J. W. Kelly & Co. v. State

Decision Date19 November 1910
PartiesJ. W. KELLY & CO. v. STATE.
CourtTennessee Supreme Court

Spears & Lynch, Lewis M. Coleman, and Williams & Lancaster, for plaintiff in error. Attorney General Cates, for the State.


The plaintiff in error, a corporation, was indicted in the criminal court of Hamilton county for that it "did unlawfully sell as a beverage in wholesale quantities spirituous, vinous, malt, alcoholic, and intoxicating liquor within four miles of a schoolhouse where a school was kept," and, upon trial, was convicted, and a fine of $50 was assessed against it, from which it has appealed to this court.

In the court below plaintiff in error moved to quash the indictment upon the following grounds:

"(1) Because there is no law in this state which forbids or makes unlawful the sale of liquors, or beer in wholesale quantities, as charged in the indictment in this cause, and no act of the General Assembly of this state purporting to forbid such sales.

"(2) Because the four-mile act of 1909, being chapter 1 of the Acts of the Fifty-Sixth General Assembly of the State of Tennessee, and being the act which it is insisted by the state that the defendant had violated, is in violation of article 2, § 17, of the Constitution of Tennessee: (a) In that the prohibition of the sale of liquor within four miles of a schoolhouse was not embraced in the title, which prohibits a sale near any schoolhouse; (b) in that the wholesaling of liquor is not a sale as a beverage, and therefore not expressed in the title; and (c) in that it is in violation of that part of the above section of article 2 of the Constitution of the state of Tennessee, to the effect that all acts which repeal, revise, or amend former laws shall recite in their caption or otherwise the title or substance of the laws repealed, revised, or amended.

"(3) Because, if said act should be construed so as to prohibit the sale of liquors in wholesale quantities, then it violates article 1, § 8, of the Constitution of the state of Tennessee, and is void. And also violates article 1, § 21, of the Constitution of Tennessee, and the fifth amendment to the Constitution of the United States.

"(4) Because, if said act should be construed so as to prohibit the sale of liquors in wholesale quantities, then it violates the `due process of law' clause of the fourteenth amendment to the Constitution of the United States, and is void."

This motion was overruled, and defendant was placed upon trial upon its plea of not guilty. Upon the trial defendant admitted the sale as charged, but did not admit that it made the sale "as a beverage." The proof shows that defendant is a distiller, and has been for many years, and in connection with its business as distiller it sells by wholesale its own brands of whisky and such other brands as may be demanded by its trade. The sale in question was a sale of 10 barrels of "Deep Spring" whisky manufactured by defendant and sold to Wakeman Distilling Company, a corporation, engaged in the wholesale whisky business, and also a distiller; but at the time of this sale its distillery was closed.

The purchaser testified that the sale in question was made to be resold in quantities of five gallons or more, and that it was so sold.

After judgment of conviction by the court, defendant moved for a new trial, assigning as causes therefor the reasons embodied in its motion to quash the indictment with the added ground that the court erred in overruling its motion to quash. There was no exception in the court below that the conviction was not supported by the evidence.

The statute under which this conviction was had is as follows:

"An act to prohibit the sale of intoxicating liquors as a beverage near any schoolhouse, public or private, where a school is kept, whether the school be in session or not.

"Section 1. Be it enacted by the General Assembly of the State of Tennessee, that it shall not hereafter be lawful for any person to sell or tipple any intoxicating liquors, including wine, ale, and beer, as a beverage, within four miles of any schoolhouse, public or private, where a school is kept, whether the school be then in session or not, in this state, and that any one violating the provision of this act shall be guilty of misdemeanor, and, upon conviction, shall be punished by fine for each offense of not less than $50.00 nor more than $500, and imprisoned for a period of not less than thirty days nor more than six months.

"Sec. 2. Be it further enacted, that the grand juries shall have and exercise inquisitorial power in respect to violations of this act, and it shall be the duty of the circuit and criminal judges of the state to give the same in charge to them.

"Sec. 3. Be it further enacted, that all laws in conflict with this act be, and the same are hereby, repealed.

"Sec. 4. Be it further enacted, that this act take effect from and after July 1, 1909, the public welfare requiring it."

Laws 1909, c. 1.

There are two questions made in this court against the conviction of defendant which may be generally stated as follows:

1(a) The natural and proper, as well as the legal, meaning of this statute, does not include a wholesale sale between two corporations engaged in the wholesale business only, because the thing forbidden by the express terms of the statute is to "sell or tipple" intoxicating liquors "as a beverage"; that to "sell or tipple," as used in the statute, means to tipple only; and that as the sale was made to a corporation for the purpose of resale in wholesale quantities, it could not have been sold "as a beverage."

(b) If this were not true as an original proposition, the terms to "sell or tipple" had acquired a fixed and definite meaning in the whisky statutes of this state by construction by this court of the same words used in the four-mile law of 1877 and 1887; and therefore, when the act of 1909 employed these terms, they were written into the law with this definition attached, and the Legislature must have intended that they should be so understood.

2. The act in question is unconstitutional and void for the various reasons set out in the motion to quash heretofore copied in this opinion.

The purpose of the act, as stated in its title, is to "prohibit the sale" of intoxicating liquors as a beverage near any schoolhouse, etc., and the language used to define the thing forbidden is "that it shall not hereafter be lawful for any person to sell or tipple any intoxicating liquors, etc., as a beverage within four miles of a schoolhouse."

Therefore the use of the words "to prohibit the sale of intoxicating liquors," if standing alone, would undoubtedly embrace all sales, and they must be held to so include them, unless the words "as a beverage" restrict the scope of legislation designated by the title in such manner as to limit the word "sale" to a particular kind of sale.

Counsel for defendant, while conceding that the word "sale" used in the title is a word of general signification, contend that its "general character is cut down" by the use of the words "as a beverage near a schoolhouse" in connection with it, and these words qualify its meaning to such an extent and in such way that the one thing prohibited by the title is "a sale as a beverage near a schoolhouse." And, as we understand the argument of counsel, they go further, and say that a beverage sale is a "sale of liquors to be drunk for the pleasure of drinking." It would follow from this that the only sale embraced in this title is a sale where there concurs with the fact of the sale an intention upon the part of the seller that the purchaser should drink the liquor for the pleasure of drinking.

Hence it is argued that the words "to sell or tipple," used in the body of the act to designate the offense denounced, must be understood to fall within this narrow compass of the title, and, in order that this may be true, and the act not be duplex, it is necessary to construe "sell or tipple" to mean tipple only; that is, "tipple" is explanatory of sell, and the act should be read as though it said "it shall not hereafter be lawful for any person to sell, that is to say, tipple, etc." It is further said that the word "tipple" has acquired a meaning of its own in our liquor legislation, and that this court has often defined it to mean "to sell to be drunk at the place of sale"; and from this postulate it is concluded that, as a tippling sale is a retail sale, the only sale forbidden by the act is a retail sale. It is also said that the word "or," used between the words "sell" and "tipple," means that "tipple" is explanatory of "sell," because if that were not true, and it was used in a disjunctive sense to indicate two kinds of sales, it would render the act unconstitutional because the body of the act would be broader than its caption.

Counsel cite us the dictionary definition of the words "beverage," "tipple," and "or," and invite us to a consideration of their abstract and literal meanings; but this we must decline to do, because the inquiry here is, not what their strict and accurate definitions may be according to accepted usage and the approved authority of the lexicographers, but in this case, as in all others, involving the construction of statutes, the sole question is: What was the legislative intent? This intent must be ascertained from an examination of the statute itself in connection with other statutes in pari materia, and in the light of the history of the system of legislation of which it is a part.

"In the course of the entire legislative dealing with the subject," says Mr. Black, "we are to discover the progress and development of a uniform and consistent design, or else the continued modification and adoption of the original design to apply it to changing...

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