Appeal from the District Court of the United States for the District of New Jersey.
Before WOOLLEY and DAVIS, Circuit Judges, and JOHNSON, District Judge.
This is an appeal from an order of the District Court made on April 9, 1931, refusing to dissolve an injunction made by the court December 31, 1930.
The Superior Manufacturing Company is a New Jersey corporation and held a permit for 1930 authorizing it to use alcohol in manufacturing cereal beverages of less than one-half of one per cent. of alcoholic strength or content. Its plant is located in the city of Elizabeth, Union county, N.J.
On March 20, 1930, prohibition agents made a search of, or raid on, the plant of the appellee and discovered, they allege, the manufacture of beer exceeding legal alcoholic content, which was being diverted through a pipe to a garage across the street from the plant or brewery, and there racked off and shipped out in trucks.
A citation was issued by the prohibition administrator requiring the Superior Company to show cause why its permit should not be revoked. The company thereupon made application to the court for the suppression of the evidence discovered by the search on March 20, 1930, on the ground that it violated the Fourth Amendment. On June 9, 1930, the court entered an order restraining the supervisor and Commissioner until the further order of the court, from using any of the evidence discovered on March 20, 1930, in any proceedings against the Superior Company before the grand jury, in forfeiture, penalty, or padlock proceedings, or in proceedings for the revocation of the permit. There was no appeal from this order.
On August 27, 1930, the Superior Company made application for the renewal of its permit for 1931. The supervisor took no action on the application until December 2, 1930, when he wrote the Superior Company that its application was "disapproved for the reason that under your present permit, you have conducted your business in such a manner as would not warrant further extension of the confidence of the Government.
"You are informed that you may apply for a hearing on the matter of the disapproval of this application within fifteen days, at which time you will have opportunity to furnish such information as you believe would tend to alter this decision."
The Superior Company treated this letter as a decision on its application for a permit, and filed a bill wherein it prayed the court to enter an order directing the supervisor to issue to it a permit pending the final hearing thereon or the further order of the court.
On December 31, 1930, after stating that the Superior Company was entitled to temporary relief, the court:
"Ordered that the supervisor of permits, Samuel O. Wynne, do issue to the complainant a permit to manufacture cereal beverages of less than one-half of one per cent. of alcoholic strength by the process of dealcoholization authorized by Section 37 Title II of the National Prohibition Act, pending a hearing and final conclusion on said application by the defendants and until the further order of this court.
And it is further ordered that a true copy of this order be served upon the defendants either personally or by registered mail within four days of the duy and date hereof."
On February 2, 1931, a hearing on the application for a permit was held pursuant to the offer contained in the supervisor's letter of December 2, 1930. At this hearing testimony was given, over the objection of the Superior Company, of the facts discovered in the search of March 20, 1930, but the Superior Company refused to give any evidence as to the facts alleged to have been discovered during the search, or to cross-examine the government witnesses on the ground that it was restrained from doing so by the order of June 9, 1930.
The hearer filed his report, and the supervisor on February 17, 1931, refused the application for a permit for 1931, and two days later, on February 19th, filed a petition in the District Court praying that it terminate the order of December 31, 1930, directing him to issue a permit for 1931. Thereupon the court issued a rule upon the Superior Company to show cause on March 2, 1931, why an order should not be made terminating the temporary permit. On that day, the court heard ...