Payne v. State

• Decision Date: 23 May 1921
• Docket Number: 21740
• Citation: 125 Miss. 896,88 So. 483
• Court: Mississippi Supreme Court
• Parties: PAYNE v. STATE ET AL

88 So. 483

125 Miss. 896

PAYNE v. STATE ET AL

No. 21740

Supreme Court of Mississippi

May 23, 1921

INTOXICATING LIQUORS. Jamaica ginger is "spirituous" or "vinous liquor" within act imposing penalties for sale.

Chapter 256, Laws 1912, Imposing penalties to be recovered in a civil action where the sale or giving away of "spirituous" or "vinous" liquors is permitted, embraces preparations of whatever name, containing alcohol in large quantities, which are sold as beverages. It applies to Jamaica ginger, which contains only pure alcohol and the essence of ginger, where it is sold as a beverage and not as a medicine. Lemly v. State, 70 Miss. 241, 12 South, 22, 20 L. R. A. 645, distinguished (citing Words and Phrases, Spirituous Liquors).

HON. A J. McINTYRE, Chancellor.

APPEAL from chancery court of Lee county, HON. A. J. MCINTYRE Chancellor.

Suit by the state against R. S. Payne for the abatement of a nuisance. Judgment for complainant, and defendant appeals. Affirmed.

Judgment affirmed.

George T. Mitchell and C. R. Bolton, for appellant.

We desire to call the court's attention to the failure of appellee's brief to distinguish between "spirituous" liquor and "intoxicating" liquor, which is a very important distinction under the statute in question. The law does not include all "intoxicating" liquors. We have not contended that Jamaica ginger is not intoxicating, but we do say that it is not included in spirituous liquor under the terms of the law of 1912.

Counsel for appellees takes the position in his brief that because liquor contains alcohol, it is therefore spirituous, and yet he waives aside the Collotta case because he says that is malt liquor. If he is right in his contention, and the conclusions that he would draw from the authorities cited are correct, that a liquor is spirituous because it contains alcohol, then it must be that this court was in error in the Collotta case in holding that the liquor in question, which contained a considerable amount of alcohol was not spirituous liquor. The fact that a certain liquor contains alcohol cannot be the true test as to whether or not it is spirituous; else all intoxicating liquors, whether malt, vinous or alcoholic, would be spirituous. We think the Collotta case is very much in point and quote the following from it as completely refuting appellee's contention.

It is argued that the liquor as one of its elements contained alcohol, and that alcohol is a spirituous liquor and is also intoxicating, and therefore the legislature must have intended by the use of the word spirituous to give the remedy pursued against persons selling intoxicating liquors. It might be possible to construe the word as synonymous with intoxicating, but for the fact that vinous liquor is also intoxicating and sometimes contains a much greater percentage of alcohol than the liquor sold in this instance, and for this reason, if for no other, it is obvious that the legislature did not think that spirituous would cover vinous liquors.

Likewise appellee's brief brushes aside the case of Lemly v State, 70 Miss. 241, as obsolete and cites in support of his position cases from other states. It may be true that the liquor laws themselves in force at that time are now obsolete, but it is also true that the definitions and construction given to terms then are just as modern now as they were then. What was spirituous liquor then is spirituous liquor now, and what was not spirituous liquor then can be no more spirituous now. This is especially true since it is to be assumed that the lawmakers knew the definition the courts had placed upon the words employed by it.

Counsel for appellees calls attention to the fact that the Lemly case was decided in 1892 and conditions are now different. The law in question in this case was passed in 1912 when conditions were also different from what they are now, and we desire to re-iterate that the intent of the legislature is to be determined as of that date and not now, a matter which appellee's brief evades altogether.

It is asserted that Jamaica ginger is either spirituous liquor or it is medicine. This is not necessarily so. It might be simply alcohol. If spirituous covers all liquors containing alcohol, why did the legislature of 1912 in chapter 214 use the term alcoholic. We say in conclusion that by common usage no one thinks of Jamaica ginger as a spirituous liquor, a term ordinarily applied to regularly prepared beverages, and the legislature did not include it in chapter 256 of the Laws of 1912. We therefore again submit that the case should be reversed.

H. Cassedy Holden, special assistant attorney-general for the state.

It is further contended by the appellant that Jamaica ginger is not spirituous liquor, and is without the scope of the statute, and that therefore, the chancery court had no jurisdiction to entertain the bill of complainants. Sections 2121 and 2122 of Hemingway's Code read as follows:

"That any person who may sell or give away vinous or spirituous liquors unlawfully, or who shall allow the same to be sold or given away at his place of business, for any purpose whatever, or shall permit any person not interested in or connected with such business to keep and drink or give away at such place of business any vinous or spirituous liquors, shall be subject to pay to the state, county, city town or village, where the offense is committed, each, the sum of five hundred dollars; and the state, county, city, town or village, or taxpayer of the state county, city, town or village in the name thereof, or the state revenue agent, or any sheriff within the county acting for them, may sue for and recover civilly, either jointly or separately, each said sum of five hundred dollars; and such civil suit may be commenced by attachment without bond (Laws 1912, ch. 256, in effect March 16, 1912).

The chancery court shall have concurrent jurisdiction with courts of law to entertain suits under the preceding section for the enforcement thereof instituted by the state, county or any city, town or village, or by any taxpayer thereof, in the name of the state, county, city, town or village, or by the state revenue agent, or by any sheriff within his county acting for them, and the chancery court shall have authority to suppress as a nuisance any place of business where the preceding section is violated, and by proper judgments and orders, punish and restrain the violators thereof. (Laws 1910, ch. 134. In effect April 15, 1910).

"Spirituous liquors, are defined as follows: (Words and phrases) Spirituous liquors is that which is in whole or in part composed of alcohol, extracted by distillation, such as whiskey, brandy or rum; these being regarded as spirituous and intoxicating liquors, without the necessity of proof." Marks v. State, 48 So. 864, 868, 159 Ala. 71, 133 Am. St. Rep. 20. Pure alcohol is within the term spirituous and intoxicating liquors. Marks v. State, 48 So. 864, 868, 159 Ala. 71, 133 Am. St. Rep. 20.

Alcohol is judicially recognized as a spirituous and intoxicating liquor. Cureton v. State, 70 S. E., 333, 135 Ga. 660. In State v. Giersch, 98 N.C. 720, the court said: "spirituous means containing, partaking of, spirit; having the refined, strong, ardent quality of alcohol in greater or less degree. Hence spirituous liquors imply such liquors as above defined, as contain alcohol and thus have spirit--no matter by what particular name denominated, or in what liquid form or combination they may appear. See also State v. Nash, 97 N. Car. 514, in which the question is discussed but not decided; and Jones v. Surprise, 64 N.H. 243, where it was held that a sale of intoxicating wine is prohibited by a statute prohibiting the sale of spirituous liquors. State v. Agalos, 107 Am. 314; State v. Kollar, 186 P. 968; State v. Hosmer, 175 N.W. 683. (S. C.) If a grocer sells Jamaica ginger and lemon extract, knowing that they are bought to be used as a beverage, he violates the liquor law, if they contain the prohibited percentage of alcohol. State v. Johnson, 101 S.E. 851.

In State v. Good (W. Va.), 49 S.E. 121, it was held that proof of an unlawful sale of a mixture, preparation or liquid called Rikk, which contains alcohol and will produce intoxication, will sustain a conviction upon an indictment charging the unlawful sale of spirituous liquors, wine, porter, ale, beer, and drinks of like nature. McNeil v. Horan, 153 Ia. 630, 133 N.W. 1070 (Centennial Tonic Bitters); Clement v. Dwight, 137 A.D. 389, 121 N.Y.S. 788; Berner v. McHenry, 169 Ia. 483, 151 N.W. 450.

Where an alleged medicinal preparation containing alcohol is held to come within the purview of a statute for bidding the sale of intoxicating liquors without a permit or license, the fact that the defendant makes a sale thereof in good faith as a medicine will not be a defense, the intent or motive with which the sale is made being immaterial. Com. v Hallett, 103 Mass. 452; See, also, State v. Benson, 154 Ia. 313, 134 N.W. 851. Thus in Com. v. Hallett, supra, it was held that the trial court properly ruled as follows: "that the defendant might show that the article (plantation bitters) sold was a medicine, or that it was not intoxicating liquor, but that his statement that he sold it as medicine in good faith, and proof that it was generally sold as a medicine, would not be a defense; that it was his duty to ascertain what was the character of the article he sold, and if he sold it without ascertaining its true quality, and it was intoxicating liquor, he would be liable therefor." King et al. v. State, 58 Miss. 737; State v. Marshall (Miss), 56 So. 797. Collotta v. State, this court held through Justice COOK that beer, being a malt liquor, did not come within chapter 256, Laws...