 
provisions of the paragraph hereof num-
bered 1, shall not become or be effective 
unless and until the plaintiffs have hied, 
and the Clerk of this Court shall have 
approved such Donde. 
"3. That the plaintiffs be. and they 
hereby are, required to conduct and 
operate their business (the nature and 
character of which are set forth In their 
complaint) in strict accordance with the 
methods outlined and detailed in such 
complaint, and that they be, and they 
tin relief; that the complainants had a 
complete and adequate remedy at law in the 
courts of the State of I•lorida; that there 
was no such showing of irreparable injury 
u 
would warrant the issuance of an in-
junction; and that the-ordinance was valid 
and constitutional: Oh the same day the 
Court, after a hearing, granted an injunc-
tion upon terms and provisions as in the 
order set forth.a On January 16th, upon a 
further hearing, the motion to dismiss the 
complaint was ordered denied and •the de-
fendant granted twenty days within which 
to file its answer. 
[1] The temporary injunction issued in 
this case had factual support only in the al-
legations of the complaint There was in 
hereby are, farther required (a) to in-
form and advise all prospective or potent-
dal purchasers, prior to offering any 
article for sale, of the conditions or pro-
visions subject to which any proposal to 
buy such article is to be accepted by the 
plaintiffs: 
(b) to prominently display, 
at all times, in their place of business a 
notice or bulletin in and by which pros-
pective or potential purchaser. shall be 
effectively and adequately informed and 
advised of the plaintiffs' methods of do• 
log business (as outlined and detailed 
in their complaint): and (e) to furnish 
and deliver to each prospective or Po-
tential purchaser, whose conditional or 
provisional proposal to buy any ankle, 
offered for salt by the plaintiff. shall 
have been accepted by him, a written or 
printed memorandum in and by which 
the plaintiffs shall legally and effectively 
bind themselves contractually to refund 
to him or her the full amount of the 
purchase price of such article condition-
ally and provisionally paid to or deposited 
with the plaintiffs by such prospective 
or potential purchaser if and la the event 
he or she, of any time within thirty days 
after the submission of such conditional 
or provisional proposal, with or without 
the assignment of any reason or excue• 
for doing so, shall redeliver such article, 
in the same condition it was in at the 
time of the delivery to such prospective 
or potential purchaser, to the plaintiffs 
and regent such refund; and the ap-
Pliability and effectiveness of the in-
junctive provisions of the paragraph 
hereof number 1, are dependent and con• 
ditioned on strict compliance by the plain-
tiffs smith the provisions of this Para-
frank" 
EFTA00191908

848 
181 FEDERAL REPORTER, 2d BER/ES 
opposition the defendant's motion to dis-
miss. While for the purposes of the motion 
to dismiss, the factual allegations of the 
complaint may be taken as true, this is 
nevertheless not the preferable foundation 
for the issuance of an injunction against 
the institution of a prosecution for viola-
lion of a municipal ordinance. Regardless 
of this, however, the facts which may be 
considered as thus established are insuffi-
cient to authorize the issuance of an injunc-
tion. The complaint fails to show "the im-
minence and immediacy of proposed en-
forcement, the nature of the threats actual-
ly made, and the exceptional and irrepara-
ble injury which [the complainant] would 
i
sustain i those threats were carried out." 
E
Watson 
Buck, 313 U.S. 387, 61 S.Ct. 962, 
966, 85 L. d. 1416 Particularly here there 
is and can be no showing of irreparable in-
jury, for there is not even a claim of in-
jury to complainants established and going 
business, but merely a claim that the haz-
ards posed by the contemplated enforcement 
of the ordinance prevents complainants 
from embarking upon a new enterprise, 
from trying out, it may be said, their pro-
posed unique method of merchandising. 
The only loss which the complainants could 
sustain is speculative, dependent upon what, 
if any, profits they might make if they are 
permitted to begin and carry on the conduct 
of their sales in the manner which they as-
sert is legal. They arc not disturbed in any 
feature of their business dealings which 
they allege they have conducted since 1925. 
Since there is no danger to their already 
established business, but merely apprehen-
sion of punishment for, and prospective loss 
of profits in being prevented from, carrying 
on their proposed new method of sale, the 
question of apprehended multiple prosecu-
tions could only arise upon continued and 
persistent engagement in the nel business 
in disregard of the adjudications by the 
municipal or state courts in which the ques-
tion of the legality of the proposed business 
should properly be made. It is true that 
they are confronted with the necessity of 
determination of whether their proposed 
business operations fall within the regula-
tions of the ordinance, but the situation is 
no different from numerous instances in 
the law "where a man's fate depends on his 
estimating rightly, that is, as the jury sub-
sequently estimates it, some matter of de--
gree. If his judgment is wrong, not only 
may he incur a fine or a short imprison-
ment,
1
as here; 
may incur the penalty of 
death;" Nash 
United States, 229 U.S. 
373, 377, 33 S. t. 780, 781, 57 LEd. 1232. 
The complaint presents no ground author. 
izing the issuance of an injunction to pre-
vent multiple prosecutions. 
)
[24] The law applicable to th situa-
tion here is clearly stated in Beal 
Mis-
souri Pacific R. Corp. 312 U.S. 45, 
S.Ct. 
418, 420, 85 LEd. 577, as follows: 
"ft is a familiar rule that courts of equity 
do not ordinarily restrain criminal prosecu-
tions. In re Sawyer, 124 U.1 
, 211, 8 
L
S.Ct. 482, 488, 
Eil. 402; 
& Ear-
n= Mfg. Co. 
City of Los 
ngelcs, 189 
U.S. 207, 23 S. t. 41 -17 LEd. 778; Hy. 
grade Provision Co. 
Sherman, 266 U.S. 
497, 500, 45 S.Ct. 141, 69 L.Ed. 402. No 
citizen or member of the community is im-
mune from prosecution, in good faith, for 
his alleged criminal acts. The imminence 
of such a prosecution even though alleged 
to be unauthorized and hence unlawful is 
not alone ground for relief in equity which 
exerts its extraordinary powers only to 
oi
it 
prevent irreparable injnry t 
he plaintiff 
who 
-s its aid. Terrace 
Thompson. 
263 
197, 
4, 44 S.Ct. IS, 7, 68 LEd. 
255; 
ackard 
Banton, 264 U.S. 140, 143, 
44 S.Ct. 257, 
8, 68 LEd. 596; Tison & 
Bro. United Theatre Ticket Offices 
Ban• 
t
ton, 273 U.S. 418, 428, 47 S.Ct. 42
27, 71 
LEd. 718, 58 A.L.R. 1236; Clin
Frink 
Dairy Co., 274 U.S. 445, 452, 47 . . 681, 
682, 71 LEd. 1446. 
"This is especially the case where the 
only threatened action is the prosecution in 
the state courts by state officers of an al-
leged violation of state law, with the result-
ing final and authoritative determination of 
the disputed question whether the act corn-
plainel of is lawful or unlawful. Hark-
radcr 
Wadley, 172 U.S. 148, 19 S.Ct. I19 
43 Ltd. 399; Spielman Motor Sales Coat 
Dodge, 295 U.S. 89, 95, 55 S.Ct 678,
79 LEd. 1322. 
The federal courts arc 
without jurisdiction to try alleged criminal 
EFTA00191909

CITY OF ?CAM v. BUTTON 
610 
at. se 151 P.ta 644 
• 
violations of state statutes. 
The state 
courts are the final arbiters of their mean-
ing and appropriate application, subject 
only to review by this Court if such con-
struction or application is appropriately 
challenged on consign ' nal grounds. 
rounds. Hy-
grade Pr
ision Co. 
Fenner 
Boykin, 27 
rman, supra; 
240, 46 S.Ct. 
492, 70 
Ed. 927. 
"Hence interference with the processes 
of the criminal law in state courts, in whose 
control they are lodged by the Constitution, 
and the determination of questions of crimi-
nal liability under state law by federal 
courts of equity can be justified only in 
most exceptional circumstances, and upon 
clear showing that an injunction is neces-
sary in order to prevent irreP 
ble injury. 
Cf. Hygrade 
rovision Co. 
Sherman, 
supra; Cline 
Fnnk Dry 
, supra; 
Spielman Motor Sales Co. 
Dodge, supra. 
1 
And in the exercise of the 
and discretion, 
which guides the determination of courts 
of equity, scrupulous regard' must be had 
for the rightful independence of gate gov-
ernments and a remedy infringing that in-
dependence which might otherwise be given 
should be withheld if sought on slight or 
inconsequential grounds. Di Giovanni v. 
Camden Fire Insurance Ass'n, 296 U.S. 64, 
73, 66 5.O. 1, 5, 80 L.E 47, and cases cit-
ed." Sec also, Watson 
Buck, supra. 
These principles are even more applica-
ble here where there is no substantial con-
tention that the City Ordinance, when ap-
plied to the subject matter which it purports 
to encompass, is unconstitutional as such, 
but only becomes so when applied to 
the Complainants in the conduct of their 
proposed business. 
Nevertheless, under 
these circumstances, appellees were granted 
by the issuance of the injunction, in effect, 
a determination that the manner and 
method presented to the Court as a proposed 
plan of operation in the future was not 
within the terms of the ordinance, and 
therefore that the municipality would not 
be permitted to test the actual manner of 
the conduct of the complainants' business 
(which of course could be determinable 
only after it had been begun). Consequent-
In ras-titg 
ly determination of what practice or means 
of operation would result in a violation of 
the ordinance was in effect removed from 
the jurisdiction and control of the munici-
pal or state courts, and opportunity for 
determination of the legality of actual op-
eration restricted solely to such rights as 
the city might secure by presentation to 
the Court of the matter of noncompliance 
with the Court's order by a request for 
modification of the restraining order. 
Thereby jurisdiction of the violation of the 
ordinance was, for all practical purposes, 
removed from the municipal or state courts 
to the federal court, but with the appellees 
left immune from any penalty for viola-
tion of the City Ordinance; and in case of 
any violation of the restrictions of the de-
cree, only subject to the loss of the protec-
tion the decree provided when and if the 
city might secure a dissolution of the in-
junction. 
[10] The restrictions upon the propriety 
of the grant by a federal court of an injunc-
tion to restrain the institution of prosecu-
tions for violations of state or municipal 
penal laws arc in nowise relaxed because 
the application for an injunction may be 
presented to the Court along with a re-
quest for a declaratory decree. 
(II) Since the issuance of an injunc-
tion is the only means by which any declara-
tion of rights could effectively be enforced 
or bring about a termination of the contro-
versy, the legal impossibility of obtaining 
such injunctive relief renders a declaration 
advisory only'and therefore futile to effec-
tuate a settlement of the controversy. The 
opinion and decree of the federal court 
would not be yes adjudicsta in any subse-
quent criminal proceeding in the municipal 
or state court, and the matter of the accep-
tance of the federal court's declaration 
would be at last left solely to the volun-
tary determination of the municipal author-
ities. 
The interlocutory injunction was erron-
eously granted. The complaint should have 
been dismissed. 
The judgments are re-
versed with directions to dismiss it. . 
Reversed. 
EFTA00191910

Page 1 of 3 
Westlaw. 
137 F.2d 71 
Page I 
137 F.2d 71 
(Cite as: 137 F.2d 71) 
C 
SPENCE I. COLE 
C.A.4 1943. 
Circuit Court of Appeals, Fourth Circuit. 
SPENCE, Chief of Police, 
COLE et al. 
No. 5082. 
July 14, 1943. 
5. Courts 508(7) The arrest by federal courts of the 
processes of the criminal law within the states, and 
the determination of questions of criminal liability 
under state law by federal court of equity, are to be 
supported only on a showing of danger of 
irreparable injury both great and immediate. 
Appeal from the District Court of the United States 
for the Eastern District of North Carolina, at 
Elizabeth City; Isaac M. Meekins, Judge. 
Action by Andrew E. Cole, A. K. Smith and Everett 
B. Costner against Walter W. Spence, Chief of 
Police of Elizabeth City, N.C., to enjoin the 
defendant 
from arresting or interfering with 
plaintiffs in preaching the gospel or in distributing 
booklets, tracts and pamphlets used by them for the 
purpose of stimulating private Bible study. From a 
judgment for plaintiffs, the defendant appeals. 
Reversed. 
West Headnotes 
111 Courts 106 €508(7) 
106 Courts 
106VII Concurrent and Conflicting Jurisdiction 
106VII(B) State Courts and United States 
Courts 
1061(508 Injunction by United States 
Court Against Proceedings in State Court 
106k508(2) 
Restraining 
Particular 
Proceedings 
1061(508(7) 
k. 
Criminal 
Proceedings. Most Cited Cases 
That enforcement of ordinance against plaintiffs 
would constitute a violation of their constitutional 
rights did not entitle plaintiffs to an injunction 
where there was no showing of such irreparable 
injury as would warrant a court of equity in 
restraining criminal prosecutions and there was no 
reason to think that state courts would not protect 
constitutional 
rights of plaintiffs upon such 
prosecutions being instituted. 
121 Injunction. €105(1) 
Injunction 
21211 Subjects of Protection and Relief 
2121I(H) Matters Relating to Criminal Acts 
212k105 Criminal Prosecutions 
212k105(1) k. In General. Most Cited 
Cases 
Courts of equity do not ordinarily restrain criminal 
prosecutions. 
PI Injunction 
€105(2) 
El Injunction 
21211 Subjects of Protection and Relief 
2121I(H) Matters Relating to Criminal Acts 
212k105 Criminal Prosecutions 
212k105(2) k. Invalidity of Statute or 
Ordinance. Most Cited Cases 
No person is immune from prosecution in good 
faith for his alleged criminal acts, and imminence of 
prosecution though alleged to be in violation of 
constitutional guaranties is not a ground for equity 
relief, since lawfulness or constitutionality of a 
statute or ordinance on which the prosecution is 
based may be determined as readily in the criminal 
case as in a suit for an injunction. 
141 Courts 106 €508(7) 
106 Courts 
106V11 Concurrent and Conflicting Jurisdiction 
O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
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12/27/2007 
EFTA00191911

Page 2 of 3 
137 F.2d 71 
Page 2 
137 F.2d 71 
(Cite as: 137 F.2d 71) 
106VII(B) State Courts and United States 
Courts 
106k508 Injunction by United States 
Court Against Proceedings in State Court 
I 06k508(2) 
Restraining 
Particular 
Proceedings 
1061(508(7) 
k. 
Criminal 
Proceedings. Most Cited Cases 
Where a threatened prosecution is by state officers 
for alleged violation of a state law, the state courts 
are the final arbiters of its meaning and application, 
subject only to review by Supreme Court of United 
States on federal grounds appropriately asserted. 
151 Courts 106 C=508(7) 
106 Courts 
106V1I Concurrent and Conflicting Jurisdiction 
106VH(B) State Courts and United States 
Courts 
106k508 Injunction by United States 
Court Against Proceedings in State Court 
106k508(2) 
Restraining 
Particular 
Proceedings 
106k508(7) 
k. 
Criminal 
Proceedings. Most Cited Cases 
The arrest by federal courts of the processes of the 
criminal law within the states, and the determination 
of questions of criminal liability under state law by 
federal court of equity, are to be supported only on 
a showing of danger of irreparable injury both great 
and immediate. 
16! Declaratory Judgment 118A Co5.1 
118A Declaratory Judgment 
118AI Nature and Grounds in General 
118A1(A) In General 
118Ak5 Discretion of Court 
118A1c5.1 k. In General. Most Cited 
Cases 
(Formerly 118Ak5, I 3k6) 
The granting of a declaratory judgment is a matter 
resting in the sound discretion of the court. 
171 Declaratory Judgment 118A €=84 
118A Declaratory Judgment 
118A11 Subjects of Declaratory Relief 
(i) 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
118AII(A) Rights in General 
118Ak84 k. Criminal Laws. Most Cited 
Cases 
(Formerly 13k6) 
The discretion to grant a declaratory judgment 
ought not to be exercised where its only effect 
would be to decide matters which could be better 
decided in the criminal courts of the state in 
pending actions involving identical questions as to 
which a declaratory judgment is asked. 
•72 John H. 
of Elizabeth City, N.C. (J. W. 
Jennette, of Eva th City, N.C., on the brief), for 
appellant. 
Hayden C. Covington, of Brooklyn, N.Y., for 
appellees. 
Before PARKER, SOPER, and NORTHCOTT, 
Circuit Judges. 
PER CURIAM. 
This is an appeal from a decree enjoining the Chief 
of Police of Elizabeth City, N.C., from arresting or 
interfering with plaintiffs in preaching the Gospel or 
in distributing booklets, tracts and pamphlets used 
by them for the purpose of stimulating private Bible 
study. Plaintiffs are members of the sect known as 
Jehovah's Witnesses. They were threatened with 
prosecution by defendant for violating an ordinance 
of Elizabeth City which declared it to be a nuisance 
for 
solicitors, 
peddlers, 
hawkers, 
itinerant 
merchants or transient vendors of merchandise to go 
in or upon private residences or premises, without 
the request or invitation of the owners or occupants, 
for the purpose of soliciting orders for goods, wares 
and merchandise or peddling, hawking or disposing 
of same. The evidence showed that plaintiffs had 
been going from house to house in the city 
distributing the pamphlets of their sect and seeking 
to collect a small sum of money therefor. The 
judge below held that their activities did not 
constitute a violation of the ordinance, but that 
defendant was attempting to enforce it against them 
in such way as to violate their constitutional rights. 
The injunction 
granted did not enjoin 
the 
prosecution of criminal cases already pending in 
which plaintiffs were being prosecuted for violation 
of the ordinance, but restrained future prosecutions. 
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12/27/2007 
EFTA00191912

Page 3 of 3 
137 F.2d 71 
137 F.2d 71 
(Cite as: 137 F.2d 71) 
(1][2][3][41[5] We may assure that the enforcement 
of the ordinance against plaintiffs under the 
circumstances here disclosed would constitute 
violation of their constitutional rights. Murdock
Commonwealth of Pennsylvania, 63 S.Ct. 870, 
L.Ed 
 But it does not follow that plaintiffs are 
entitled to the injunction granted them below. 
There was no showing of such irreparable injury as 
would warrant a court of equity in restraining 
criminal prosecutions; and there is no reason to 
think that the state courts would not protect the 
constitutional 
rights of plaintiffs 
upon 
such 
prosecutions being instituted.*73 The case is 
clearly one for the application of the rut laid down 
by the Supreme Court in Douglas 
City of 
Jeannette, 63 S.Ct. 877, 881, 87 L.Ed 
 , as 
follows: 'It is a familiar rule that courts of equity do 
not ordinarily restrain criminal prosecutions. No 
person is immune from prosecution in good faith for 
his alleged criminal acts. Its imminence, even 
though alleged to be in violation of constitutional 
guaranties, is not a ground for equity relief since the 
lawfulness or constitutionality of the statute or 
ordinance on which the prosecution is based may be 
lo
determined as readily . 
criminal case as in 
suit for an injunction. 
& Famum Mfg. Co. 
S. 
City of Los Angel s, I 
.S. 207, 23 S.Ct. 498, 
L.Ed. 778;Fenner 
Boykin, 271 U.S. 240, 46 S.Ct. 
492, 
70 
L.Ed. 
927. 
Where 
the 
threatened 
prosecution is by state officers for alleged violations 
of a state law, the state courts are the final arbiters 
of its meaning and application, subject only to 
review 
by 
this 
Court 
on 
federal 
grounds 
appropriately asserted. Hence the arrest by the 
federal courts of the processes of the criminal law 
within the states, and the determination of questions 
of criminal liability under state law by a federal 
court of equity, are to be supported only on a 
showing of danger of irreparable injury 'both gre t 
and immediate.' Spielman Motor Sales Co.
Dodge, 295 U.S. 89, 95, 55 S.Cj, 678, 680, 
L.Ed. 1322, and cases cited; Beal 
Missouri Pac. 
R. Corp., 312 U.S. 45, 49, 61 S. t. 118, 420, 85 
L.Ed. 577; and cases cited; Watson 
Buck, 3 
Ili
87, 61 S.Ct. 962, 85 L.Ed. 1416;Williams 1. 
317 U.S. 599, 63 S.Ct. 258, 87 L.Ed 
[6][7] We are asked to hold that plaintiffs are 
entitled to a declaratory judgment establishing their 
Page 3 
rights. The granting of a declaratory judgment, 
however, is a matter resting in the sound discreti 
of the court (Aetna Casualty & Surety Co. 
Quarles, 4 Cir., 92 F.2d 321); and it is clear thattGe 
discretion ought not be exercised in a case of this 
character where its only effect would be to decide 
matters, as pointed out in the quotation above, 
which could be better decided in the criminal courts 
of the state. This is particularly true in view of the 
fact that criminal actions are pending against 
plaintiffs in the state courts involving the identical 
questions as to which plaintiffs ask a declaratory 
judgment. See Borchard Declaratory Judgments 2d 
ed. p. 312, 653, 1022; Aetna Casualty & Surety 
Co. 
Quarles, supra. 
The decree appealed from will accordingly be 
reversed. 
Reversed. 
C.A.4 1943. 
Spence'. Cole 
137 F.2d 71 
END OF DOCUMENT 
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EFTA00191913

Page 1 of 16 
Westlaw. 
259 F. 525 
Page I 
259 F. 525, 170 C.C.A. 487 
(Cite as: 259 F. 525) 
JACOB HOFFMAN BREWING CO.'. 
MIELLIGOTT 
C.A.2 1919. 
Circuit Court of Appeals, Second Circuit. 
JACOB HOFFMAN BREWING CO. 
v. 
McELL1GOTT, Deputy Internal Revenue Collector, 
et al. CLAUSEN-FLANAGAN BREWERY'. 
SAME. RUPPERT I. SAME. 
June 28, 1919. 
Rogers and Hough, Circuit Judges, dissenting in 
Part 
Three suits, by the Jacob Hoffman Brewing 
Company, by the Clausen-Flanagan Brewery, and 
by Jacob Ruppert, a corporation, respectively, 
against Richard J. McElligott, Acting and Deputy 
Collector of Internal Revenue, and Francis G. 
Caffey, United States Attorney for the Southern 
District of New York. From orders granting 
preliminary 
injunctions (259 Fed. 
321), 
the 
defendants appeal. Affirmed as modified. 
West Headnotes 
Indictment and Information 210 €=.28 
210 Indictment and Information 
210111 Formal Requisites of Indictment 
210k27 Commencement 
210k28 k. In General. Most Cited Cases 
A criminal suit in the federal courts must be brought 
in the name of the United States and by the United 
States attorney. 
Injunction ■x75 
Injunction 
21211 Subjects of Protection and Relief 
212I1(E) Public Officers and Entities 
212k75 k. State or National Boards and 
Officers. Most Cited Cases 
Where the Internal Revenue Department refused to 
license or sell revenue stamps to concerns which it 
claimed were violating the War-Time Prohibition 
Act of November 21, 1918, 40 Stat. 1046, but this 
refusal was later abandoned, held that an acting 
deputy collector may be enjoined from reverting to 
the original practice of the department. 
Injunction 212 €=105(1) 
Injunction 
212H Subjects of Protection and Relief 
212I1(H) Matters Relating to Criminal Acts 
212k105 Criminal Prosecutions 
212k105(1) k. In General. Most Cited 
Cases 
A federal district attorney cannot be enjoined from 
instituting 
criminal 
proceedings 
under 
the 
War-Time Prohibition Act of November 21, 1918, 
40 Stat. 1046, against concerns manufacturing and 
selling nonintoxicating beer, upon the ground that 
the attorney had transcended his authority by 
invoking the act against nonintoxicating liquors. 
Intoxicating Liquors 223 IC=134 
223 Intoxicating Liquors 
223V1 Offenses 
223k133 Liquors Prohibited 
223k134 k. Description and Properties. 
Most Cited Cases 
The War-Time Prohibition Act of November 21, 
1918, 40 Stat. 1046, preventing the manufacture 
and sale of beer, wine and other intoxicating 
liquors, etc., refers only to beer and wine which is 
in fact intoxicating. 
United States 393 €=125(3) 
393 United States 
3931X Actions 
393k125 Liability and Consent of United 
States to Be Sued 
393k125(3) k. Necessity of Waiver or 
Consent. Most Cited Cases 
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Page 2 
259 F. 525, 170 C.C.A. 487 
(Cite as: 259 F. 525) 
United States can only be sued by own consent. 
United States 393 C=125(28.1) 
393 United States 
3931X Actions 
393k125 Liability and Consent of United 
States to Be Sued 
393k125(28) 
Particular 
Departments, 
Officers, or Agencies, Suits Against 
393k125(28.1) k. In General. Most 
Cited Cases 
(Formerly 393k125(28)) 
A suit to enjoin a United States attorney from 
instituting criminal proceedings under a federal 
statute is a suit against the United States, which 
cannot be maintained unless property rights are 
threatened with irreparable damage, and the statute 
is either unconstitutional or 
the attorney is 
transcending his authority under a valid statute. 
*525 Francis G. Caffey, U.S. Atty., of New York 
City (William C. Fins. Vincent H. Rothwell, and 
Cornelius J. Smyth, all of New York City, of 
counsel), for appellants. 
Root, Clark, Buckner & Howland, of New York 
City (Elihu Root and William D. Guthrie, both of 
New York City, of counsel), for appellee Jacob 
Hoffman Brewing Co. 
Guggenheimer, Untermyer & Marshall, of New 
York City (Elihu Root and William D. Guthrie, 
both of New York City, of counsel), for appellee 
Clausen-Flanagan Brewery. 
•526 Fitch & Grant, of New York City (Elihu Root 
and William D. Guthrie, both of New York City, of 
counsel), for appellee Jacob Ruppert. 
Before WARD, ROGERS, and HOUGH, Circuit 
Judges. 
WARD, Circuit Judge. 
These three cases involve the same question, and in 
each the appeal is from an order of the District 
Court of the United States for the Southern District 
of New York restraining, pending final hearing, the 
defendant McElligott, Acting and Deputy Collector 
of Internal Revenue of the Third District of New 
York, from refusing to issue licenses to the 
complainants as brewers of beer, or to issue revenue 
stamps in respect to their beer, provided they pay or 
duly tender the taxes required by law, and 
restraining the defendant Caffey, United States 
Attorney for the Southern District of New York, 
from arresting or prosecuting the complainants, 
their officers, agents, servants, etc., or from 
enforcing forfeiture of their property for failure to 
affix revenue stamps to their barrels of beer when 
such failure is due to the refusal of the defendant 
McElligott to issue the same, and from enforcing 
nalties of the act of November 21, 
40 Stat. 1046, by arresting or 
e complainants, their officers, agents, 
the pains 
1918, c. 
prosecuting 
etc. 
The complainants are brewers of beer made from 
malt with an alcoholic content not exceeding 2.75 
per cent. by weight, and the rights of the parties in 
connection with the orders appealed from depend 
upon the act of Congress of November 21, 1918, 
the relevant portions of which are: 
'That after June 30, 1919, until the conclusion of 
the present war and thereafter until the termination 
of demobilization, the date of which shall be 
determined and proclaimed by the President of the 
United States, for the purpose of conserving the 
man power of the nation, and to increase efficiency 
in the production of arms, munitions, ships, food, 
and clothing for the army and navy, it shall be 
unlawful to sell for beverage purposes any distilled 
spirits, and during said time no distilled spirits held 
in bond shall be removed therefrom for beverage 
purposes except for export. After May I, 1919, 
until the conclusion of the present war and 
thereafter until the termination of demobilization, 
the date of which shall be determined and 
proclaimed by the President of the United States, no 
grains, cereals, fruit, or other food product shall be 
used in the manufacture or production of beer, 
wine, or other intoxicating malt or vinous liquor for 
beverage purposes. After June 30, 1919, until the 
conclusion of the present war and thereafter until 
the termination of demobilization, the date of which 
shall be determined and proclaimed by the 
President of the United States, no beer, wine, or 
other intoxicating malt or vinous liquor shall be 
sold for beverage purposes except for export. The 
Commissioner of Internal Revenue is hereby 
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Page 3 
259 F. 525, 170 C.C.A. 487 
(Cite as: 259 F. 525) 
authorized and directed to prescribe rules and 
regulations subject to the approval of the Secretary 
of the Treasury, in regard to the manufacture and 
sale of distilled spirits and removal of distilled 
spirits held in bond after June 30, 1919, until this 
act shall cease to operate, for other than beverage 
purposes; also in regard to the manufacture, sale, 
and distribution of wine for sacramental, medicinal, 
or other than beverage uses. After the approval of 
this act no distilled, malt, vinous, or other 
intoxicating liquors shall be imported into the 
United States during the continuance of the present 
war and period of demobilization: Provided, that 
this provision against importation shall not apply to 
shipments en route to the United States at the time 
of the passage of this act. 
*527 `Any person who violates any of the 
foregoing 
provisions 
shall 
be 
punished 
by 
imprisonment not exceeding one year, or by fine not 
exceeding $1,000, or by both such imprisonment 
and fine. • • • c 
Originally the Internal Revenue Department took 
the position that after May I, 1919, it would not 
license brewers who manufactured beer with an 
alcoholic content equaling or exceeding one-half of 
1 per cent. by volume, nor sell the revenue stamps 
to be affixed to barrels of such beer; but afterwards, 
by advice of the Attorney-General, this position was 
abandoned, and the department consented to license 
brewers and to sell them revenue stamps, even if 
their beer did contain an alcoholic content equaling 
or exceeding one-half of 1 per cent. by volume. 
Accordingly the complainants are not now subject 
to any forfeiture or penalty under the internal 
revenue acts if they pay the taxes required by law. 
The only risk they are exposed to if they continue to 
brew beer of an alcoholic content not exceeding 
2.75 per cent. by weight is that of imprisonment for 
not more than one year, or a fine not exceeding 
51,000, or both, if such manufacture be found to be 
a violation of the act of November 21, 1918. 
Nevertheless the injunction against the acting 
deputy collector, defendant, can do no harm, and, in 
view of the position originally taken by the Internal 
Revenue Department, it may go against him. 
administrative board ji acting without or beyond its 
jurisdiction (Gegiow I. Uhl, 239 U.S. 3, 36 Sup.Ct. 
2, 60 L.Ed. 114), or to deal with any attack upon or 
ir e
interfe 
with the complainants' property (United 
States 
Lee, 106 U.S. 196, I Sup.Ct. 240, 27 
L.Ed. 1 1), or of confiscation of it, as in the Rate 
races. 
It is perfectly well settled that the United States 
may not be sued, except upon its own consent. 
Such consent it has given by various statutes which 
do not apply to the case under consideration. 
There is no difference between the states and the 
United States in respect to this immunity from suit. 
It is an attribute of every sovereign, recognized by 
all sovereigns. A criminal suit in the federal courts 
must be brought in the name of the United States, 
and can only be brought by the United States 
attorney. Confiscation Cases, 7 Wall 454, 457, 19 
L.Ed. 196. A suit in equity to enjoin the United 
States 
attorney 
from 
instituting 
criminal 
proceedings under a statute of the United States is 
manifestly a suit against the United States. In such 
a case the United States is sued as effectively as if it 
were a defendant by name. There is, however, a 
well-recognized exception to the rule, viz. if 
property rights are invaded, and the statute in 
question is unconstitutional, it is void, is to be 
treated as nonexistent, and so no defense to the 
United States attorney. When instituting criminal 
proceedings under it he is to be regarded not as 
representing the United States in his official 
capacity, but as acting individually. So if, under a 
valid statute, he threatens to proceed in a manner 
injurious to complainant's property rights, and not 
authorized by the statute, he transcends his 
authority, does not represent the United States, is 
not protected by the statute, and may be enjoined. 
Irreparable injury alone is not enough. Both these 
conditions must exist. Obviously *528 in such 
cases the constitutionality of the statute, or the 
question whether the United States attorney has 
transcended his authority, must be determined by 
the court before it can determine whether the 
particular suit is or is not against the United States. 
Mr. Justice Peckham said in Ex pane Young, 209 
U.S. 123, 159, 28 Sup.Ct. 441, 453 (52 L.Ed. 714, 
13 L.R.A.(N.S.) 932, 14 Ann.Cas. 764): 
In this case we have not to inquire whether an 
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Page 4 
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(Cite as: 259 F. 525) 
'It is also argued that the only proceeding which the 
Attorney General could take to enforce the statute, 
so far as his office is concerned, was one by 
mandamus, which would be commenced by the 
state in its sovereign and governmental character, 
and that the right to bring such action is a necessary 
attribute of a 
sovereign government. It is 
contended that the complainants do not complain 
and they care nothing about any action which Mr. 
Young might take or bring as an ordinary 
individual, but that he was complained of as an 
officer to whose discretion is confided the use of the 
name of the state of Minnesota so far as litigation is 
concerned, and that when or how he shall use it is a 
matter resting in his discretion, and cannot be 
controlled by any court. 
'The answer to all this is the same as made in every 
case where an official claims to be acting under the 
authority of the state. The act to be enforced is 
alleged to be unconstitutional, and, if it be so, the 
use of the name of the state to enforce an 
unconstitutional act to the injury of complainants is 
a proceeding without the authority of and one which 
does not affect the state in its sovereign or 
governmental capacity. It is simply an illegal act 
upon the pan of a state official in attempting by the 
use of the name of the state to enforce a legislative 
enactment which is void because unconstitutional. 
If the act which the state Attorney General seeks to 
enforce be a violation of the federal Constitution, 
the officer in proceeding under such enactment 
comes into conflict with the superior authority of 
that Constitution, and he is in that case stripped of 
his official or representative character, and is 
subjected in his person to the consequences of his 
individual conduct. The state has no power to 
impart to him any immunity from responsibility to 
the supreme authority of the United States. See In 
re Ayers, supra (123 U.S.)p. 507 (8 Sup.Ct. 164, 31 
L.Ed. 216). It would be an injury to complainant to 
harass it with a multiplicity of suits or litigation 
generally in an endeavor to enforce penalties under 
an unconstitutional enactment, and to prevent it 
ought to be within the jurisdiction of a court of 
equity. If the question of unconstitutionality with 
reference, at least, to the federal Constitution, be 
first raised in a federal court, that court, as we think 
is shown by the authorities cited hereafter, has the 
right to decide it, to the exclusion of all other courts. 
The act of November 21, 1918, is a war measure, 
constitutional as such, and by its express terms is to 
continue in force until a time which has not yet been 
reached, i.e., the conclusion of the present war and 
thereafter until the termination of demobilization, 
the date of which shall be determined and 
proclaimed by the President of the United States. 
Until such time it is the duty of the United States 
attorney, defendant, under section 771, United 
States Revised Statutes (Comp. St. Sec. 1296), to 
prosecute all delinquents for crimes and offenses 
covered by it. 
The sole ground upon which the United States 
attorney, defendant in this case, is charged with 
transcending his authority is that he erroneously 
construes the statute in connection with the 
complainant's product, viz. as prohibiting the use of 
food products in the manufacture of any beer for 
beverage purposes after May I, 1919, and the sale 
of such beer after June 30, 1919; whereas, the act, 
properly construed, prohibits only the manufacture 
and sale of such beer as is intoxicating, which the 
complainants' beer, containing not more than 2.75 
per cent. of alcohol by weight, is not. 
•529 Although we concur in the construction of the 
statute by the court below, and assume that the 
United States attorney will institute criminal 
proceedings, we do not think the court had power to 
stay him by injunction from doing so. The proper 
place for determining whether such criminal 
proceedings are maintainable is not in a court of 
equity, but upon an indictment tried in a criminal 
court before a jury. For any error then committed 
there will be an adequate remedy by writ of error. 
We recognize the importance of the interests at 
stake; that the complainants and others in like case, 
if not content to manufacture beer containing an 
alcoholic 
content not equaling or exceeding 
one-half of 1 per cent. by volume, must choose 
between discontinuing their business or carrying it 
on at the risk of punishment under the act of 
November 21, 1918, if they continue after May 1, 
1919, to manufacture, and after June 30, 1919, to 
sell, beer containing not more than 2.75 per cent. of 
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Page 5 
259 F. 525, 170 C.C.A. 487 
(Cite as: 259 F. 525) 
alcohol by weight. The question, however, is not 
one of convenience or of discretion, but of the 
power of the court; and we think such an extension 
of judicial power, to meet what seems to be a hard 
case, to the domain of the executive department and 
of the courts of common law, would be an injury to 
our system of jurisprudence still more serious. 
This precise question was decided in accordance 
if n
with these views by the Circuit C 
of Appeals for 
the Sixth Circuit in Arbuckle 
Blackburn, 113 
Fed. 616, 51 C.C.A. 122, 65 
.R.A. 864. Judge 
Day, who as Justice Day wrote the opinion in the 
Hammer Case, 247 U.S. 251, 38 Sup.Ct. 529, 62 
L.Ed. 1101, Ann. Cas. 1918E, 724, greatly relied 
upon by the complainants, and to be presently 
considered, said: 
'We are now dealing with an officer of a state 
proceeding under a valid law of the state, and 
whose error lies in wrongfully construing the statute 
so as to include the complainant's product. To 
entertain the bill in this aspect would be to subvert 
the administration of the criminal law, and deny the 
right of trial by jury, by substituting a court of 
equity to inquire into the commission of offenses 
where it would have no jurisdiction to punish the 
parties if found guilty. It would be the extension of 
equity jurisdiction to cases where prosecutions in 
state courts by the state officers are sought to be 
enjoined, with a view to determining whether they 
shall be allowed to proceed under valid statutes in 
the courts of law. We think this an enlargement of 
the jurisdiction opposed to reason and authority. It 
is claimed, however, that conceding that a court of 
equity cannot enjoin the prosecution of criminal 
offenses, as a general thing, the rule is different 
when property rights are involved; and we are cited 
to cases holding that equity has jurisdiction to 
enjoin acts likely to be destructive of property 
rights, although the acts complained of constitute 
infractions of the criminal law. This is quite a 
different 
proposition 
from 
enjoining 
criminal 
proceedings alleged to be indirectly destructive of 
property rights. Many criminal prosecutions may 
affect the property of the person accused. A 
property may be greatly injured by the wrongful and 
unfounded charge that it is used for immoral 
purposes. Such prosecution may destroy its rental 
value and prevent its sale, yet a court of equity 
could not usurp the right of trial which both the 
state and the accused have in a common-law court 
before a jury. Every citizen must submit to such 
accusations, if lawfully made, looking to the 
vindication of an acquittal and such remedies as the 
law affords for the recovery of damages. It is often 
a great hardship to be wrongfully accused of crime, 
but it is one of the hardships which may result in the 
execution of the law, against w 
h courts of equity 
N
are powerless to relieve.I uess 
Noble (C.C.) 31 
Fed. 855;*5WHemsley 
Myers (C.C.) 45 Fed. 
2834ramer I Board, 5 
.Y.Super.Ct. 492; Food 
Co. I. McNeal, 1 Ohio, N.P. 266.' 
District Judge Grubb in Central Consumers Co.'. 
Austin, 238 Fed. 616, arrived at the same 
conclusion. It 
is said that these cases are 
inconsistent with the decision in Ex parte Young, 
supra. In that case the defendant Young, Attorney 
General of Minnesota, had been enjoined by the 
Circuit Court of the United States from enforcing an 
act of the state of Minnesota fixing the charges for 
freight 
transportation 
at 
rates 
found 
to be 
confiscatory. After this order was entered in the 
federal court the Attorney General, in direct 
defiance of it, applied to a state court for a writ of 
mandamus compelling the railroad company to 
comply with certain provisions of the state act. For 
this he was adjudged by the Circuit Court to be in 
contempt, and put in custody of the United States 
marshal. Thereupon he applied to the Supreme 
Court for leave to file a petition for writs of habeas 
corpus and certiorari, which the court denied. The 
act was held to be unconstitutional because, among 
other reasons, it had been found by the lower court 
to be confiscatory of the railroad company's 
property. The general rule that courts of equity 
have no jurisdiction to enjoin criminal proceedings 
was fully recognized, but the injunction was 
sustained because of certain exceptions to the 
general rule within which that case fell. Mr. Justice 
Peckham said, at page 161 of 209 U.S., at page 454 
of 28 Sup. Ct. (52 L.Ed. 714, 13 L.R.A.(N.S.) 932, 
14 Ann.Cas. 764): 
'It is further objected (and the objection really 
fonts part of the contention that the state cannot be 
sued) that a court of equity has no jurisdiction to 
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Page 6 of 16 
259 F. 525 
Page 6 
259 F. 525, 170 C.C.A. 487 
(Cite as: 259 F. 525) 
enjoin criminal proceedings, by indictment or 
otherwise, under the state law. This, as a general 
rule, is true. But there are exceptions. When such 
indictment or proceeding is brought to enforce an 
alleged unconstitutional statute, which is the 
subject-matter of inquiry in a suit already pending 
in a federal court, the latter court, having first 
obtained jurisdiction over the subject-matter, has 
the right, in both civil and criminal cases, to hold 
and maintain such jurisdiction, to the exclusion of 
1
all of r courts, until its duty is fully performed. 
Prout 
Starr, 188 U.S. 537, 544 (23 Sup.Ct. 398, 
47 L. . 584). But the federal court cannot, of 
li 
course, interfere in a case where the proceedin 
were already pending in a state court. Taylor 
Taintor, 1 
Wall. 366, 370 (21 L.Ed. 28 ; 
e
Harkrader 
Wadley, 172 U.S. 148 (19 Sup.Ct. 
119, 43 L. a . 399). 
'Where one commences a criminal proceeding who 
is already party to a suit then pending in a court of 
equity, if the criminal proceedings are brought to 
enforce the same right that is in issue before that 
ilk" 
court, the 
may ent 
such criminal 
proceedings. 
etc., Co. 
Los Angeles, 189 
U.S. 207 (2 
up.Ct. 498, 47 Ltd. 778). In 
Debbins I 
Los Angeles, 195 U.S. 223-241 (25 
Sup.Ct. 1 , 49 L.Ed. 169), it is remarked by Mr. 
Justice Day, in delivering the opinion of the court, 
that 'it is well settled that where property rights will 
be destroyed, unlawful interference by criminal 
proceedings under a void law or ordinance may be 
ached and controlled by a court of equity.'Smyth 
I Ames (169 U.S. 466, 18 Sup.Ct. 418, 42 L.Ed. 
819), supra, distinctly enjoined the proceedings in 
indictment to compel obedience to the rate act. 
'These cases show that a court of equity is not 
always precluded from granting an injunction to 
stay proceedings in criminal cases, and we have no 
doubt the principle applies in a case such as the 
present. In re Sawyer, 124 U.S. 200, 211 (8 Sup.Ct. 
482, 31 L.Ed. 402), is not to the contrary. That 
case holds that in general a court of equity has no 
jurisdiction of a bill to stay criminal proceedings, 
but it expressly states an exception, 'unless they are 
instituted by a party to the suit already pending 
before it and to try the same right that *531 is in 
issue there.' Various authorities are cited to sustain 
the exception. The criminal proceedings here that 
could be commenced by the state authorities would 
be under the statutes relating to passenger or freight 
rates, and their validity is the very question 
involved in the suit in the United States Circuit 
Court. The right to restrain proceedings by 
mandamus is based upon the same foundation and 
governed by the same principles.' 
ill 
The case under consideration does n 
ithin 
any of these exceptions. See, also, 
Los 
Angeles, 189 U.S. 207, 23 Sup.Ct.
, 
...Ed. 
778. 
Only two cases are referred to in which United 
States attorneys have been enjoined, and the 
complainants rely upon them as showing that this 
question of jurisdiction was disregarded. Wilson I. 
New, 243 U.S. 332, 37 Sup.Ct. 298, 61 L.Ed. 755, 
i
L.R.A. 1 7E, 938, Ann. Cas. 1918A, 1024, and 
Hammer 
Dagenhard, 247 U.S. 251, 38 Sup.Ct. 
529, 62 
.Ed. 1101, Ann. Cas. 1918E, 724. In 
them, as in the case under consideration, only 
injunctive relief was prayed for. The moment that 
relief was granted or denied the suit was at an end. 
The only difference is that, the decree in the two 
cases cited being final, an appeal lay directly to the 
Supreme Court (section 238, Judicial Code, Act 
March 3, 1911, c. 231, 36 Stat. 1157 (Comp. St. 
Sec. 1215)), whereas in this case, the order being 
interlocutory, appeal lay only to the Circuit Court of 
Appeals (section 129, Judicial Code (Comp. St. 
Sec. 1121)). It is said that because the Supreme 
Court disposed of the two cases cited it actually 
exercised the jurisdiction which the complainants 
deny the court in this suit has. Jurisdiction as a 
federal court is plain in all three cases, but this does 
not prove that a suit against the United States can be 
maintained either by consent of the parties or of the 
court or by oversight of either or both. The right to 
maintain the suits, i.e., to give the injunctive relief 
prayed for, could not be determined until the court 
had ascertained whether they fell within r general 
rule or within the exception. In Wilson 
New the 
moment the court found the act constitutional, from 
proceeding under which the United States attorney 
had been enjoined, the suit was necessarily found to 
be one against the United States, and the injunction 
improper, without any reference to the property 
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(Cite as: 259 F. 525) 
rights involved. So in Hammer' Dagenhard, the 
moment 
the 
statute 
was 
found 
to 
be 
unconstitutional, and the complainant's right to 
employment directly invaded by its enforcement, 
the suit was necessarily found not to be against the 
United States, and the injunction was proper within 
the well-established exception. The decisions in 
these cases do not impair the general rule as to suits 
against the United States, or extend the exception to 
that rule. The whole attention of the court was 
directed to the vital question of constitutionality, 
and the fact that it did not restate well-established 
law does not convince us that it intended to depart 
therefrom. 
We are sure that the United States attorney will 
co-operate with the complainants to have the 
question involved determined as speedily, and in 
the meantime with as little interference with their 
business, as possible. 
Because the suit, so far as the defendant Caffey, 
United States attorney, is concerned, is against the 
United States, and there is no *532 direct injury to 
the complainants' property rights, and the act of 
Congress under which it is charged he is threatening 
to proceed is constitutional, and in so proceeding he 
will not transcend his authority under the act, the 
order of the court below is modified by striking out 
the injunction pendente lite against him, and as so 
modified is affirmed. 
ROGERS, Circuit Judge (dissenting in pan). I 
concur in the foregoing opinion in so far as it holds 
that the injunction cannot issue to restrain the 
United States attorney from instituting criminal 
prosecutions under the acts of Congress approved 
August 10, 1917, c. 53, 40 Stat. 276 (Comp. St. 
1918, Secs. 3115 1/8e to 3115 1/8r), and November 
21, 1918. The importance of this case to the 
government and to the complainants, and the 
fundamental principle which is involved and which 
goes to the jurisdiction of the equity courts, makes 
it my duty to state the reasons upon which my 
conclusion is based. 
The learned District Judge has rendered an opinion 
in which he has denied a motion to dismiss the bill 
of complainant, and a preliminary injunction has 
Page 7 
accordingly been issued restraining the United 
States attorney and the acting and deputy collector 
of internal revenue of the Third district of New 
York from enforcing, pending final hearing, certain 
acts of Congress. It seems to me that the rulings 
made are contrary to the powers of a court of 
equity, and are due to a misapprehension of certain 
decisions of the Supreme Court of the United States. 
The court of chancery was founded on the 
inefficiency of the ordinary tribunals to do complete 
justice in civil matters. Almost at the same time 
and for a like reason the court of star chamber was 
established, and both had their origin in the royal 
prerogative. The star chamber grew out of the 
failure of the ordinary tribunals to do complete 
justice in criminal matters and other offenses of an 
extraordinary and dangerous character, and its 
jurisdiction was confined to cases partaking of a 
criminal 
character. 
Select 
Essays 
in 
Anglo-american Legal History, vol. 2, pp. 251, 252. 
We accordingly find it laid down with unanimity 
by the text-writers that criminal proceedings are not 
enjoined in equity. 
In Pomeroy's Equity Jurisprudence (sec. 1361, p. 
396, note) that distinguished authority states that ' 
I proceedings will never be enjoined'; citing 
Kerr 
Corporation of Preston, L.R. 6 Ch.Di
463; 
Saule 
Browne, Id. 
 Ch.Div. 64; Portis 
Fall, 
34 Ar . 375;Phillips 
Stone Mt., 61 Ga. 386. 
This accords with the general principle that when a 
cause belongs to the jurisdiction of the law courts 
equity 
will 
never 
interfere 
to 
restrain 
the 
prosecution of the action nor to stay proceedings on 
the judgment or execution upon mere legal grounds. 
In Bispham's Equity (8th Ed., Sec. 424) it is laid 
down that 'proceedings in criminal courts will not 
be interfered with by injunction unless the 
proceedings are commenced by a person who is 
also plaintiff in equity relative to the same matter.' 
The author notes no other exception. The 
exception to which he refers comes under the right 
of *533 the equity court to control the conduct of 
parties who seek its aid in furtherance of their civil 
rights. The defendant in the bill and in the criminal 
proceeding must be the same person, and the 
question raised and the object sought in the two 
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Page 8 
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(Cite as: 259 F. 525) 
proceedings must be identical. 
In Maitland's Equity (page 261) that distinguished 
legal scholar says: 
'A civil court, again, must not prohibit a man from 
instituting criminal proceedings.' 
In Story's Equity Jurisprudence (section 893) the 
law is stated as follows: 
'There are, however, cases in which courts of 
equity will not exercise any jurisdiction by way of 
injunction to stay proceedings at law. In the first 
place, they will not interfere to stay proceedings in 
any criminal matters or in any cases not strictly of a 
civil nature. As, for instance, they will not grant an 
injunction to stay proceedings on a mandamus, or 
an indictment, or an information, or a writ of 
prohibition. But this restriction applies only to 
cases where the parties, seeking redress by such 
proceedings, are not the plaintiffs in equity; for, if 
they are, the court possesses power to restrain them 
personally from proceeding, at the same time upon 
the same matter of right, for redress in the form of a 
civil suit and of a criminal prosecution. In such 
cases the injunction is merely incidental to the 
ordinary power of the court to impose terms upon 
parties who seek its aid in furtherance of their rights. 
In Eden on Injunctions, 66, it is said: 
'It is an established rule that an injunction, or any 
order in the nature of an injunction, will not be 
granted to restrain proceedings in a criminal matter.' 
In Kerr on Injunctions (4th Ed.p. 7), the leading 
English authority on the subject, it is said: 
'The court will not interfere by injunction in 
matters merely criminal or immoral, which do not 
affect any right to property. But if an act which is 
criminal touches also the enjoyment of property, the 
court has jurisdiction, but its interference is founded 
solely on the ground of injury to property.' 
In High on Injunctions (section 68, 4th Ed.) it is 
laid down that-
'since courts of equity deal only with civil and 
property rights, they will not interfere by injunction 
with criminal proceedings, having no jurisdiction or 
power to afford relief in such cases. Jurisdiction 
over such actions is conferred upon courts 
especially created to hear them, and, with few 
exceptions, it is beyond the power of equity to 
control or in any manner interfere with such 
proceedings by injunction.' 
And the exceptions he refers to do not include a 
case like the present. He goes on to say: 
`So equity will not interfere by injunction to 
restrain municipal officers from the prosecution of 
suits for the violation of city ordinances, such 
proceedings being of a quasi-criminal nature, since 
equity will not interfere with the execution of the 
criminal law, whether pertaining to the state at large 
or to municipalities which are agents in the 
administration of civil governments.' 
In Spelling on Injunctions (2d Ed., vol. 2, Sec. 24) 
it is said: 
'Equity has no jurisdiction to interpose for the 
prevention of crime, or 
to 
enforce 
moral 
obligations, nor will it interfere for the prevention 
of illegal acts, merely because they are illegal. Nor 
have the courts of equity jurisdiction*534 to 
prevent by injunction the institution of bona fide 
prosecutions for criminal offenses, whether the 
same be violations of state statutes or municipal 
ordinances.' 
Lord Chief Justice Holt, of r Queen's Bench, said 
in the case of Holderstaffe 
Saunders, 6 Mod. 16 
(1703), when counsel suggested that an injunction 
be sought in chancery, that-
'Surely chancery will not grant an injunction in a 
criminal matter under examination in this court; and 
that, if they did, this court would break it, and 
protect any that would proceed in contempt of it.' 
In 1742, in the Mayor and Corporation of York, 2 
Atkins, 302, the plaintiffs claimed the sole right of 
fishing in the River House; the defendants claimed 
the same right, and a bill and cross-bill were 
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brought to establish their several rights. While 
these suits were pending the plaintiffs caused the 
agents of the defendant to be indicted at the York 
sessions, where they themselves were judges, for a 
breach of the peace, in fishing in their liberty. An 
application for an injunction was made to the Lord 
Chancellor (Hardwicke). 
'This court,' said the chancellor, 'has not originally 
and strictly any restraining power over criminal 
prosecutions. • • • If actions of trespass had been 
brought vi et armis this court would have stopped 
them; but though I cannot grant an injunction, yet I 
may certainly make an order upon the prosecutors 
to prevent the proceeding on the indictment. • • • 
Where parties submit their right to the court, they 
have certainly a jurisdiction and may interpose.' 
In 1751, in Montague I Dudman, 2 Ves., Sr., 396, 
Lord Chancellor Hardwicke said: 
'This court has no jurisdiction to stay proceedings 
on a mandamus, nor to an indictment, nor to any 
information, nor to a writ of prohibition, that I know 
of.' 
In 1827, in Macaulay'. Shackell, 1 Bilges New R. 
96, 127, Lord Eldon declared that 'a court of equity 
has no criminal jurisdiction.' 
In 1876, in Kerr I Corporation of Preston, supra, 
which involved an attempt to restrain certain 
criminal proceedings, Jessel, M.R., said: 
'Why ought a court of equity to interfere with the 
ordinary proceedings of a criminal court? I am not 
I
aware that any su 
power exists. The point came 
before me in Saul 
Browne, L.R. 10 Ch. 64, where 
I declined to inte ere with criminal proceedings or 
1
to follow Lord 
rdwicke's doubtful decision in 
Mayor of York 
Pilkington, 2 Adc. 302. My 
decision was appea ed from, and the Lords Justices 
thought it a right decision. With the exception of 
that case before Lord Hardwicke, there is no 
instance in which a court of equity has interfered in 
criminal proceedings. I do not say that the court 
might not interfere in a possible case, but as a 
general rule it will not.' 
In Whanon's Criminal Procedure (10th Ed., vol. 3, 
p. 2134) it is said: 
'Court of equity has no jurisdiction to stay or enjoin 
criminal proceedings.' 
In 16 Am. & Eng. Encyc. of Law, p. 363, it is laid 
down: 
'A court of equity has no criminal jurisdiction, and 
cannot interfere to prevent the commission of 
criminal or illegal acts, unless there is some 
interference, actual or threatened, with property or 
rights of a pecuniary nature; but when there is such 
interference, and there is no adequate remedy *535 
at law, the fact that the act may be criminal will not 
divest the jurisdiction of equity to prevent it.' 
I may stop here to say that an illustration of what is 
meant by the passage quoted may be found in In re 
Debs, 158 U.S. 564, 15 Sup.Ct. 900, 39 L.Ed. 1092. 
In that case, decided in 1894, Mr. Justice Brewer, 
speaking for the court, said: 
'A chancellor has no criminal jurisdiction. 
Something more than the threatened commission of 
an offense against the laws of the land is necessary 
to call into exercise the injunctive powers of the 
court. There must be some interferences, actual or 
threatened, with property or rights of a pecuniary 
nature; but when such interferences appear the 
jurisdiction of a court of equity arises, and is not 
destroyed by the fact that they are accompanied by 
or are themselves violations of the criminal law.' 
The court sustained the right to punish Debs for his 
violation of the injunction, the injunction having 
been issued for the protection of property. The acts 
which Debs committed in violating the injunction 
the court said might or might not have been 
violations of the criminal law. 'If they were, that 
matter is for inquiry in other proceedings.' 
In citing the English decisions above referred to I 
am mindful that the Supreme Court has more than 
once declared that the equity jurisdiction of the 
courts of the United States is the same in nature and 
extent as the equity jurisdicr of England, from 
which it is derived. Dodge 
Woolsey, 18 How. 
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259 F. 525 
259 F. 525, 170 C.C.A. 487 
(Cite as: 259 F. 525) 
331, 347, 15 L.Ed. 401;Fenn I Ho X 
21 How. 
481, 
16 
L.Ed. 
198:Thompson 
Railroad 
t
mpanies, 6 Wall. 134, 18 L.Ed. 76 
an Nordgi 
Morton, 99 U.S. 378, 380, 25 L.Ed. 453;Root I. 
ilroad Co., 105 U.S. 189, 26 L.Ed. 975. 
There are many decisions in the courts of this 
country in which the general rule has been applied 
that in general the equity courts are without 
jurisdiction to restrain criminal proceedings. In 
Attorney General'. Utica Ins. Co., 2 Johns.Ch. 371, 
Chancellor Kent said: 
'If a charge be of a criminal nature, or an offense 
against the public, and does not touch the 
enjoyment of property, it ought not to be brought 
within the direct jurisdiction of this court, which 
was intended to deal only in matters of civil right, 
resting on equity, or where the remedy at law was 
not sufficiently adequate.' 
The citations might be extended indefinitely, but 
enough has been said to show that the statements of 
the text-writers are abundantly sustained by the 
decisions of the courts as to what is the general rule 
as to the right to an injunction to restrain criminal 
proceedings. 
I come now to inquire under what circumstances the 
Supreme Court has recognized a right to restrain 
criminal proceedings by injunction. 
The question was before the court in 1887 in In re 
Sawyer, 124 U.S. 200, 8 Sup.Ct. 482, 31 L.Ed. 402. 
I shall not go into the facts that were before the 
court in that case, except to say that a bill was filed 
praying an injunction to restrain the mayor and 
council of a city from removing a city officer for 
malfeasance in office. The lower court granted the 
injunction, and committed the defendants for 
contempt in disregarding it. The Supreme Court 
held the injunction *536 absolutely void, and that 
the order committing defendants for contempt was 
also void, and that defendants were entitled to their 
discharge on habeas corpus. In the opinion, written 
by Mr. Justice Gray, it is said in referring to the 
jurisdiction of equity: 
Page 10 
punishment, 
or 
the 
pardon of crimes 
or 
misdemeanors, or over 
the appointment and 
removal of public officers. To assume such a 
jurisdiction, or to sustain a bill in equity to restrain 
or relieve against proceedings for the punishment of 
offenses, or for the removal of public officers, is to 
invade the domain of the courts of common law, or 
of the executive and administrative department of 
the government.' 
And it is also said: 
'From long before the Declaration of Independence 
it has been settled in England that a bill to stay 
criminal proceedings is not within the jurisdiction 
of the court of chancery, whether those proceedings 
are by indictment or by summary process.' 
Again it is said: 
'The modem decisions in England, by eminent 
equity judges, concur in holding that a court of 
chancery has no power to restrain criminal 
proceedings, unless they are instituted by a party to 
a suit already pending before it, and to try the same 
right that is in issue there.' 
In 1898, in Fitts i d McGhee, 172 U.S. 516, 19 
Sup.Ct. 269, 43 L. . 535, the subject was before 
the court again, a suit having been brought to 
restrain the Governor of Alabama, the Attorney 
General of the state, and the solicitor of the 
Eleventh judicial circuit of the state, from instituting 
or 
prosecuting 
any 
indictment 
or 
criminal 
proceeding against any one for violating the 
provisions of an act of the Legislature of Alabama, 
prescribing certain maximum rates of toll. The 
court below, the cause having been discontinued as 
against the governor, whose term of office had 
expired, issued a temporary injunction on the 
ground that the act was unconstitutional and void, 
as being in violation of the Constitution of the 
United States. The court, in an opinion written by 
Mr. Justice Harlan, referred approvingly to what 
was held in Re Sawyer, supra. And in referring to 
the fact that the toll-gatherers in the plaintiff's 
service had been indicted in a state court for 
violating the provisions of the act, the court said: 
'It has no jurisdiction over the prosecution, the 
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Pagc II 
259 F. 525, 170 C.C.A. 487 
(Cite as: 259 F. 525) 
'Let them appear to the indictment and defend 
themselves upon the ground that the state statute is 
repugnant to the Constitution of the United States. 
The state court is competent to determine the 
question thus raised, and is under a duty to enforce 
the mandates of the supreme law of the land. • • * 
That the defendants may be frequently indicted 
constitutes no reason why a federal court of equity 
should assume to interfere with the ordinary course 
of criminal procedure in a state court.' 
The next case I will refer to is that of Ex parte 
Young, 209 U.S. 123, 28 Sup.Ct. 441, 52 L.Ed. 
714, 13 L.R.A.(N.S.) 932, 14 Ann.Cas. 764, 
decided in 1908. This was an application for leave 
to file a petition for writs of habeas corpus and 
certiorari in behalf of the Attorney General of the 
state of Minnesota. The lower court had restrained 
the Attorney General from taking any steps to put in 
force the orders of the railroad commission of the 
state, and certain *537 acts passed by the 
Legislature of the state fixing rates, and which 
subjected to criminal proceedings 
those who 
violated the provisions of the acts and the orders of 
the commission. It was claimed that the acts were 
unconstitutional 
as 
being 
confiscatory. 
The 
Attomey General had violated the injunction, was 
proceeded against for contempt, and was in the 
custody of the United States 
marshal. The 
Supreme Court held the acts unconstitutional. So 
that the court had before it (1) an unconstitutional 
act, (2) which act was the subject of inquiry in a suit 
already pending in a federal court, and (3) the 
intention of the state's Attorney General to enforce 
it. And it was held that under these circumstances 
the injunction was properly issued. But the case of 
In re Sawyer, supra, was neither overruled nor 
doubted. In the opinion, written by Justice 
Peckham, the court, referring to the rule that a court 
of equity has no jurisdiction to enjoin criminal 
proceedings, by indictment or otherwise, said: 
'But there are exceptions. When such indictment 
or proceeding is brought to enforce an alleged 
unconstitutional statute, which is the subject-matter 
of inquiry in a suit already pending in a federal 
court, the latter court, having first obtained 
jurisdiction over the subject-matter, has the right, in 
both civil and criminal cases, to hold and maintain 
such jurisdiction, to the exclusion of all other 
courts, until its duty is fully performed.' 
The court also pointed out that an injunction might 
issue to prevent unlawful interference by criminal 
proceedings under a void law or ordinance, where 
otherwise property rights would be destroyed. The 
case is considered consistent with In re Sawyer, 
supra, which the court expressly declared 'is not to 
the contrary.' 
I concur with what is said in the opinion of the court 
that the case now under consideration does not fall 
within the exceptions stated in Ex pane Young. 
No cases have come under my notice in which the 
Supreme Court has added to the exceptions stated in 
the case last cited. 
In 1916 the court decided Wilson I. New, 243 U.S. 
332, 37 Sup.Ct. 298, 61 L.Ed. 75 , L.R.A. 1917E, 
938, Ann. Cu. 19I8A, 1024. The suit was brought 
to restrain the officers of certain labor unions and a 
United States District Attorney from establishing an 
eight-hour day for interstate and foreign commerce. 
The act provided that any person violating it 
should, upon conviction, be fined not less than $100 
and not more than $1,000, or imprisoned not to 
exceed one year, or both. The court held the act 
constitutional, and reversed the court below, which 
had granted an injunction. The case turned upon 
the constitutionality of the act, and there is no 
decision of the question as to the power of a court 
of equity to enjoin criminal proceedings, and no 
reason for supposing that the court intended it to be 
understood that the jurisdiction of equity in such 
cases was to be extended beyond the limits stated in 
Ex pane Young. 
In 1918 Hammer I 
Dagenhari, 247 U.S. 251, 38 
Sup.Ct. 529,6 L.E  1101, Ann. Cas. 1918E, 724, 
was decided. The court below had enjoined the 
enforcement of an act of Congress intended to 
prevent interstate commerce in the products of child 
labor. The act provided for a criminal prosecution 
of those violating its provisions. *538 The only 
question discussed in the opinion was that of the 
constitutionality of the statute, and, as the court held 
that unconstitutional, it affirmed the lower court, 
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(Cite as: 259 F. 525) 
which enjoined its enforcement. The case added 
nothing to what was said in Ex parte Young upon 
the subject now under consideration. It was a case 
where property rights would have been destroyed 
by criminal proceedings under a void law, and 
therefore within the exceptions stated in Justice 
Peckham's opinion in the Young Case. 
In Truax I Raich, 239 U.S. 33, 36 Sup.Ct. 7, 60 
L.Ed. 131, L.R.A. 1916D, 545, Ann. Cas. 1917B, 
283, the act was unconstitutional and the Attorney 
General was restrained. 
In Philadelphia Co. idStimson, 
223 U.S. 605, 32 
Sup.Ct. 340, 56 L. 
. 570, the statute being 
constitutional, the bill to enjoin enforcement was 
dismissed. 
Does 
the 
fact 
that 
the 
prosecuting officer 
misconstrues a constitutional statute justify a court 
of equity in issuing an injunction to restrain him? I 
am not aware that the Supreme Court has so held. 
In the absence of such a ruling I think the doctrine 
announced by the Circuit Court of Appeals in the 
Sixth Circuit hould be followed. It was there said 
in Arbuckle 
Blackburn, 113 Fed. 623,51 C.C.A. 
129,65 L.R.A. 864, that the jurisdiction of courts of 
equity had never been carried to that extent in 
authoritative decisions. `On the contrary,' said 
Judge Day (afterwards Justice Day of the Supreme 
Court), 'the Supreme Court, in more than one 
instance, has denied such jurisdiction.' And he 
adds: 'We think this an enlargement of the 
jurisdiction opposed to reason and authority.' This 
opinion was concurred in by Judge Lurton, who 
also later became a member of the Supreme Court 
of the United States. 
1 concur also in the objection that to enjoin the 
United States attorney from proceeding under a 
constitutional statute is to 
join the United States. 
As was said in Harkrader 
Wadley, 172 U.S. 148, 
160, 170, 19 Sup.Ct. 119, 127 (43 L.Ed. 399):'In 
proceeding by indictment to enforce a criminal 
statute the state can only act by officers or 
attorneys, and to enjoin the latter is to enjoin the 
state.' If the law officer of the government 
attempts to enforce an unconstitutional law, he is in 
that attempt not representing the state, and is to that 
extent denied his official or representative character. 
In the opinion of Judge WARD, which is the 
opinion of the majority of the court, the injunction 
is allowed to stand as against the acting and deputy 
collector of internal revenue. In that conclusion I 
am unable to concur. 
The bill of complaint was originally filed, not 
against the collector of internal revenue of the Third 
district, but against Mark Eisner, who at the time of 
the filing of the bill occupied that office. 
Thereafter Mr. Eisner resigned, and upon motion 
the defendant McElligott was made a party to the 
suit, he having succeeded to the office as acting and 
deputy collector of internal revenue. The bill is 
against McElligott, describing him as acting and 
deputy collector of internal revenue, and the 
injunction 
runs 
against 
'the 
said 
defendant 
McElligott.' It is not necessary to inquire what the 
effect would be in case McElligott *539 should 
cease to hold the office he now fills, and whether 
the words 'acting and deputy collector of internal 
revenue 
are anything more than a descriptio 
personae, identifying the person intended to be 
bound, and not effective as against another who 
might succeed to the office upon his death or 
resignation. 
See 
Dillon 
on 
Municipal 
Corporations, vol. 4 (5th Ed.) Sec. 1536. 
The injunction restrains McElligott, his agents, 
servants, subordinates, and employes, 
`pending final hearing and decision of this cause, 
and until the further order of this court, from 
refusing to issue to said complainant, its agents, 
officers, servants, and employes, or any of them, 
revenue stamps in respect of such beer or malt 
liquor, provided the taxes payable thereon by law 
are duly tendered or paid to him or them, and from 
at any time hereafter refusing to license and to 
permit said complainant duly to qualify as a brewer 
of said beer or malt liquor, if otherwise duly 
qualified, even though the beer or malt liquor 
manufactured, produced, and sold by it, or intended 
so to be, contain more than one-half of one per cent. 
of alcohol by volume, so long as it shall contain, 
when disposed of for consumption, not to exceed 
two and three-quarters per cent. (2 3/4 p.c.) of 
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alcohol by weight' 
The injunction also restrains him from-
'seizing, attempting or causing to be seized, or 
otherwise interfering with the property, business, 
and affairs of said complainant for or on account of 
any such violations of the provisions of said act of 
Congress of November 
21, 
1918, or 
said 
proclamation of the President, or said regulations, 
upon the ground or claim that beer or malt liquor 
containing not to exceed two and three-quarters per 
cent. (2 3/4 p.c.) of alcohol by weight is as matter of 
fact 
intoxicating, and 
that 
the 
manufacture, 
production, and sale of such beer or malt liquor is 
prohibited by the act of Congress of November 21, 
1918, or by the proclamation of the President 
heretofore issued under and by virtue of said act of 
Congress of August 10, 1917, or by the regulations 
of the Commissioner of Internal Revenue.' 
McElligott is subject to the orders of the 
Commissioner of Internal Revenue. That official 
in an affidavit states that he is acting, and will 
continue to act, in the matters herein involved, 'in 
conformity with the advice of the Department of 
Justice.' He states: 
'That heretofore, believing that he could not 
properly sell stamps for tax payments on beer 
illegally manufactured, and that his so doing might 
be construed as an act on the part of the government 
sanctioning an illegal act, he instructed the collector 
of internal revenue for the Third district of New 
York, and the collectors of internal revenue at 
Philadelphia, Pa., Syracuse, N.Y., and Newark, 
N.J., to refuse to sell such stamps when the beer had 
been manufactured subsequent to December I, 
1918. But being now advised by the Department of 
Justice that if such beer is actually manufactured the 
manufacturer is liable for the tax whether the 
manufacture be lawful or unlawful, although in the 
latter event such manufacturer will be subject to 
prosecution for a violation of the acts above 
mentioned, he has canceled said instructions, and 
directed said collectors to sell the stamps in order 
that the tax in question may be paid. And this 
course he intends to pursue unless it shall be 
decided by the courts that the same is improper. 
'That this affiant, acting under advice from the 
Department of Justice, has instructed the collector 
of internal revenue for the Third district of New 
York, N.Y., and the collectors of internal revenue at 
Philadelphia, Pa., Syracuse, N.Y., and Newark, 
N.J., not to take the seizures of beer or seizures of 
any property of brewers because of violations of the 
provisions of the Food Control Act of August 10, 
1917, or regulations issued thereunder, or for 
violations of the act of November 21, 1918. That 
this affiant is advised and believes•540 that the 
powers of seizures of beer or of the property of 
brewers be exercised by collectors of internal 
revenues only for violations or evasions of statutes 
relating to the payment and collection of taxes upon 
the manufacture and sale of beer, and that such 
powers of seizure do not exist because of violations 
of the Food Control Act of August 10, 1917, or the 
act of November 21, 1918, or regulations issued by 
the Commissioner of Internal Revenue with the 
approval of the Secretary of the Treasury under 
either of the two above-named acts.' 
He also states in an affidavit: 
'That deponent is advised and believes, and, unless 
otherwise directed by the court, will act and require 
collectors of internal revenue to act upon the 
assumption that the sole penalties for such 
violations of section 15 of the Food Control Act of 
August 10, 1917, or of the rules and regulations 
made pursuant thereto, or of the act of November 
21, 1918, are fines and imprisonments prescribed 
by those acts; that the penalties of seizures and 
forfeitures of property prescribed by the Internal 
Revenue Laws do not accrue because of such 
violations, but accrue only because of failures to 
comply with the Internal Revenue Laws themselves, 
which govern the payment and collection of taxes.' 
It appears that acting under instructions from the 
Commissioner of Internal Revenue, issued on April 
11th, and revoked on or about April 21st, 
McElligott refused to sell internal revenue stamps to 
the brewers. In relation to that matter McElligott 
states in his affidavit: 
'After the revocation of such instructions I never 
required such affidavit, and never refused or 
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