State v. Marastoni

165 P. 1177, 85 Or. 37, 1917 Ore. LEXIS 288

• Court: Oregon Supreme Court
• Decided: July 3, 1917
• Status: Published

Opinion

Opinion by

Mr. Chief Justice McBride.

1. The principal question is this case is whether the defendant “manufactured” the wine which he kept on the premises. That he pressed the juice from the grapes, put it in a vat, and permitted it to ferment by the usual natural process, with the intent to use part of it in that state as a beverage for himself and family, is admitted. As to this portion of the liquid we are of the opinion that he is guilty of a violaton of the statute. Webster’s Dictionary defines the word “manufacture” to mean, “To make (wares, machinery, or other products) by hand, by machinery,, or by other agency.” In Murphy v. Arnson, 96 U. S. 131 (24 L. Ed. 773), it is observed:

“Beer may well be said to be manufactured from malt and other ingredients, whiskey from corn, or cider from apples. The fact that the identity of the original article or articles is lost, and that a new form of a new character is assumed, is not material in determining whether, within the popular idea, as embodied in the customs acts, the article in question is a manufacture from its original elements.”

2. We are of the opinion that the word “manufacture” as used in Section 5 of the act referred to means to “make” irrespective of the quantity produced, or the use to which it is to be put. This is made clear by Section 6, which provides that the provisions of the act shall not be construed to prevent anyone from manufacturing for his own use unfermented wine or nonintoxicating cider, wine for sacramental purposes, or to prevent the manufacture of vinegar or nonintoxicating cider for sale. In this case the exception proves the rule as to those things not excepted. Section 5 is general and applies to all intoxicating liquors. Section 6, out of caution, excepts wine manufactured for sacramental purposes and unfermented wine manufactured for the use of the maker, and the framer aware of the fact that cider or grape juice must become intoxicating in the process of becoming vinegar permits these processes to be carried on until the vinous fermentation has passed and the acetous fermentation has begun. The section last referred to makes plain the sense in which the word “manufacture” is employed in the act. It permits the “manufacture” of unfermented wines and wine for sacramental purposes, which indicates clearly that that term is used as a synonym for “make.”

It is claimed that because the defendant did no affirmative act to produce fermentation, but simply put the grape juice into a vat and “let nature take its course, ’ ’ he did not manufacture the wine; but this contention is unsound. Under such a construction no wine ever has been or ever will be made by human agency. The stipulation admits, in substance, that defendant placed the juice in the vat and there allowed it to ferment, and that his intent was to use the greater portion as a beverage for himself and family as food with their meals and to allow the remainder to become vinegar. He but pursued the usual process of making wine. The well-known action of the air and the germs therefrom which produce fermentation were utilized and intended to be ultilized in the process of manufacture. Some of the most important compounds known to commerce and medicine are manufactured by bringing two or more substances in contact and allowing the chemical forces of nature to produce a new compound or substance: Murphy v. Arnson, 96 U. S. 131 (24 L. Ed. 773),

3. It is also claimed that if Section 36, Article I, of our Constitution should be construed so as to prevent the manufacture of intoxicating wine for the maker’s own use, it is violative of the 14th amendment to the national Constitution. This contention is not new and is disposed of in Mugler v. Kansas, 123 U. S. 653 (31 L. Ed. 205, 8 Sup. Ct. Rep. 273), wherein Mr. Justice Hablan, speaking of the attitude of the courts toward legislation of this character observes:

If, therefore, a state deems the absolute prohibition of the manufacture and sale, within her limits, of intoxicating liquors for other than medical, scientific, and manufacturing purposes, to be necessary to the peace and security of society, the courts cannot, without usurping legislative functions, override the will of the people as thus expressed by their chosen representatives. They have nothing to do with the mere policy of legislation. Indeed, it is a fundamental principle in our institutions, indispensable to the preservation of public liberty, that one of the separate departments of government shall not usurp powers committed by the constitution to another department. And so, if, in the judgment of the legislature, the manufacture of intoxicating liquors for the maker’s own use, as a beverage, would tend to cripple, if it did not defeat, the effort to guard the community against the evils attending the excessive use of such liquors, it is not for the courts upon their views as to what is best and safest for the community, to disregard the legislative determination of that question. So far from such a regulation having no relation to the general end sought to be accomplished, the entire scheme of prohibition, as embodied in the constitution and laws of Kansas, might fail, if the right of each citizen to manufacture intoxicating liquors .for his own use as a beverage were recognized. Such a right does not inhere in citizenship. Nor can it be said that government interferes with or impairs any one’s constitutional rights of liberty or of property, when it determines that the manufacture and sale of intoxicating drinks, for general or individual use, as a beverage, are, or may become, hurtful to society, and constitute, therefore, a business in which no one may lawfully engage. Those rights are best secured, in our government, by the observance, upon the part of all, of such regulations as are established by competent authority to promote the common good. No one may rightfully do that which the law-making power, upon reasonable grounds, declares to be prejudicial to the general welfare.”

No doubt, to many of our citizens accustomed to the use of wine as a table beverage to the same extent that others have used tea or coffee or milk, such extreme legislation may seem drastic and harsh. It certainly seems so to the writer, but whatever may be our individual opinions they must yield to the mandates of the law.

The question is not as to the policy of the law, but as to the power to enact it, and this being found to exist the judgment will be affirmed. Affirmed.

Me. Justice Mooee, Me. Justice Beau and Me. Justice Me Cam ant concur.