State ex rel. Wetterstroem v. Department of Liquor Control of Ohio

• Decision Date: 13 February 1935
• Docket Number: 24793.
• Citation: 129 Ohio St. 185,194 N.E. 372
• Parties: STATE ex rel. WETTERSTROEM v. DEPARTMENT OF LIQUOR CONTROL OF OHIO et al.
• Court: Ohio Supreme Court

194 N.E. 372

129 Ohio St. 185

STATE ex rel. WETTERSTROEM v. DEPARTMENT OF LIQUOR CONTROL OF OHIO et al.

No. 24793.

Supreme Court of Ohio.

February 13, 1935

Original action in mandamus by the State, on the relation of one Wetterstroem, against the Department of Liquor Control of Ohio and others. On demurrer to the answer.-[Editorial Statement.]

Demurrer overruled, and writ denied.

This is an action in mandamus instituted in this court and heard upon the demurrer of the relator to the joint answer of the respondents. In his petition, the relator asked for a writ compelling the department of liquor control and its director to label and brand all spirituous liquor sold or offered for sale in the state liquor stores, ‘ so as to indicate to the purchasers thereof, the true name and ingredients of said spirituous liquor, its nature and content, as required by law.’ The petition also prays that a writ be issued requiring the Director of Agriculture to inspect said spirituous liquor and to require a lawful labeling and branding thereof.

The petition alleges that the department of liquor control has established about 100 state liquor stores in Ohio, and that the department has purchased spirituous liquor, domestic and imported, of the approximate cost of $5,000,000 for sale in siad stores; and that the same is being sold and offered for sale and labeled as ‘ whiskey’ or ‘ blended whiskey.’ It alleges that ‘ whiskey’ is an alcoholic liquid obtained by the distillation of fermented mash of wholly or partly malted cereal grains, containing ‘ not less than 47% and not more than 53% by volume of ethyl alcohol at 15.56 degrees C., which alcoholic liquid has been stored in charred wood containers for a period of not less than four years.’ (This is the definition of ‘ whiskey’ given in the tenth decennial revision of the United States Pharmacopoeia.)

The relator alleges it is the duty of the department and its director, when selling spirituous liquor for beverage purposes under the name of ‘ whiskey’ or ‘ blended whiskey,’ to so label the containers thereof as to indicate to the purchaser the true ingredients in such spirituous liquor, together with its age and alcoholic content, and to so label the containers as to indicate its true standard of strength. He alleges that the department and its director are selling, and offering for sale, spirituous liquor labeled ‘ whiskey’ or ‘ blended whiskey’ without indicating on the labels on the containers of such liquor the true ingredients thereof; that such spirituous liquor is not in fact ‘ whiskey,’ but is an imitation thereof; and that its sale of an imitation of ‘ whiskey’ is misleading to the public, which, by such false labeling, is led to believe it is receiving a superior spirituous liquor and that it is purchasing ‘ whiskey’ when in fact it is not ‘ whiskey.’ It is averred that it is the director of agriculture's duty to inspect state liquor stores and to require the department of liquor control to comply with the laws of the state relating to the adulteration, labeling and misbranding of spirituous liquor offered for sale, and that said official refuses to take any action to enforce compliance therewith.

The joint answer of the respondents pleads many conclusions of law. However, it does plead that the respondents have complied with all of the labeling regulations adopted by the Federal Alcohol Control Administration conformably with its classification comprising four groups of whiskey, viz straight whiskey, blended whiskey, spirit whiskey, and imitation whiskey; that such regulations require a label on every bottle of such liquor to state whether it is ‘ straight whiskey,’ ‘ blended whiskey,’ ‘ spirit whiskey,’ or ‘ imitation whiskey.’ The respondents admit that approximately 85 per cent. of the spirituous liquor offered for sale in the state liquor stores, and labeled as whiskey or blended whiskey, ‘ does not meet the standard of strength and age laid down for whiskey in sections 5777 and 5778, General Code, in that said spirituous liquor is either less than ninety-four degrees proof (forty-seven per cent. by volume of ethyl alcohol) or has not been aged in charred wood containers for a period of not less than four years or both.’

The joint answer alleges that the label on the spirituous liquor sold in the state liquor stores under and by the name of whiskey states the age or the year and season of the distillation of the youngest whiskey, the percentage of straight whiskey or whiskeys by volume contained in said spirituous liquor, the alcohol and fluid content of the bottle and the name of the distiller, maker, or blender, all in conformity with the label requirements adopted by the Federal Alcohol Control Administration.

The respondents also allege that all of the imported whiskey sold in the state liquor stores, while labeled as required by the regulations of the Federal Control Administration, does not meet the standard of strength laid down for whiskey which is provided in the foregoing sections of the Code, in that such imported whiskeys contain but 45 per cent. (90 degrees proof) or less of alcohol by volume.

Finally the joint answer pleads a conclusion of law which is the crux of this case, wherein it denies that the Pure Food and Drug Laws, and especially sections 5777 and 5778, General Code have any application to the department of liquor control exercising its functions under the Liquor Control Act enacted by the Ninetieth General Assembly of Ohio on December 22, 1933.

Department of liquor control and director thereof are not amenable to, and need not comply with, provisions of Pure Food and Drug Law relating to sale and labeling of whiskey as a drug (Gen. Code, §§ 5777, 5778, 5784, 6064-1 et seq.).

Syllabus by the Court .

1. The liquor Control Act, section 6064-1 et seq., General Code, is a special, all-inclusive act controlling traffic in intoxicating liquors, and was adopted at a period later than the enactment of the Pure Food and Drug Law; in so far as they are incompatible, the provisions of the Liquor Control Act must govern.

2. Section 5777, General Code, relative to the sale and adulteration of drugs, including whiskey, as pharmacopoeially defined, applies only to whiskey when manufactured and sold as a drug; while the Liquor Control Act (Gen. Code § 6064-1) deals with intoxicating and spirituous liquors ‘ fit for use for beverage purposes * * * by whatsoever name called.’

3. The department of liquor control and its director are not amenable to, and need not comply with, the provisions of sections 5777, 5778, and 5784, General Code, of the Pure Food and Drug Law, pertaining to the sale and labeling of whiskey as a drug.

C. C. Crabbe and Garek & Sillman, all of Columbus, for relator.

John W. Bricker, Atty. Gen., and Isadore Topper, of Toledo, for respondents.

JONES Judge.

The general demurrer of the relator to the joint answer searches the record, and the well-pleaded allegations contained both in the petition and in the joint answer are thereby confessed to be true.

Counsel on both sides agree that the crucial question to be determined is: Do the Pure Food and Drug Laws of Ohio apply to the sale of spirituous liquors by the Ohio department of liquor control? Or, stating it more specifically, are the respondents amenable to, and are they required to comply with, the Pure Food and Drug Laws in respect to the labeling or selling of ‘ whiskey,’ as defined in sections 5777, 5778, and 5784, General Code?

Relying upon the holding in the case of State v. Hutchinson, 56 Ohio St. 82, 46 N.E. 71, that whiskey is a drug within the meaning of the Pure Food and Drug Law, the relator contends that the state, while engaging in the sale of whiskey, is exercising functions which are not governmental but proprietary in character, in that the state carries on a private enterprise for profit. The relator therefore argues that the department of liquor control is amenable to suit and must comply with the Pure Food and Drug Laws of the state by selling and labeling ‘ whiskey’ in conformity with its drug definition prescribed by the following section of that law:

‘ A drug is adulterated within the meaning of this chapter (1) if, when sold under or by a name recognized in the tenth decennial revision of the United States Pharmacopoeia, or in the fifth edition of the National Formulary, it differs from the standard of strength, quality

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