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ARROW DISTILLERIES v. ALEXANDER (02/01/40)

February 1, 1940

ARROW DISTILLERIES, INC.,
v.
ALEXANDER, FEDERAL ALCOHOL ADM'R.



Petition to Modify or Set Aside Order of Administrator of Federal Alcohol Administration.

Author: Treanor

Before EVANS, TREANOR, and KERNER, Circuit Judges.

TREANOR, Circuit Judge.

Petitioner, an Illinois corporation, has been engaged continuously for several years in the business of rectifying, distilling, bottling, warehousing and wholesaling alcoholic beverages under basic permits issued to petitioner by the Federal Alcohol Administration. These permits, Nos. R-224, D-688, and BR-224, cover the operations of rectifying, distilling and bottling, respectively. The Federal Alcohol Administration instituted a proceeding to suspend the basic permits of petitioner for alleged violations of Secs. 4(d), 5(e) and 5(f), respectively, of the Federal Alcohol Administration Act of 1935, as amended,*fn1 and of regulation No. 5 promulgated by the Alcohol Administration.

As required by Section 4(d) of the Act each permit was conditioned upon compliance by petitioner with Sections 5 and 6 of the Act relating to unfair competition and unlawful practices, and to bulk sales and bottling; also the twenty-first amendment, U.S.C.A., and the laws relating to the enforcement thereof, and all other laws relating to distilled spirits, wine, and malt beverages. The complaint against petitioner charged violation of the conditions of the basic permits in the following respects: (1) petitioner had sold certain misbranded products in interstate commerce; (2) petitioner had sole certain whiskeys in interstate commerce without first securing therefor certificates of label approval; and (3) petitioner had violated Sec. 3318 of the Revised Statutes of the United States (26 U.S.C.A. § 1208) by falsifying certain records required to be kept under internal revenue laws and regulations. The complaint charged that the alleged acts constituted a wilful violation of the conditions of the basic permits and of the provisions of the Federal Alcohol Administration Act, as amended. The report of the hearing officer included findings of fact and conclusions of law supporting the charges, and the respondent entered a suspension order in harmony with the findings of the hearing officer.

Under authority of Section 4(h) of the Alcohol Administration Act petitioner has appealed to this Court by filing its petition to modify or set aside respondent's order.

the questions presented by this appeal may be stated as follows:

1. Is the Federal Alcohol Administration Act constitutional?

2. Was there substantial evidence to support the findings of the Alcohol Administrator?

3. Did the respondent, Alcohol Administrator, have jurisdiction as a matter of law to suspend petitioner's permits?

4. Were certain forms which were required to be kept by the Treasury Department Regulations, and certain money order records of the Post Office Department, properly received in evidence?

5. Was petitioner accorded a full and fair hearing?

Petitioner argues that the twenty-first amendment has transferred to the states "complete and exclusive control over commerce and traffic in intoxicating beverages unlimited by the commerce clause" and has deprived Congress of its power under the constitution to enact the present statute as a regulation of interstate commerce in intoxicating liquors.

Section 2 of the twenty-first amendment*fn2 gives effect to any and all state laws prohibiting the transportation or importation of intoxicating liquors into a state in violation of the laws thereof. But there is no provision in the amendment which purports to restrict the power of Congress over commerce in intoxicating liquors when such commerce is carried on withoiut the violation of state laws, or to deny to Congress the power to legislate in aid of the state prohibitions. Substantially the same contention which petitioner makes here was urged upon the Supreme Court in the case of William Jameson & Co., Inc. v. Morgenthau,*fn3 and the Supreme Court said that it saw "no substance in this contention."

We are of the opinion that the enactment of the Federal Alcohol Administration Act was a valid exercise by Congress of its constitutional powers to regulate interstate and foreign commerce and to protect the revenue; also we are of the opinion that the Act contains no unconstitutional delegation of legislative power. It is not necessary that the Act as a whole rest upon a single power of Congress; and according to the language of Sec. 3 of the Act (27 U.S.C.A. § 203) Congress was exercising its power to protect the revenue derived from distilled spirits, wine, and malt ...


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