State ex rel. Moore v. Smock
Decision Date | 07 May 1973 |
Docket Number | No. 2--572A7,2--572A7 |
Parties | STATE of Indiana ex rel. Howard L. MOORE, Plaintiffs-Appellants, v. John R. SMOCK, Chairman, et al., Defendants-Appellees. |
Court | Indiana Appellate Court |
Walter E. Bravard, Jr., T.H. St. Clair, Lewis, Bowman & St. Clair, Indianapolis, for plaintiffs-appellants.
Theodore L. Sendak, Atty. Gen., Darrell K. Diamond, David H. Kreider, Deputy Attys. Gen., Joseph F. Quill, John G. McNutt, Fred Schlegel, J. B. King, Baker & Daniels, Indianapolis, Curtis V. Kimmell, Kimmell & Funk, Vincennes, for defendants-appellees.
This appeal concerns whether pre-mixed canned cocktail preparations containing spirituous alcoholic beverages should, for the purposes of marketing and sale, be classified as spirituous alcohol beverage, 'liquor' as opposed to a vinous beverage, 'wine'.
The facts are undisputed. Plaintiff-appellant Howard L. Moore (Moore) is a broker for manufacturers of alcoholic vinous and alcoholic spirituous beverages. On April 20, 1970, Moore presented to the Indiana Alcoholic Beverage Commission (ABC) price postings for certain alcoholic beverages, which Moore designated as being 'wine'. The products which these filings covered were pre-mixed cocktails, consisting of approximately 12 1/2% absolute alcohol which was produced by distilation, mixed with carbonated water and/or with other sanitary and potable ingredients by the manufacturer and/or bottler and sold in containers filled by this manufacturer or bottler and suitable for immediate consumption direct from the original container. The ABC rejected these filings on July 24, 1970.
Moore filed the complaint below on December 3, 1970. It consisted of three paragraphs: First, a petition for review of the action of the ABC; second, a complaint for injunction to enjoin the ABC from rejecting Moore's price filings; and third, a complaint for a declaratory judgment that the pre-mixed cocktails were vinous beverages, as defined by the Alcoholic Beverages Act of 1935 as amended. Various associations sought and were granted intervention as parties defendant, and the case was submitted to the Marion Superior Court, Room No. 3, for a determination upon stipulated facts.
The court entered its judgment on November 24, 1971, finding, inter alia, that the pre-mixed cocktails should be taxed at the excise tax rate applicable to alcoholic vinous beverages, but that, for the purposes of licensing for sale, the beverages were alcoholic spirtuous beverages. Moore assigns as error the court's finding that only a person holding a permit to sell alcoholic spirituous beverages may sell pre-mixed cocktails.
Thus, the only issue before us on appeal is whether the ABC and the trial court were correct in classifying pre-mixed cocktails containing 12 1/2% absolute distilled alcohol as alcoholic spirituous beverages.
It seems that confusion has arisen because Indiana law relating to intoxicating liquors formulates two distinct systems of classification of alcoholic beverages. For the purposes of general regulation and licensing, the following definitions are pertinent:
'(o) 'Alcoholic spirituous beverages' shall be construed to mean any beverage containing alcohol obtained by distillation mixed with drinkable water and other substances in solution and including among other things, brandy, rum, whisky, and gin, but not including wines containing less than twenty-one (21) percent of alcohol reckoned by volume: And, provided further, That it does not include industrial alcohol.
(p) The words 'wine' or 'alcoholic vinous beverages,' or 'vinous beverages' whenever used in this act, shall be construed to mean any alcoholic beverages obtained by the fermentation of the natural sugar contents of fruits or other agricultural products containing sugar, including necessary additions to correct defects due to climatic, saccharine and seasonal conditions, and also, the fortification thereof, but in no case shall said beverages therein defined, having alcoholic content, contain more than twenty-one (21) percent of absolute alcohol reckoned by volume.' (IC 1971, 7--1--1--3, Ind.Ann.Stat., § 12--303 (Burns' 1956 Repl.))
IC 1971, 7--1--1--20 and 7--1--1--25, Ind.Ann.Stat., §§ 12--518 and 12--523 (Burns' 1956 Repl.) authorize the issuance of alcoholic spirituous beverage (liquor) dealer's permits and alcoholic vinous beverage (wine) dealer's permits. No dealer may sell these types of alcoholic beverages except as so authorized. IC 1971, 7--1--1--2, Ind.Ann.Stat. § 12--302 (Burns' 1956 Repl.).
It is important to note that the validity of this classification scheme is not in question before us. Moore accepts the legislative distinction between classes of alcoholic beverages, and only questions the assignment of pre-mixed cocktails within the classification scheme.
The distinction is clear--all beverages containing alcohol obtained by distillation are 'spirituous beverages'; all beverages obtained by fermentation of fruit are classified as wines, with the exception that certain potent wines are also classified as spirituous beverages. Percentage of alcoholic content is only a criterion for determining which wines will be denominated...
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