Opinion
No. 4464.
October 21, 1929.
Alfred D. Van Buren, of New York City, for plaintiff.
Howard W. Ameli, U.S. Atty., and Geo. H. Bragdon, Asst. U.S. Atty., both of Brooklyn, N.Y., for defendants.
In Equity. Suit by the Triborough Chemical Corporation against James M. Doran, as Commissioner of Prohibition, and another. Preliminary injunction denied.
This is a motion on the return of an order to show cause why a preliminary injunction should not issue herein restraining the defendants, their representatives, agents, and successors, from refusing to issue withdrawal permits to plaintiff, and from refusing to allow plaintiff to procure alcohol for denaturation as provided in the National Prohibition Act (27 USCA) and regulations and plaintiff's basic permit, upon the grounds and for the reasons set forth in the defendant Administrator's communications of September 27, 1929, and October 9, 1929, as set forth in the complaint herein, and except as authorized so to do under and pursuant to the provisions of said act and regulations and permit.
The plaintiff was the holder of a permit to operate a denaturing plant until December 31, 1928, and contends that the basic permit was not legally terminated at that time, while the defendants deny that contention.
The question presented on this motion is, however, the refusal of the defendants to grant withdrawal permits authorizing the plaintiff to purchase alcohol, not denatured alcohol.
Even if the basic permit is still in existence, it does not carry with it the right to procure any alcohol for denaturation, and the Prohibition Administrator is vested by law with the same discretion in passing upon applications for purchase permits as is vested in him with respect to any other kind of permit. Higgins v. Foster (C.C.A.) 12 F.2d 646; Higgins v. Mills (C.C.A.) 22 F.2d 913; Olivett Distributing Co., Inc., v. Bowers (D.C.) 14 F.2d 318; Blackman v. Mellon (D.C.) 5 F.2d 987; Mt. Morris Distributing Corp. v. Doran (D.C.S.D.N.Y.) 36 F.2d 489, opinion by Judge Knox, June 19, 1929; W.H. Long Co., Inc., v. Campbell (D.C.S.D.N.Y.) 36 F.2d 496, opinion by Judge Coleman, January 10, 1929.
From all the facts presented before me on this application, I cannot say that the actions of the Prohibition Administrator were wholly unsupported by evidence, or clearly arbitrary or capricious, and should be disturbed pending a trial of this action, and therefore the injunction sought should be denied. Ma-King Co. v. Blair, 271 U.S. 479, 46 S. Ct. 544, 70 L. Ed. 1046.
Nothing can be predicated on the action of the Administrator granting permits under the order of the court, without notice of the subsequent order which was different in its effect.
Even if I believed that there was sufficient in this case to question the action of the Administrator pending the trial, it seems to me that I could not grant an injunction pending the trial of the action. Liscio v. Campbell, 34 F.2d 646, decided by the Circuit Court of Appeals of this circuit, opinion of Circuit Judge Learned Hand.
Motion denied, but the case will be given a preference.
Settle order on notice.