Opinion
No. 656.
February 11, 1929.
John F. Dore and F.C. Reagan, both of Seattle, Wash., for plaintiffs.
Anthony Savage, U.S. Atty., and Paul D. Coles, Asst. U.S. Atty., both of Seattle, Wash., for defendant.
In Equity. Bill by Baruch Shapiro, for himself and as Chief Rabbi of Herzl, Ezra-Bessarath, and Ahabath Achim Congregations of the Jewish faith, against Roy C. Lyle, as Prohibition Administrator. On motion to dismiss bill. Motion granted.
The bill of complaint, in substance, alleges: That the plaintiff, Shapiro, for more than five years last past has been a regularly ordained rabbi of the Jewish faith, and at all times mentioned chief rabbi of the Herzl Congregation of 400 families, of the Ezra-Bessarath Congregation of 300 families, and of the Ahabath Achim Congregation of 100 families; that all the families, as a part of their religious worship, use sacramental wine in their homes, and that at the present time and for a long time heretofore W. Jassen has been the custodian of the Herzl Congregation in charge of the property and funds of the congregation; that H. Homberg has been in charge of approving permits for the sacramental wine; that no person could receive sacramental wine, who was not a member of the congregation and until he had obtained a permit showing that he was a member of the congregation entitled to have the sacramental wine, and that upon the presentation of approved permit by Homberg or plaintiff rabbi, Jassen would issue to the permittee, who was such member, a gallon of wine, and that the chief rabbi would place the seal of the congregation upon the container of such wine; that prior to January, 1929, by virtue of permit, Jassen, as wine distributor and custodian of Herzl Congregation, had in his home approximately 18 gallons of wine, and on that day the prohibition administrator, through his agents, contrary to law, entered the premises of Jassen and seized 18 gallons of wine, and have the same now in their possession, and on the 4th day of January, 1929, said agents maliciously and without plaintiff's consent placed a padlock upon the door of the room of plaintiff's home in which said sacramental wine was stored; that since said date the members of said congregation have not been able to practice their "religious practises"; that the Treasury Department, Bureau of Prohibition Regulations effective October 1, 1927, permits each Jewish family five gallons of wine each year; that all of the wine seized, and all of the wine put under padlock of the prohibition department, is the property of the Herzl Congregation and was legally transported for use in their religious faith; that it is necessary that the plaintiff be allowed to transport into the city of Seattle, for the use of the Herzl Congregation and the families belonging to it, the usual shipment of 500 gallons of wine; that on January 12, 1929, the defendant served notice upon the plaintiff to show cause why further permit should not be refused for withdrawals or supplies of wine, on the ground and for the reason that "you have flagrantly violated the Regulations relative to the withdrawal and issuance of such wine"; that such hearing is wrongful and illegal; that all of the Regulations of the Treasury Department with relation to the possession and distribution of said wine, and especially as it applies to members of the Jewish faith, is uncontitutional, as it interferes with the practices of the religion of the plaintiff; that the enactment of section 9, title 2, of the Act of October 28, 1919 (section 10138½dd, C.S. [27 USCA § 21]), is beyond the power of Congress to pass, it being violative of article 1, of the Amendments to the Constitution; that anything in that said act which attempts to do anything, except to regulate the manufacture and transportation of said wine, that interferes in any way with the exercise of the religious rites of the plaintiff, is unconstitutional; that plaintiff has no speedy and adequate remedy at law; that the damages are in excess of $10,000 — and prays the court that the defendant show cause why temporary injunction should not issue against the acts set forth and from continuing the same, and on final hearing, the injunction issue as prayed.
The sufficiency of the bill of complaint is challenged by motion to dismiss: (1) That the court has no jurisdiction of the person of the defendant, nor of the subject-matter; (2) that there is a defect of parties defendant; (3) that the bill of complaint does not state facts sufficient to constitute a cause of action. Return to the show cause order is made subject to the motion to dismiss. In the voluminous return, among other matters, it is stated that the rabbi's room was locked by his consent, and it was stated at bar that, if requested, the lock would be removed. Upon suggestion from the bench that filing the complaint is a demand, it was stated, in view of the suggestion, the lock would be immediately removed, and this has been done.
It is not contended that the National Prohibition Act (27 USCA) intrudes into the field of opinion, or restrains the profession of religious faith or propoganda of religious principles, or inhibits the use of sacramental wine in the practice of religious rites. It was never intended the First Amendment, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, * * *" could be invoked as a defense to acts inimical to the peace and good order of society (Davis v. Beason, 133 U.S. 342, 10 S. Ct. 299, 33 L. Ed. 637), and where legislation relates to general welfare in the interests of peace and good order, regulation is not inhibitive (Mormon Church v. United States, 136 U.S. 1, 10 S. Ct. 792, 34 L. Ed. 481). The Eighteenth Amendment was approved by all but two states of the United States and the Supreme Court in the interest of peace, good order, and general welfare, and the National Prohibition Act was approved by the Supreme Court for like reasons.
The contention that the National Prohibition Act is a deprivation of the free exercise of religion by restricting the delivery of unlimited use of wine, and is contrary to the constitutional guaranty of religious freedom, is, as said by the Supreme Court in Mormon Church v. United States, supra, at page 49 of 136 U.S. (805), altogether a sophistical plea:
"No doubt the Thugs of India imagined that their belief in the right of assassination was a religious belief; but their thinking so did not make it so. The practice of suttee by the Hindu widows may have sprung from a supposed religious conviction. The offering of human sacrifices by our own ancestors in Britain was no doubt sanctioned by an equally conscientious impulse. But no one, on that account, would hesitate to brand these practices now as crimes against society, and obnoxious to condemnation and punishment by the civil authority."
The quantity of wine for sacrificial offering was always limited. See Exodus 29:40; Leviticus 23:13; Numbers 15:5 — Holy Scriptures. Unlimited use of wine was disapproved by the prophets of old. See Isaiah 5:11; 28:1-8; Jeremiah 35:5, 6. See, also, Numbers 6:3; Proverbs 20:1; 23:29-31; Judges 13:14; Hosea 4:11 — Holy Scriptures.
Wine for religious rites is provided by the National Prohibition Act and Regulations. The Commissioner and Secretary of the Treasury no doubt collaborated with the premier chief rabbis of the United States before promulgating the regulations as to wine required for sacramental purposes, and provision is made for extra supply under extraordinary conditions, and insufficiency of allowance has never been charged, so far as reported cases disclose.
Regulations prescribed by the Commissioner, approved by the Secretary of the Treasury, under section 4, subd. 7, 27 USCA, have the force and effect of law. Oertel v. Gregory et al. (D.C.) 270 F. 789; Stroh v. Davis (D.C.) 8 F.2d 773; Sharp v. United States (C.C.A.) 16 F.2d 876; Schnitzler v. Yellowley (D.C.) 290 F. 849.
Neither the National Prohibition Act nor the regulations issued pursuant to section 4, 27 USCA, are violative of the First Amendment. The intent of the Congress is obvious in section 12, 27 USCA, page 25, that the provisions of the act shall be liberally construed, to the end that intoxicating liquor as a beverage may be prevented. United States v. Windham (D.C.) 264 F. 376; Corneli v. Moore, 257 U.S. 491, 42 S. Ct. 176, 66 L. Ed. 332; Ma-King v. Blair, 271 U.S. 479, 46 S. Ct. 544, 70 L. Ed. 1046.
The court's jurisdiction is limited. It has neither inherent nor conferred power to regulate departmental activities, except as expressed by the Congress, and this power under the National Prohibition Act is limited to a review as provided by sections 14, 16, and 21, 27 USCA, as a court of equity, where the right to a permit is in issue. Hoell v. Mellon (D.C.) 4 F.2d 859; Blair v. Stewart, 56 App. D.C. 303, 12 F.2d 838; Vollmer Beverage Co. v. Blair (D.C.) 2 F.2d 469. See, also, Ma-King v. Blair, supra.
The complaint alleges that the 18 gallons of wine in issue is the property of the Herzl Congregation, of which it is wrongfully deprived. If the Herzl Congregation is the owner, and possession belongs to it, it is the proper party to bring the action. Blackstone taught: "There is no wrong without a remedy." Law or equity must remedy a wrong unfolded before it. The law blossoms upon the soil of wrong, but, if the law is barren, equity must unfold into the fruitage of right. The right of the plaintiff, or the Herzl Congregation, is legal; the legal remedy is adequate. The National Prohibition Act being constitutional, the regulations having the force of law, no review with relation to issuance or cancellation of a permit being sought, no cause of action in equity is stated, and, it not appearing that demand has been made for the return of the wine in issue, no action at law is stated, and it would be futile to transfer the action to the law side of the court (Equity Rule 22) and have essential alteration in the pleadings made.
The motion to dismiss is granted.