State v. Hosmer

• Decision Date: 19 December 1919
• Docket Number: No. 21600.,21600.
• Citation: 144 Minn. 342,175 N.W. 683
• Parties: STATE v. HOSMER.
• Court: Minnesota Supreme Court

144 Minn. 342

175 N.W. 683

STATE

v.HOSMER.

No. 21600.

Supreme Court of Minnesota.

Dec. 19, 1919.

Certified Questions from District Court, Hennepin County; Chas. S. Jelley, Judge.

Eugene A. Hosmer was indicted for the manufacture of beer to be used as a beverage, and containing one-half of 1 per cent. of alcohol, his demurrer to the indictment was overruled and questions were certified. Order affirmed.

Syllabus by the Court

Chapter 455, Laws of 1919, expresses a purpose to provide for the enforcement of the act of Congress ‘commonly known as War Prohibition.’ This does not limit the operation of the statute to the matters prohibited by the act of Congress, if, by its terms, it is broader than the act of Congress. The state statute is a separate, complete and independent act.

A state statute, absolutely prohibiting, within the limits of the state, the manufacture and sale of intoxicating liquors, is a warranted exercise of the police power of the state. It is not in contravention of our state Constitution or of the Constitution of the United States.

The ultimate purpose of prohibition is to prevent the excessive use of intoxicating liquors. To accomplish that purpose, and to prevent evasions, the Legislature may prohibit the traffic, the sale, the transportation, the possession, and the manufacture even for the use of the manufacturer.

It is not necessary, in an indictment under our statute, to allege that the liquor was potable as a beverage.

The prohibitions of our statute are not limited to liquors manufactured from grains, cereals, fruit, or other food products.

The statute forbids the manufacture of intoxicating liquor for the private use of the manufacturer. Clifford L. Hilton, Atty. Gen., James E. Markham, Asst. Atty. Gen., and Wm. M. Nash, Floyd B. Olson, and Willis I. Norton, all of Minneapolis, for the State.

Benjamin Davenport, of Minneapolis, for defendant.

HALLAM, J.

The indictment charges that in Minneapolis, Minn., defendant manufactured one quart of beer to be used as a beverage and containing one-half of 1 per cent. of alcohol. Defendant demurred to the indictment. The court overruled the demurrer and certified the following questions to this court:

(1) Does the indictment state facts showing a public offense?

(2) Should it not state that the liquor was made from grain or cereals, or fruits or other foods as provided by an act of Congress?

(3) Does the indictment state an offense under chapter 455, Session Laws 1919, without regard to that portion of section 27, referring to the amendment of the United States Constitution and the act of Congress?

(4) Do the first four lines of section 27 affect the remainder of said chapter as to its scope, validity or invalidity?

(5) Does the intention of the chapter as expressed in section 27 affect the whole chapter and stamp itself on every clause thereof?

Are these first four lines valid law?

(6) Is not their importance, if valid, so great that the substance thereof should be indicated in the title of the act, and not being indicated, is not the entire act subject to the objection that the subject-matter is not expressed in the title?

(7) Does the expressed intention of the act, to enforce the provisions of the act of Congress, make those provisions the entire basis of this indictment?

(8) Does the definition of intoxicating liquor as stated in section 1, bind the judgment of the judge and jury, where it appears that the liquid contains one-half of one per cent. alcohol, as is intended to be used as a beverage, and is the defendant precluded from rebutting the fact if untrue in fact, by proving that in fact the liquor is not intoxicating.

(9) Does this chapter prevent the making of intoxicating liquor, where the person so making it in good faith intends it to be used as a tonic for himself or family, and not for other use, and he using his own judgment as to his need of it as such tonic, and without any physician's advice?

(10) Is the keeping of intoxicating liquor for one's own use, but not for sale or other disposition, unlawful as applied to the general public; and, if not unlawful, would it be unlawful for him to make other liquor of the same kind to replace that consumed by him, all being for his own use and not for sale or other disposition?

1. The prosecution is under chapter 455, Laws of 1919. Section 27 of the statute contains this language:

‘This act is intended to provide for the enforcement of * * * the provisions of the act of Congress of November 21, 1918, ‘commonly known as War Prohibition.”

This expression of the motive or purpose of the Legislature in passing the statute is of little importance save as it may, in a doubtful case, aid in construction. It does not restrict the plain language of the statute. It does not limit the operation of the statute to the matters prohibited by the act of Congress (Act Nov. 21, 1918, c. 212, 40 Stat. 1047) if by its terms it is broader than the act of Congress. It is the expression of a purpose to make more effective the prohibition imposed by the act of Congress, but the state statute is, notwithstanding, a separate, complete and independent act.

2. A state statute, absolutely prohibiting, within the limits of the state, the manufacture and sale of intoxicating liquor as a beverage is a warranted exercise of the police power of the state. 23 Cyc. 77, and cases cited. Such a statute is not in contravention of any provision of our Constitution. This is well established in states having Constitutions similar to our own, Santo v. State, 2 Iowa, 165, 63 Am. Dec. 487; People v. Hawley, 3 Mich. 330;Lincoln v. Smith, 27 Vt. 328, 362;Menken v. City of Atlanta, 78 Ga. 668, 2 S. E. 559;Kettering v. City of Jacksonville, 50 Ill. 39. Nor is it in contravention of the Constitution of the United States. Bartemeyer v. Iowa, 18 Wall. 129, 21 L. Ed. 929;Beer Co. v. Massachusetts, 97 U. S. 29,24 L. Ed. 989;Foster v. Kansas, 112 U. S. 201, 5 Sup. Ct. 8, 97,28 L. Ed. 629;Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205;Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. 6, 32 L. Ed. 346.

3. The ultimate purpose of prohibition is to prevent the excessive use of intoxicating liquor with the incidental evil results therefrom. See State of West Virginia v. Adams Express Co., 219 Fed. 794, 135 C. C. A. 464, L. R. A. 1916C, 291;Marks v. State, 159 Ala. 71,48 South. 864,133 Am. St. Rep. 20;State v. Phillips, 109 Miss. 22, 67 South. 651, L. R. A. 1915D, 530. The state may adopt such measures as are reasonably appropriate to accomplish that end, and, to make the prohibition effective, and to prevent evasions, the Legislature may prohibit the traffic (State v. Conlin, 27 Vt. 318), the sale (State v. Bass Co., 104 Me. 288, 71 Atl. 894,20 L. R. A. [N. S.] 495), the transportation (Kizer v. State, 140 Tenn. 582, 205 S. W. 423), the possession (Crane v. Campbell, 245 U. S. 304, 38 Sup. Ct. 98, 62 L. Ed. 304;State v. Macek, 104 Kan. 742, 180 Pac. 985), and the manufacture, even for the use of the manufacturer (State v. Marastoni, 85 Or. 37, 165 Pac. 1177;State v. Fabbri, 98...