State v. Centennial Brewing Co.
| Decision Date | 20 February 1919 |
| Docket Number | 4350. |
| Citation | 179 P. 296,55 Mont. 500 |
| Parties | STATE v. CENTENNIAL BREWING CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.
The Centennial Brewing Company was convicted of violation of the prohibition law, and appeals. Affirmed.
John E Corette, of Butte, and Fletcher Maddox and Geo. H. Stanton both of Great Falls, for appellant.
S. C Ford, Atty. Gen., Jos. R. Jackson and N. A. Rotering, both of Butte, Frank Woody, Asst. Atty. Gen., and Frank L. Riley, of Butte, for the State.
This appeal by the Centennial Brewing Company from a judgment of conviction of a violation of the prohibition law, presents for decision the question: Is it a criminal offense in this state to sell malt liquor which contains less than 2 per centum of alcohol measured by volume?
At the general election held in November, 1916, the people, by direct vote, adopted a statute called familiarly the "prohibition law." By its terms, any person who manufactures, sells, exchanges, barters, gives, or disposes of any ardent spirits, or any compound thereof capable of use as a beverage, of any ale, beer, wine, or intoxicating liquor of any kind, is guilty of a misdemeanor. The act did not become effective until December 31, 1918. Chapter 39, Laws 1915; chapter 175, Laws 1917.
By an act approved March 5, 1917 (chapter 143, Laws 1917), and known as the "Enforcement Act," elaborate machinery was provided for the enforcement of the prohibition law, and, as one means to that end, section 2 defines intoxicating liquors as follows:
It is the contention of appellant that the concluding clauses, "which contains as much as two per centum of alcohol measured by volume, and which is capable of being used as a beverage," modify the terms "spirituous, vinous, fermented or malt liquors and liquor or liquid of any kind," and therefore it is not unlawful to sell spirituous, vinous, fermented, or malt liquors which do not contain as much as two per centum of alcohol measured by volume, or which are not capable of use as beverages. This contention cannot be upheld.
1. It assumes necessarily that the Enforcement Act amends the prohibition law. To illustrate: By the prohibition law the sale of ardent spirits is prohibited altogether, without reference to alcoholic contents; whereas if appellant's contention be upheld, the sale of spirituous liquors containing less than 2 per cent. of alcohol is not prohibited.
"Ardent spirits" and "spirituous liquors" are terms of general use, and each has a well-defined, well-understood meaning. In Webster's International Dictionary the term "ardent" is defined as:
"Hot or burning; causing a sensation of burning; fiery, as ardent spirits-that is, distilled liquors."
Century Dictionary:
Ardent spirits: "Distilled alcoholic liquors, as brandy, whisky, gin, rum."
Standard Dictionary:
Ardent spirits: "Alcoholic distilled liquors."
Worcester's Dictionary:
Ardent spirits: "A term applied to liquors obtained by distillation, such as rum, whisky, brandy, and gin."
Black's Law Dictionary:
Ardent spirits: "Spirituous or distilled liquors."
"Spirituous liquor means distilled liquor." 1 Woolen & Thornton on the Law of Intoxicating Liquors, § 7.
Spirituous: "Containing much alcohol; distilled, whether pure or compounded, as distinguished from fermented; ardent; applied to a liquor for drink." Century Dictionary.
Spirituous liquors: "Any intoxicating liquor produced by distillation or by rectifying, compounding or otherwise treating or using distilled alcoholic fluids in distinction from fermented or brewed intoxicating beverages." Standard Dictionary.
Spirituous liquors: "These are inflammable liquids produced by distillation and forming an article of commerce." Black's Law Dictionary; Cyclopedic Law Dictionary.
Spirituous liquor: "Distilled liquor." Anderson's Law Dictionary.
The term "spirituous liquor" means distilled liquor. Black on Intoxicating Liquors, § 3.
"Spirituous liquor is that which is in whole or in part composed of alcohol extracted by distillation; whisky, brandy, and rum being examples." 15 R. C. L. 249.
In Sarlls v. United States, 152 U.S. 570, 14 S.Ct. 720, 38 L.Ed. 556, the Supreme Court of the United States approved the definitions as given by Webster, Worcester, and Century Dictionaries. In United States v. Ellis (D. C.) 51 F. 808, the court, in speaking of these terms used in a prohibition statute, said:
"'Ardent' and 'spirituous' are used indiscriminately as having the same meaning."
[] There cannot be any question that "ardent spirits" and "spirituous liquors" are terms used to express the same meaning, and since by the prohibition law the sale of ardent spirits is prohibited absolutely, the sale of all spirituous liquors is likewise prohibited, without reference to the alcoholic contents, unless the Enforcement Act has amended the prohibition law. But such was not its purpose and is not its effect.
It does not assume to be an amendment, and it does not re-enact any part of the prohibition law, and for this reason it cannot have the effect of an amendment. Section 25, art. 5, of the state Constitution, provides:
"No law shall be revised or amended, or the provisions thereof extended by reference to its title only, but so much thereof as is revised, amended or extended shall be re-enacted and published at length."
Neither can the doctrine of amendment by implication apply.
2. Appellant's contention leads to a contradiction of terms employed in section 2 of the Enforcement Act. Reduced to its simplest form, the contention amounts to this:
The sale of spirituous, vinous, fermented, or malt liquor, not capable of being used as a beverage, is not prohibited. The word "beverage" means a drink or liquor for drinking. Century Dictionary. Every one of the terms-"spirituous liquor," "vinous liquor," "fermented or malt liquor"-has a well-understood meaning. Every one of those liquors is not merely capable of being used as a beverage, but it is in fact a beverage, and it is a contradiction of terms to speak of spirituous, vinous, fermented, or malt liquor, not capable of being used as a beverage.
3. The grammatical construction of the section does not admit of the application of appellant's theory. Under the construction contended for, the sentence would read: The phrase "intoxicating liquors" shall be held and construed to include any spirituous, vinous, fermented, or malt liquor which contains as much as 2 per centum of alcohol, and which is capable of being used as a beverage. In the connection in which they are employed, the words "any," "spirituous," "vinous," "fermented," and "malt" are adjectives, all modifying the noun "liquors," which is plural in number, whereas each of the verbs "contains" and "is" is singular.
The rule of grammatical construction is merely an aid in interpretation, and if the text of the statute indicates a legislative intention contrary to that which would follow from the application of the rules of grammar, then the rule of grammatical construction must give way; but in the absence of a clear intention disclosed by the text, then, as said by this court in Jay v. School District, 24 Mont. 219, 61 P. 250:
"We must elicit the purpose and intent of it [the statute] from the terms and expressions employed, if this is possible; calling to our aid the ordinary rules of grammar."
4. The contention of appellant does violence to another rule of statutory construction. The last antecedent before either of the modifying clauses is "liquor" or "liquid." It is a rule of law as old as the law itself, that a relative clause shall be construed to relate to the nearest antecedent that will make sense (Traverse City v. Blair Township, 190 Mich. 313, 157 N.W. 81, Ann. Cas. 1918E, 81; Endlich on Interpretation of Statutes, § 414), or, as more aptly stated:
"By what is known as the doctrine of the 'last antecedent,' relative and qualifying words, phrases, and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to or including others more remote, unless such extension is clearly required by a consideration of the entire act." 36 Cyc. 1123.
As said of the last preceding rule, this one is merely an aid in interpretation, and, in case of conflict, must give way to the more general rule...
To continue reading
Request your trial