State v. Fargo Bottling Works Co.

• Decision Date: 07 January 1910
• Citation: 19 N.D. 396,124 N.W. 387
• Parties: STATE v. FARGO BOTTLING WORKS CO.
• Court: North Dakota Supreme Court

19 N.D. 396

124 N.W. 387

STATE

v.FARGO BOTTLING WORKS CO.

Supreme Court of North Dakota.

Jan. 7, 1910.

Syllabus by the Court.

Chapter 187, p. 277, Laws 1909, amending as it does section 9366, Rev. Codes 1905, is part of the Penal Code of this state, and its construction comes within the provision of section 8538, Rev. Codes 1905, that “the rule of the common law that penal statutes are to be strictly construed, has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.”

If a penal statute of this state contains a patent ambiguity, and admits of two equally reasonable and contradictory constructions, that which operates in favor of a party accused under its provisions is to be preferred. Nothing will be regarded as included within the provisions of such a statute that is not within its letter as well as its spirit. If the meaning of such a statute is simply obscure, the legislative intent in the passage of the act will be considered as a light to assist the court in arriving with more accuracy at its meaning. It is the duty of a court in construing such a statute to adopt that sense of the words which harmonizes best with the context and promotes in the fullest manner the apparent policy and objects of the Legislature.

Chapter 187, p. 277, Laws 1909, construed in the light of these principles, is not contradictory in its terms, and is not ambiguous in the sense that it is susceptible of two or more meanings equally clear and reasonable.

Considered with its context, under a fair, reasonable, and ordinary interpretation of the wording, the clause contained in chapter 187, p. 277, Laws 1909, in the words, “any kind of beverage whatsoever, which retaining the alcoholic principle or other intoxicating qualities as a distinctive force, may be used as a beverage and become a substitute for the ordinary intoxicating drinks,” is intended to describe a beverage which contains alcohol or other drug having an intoxicating quality, in a quantity reasonably appreciable, and in which such drug has not by chemical combination with other drugs also contained in the liquor lost its intoxicating principle, which liquor according to common experience and observation will be resorted to by those accustomed to use intoxicating liquors as a beverage upon a failure to procure the ordinary intoxicating drinks in the usual way. In such a liquor, alcohol or other drug of kindred quality preserving its native characteristics must be present, but not necessarily in such quantity as to produce intoxication.

Chapter 187, p. 277, Laws 1909, is not in any of its parts repugnant to section 61 of the state Constitution, for the reason that the subject of the act is not expressed in the title. Being an amendment to chapter 110, p. 309. Laws 1890, it is a sufficient compliance with the constitutional requirement if the subject-matter of such amendment is germane to the subject of the original act of which this amended section is a part and is within the title of that act.

Any liquor containing alcohol or the alcoholic principle or other intoxicating quality when declared by the Legislature to be an intoxicating liquor will be so regarded by the courts whether or not its ordinary use will produce intoxication in the average man. A definition of intoxicating liquor including within its provisions a liquor containing the alcoholic principle, but which it is admitted will not produce intoxication in any degree, is germane to the general subject of chapter 110, p. 309, Laws 1890, and within the title, “An act to prescribe penalties for the unlawful manufacture, sale and keeping for sale of intoxicating liquors and to regulate the sale, barter and giving away of such liquors for medical, scientific and mechanical purposes.”

Chapter 187, p. 277, Laws 1909, is replete in itself and does not purport to amend section 9353, Rev. Codes 1905, providing a penalty for violations of the prohibitory law, and while it by implication affects and modifies somewhat the meaning of said section 9353, as well as many other sections of the general statute, it is not for that reason repugnant to section 64 of the state Constitution, requiring that all portions of the amended statute that are retained in the new enactment be incorporated and published in the amended act.

A malt liquor retaining the alcoholic principle as a distinctive force which it is admitted is “used throughout the state of North Dakota as a substitute for beer” cannot be regarded as an innocent, harmless, and healthful beverage. It is a matter of common knowledge that a liquor of this description may be harmful in the sense that its use cultivates and stimulates an appetite for intoxicants which may become seriously detrimental to the general welfare. A liquor with these characteristics and used in this manner is a convenient vehicle of subterfuge and fraud and a means of evading the penalties of the prohibitory law. For this reason, a statute prohibiting the sale of such liquor within the state is a legitimate exercise of the police power of the state, and is not repugnant to the provisions of sections 1 and 13 of the state Constitution.

Defendant having pleaded guilty to an information charging that it sold within the state a liquor labeled “Purity Malt,” and commonly called and known as “malt,” which is a malt liquor retaining the alcoholic principle as a distinctive force which was and is sold and used throughout the state of North Dakota as a substitute for beer, and that said beverage contained 1.75 per cent. of alcohol by volume and 1.40 per cent. of alcohol by weight, is guilty of a public offense and liable to an imposition of the penalties provided for violation of the prohibitory law of the state.

The word “substitute” means one who or that which stands in the place of another; that which stands in lieu of something else.

Appeal from District Court, Cass County; C. A. Pollock, Judge.

The Fargo Bottling Works Company, a corporation, was convicted of the wrongful sale of intoxicating liquor in violation of the prohibitory law, and it appeals. Affirmed.

Fisk, J., dissenting in part.

V. R. Lovell and George A. Bangs, for appellant. Arthur W. Fowler, State's Atty., for the State.

ELLSWORTH, J.

At its session in 1909 the Legislative Assembly of North Dakota passed an act, the wording of which, including the title, is as follows:

“An act to amend section 9366 of the Revised Codes of North Dakota, as amended by chapter 191 of the Laws of 1907, defining intoxicating liquors.”

“Be it enacted by the Legislative Assembly of the state of North Dakota:

‘Sec. 9366. Intoxicating liquor defined. The following liquors are hereby declared to be intoxicating and their intoxicating quality shall, by all courts, be presumed, viz.: Alcohol, whisky, rum, brandy, beer, ale, porter, wine and hard cider, also all spirituous, malt, vinous, fermented or other intoxicating liquors or mixtures thereof by whatsoever name called whether mentioned in section one of this act or not, that will produce intoxication of any degree; or any mixtures of such, or any kind of beverage whatsoever, which retaining the alcoholic principle or other intoxicating qualities as a distinctive force, may be used as a beverage and become a substitute for the ordinary intoxicating drinks, or any liquors or liquids which are made, sold or offered for sale as a beverage and which shall contain coculus indicus, copperas, opium, cayenne pepper, picric acid, Indian hemp, strychnine, tobacco, darnal seed, extract of logwood, salts of zinc, copper or lead, alum or any of its compounds, methyl alcohol or its derivatives, amyl alcohol or any extract or compound of any of the above ingredients, shall be considered and held to be intoxicating liquors within the meaning of this chapter.’

Sec. 2. Emergency. Owing to the inadequate definition of intoxicating liquors now existing there is an emergency existing and this act shall take effect immediately upon its passage and approval.”

Laws 1909, p. 277, c. 187.

This act was approved by the Governor of North Dakota on March 11, 1909, and under the emergency clause attached took effect immediately. On June 30, 1909, the state's attorney of Cass county filed in the district court of the Third judicial district for that county an information against the Fargo Bottling Works Company, the defendant and appellant here, the charging part of which is to the effect that the said defendant “a corporation, late of the county of Cass and state aforesaid, did commit the crime of selling intoxicating liquor, committed in the manner following, to wit: That at said time and place the said defendant was and is a corporation duly organized and existing under and by virtue of the laws of the state of North Dakota; that at said time and place the said defendant did willfully and unlawfully sell to one Arthur W. Fowler a quart bottle full of a certain beverage, which said beverage was then and there labeled ‘Purity Malt,’ and is commonly called and known throughout the state of North Dakota as ‘Malt’ and was and is a malt liquor, and that in the manufacture and production of which said beverage no alcohol was or is used as an ingredient, but in which, during such manufacture, the alcohol hereinafter referred to was and is produced by chemical action in the beverage itself, and which said beverage therefore then and there had and retained, by reason of the facts aforesaid, the alcoholic principle as a distinctive force, and was then and there and is sold and used throughout the state of North Dakota as a substitute for beer; that said beverage aforesaid contained one and seventy-five one-hundredths (1.75) per cent. of alcohol by volume, and one and forty one-hundredths (1.40) per cent. of alcohol by weight. This against the peace and dignity of the state of North Dakota, and contrary to the form of...