In Re Speer

23 P.2d 239, 53 Idaho 293, 88 A.L.R. 1086, 1933 Ida. LEXIS 128

• Court: Idaho Supreme Court
• Decided: June 17, 1933
• Docket: No. 6022.
• Status: Published

Opinions

MORGAN, J.

April 7, 1933, J. Howard Speer, petitioner, was, by a justice of the peace in and for Jerome precinct, Jerome county, on preliminary examination, held to answer in district court to the charge of having sold, on said date in said county, two bottles of liquor, commonly called near beer, for beverage purposes. He was remanded to the custody of the sheriff, and has procured to be issued from this court a writ of habeas corpus for the purpose of having the legality of his detention in custody determined. A transcript of the evidence taken by the committing magistrate is before us and shows petitioner sold the liquor, as charged, and it is stipulated, by his counsel and the prosecuting attorney, that it is a malt liquor, not intoxicating in fact and not capable of producing intoxication. The question presented is as to whether selling such liquor, in Idaho, is a crime.

Idaho Code Annotated, secs. 18-101 and 18-102, are as follows:

18-101. “The manufacture, disposal and transportation of intoxicating liquors for beverage purposes are prohibited in the state of Idaho.”

18-102. “The words ‘intoxicating liquors’ as used in this title shall be deemed and construed to include spirituous, vinous, malt and fermented liquors, and all mixtures and preparations thereof, including bitters and other drinks that may be used as a beverage and produce intoxication.”

Sections 18-2Ó1 and 18-216 make unlawful the sale of intoxicating liquor, except as by statute provided, and sec. 18-220 fixes the penalty at a fine of not less than $100 nor more than $1,000 and imprisonment not less than 60 days nor more than a year.

The definition of the words “intoxicating liquors” found in sec. 18-102 was enacted by the legislature in 1909 as sec. 31 of what was known as the “local option” law, and has been carried into the various codifications of, and still remains a part of, the statutory law of Idaho.

This question came before this court in 1910, in Re Lockman, 18 Ida. 465, 110 Pac. 253, 46 L. R. A., N. S., 759. In that case Justice Ailshie carefully analyzed the definition of the term “intoxicating liquors” and said:

“We conclude, therefore, that section 31 of the local option law defining ‘intoxicating liquors’ contains two divisions or classes of liquors or beverages: First, ‘spiritous, vinous, malt and fermented liquors’ which are declared as a matter of law to be intoxicating, and for which no proof is required except to show that they come within the enumeration; and second, all other mixtures and preparations thereof which will in fact, produce intoxication. In the latter case the state must prove that the liquor is such that it may be used as a beverage and produce intoxication.” (See, also, State v. Petrogalli, 34 Ida. 232, 200 Pac. 119.)

As controlling the construction which should be given to our statute defining intoxicating liquors, counsel for petitioner cite United States v. Standard Brewery, 251 U. S. 210, 40 Sup. Ct. 139, 64 L. ed. 229, wherein the “War Prohibition Act of Congress” was construed, and quote therefrom as follows:

“ ‘That after June thirtieth, nineteen hundred and nineteen, until the conclusion of the present war, and thereafter until the termination of demobilization, the date of which shall be determined and proclaimed by the President of the United States, for the purpose of conserving the man power of the nation, and to increase efficiency in the production of arms, munitions, ships, food, and clothing for the Army and Navy, it shall be unlawful to sell for beverage purposes any distilled spirits, and during said time no distilled spirits held in bond shall be removed therefrom for beverage purposes except for export. After May first, nineteen hundred and nineteen, until the conclusion of the present war and thereafter until the termination of demobilization, the date of which shall be determined and proclaimed by the President of the United States, no grains, cereals, fruit, or other food product shall be used in the manufacture or production of beer, wine, or other intoxicating malt or vinous liquor for beverage purposes. After June thirtieth, nineteen hundred and nineteen, until the conclusion of the present war and thereafter until the termination of demobilization, the date of which shall be determined and proclaimed by the President of the United States, no beer, wine, or other intoxicating malt or vinous liquor shall be sold for beverage purposes except for export.’ ....

“The prohibitions extend to the use of food products for making ‘beer, wine, or other intoxicating malt or vinous liquors for beverage purposes.’ These provisions are of plain import and are aimed only at intoxicating beverages. It is elementary that all of the words used in a legislative act are to be given force and meaning (Washington Market Co. v. Hoffman, 101 U. S. 112, 115, 25 L. ed. 782, 783); and of course the qualifying words ‘other intoxicating’ in this act cannot be rejected. It is not to be assumed that congress had no purpose in inserting them, or that it did so without intending that they should be given due force and effect. The government insists that the intention was to include beer and wine, whether intoxicating or not. If so, the use of this phraseology was quite superfluous, and it would have been enough to have written the act without the qualifying words.

“This court had occasion to deal with a question very similar in character in the case of the United States v. United Verde Copper Co., 196 U. S. 207, 49 L. ed. 449, 25 Sup. Ct. 222, where an act permitted the use of timber on the public lands for building, agricultural, mining, and other domestic purposes, and held that we could not disregard the use of the word ‘other,’ notwithstanding the contention that it should be eliminated from the statute in order to ascertain the true meaning. So here, we think it clear that the framers of the statute intentionally used the phrase ‘other intoxicating’ as relating to and defining the immediately preceding designation of beer and wine. ‘As a matter of ordinary construction, where several words are followed by a general expression as here, which is as much applicable to the first and other words as to the last, that expression is not limited to the last, but applies to all.’ (Lord Bramwell in Great Western R. Co. v. Swindon & C. Extension R. Co., L. R. 9 App. Cas. 787, 808.)”

That the legislature intended by sec. 18-102 to define malt liquor as intoxicating, regardless of its alcoholic content, or lack of it, is no longer a debatable question. That interpretation was placed on it in re Lochman, above cited, in 1910 and has been part of the case law of this state since. Had the meaning attributed to the law in the Lockman case not coincided with the legislative intention the definition of “intoxicating liquors” would undoubtedly have been amended and the will of the law-making branch of the state government made clear. If that definition is to be changed now, so as to mean something other than this court held it to mean more than twenty years ago, the change must be made by the legislature. It is beyond the power of the court to do so.

Article II of Idaho Constitution contains but one section. It divides the government of this state into three departments and undertakes to prohibit those belonging to one department from exercising powers belonging to either of the others. It is as follows:

“The powers of the government of this'state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.”

It is the duty of the legislature to make the laws, and, in enacting sec. 18-102, it functioned within the scope of that duty. It was the duty of the court to interpret that statute, and it did so in the Lockman case. If the law, so interpreted, is to be changed that is a legislative, not a judicial, function.

Is prohibition of sale of nonintoxicating malt liquors, in order to make more efficient the law prohibiting sale of intoxicating liquors, within the police powers of the state?

In re Crane, 27 Ida. 671, 151 Pac. 1006, L. R. A. 1918A, 942, we held prohibition of possession of intoxicating liquor to be within the police powers of the state and, in so doing, quoted at length from and followed the opinion of Justice Harlan in Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. ed. 205. Again we quote from and follow that opinion:

“But by whom, or by what authority, is it to be determined whether the manufacture of particular articles of drink either for general use or for the personal use of the maker, will injuriously affect the public? .... Under our system that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the state, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health or the public safety.

“It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the state. There are, of necessity, limits beyond which legislation cannot rightfully go. While every possible presumption is to be indulged in favor of the validity of the statute, Sinking Fund Cases, 99 U. S. 700, 718, 25 L. ed. 496, 501, the courts must obey the constitution rather than the law-making department of government, and must, upon their own responsibility, determine whether, in any particular case, these limits have been passed. ‘To what purpose,’ it was said in Marbury v. Madison, 5 U. S. (1 Cranch) 137, 167, 2 L. ed. 60, 70, ‘are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained ? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.’ The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to look at the substance of things whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution.”

The question of the power of a state to prohibit the sale of' nonintoxicating malt and fermented liquors for beverage purposes has been before the courts frequently and, according to the weight of authority, if the purpose of the legislature in prohibiting the sale of such nonintoxicating liquors was to aid in the prohibition of the sale of intoxicants, its act is within the police powers. See the following cases and notes thereto: State v. Frederickson, 101 Me. 37, 63 Atl. 535, 115 Am. St. 295, 8 Ann. Cas. 48, 6 L. R. A., N. S., 186; Luther v. State, 83 Neb. 455, 120 N. W. 125, 20 L. R. A., N. S., 1146; State v. Fargo Bottling Works Co., 19 N. D. 396, 124 N. W. 387, 26 L. R. A., N. S., 872; Bowling Green v. McMullen, 134 Ky. 742, 122 S. W. 823, 26 L. R. A., N. S., 895; Ex parte Lockman, 18 Ida. 465, 110 Pac. 253, 46 L. R. A., N. S., 759; Cureton v. State, 135 Ga. 660, 70 S. E. 332, 49 L. R. A., N. S., 182; State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A. 1917B, 962.

In re Lockman the court, speaking of the reasons which probably actuated the legislature in prohibiting the sale of malt liquors, regardless of their alcoholic content, or whether they would produce intoxication, said:

“They (the members of the legislature) must also have had in mind the difficulty that would arise in the enforcement of such a law as they were enacting if they left it to be proven in every case of the sale of a vinous, malt or fermented liquor, whether or not the same was in fact such as would produce intoxication.”

That being the motive which prompted the legislature to prohibit the sale of nonintoxicating, vinous, fermented and malt liquors, the purpose of the enactment was to protect the public health, the public morals and the public safety, and the wisdom of such legislation is a question for the legislature and not for the courts.

In re Crane, above cited, we quoted Justice Hughes in Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. ed. 184, as follows:

“That the state, in exercise of its police power, may prohibit the selling of intoxicating liquors, is undoubted. It is also well established that, when a state exerting its recognized authority, undertakes to suppress what it is free to regard as a public evil, it may adopt such measures having reasonable relation to that end as it may deem necessary in order to make its action effective. It does not follow that because a transaction, separately considered, is innocuous, it may not be included in a prohibition the scope of which is regarded as essential in the legislative judgment to accomplish a purpose within the admitted power of the government.With the wisdom of the exercise of that judgment the court has no concern; and unless it clearly appears that the enactment has no substantial relation to a proper purpose, it cannot be said that the limit of legislative power has been transcended. To hold otherwise would be to substitute judicial opinion of expediency for the will of the legislature — a notion foreign to our constitutional system.”

Justice Hughes further said:

“It was competent for the legislature of Mississippi to recognize the difficulties besetting the administration of laws aimed at the prevention of traffic in intoxicants. It prohibited, among other things, the sale of ‘malt liquors.’ In thus dealing with a class of beverages which, in general, are regarded as intoxicating, it was not bound to resort to a discrimination with respect to ingredients- and processes of manufacture which, in the endeavor to eliminate innocuous beverages from the condemnation, would facilitate subterfuges and frauds and fetter the enforcement of the law. A contrary conclusion, logically pressed, would save the nominal power while preventing its effective exercise. The statute establishes its own category. The question in this court is whether the legislature had power to establish it. The existence of this power, as the authorities we have cited abundantly demonstrate, is not to be denied simply because some innocent articles or transactions may be found within the proscribed class. The inquiry must be whether, considering the end in view, the statute passes the bounds of reason and assumes the character of a merely arbitrary fiat.

“That the opinion is extensively held that a general prohibition of the sale of malt liquors, whether intoxicating or not, is a necessary means to the suppression of trade in intoxicants, sufficiently appears from the legislation of other states and the decision of the courts in its construction. State v. O’Connell, 99 Me. 61, 58 Atl. 59; State v. Jenkins, 64 N. H. 375, 10 Atl. 699; State v. York, 74 N. H. 125, 127, 65 Atl. 685, 13 Ann. Cas 116; State ex rel. Guilbert v. Kauffman, 68 Ohio St. 635, 67 N. E. 1062; Luther v. State, 83 Neb. 455, 20 L. R. A., N. S., 1146, 120 N. W. 125; Pennell v. State, 141 Wis. 34, 123 N. W. 115. We cannot say that there is no basis for this widespread conviction.”

The act of the legislature, prohibiting the sale of nonin-toxieating malt liquors in aid of the effort to .prohibit the sale of intoxicating liquors, is a valid exercise of the police powers of the state and does not violate the Constitution. Therefore, the sale of near beer, a malt liquor, regardless of its alcoholic content, or lack of it, is a crime in Idaho. The writ of habeas corpus is quashed.

Givens and Wernette, JJ., concur.