State v. Cooper
| Decision Date | 17 March 1936 |
| Docket Number | 43004. |
| Citation | 265 N.W. 915,221 Iowa 658 |
| Parties | STATE v. COOPER. |
| Court | Iowa Supreme Court |
Appeal from District Court, Linn County; H. C. Ring, Judge.
Defendant was indicted, tried, and convicted under an indictment charging violation of section 85 of the Iowa Liquor Control Act. From the judgment rendered against him, he has taken this appeal.
Reversed and remanded.
Donnelly, Lynch, Anderson & Lynch, of Cedar Rapids, and Boardman & Cartwright, of Marshalltown, for appellant.
Edward L. O'Connor, Atty. Gen., for the State.
Defendant was indicted by the grand jury of Linn county, charged with violation of section 85 of the Iowa Liquor Control Act (Code 1935, § 1921-f92), alleged to have been committed as follows " The said Harold M. Cooper on or about the 8th of December, A. D. 1934, in the county aforesaid, being then and there a member of the Iowa Liquor Control Commission, did knowingly and willingly permit a violation of the provisions of section 3 of the Iowa Liquor Control Act (Code 1935, § 1921-f3) by one J. Leroy Farmer, in that he did knowingly and willingly permit the said J. Leroy Farmer to possess unlawfully, vinous, fermented, spirituous or alcoholic liquors, except beer." The " Iowa Liquor Control Act," referred to in the indictment, is the statutory designation of chapter 24 of the Acts of the 45th Extra General Assembly. This act now appears as chapter 93-F1, title 6, of the 1935 Code. In this opinion we will designate the sections as numbered in the original act, chapter 24 above mentioned. Section 84 of said chapter appears in 1935 Code as section 1921-f91, as follows:
Section 85 of said chapter appears in 1935 Code as section 1921-f92, as follows:
Defendant challenged the sufficiency of the indictment. The specific matter upon which the attack is grounded is the fact that J. Leroy Farmer, referred to in the indictment, was not a member, secretary, officer, or employee of the Iowa liquor control commission. Defendant claims that in section 85, violation of which is charged in the indictment, the words " such violation" must refer to a violation by members, secretaries, officers, or employees of the commission. Upon such construction of the section appellant bases his proposition that the indictment did not charge a violation of section 85 because concededly Farmer was not a member, secretary, officer, or employee of the commission, nor had any connection therewith.
In support of his contention that the words " such violation" in section 85 refer to a violation by members, secretaries, officers, or employees of the commission, appellant sets out the following reasons:
" First: The words ‘ such violation’ must refer to what precedes and there is no other violation mentioned to which they can refer.
Second: Such construction is the reasonable construction and follows from the words ‘ knowingly and willingly permit’ such violation-it creates a rule governing the internal affairs of the Commission where there could well be a rule that one in authority should not permit a violation of the law.
Third: If the statute had intended to make it a crime for a member of the Commission to permit a violation by any and every one in the State of Iowa outside the Commission, then it could and should plainly so state.
Fourth: The statute-the Liquor Control Act-at no place, placed the duty of law enforcement upon the Commission. It is not one of the Commissioner's duties or powers, this duty being placed by the Act, upon the County Attorney.
Fifth: The construction contended for is the reasonable construction and the plain construction, but if there was even any doubt that doubt should be resolved in favor of the defendant."
On the other hand, appellee contends that these words " such violation" refer back to the words " any of the provisions of this Act" for the following reasons:
" First: The language of section 85 indicates that it was intended to prohibit the permission, by the Commission or any of its members, of violations of the Liquor Control Act by any person.
Second: That the entire liquor control statute, taken as a whole, indicates that ‘ such violation,’ as used in section 85, means a violation by any person."
Stated in another way, appellant would refer the words " such violation" back to the entire preceding context of section 85, while appellee would refer back " such violation" to only the words " any of the provisions of this act."
In Webster's New International Dictionary Second Edit. the shades of meaning of the adjective " such" are distinguished under seven classifications, of which must be rejected the third, sixth, and seventh because obviously inapt. In the remaining classifications there appear the following meanings: " (1) Of this or that kind, character or measure; of the sort or degree previously indicated or contextually implied; (2) Having the quality already or just specified; (4) Of the same class, type or sort; in the same category; (5) before mentioned; previously characterized or specified." As illustrating above meaning (1), Webster quotes: " Let no such man be trusted." In this use of the words " such man," Shakespeare pointed out no man susceptible of certain identification, because the " such man" was any man, anywhere, who, like the antecedent personality, has not music in himself. Shakespeare's antecedent is some indefinite and hypothetical individual, and the word " such" as used expresses in a large measure the thought of mere similarity. But of the problem before us one element is the fact that the association of our word " such" is not with the vagaries of layman literature, but with a penal statute creating a public offense, where certainty and pointedness of definition of the offense created is a presupposed requisite. Quite apparently this compels finding, if it exists, a definite and certain antecedent for the words " such violation," and forcibly suggests ascribing to the word " such" the thought, not of mere similarity, but of the requisite definiteness of identification of the offense created, as is found in the above meaning numbered (5); that is, the meaning " before mentioned, previously characterized or specified." Substituting such meaning for the word itself, the material portion of section 85 would then read, " or knowingly and willingly aid, assist or permit any before mentioned, previously characterized or specified violation," etc. We are of the opinion that the previously characterized or specified violation was a violation by a member, secretary, officer, or employee of the commission. This conclusion comes from consideration of the following matters:
The Iowa Liquor Control Act, too voluminous to be herein set out by its own terms is designated as an exercise of the police power. It declares that the traffic in intoxicating liquors is so affected with a public interest that it should be regulated to the extent of prohibiting all traffic in them, except as provided for in the act. The act then proceeds to establish the Iowa liquor control commission, and vests therein authority to buy, import, and sell liquors, and prohibits, with certain exceptions, all other liquor traffic. In the act is found unusually comprehensive legislation prescribing a detailed manner of functioning by the commission and by its personnel. In so doing the act creates many duties, the observance of which is imposed by the act on the members, secretaries, officers, and employees of the commission. These are the administrative duties laid down for the conducting of the liquor business, including certain matters incidental thereto, such as inhibitions on political activities and on the having of personal interest in manufacturing or dealing in liquors. Without encumbering the opinion with any attempted enumeration of these duties, their legislative importance and their intended comprehensiveness may be indicated by saying that the liquor business placed in the hands of this commission is state-wide, and its...
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