State v. Hemrich

• Decision Date: 22 November 1916
• Docket Number: 13497.
• Court: Washington Supreme Court
• Parties: STATE v. HEMRICH.

161 P. 79

93 Wash. 439

STATE v. HEMRICH.

No. 13497.

Supreme Court of Washington, En Banc.

November 22, 1916

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Alvin Hemrich was convicted of violating the prohibition law, and he appeals. Judgment reversed.

McClure & McClure and Greene, Henry & Hemrich, all of Seattle, for appellant.

Alfred H. Lundin and F. P. Helsell, both of Seattle, for the State.

ELLIS J.

Defendant was accused of a violation of the state-wide prohibition law commonly known as Initiative Measure No. 3 (Laws 1915, p. 2; Rem. Code 1915, § 6262-1 et seq.). The information charged that:

'He, said Alvin Hemrich, in the county of King, state of Washington, on the 9th day of February, 1916, did then and there willfully and unlawfully sell to one Fred M. Lathe certain intoxicating liquor, to wit, two bottles containing malt liquor, said malt liquor not then and there containing any alcohol, and being commonly known as 'Lifestaff,' receiving in payment therefor from said Fred M. Lathe the sum of twenty-five cents.'

He demurred to the information, and it was stipulated that in considering the demurrer the court might consider as established certain agreed facts so far as they would be admissible as evidence if the cause were being tried on its merits after a plea of not guilty. These agreed facts were, in substance, as follows:

(1) That defendant was, and for a long time had been, president of a corporation which, prior to January 1, 1916, was engaged in the manufacture and sale of beer in the state of Washington; that immediately after that date it surrendered its government license, and remodeled its brewery and plant for the manufacture of Lifestaff, so that on February 9 1916, they were not adapted to the manufacture of beer without extensive alterations in equipment and the issuance of a new license from the United States government.

(2) 'That the liquid in the information herein referred to as 'Lifestaff' is an unfermented liquid, and is entirely free from alcohol, preservatives, or other harmful substances, but contains between 6 and 7 per cent. of extract of malt. That it is a healthful and nutritious liquid capable of being drunk, but the character of the liquid itself is such that it is not intoxicating, does not in fact contain intoxicating properties, and is not capable of being imbibed in unusual quantities for merely social purposes.'

(3) That the term Lifestaff has been copyrighted under the federal laws, and appropriated as a trade-mark under the state law.

(4) That L. E. Kirkpatrick, president and attorney of the Anti-Saloon League for the state of Washington, and who prepared Initiative Measure No. 3 as submitted to and adopted by the people, would testify that, in the conferences held to prepare the act, there was, to his knowledge, no discussion of or expressed intention to prohibit by the act the manufacture or sale of any liquor not containing alcoholic properties; that he was then not aware that a process had been discovered for removing all alcohol from malt liquor, and that the question of prohibiting the manufacture and sale of malt liquor not containing alcohol was not considered by him, nor discussed by others in his presence; that in preparing the original draft of the act the definition of intoxicating liquors as given therein was prepared, using as a basis the definition as given in the laws of various states having prohibition laws, and that he did not consider, nor did others with whom he consulted discuss, the operation of the proposed law as affecting the manufacture and sale of malt liquors not containing alcohol; that, so far as his knowledge goes, the general policy of the Anti-Saloon League and those associated with it has been to abolish only the manufacture and sale of liquors containing alcohol.

(5) That George D. Conger, state superintendent of the Anti-Saloon League, would testify substantially to the same effect.

(6) That the title of the measure as originally drafted and filed in the office of the secretary of state was as follows:

'An act relating to intoxicating liquors, prohibiting the manufacture, keeping, sale and disposition thereof, except in certain cases, the soliciting and taking of orders therefor, the advertisement thereof and the making of false statements for the purpose of obtaining the same, declaring certain places to be nuisances and providing for their abatement, regulating the keeping, sale and disposition of intoxicating liquors by druggists and pharmacists, the prescription thereof by physicians, the transportation thereof, and providing for the search for and seizure and destruction thereof, prescribing the powers and duties of certain officers, and the forms of procedure and the rules of evidence in cases and proceedings hereunder, and fixing penalties for violations hereof, and the time when this act shall take effect.' Laws 1915, p. 2.

(7) That the ballot title as proposed by the Attorney General was as follows:

'An act prohibiting the manufacture, sale, or other disposition of intoxicating liquors, except in certain cases; regulating the keeping, use and transportation of the same; providing for the enforcement of this act; and fixing punishments and penalties for the violation thereof.'

(8 and 9) That in the printed arguments for and against the measure distributed among the legal voters of the state as required by law, there was nothing advising the voters that the act was intended to prohibit the manufacture or sale of nonalcoholic malt liquors as a means to the more effective enforcement of the law as against alcoholic liquors. The two bottles of Lifestaff were submitted as exhibits. The trial court overruled the demurrer. Defendant, electing to stand upon his demurrer and the stipulated facts, was adjudged guilty as charged. From the judgment and sentence thereon he has appealed.

Appellant broadly contends that Lifestaff is not a liquor the manufacture and sale of which is intended to be prohibited by our statute, because it is admitted that it contains no alcohol, no intoxicating properties, and will not in fact intoxicate.

It is first argued that our prohibition law, Initiative Measure No. 3 (Laws of 1915, p. 2; Rem. Code 1915, § 6262-1 et seq.), is a penal statute, and hence under the general rule must be strictly construed, and that, so construed, it embraces only intoxicating liquors. We shall not review the many authorities cited, announcing the general rule that penal statutes must be strictly construed, since the first section of the law itself answers that argument. It imposes its own rule of construction. It says:

'This entire act shall be deemed an exercise of the police power of the state, for the protection of the economic welfare, health, peace and morals of the people of the state, and all of its provisions shall be liberally construed for the accomplishment of that purpose.' Rem. Code 1915, § 6262-1.

We must therefore construe the act liberally and inclusively, with a view to the accomplishment of its full purpose. It is true that the dominant purpose of the law is to prohibit the manufacture and sale of intoxicating liquors, to the end that the economic welfare, health, peace, and morals of the people may be promoted. Both the title of the act and the ballot title by which it was submitted to vote so show.

But in the exercise of the police power the Legislature, or the people acting in a legislative capacity, may, without impinging either the state or the federal Constitution, prohibit the sale of beverages, not intoxicating in fact and wholly innocuous, when separately considered, and may conclusively define such beverages as intoxicating liquors within the meaning of the prohibitory law, whenever that course has any reasonable relation to the accomplishment of the dominant purpose. 'This is no longer a question for argument or even of doubt.' State v. Frederickson, 101 Me. 37, 63 A. 535, 6 L. R. A. (N. S.) 186, 115 Am. St. Rep. 295, 8 Ann. Cas. 48; Purity Extract & Tonic Co. v. Lynch, 226 U.S. 192, 33 S.Ct. 44, 57 L.Ed. 184. If therefore any beverage of such composition and character as reasonable to include the stuff called 'Lifestaff' is expressly prohibited or defined by our law as an intoxicating liquor, then Lifestaff is prohibited.

It is next argued that nothing except 'liquor' is prohibited, and that the word 'liquor' ex vi termini means an alcoholic or intoxicating liquid, and that therefore nothing but alcoholic or intoxicating liquids are prohibited. It is true that such is one of the meanings of the word 'liquor,' but all of the standard dictionaries agree that it also means a liquid of any sort. See Century Dictionary, Webster's New International Dictionary, and Standard Dictionary. The first two of these, the three leading dictionaries, give the meaning of the noun 'liquor' as synonymous with the noun 'liquid,' and the third gives the same meaning as a secondary definition. It can hardly be said, therefore, that the word 'liquor' has any such settled and exclusive meaning of an alcoholic or an intoxicating liquid as to make it the basis of a persuasive, much less of a conclusive, argument, for such a construction of the statute. Appellant's minor premise failing, his argument fails.

A further argument is based upon the statutory definition of the term 'intoxicating liquor' as found in section 2 of our prohibitory law (Laws of 1915, p. 2; Rem. Code 1915, § 6262-2), which reads as follows:

'The phrase 'intoxicating liquor,' wherever used in this act, shall be held and construed to include whisky, brandy, gin, rum, wine, ale, beer and any spirituous, vinous, fermented or malt liquor, and every other liquor or liquid containing intoxicating properties,

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