State ex rel. Wyman v. Owston

• Court: Kansas Supreme Court
• Writing for the Court: SMITH, Justice.
• Citation: State ex rel. Wyman v. Owston, 23 P.2d 616, 138 Kan. 173 (Kan. 1933)
• Decision Date: 13 July 1933
• Docket Number: 31505.
• Parties: STATE ex rel. WYMAN, County Attorney, v. OWSTON et al.

23 P.2d 616

138 Kan. 173

STATE ex rel. WYMAN, County Attorney, v. OWSTON et al.

No. 31505.

Supreme Court of Kansas

July 13, 1933

Syllabus by the Court.

In action to enjoin maintenance of liquor nuisance, evidence that malt beverage sold, containing about 3 percent. alcohol was not intoxicating held improperly excluded (Rev. St. 1923 21-2101, 21-2109).

Malt beverage commonly known as beer is presumed to be intoxicating, but presumption may be contradicted by evidence (Rev. St. 1923, 21-2101, 21-2109).

Whether malt beverage containing about 3 percent. alcohol was intoxicating held for trier of facts in action to enjoin liquor nuisance (Rev. St. 1923, 21-2101, 21-2109).

1. In an action to enjoin the maintaining of a liquor nuisance where the evidence was that what was sold was a malt beverage containing about 3 percent. alcohol, the defendant offered to prove that this beverage was not as a matter of fact intoxicating. This offer of proof was refused by the trial court. Held, that the evidence should have been admitted.

2. A malt beverage commonly known as beer is presumed to be intoxicating, but this presumption may be met by evidence on the part of one charged with selling it that it is not intoxicating as a matter of fact.

3. The question of whether a malt beverage containing about 3 percent. alcohol is intoxicating liquor is one of fact for the trial court.

Appeal from District Court, Reno County; J. G. Somers, Judge.

Action by the State, on the relation of Max Wyman, County Attorney of Reno County, Kansas, against Fred Owston and others. Judgment for plaintiff, and defendants appeal.

Judgment reversed, with directions.

Eustace Smith and C. E. Chalfant, both of Hutchinson, for appellants.

Roland Boynton, Atty. Gen., Everett E. Steerman, Asst. Atty. Gen and Max Wyman, Co. Atty., of Reno County, and John Fontron, Asst. Co. Atty., of Reno County, both of Hutchinson, for appellee.

SMITH Justice.

This action was brought to enjoin defendants from maintaining a liquor nuisance. Judgment was for plaintiff. Defendants appeal.

Defendants own and operate two sandwich stands in Reno county. On June 17, 1933, they began selling a beverage commonly known as 3.2 percent. beer. On June 22, 1933, the state obtained a temporary injunction enjoining defendants from keeping or selling intoxicating liquors at the stands in question.

The defendants filed a verified answer in which they denied that they kept, sold, or bartered any intoxicating liquor on the premises, or had ever kept or sold intoxicating liquor. The answer further alleged that the maintenance of the premises in question, a sandwich and soft drink stand, was the sole means of livelihood of defendants, and that the attempt on the part of the state to enjoin its continued maintenance and operation was in violation of their privileges and immunities as citizens of the United States, and in contravention of the 14th Amendment to the Constitution of the United States.

A hearing was had on the pleadings thus made up and a permanent injunction was granted.

The proof was that defendants sold some bottles of a beverage--one bottle was 2.3 percent. of alcohol by weight and 2.9 percent. by volume--the other contained 2.47 percent. of alcohol by weight and 3.1 percent. of alcohol by volume. The bottles had labels on as follows: "Does not contain more than Contents 4 percentum of alcohol by 12 Flouid Ounces

Permit Dist. No.

7--U--712

Tax Paid at the Rate Prescribed by Internal Old Revenue BLATZ Heidleberg Beer

Law

Blatz Brewing Co., Milwaukee, Wis."

"Prosit

"Trade Mark Reg. U.S. Pat. Off.

"Brewed Under the Formula of a Famous

Old German Beer

Blatz Brewing Co."

It was agreed that the beverage contained in the bottles was a malt beverage commonly designated as 3.2 beer by a recent act of Congress.

At the conclusion of the state's case the defendants demurred to the state's evidence. This demurrer was overruled. They then offered to prove that the beverage in question was not intoxicating as a matter of fact. This offer was rejected. The trial court held that the beverage in question, being a malt beverage, the sale of it was in violation of the prohibitory law of Kansas, and particularly R. S. 21--2101 and R. S. 21--2109, and that it was not competent for defendants to show that it was not intoxicating as a matter of fact.

It is from that ruling that this appeal is taken. At the outset of our discussion of this case it should be borne in mind that the sole question to be decided is whether defendants had a right to introduce this evidence. This question will be answered when we have decided whether the sale of any malt liquor, regardless of its intoxicating qualities, is forbidden by the Kansas statutes.

R. S. 21--2101 is as follows: "It shall be unlawful for any person to directly or indirectly manufacture, sell, barter, or give away, furnish or keep or have in his possession for personal use or otherwise any spirituous, malt, vinous, fermented or other intoxicating liquors. ***"

R. S. 21--2109 is as follows: "All liquors mentioned in Laws of 1917, ch. 215, sec. 1, as amended, shall be construed and held to be intoxicating liquors within the meaning of this act."

R. S. 21-2101 was first enacted in 1881 when the business of regulating the liquor traffic was in its infancy. It was section 1 of chapter 128 of the Laws of 1881 and read as follows: "Section 1. Any person or persons who shall manufacture, sell or barter any spirituous, malt, vinous, fermented or other intoxicating liquors, shall be guilty of a misdemeanor and punished as hereinafter provided: Provided, however, That such liquors may be sold for medical, scientific and mechanical purposes, as provided in this act."

R. S. 21--2109 is a descendant of section 10 of chapter 128 of the Session Laws of 1881. That section was as follows: "Sec. 10. All liquors mentioned in section one of this act, and all other liquors or mixtures thereof, by whatever name called, that will produce intoxication, shall be construed and held to be intoxicating liquors within the meaning of this act."

The first change that was made in section 1 of chapter 128 was in 1909 (Laws 1909, c. 164, § 1). The Legislature of that year took out the proviso that such liquors might be sold for medical, scientific, and mechanical purposes as provided in the act.

In 1917 the Legislature passed chapter 215 of the Session Laws for 1917. That chapter was known as the "Bone Dry Law." It is in part as follows: "Section 1. It shall be unlawful for any person to keep or have in his possession, for personal use or otherwise, any intoxicating liquors, or permit another to have or keep or use intoxicating liquors on any premises owned or controlled by him, or to give away or furnish intoxicating liquors to another, except druggists or registered pharmacists as hereinafter provided."

When the statutes were revised in 1923, section 1 of chapter 164 of the Laws of 1909 was combined with section 1 of chapter 215 of the Laws of 1917 to make R. S. 21--2101. It is worthy of note that when the Bone Dry Law was enacted, the Legislature simply used the term "intoxicating liquors" and did not use the description "spirituous, vinous, malt or fermented" as had been used in earlier acts. It has been seen that R. S. 21--2109 was originally section 10 of chapter 128 of the Session Laws of 1881. It was next enacted as section 4 of chapter 164 of the Laws of 1909, as follows: "Sec. 4. That section 2460 of the General Statutes of Kansas, 1901, be amended so as to read as follows: Sec. 2460. All liquors mentioned in section 1 of this act shall be construed and held to be intoxicating liquors within the meaning of this act."

When it was written into the revision of 1923, the Legislature referred to the words as used in section 1 of chapter 215 of the Session Laws for 1917. We have seen that this section simply used the term "intoxicating liquors."

These sections have been interpreted many times.

In State v. Teissedre, 30 Kan. 476, 2 P. 650, 653, the state brought a prosecution under section 13 of chapter 128 of the Session Laws for 1881. This was the section that provided for injunctions. The court said: "It was no error for the court below to instruct the jury 'that beer is presumed to be intoxicating, until the contrary is proved.' In the absence of evidence to the contrary, beer will always be presumed to be an intoxicating liquor." See, also, State v. Jenkins, 32 Kan. 477, 4 P. 809, to the same effect.

In the opinion in the Teissedre Case, supra, the case of State v. Volmer, 6 Kan. 371, was cited. That was a prosecution for a violation of section 3 of chapter 35 of the General Statutes of Kansas for 1868. The language of that section is as follows: "Any person, without taking out and having a license as grocer, dramshop keeper or tavern keeper, who shall, directly or indirectly, sell any spirituous, vinous or fermented or other intoxicating liquors."

It will be noted that this act says "spirituous, vinous, fermented or other intoxicating liquors." The proof was a sale of "Lager Beer." The court said: "Under the statutes of this State, all fermented liquor is presumed to be intoxicating. If the defendant denies that the fermented liquor sold by him is intoxicating, it devolves upon him to remove the presumption of the law by evidence."

It will be seen that this early in the history of regulating the liquor traffic, the uniform judicial interpretation was that what was sought to be regulated at first and what was later forbidden was traffic in liquor that was intoxicating as a matter of fact.

As far as the question we are considering is concerned, a comparison of section 3 of chapter 35 of the General Statutes f...