(dissenting). Appellant seeks relief through the aid of section 4, title 2, of the National Prohibition Act (27 USCA § 13). It provides that, when manufactured, flavoring extracts and syrups shall not be subject to the provisions of the Prohibition Act; also that a person “who manufactures any of the articles mentioned in this section may purchase and possess liquor for that purpose, but he shall secure permits to manufacture such articles and to purchase such liquor, give the bonds, keep the records, and make the reports specified in this Act and as directed by the Commissioner.”
Appellant had a lawful right to apply for a permit, if he wished to use liquor in the manufacture of his product. Section 1 of the act defines liquor as including whisky as well as alcohol. He could only be refused a permit if acting in bad faith- — such as a planned desire to divert the whisky for other and unlawful purposes. Because experts of the government differ with the appellant as to the value of whisky for the manufacture of his product, no issue of bad faith was raised. It should not create even a suspicion in a reasonable mind; at least, in one who has faith in his strength of integrity against wrongdoing. Bad faith and fraud are too serious to be thus lightly inferred. The fact that whisky costs more does not justify it, for its use may be more beneficial in the ultimate product of flavoring extracts or syrups, as the appellant said. The prevailing opinion bases the charge of bad faith upon an inference, and builds an inference upon an inference, in reaching the conclusion that there was evidence to support the action of the Commissioner. The courts have the right to interfere where there is no evidence whatever to support the finding of bad faith. MaKing Products Co. v. Blair, etc., 271 U. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046.
Because I think the appellant should have the relief sought, I dissent.