MILLSTONE v. YELLOWLEY, Acting Federal Prohibition Director for State of New York

MILLSTONE v. YELLOWLEY, Acting Federal Prohibition Director for State of New York. (District Court, E. D. New York. January 22, 1923.) Injunction 137(4)— Preliminary injunction not granted in doubtful casó. Where the questions in a case are serious, and appear from the pleadings to involve both law and fact, a preliminary injunction will not be granted to restrain action by defendant, which may be within his discretion. <£=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes In Equity. Suit by J. William Millstone against Edward C. Yellowley, Acting Federal Prohibition Director for the State of New York. On motion for preliminary injunction. Denied. Celler & Kraushaar, of New York City (Emanuel Celler and Meyer Kraushaar, both of New York City, of counsel), for complainant. Ralph C. Greene, U. S. Atty., of Brooklyn, N. Y., for defendant. [MAJORITY — GARVIN, District Judge.] GARVIN, District Judge. This is a motion for an injunction pendente lite, enjoining and restraining the defendant from disapproving an application for a permit to procure whisky in bulk. An application was made by the complainant, a retail druggist, and filed in the office of the federal prohibition director. Shortly thereafter complainant received a notice to the effect that he would not be permitted to withdraw one barrel of whisky, which he desired,, and that he need only apply for six gallons. The Director was prompted to do this by his belief in his own discretionary powers. Complainant had previously withdrawn whisky on a forged permit to purchase, but his permit had never been wholly revoked, regardless of this, because he liad given information to the director. Complainant now contends that the director has no power to limit his withdrawal, when his permit entitles him to withdraw 100 wine gallons of distilled spirits every quarter, that is, every three months. Complainant was well within the allotment. He supports this by offering Treasury Decision 3418, the gist of which is that only bottled in bond spirits will be withdrawn on and after April 1, 1923. This is a direct order from the Commissioner of Internal Revenue on December 22, 1922, approved by A. W. Mellon, Secretary of the Treasury; but it does no more than put into effect a general uniform rule operative on and after April 1, 1923, and in no way limits any existing powers, meanwhile. Under Treasury Department ruling dated August 16, 1922, permits may be revoked by the federal prohibition commissioner or by any assistant or agent designated by him for that purpose. The defendant acted pursuant to that regulation. The questions to be determined by this case are serious and from the pleadings appear to involve both law and fact; Under such circumstances an injunction pendente lite should not issue. Application denied.