Millstone v. Yellowley

E.D. New York

Millstone v. Yellowley

287 F. 941, 1923 U.S. Dist. LEXIS 1768

DecidedJanuary 22, 1923

StatusPublished

This text of 287 F. 941 (Millstone v. Yellowley) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Millstone v. Yellowley, 287 F. 941, 1923 U.S. Dist. LEXIS 1768 (E.D.N.Y. 1923).

Pincite

Opinion

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 Complainant had previously withdrawn whisky on a forged permit to purchase, but his permit had never been wholly revoked, regardless of this, because he liad given information to the director.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 He supports this by offering Treasury Decision 3418, the gist of which is that only bottled in bond spirits will be withdrawn on and after April 1, 1923.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.

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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.

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Bluebook (online)

287 F. 941, 1923 U.S. Dist. LEXIS 1768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/millstone-v-yellowley-nyed-1923.