State ex rel. Saley, Co. Atty v. Bros

• Decision Date: 19 December 1919
• Docket Number: No. 32938.,32938.
• Citation: State ex rel. Saley, Co. Atty v. Bros, 187 Iowa 1312, 175 N.W. 78 (Iowa 1919)
• Parties: STATE EX REL. SALEY, CO. ATTY., v. BOKMEYER BROS. ET AL.
• Court: Iowa Supreme Court

187 Iowa 1312

175 N.W. 78

STATE EX REL. SALEY, CO. ATTY.,

v.BOKMEYER BROS. ET AL.

No. 32938.

Supreme Court of Iowa.

Dec. 19, 1919.

Appeal from District Court, Franklin County; R. M. Wright, Judge.

Suit in equity to abate a liquor nuisance and to enjoin the defendants from selling intoxicating liquors.There was a decree against all defendants as prayed.Reversed as to the defendant Foster; affirmed as to the other defendants.Cook & Balluff, of Davenport, for appellants.

H. M. Havner, Atty. Gen., B. J. Powers, of Des Moines, and R. L. Saley, of Hampton, for appellee.

E. P. Andrews, of Hampton, for defendants not appealing.

STEVENS, J.

The defendants Bokmeyer Bros. and C. F. Bokmeyer are engaged in the drug business at Sheffield, Iowa, and the defendantsHartz & Bahnsen Company are located at Rock Island, Ill., and manufacture and sell at wholesale a compound known as “Black Hawk Stomach Bitters.”The defendantHerbert Foster is a traveling salesman for Hartz & Bahnsen Company.In February, 1918, the sheriff of Franklin county seized two barrels of Black Hawk Stomach Bitters in bottles, under a search warrant, and took same from the possession of the defendant Bokmeyer Bros. and C. F. Bokmeyer as intoxicating liquors.Later, this suit to enjoin the defendants from maintaining a nuisance and from keeping for sale and selling intoxicating liquors was instituted.A prepared formula for the manufacture of the bitters, showing the contents and exact quantity of each ingredient, was offered in evidence; but it is not necessary to include it herein.The compound is 23 per cent. alcohol, and each 45 gallons, the quantity manufactured at a time, is supposed to contain 12 1/2 pounds of cascara bark.

The contention of the defendant is that the quantity of cascara included in the mixture is so great that it cannot possibly be used as a beverage.The decision of this case turns largely upon a question of fact, that is, whether the bottles seized contained cascara in quantity forbidding its use as a beverage.A. M. Harrison, assistant chemist for the dairy and food department of the state of Iowa, called as a witness by the plaintiff, testified that he was a graduate of Northwestern University and for four years an instructor in chemistry in that institution, and that before coming to Iowa he was employed by the state food commission of Illinois.A bottle of Black Hawk Stomach Bitters, taken from one of the barrels in question, was delivered, sealed, to Mr. Harrison, who made a chemical analysis thereof for the purpose of ascertaining its contents.He testified that he found it contained 23.6 per cent. in volume of alcohol, 6 per cent. total solids, one-tenth of 1 per cent. of ash, and small amounts of rumex, tumeric, and cassia, 4.1 grains of ordinary cane sugar, and no cascara.W. B. Zuker, professor of chemistry at Highland Park College of Pharmacy, testified that he made a careful analysis of a bottle of the same compound, taken from one of the barrels seized, and found it to contain 22.82 per cent. alcohol by volume, 5.92 per cent. total solids, ash .11 per cent., sugar 4.075 per cent., some cinnamon and cassia, but no cascara.

Opposed to this testimony was that of R. A. Kuever, associate professor of the College of Pharmacy at the Iowa State University, who testified that he also made an analysis of the contents of two bottles which were taken from the barrels in question, of four bottles sent to him by the defendantHartz & Bahnsen Company and a quantity manufactured by him from the formula furnished by it; that he found the contents of the bottles taken from the barrels in question to be about 23 per cent. alcohol.He also found a quantity of each of the several ingredients mentioned in the formula, and that there were 15 grains of cascara to each fluid ounce, or ordinary dose.A comparative test of the contents of the bottles received from the sheriff, the bottles received from the defendant, and the small quantity compounded by the witness, was made, and revealed all of the ingredients named in the formula in approximately identical quantities.

A. N. Brandenburt, in charge of the manufacture of the bitters, testified that the mixture was compounded in strict conformity to the formula, and that all of it contained the same relative quantity of cascara.His testimony was, to some extent, corroborated by Mr. Bahnsen, who also testified that the compound had been approved by the commissioner of internal revenue and was sold without the payment of a government tax.This witness, personally, does not take part in its manufacture.

Two physicians residing at Sheffield were examined on behalf of the defendant.Each expressed the opinion that, if the compound in fact contained 16.2 grains of...