State v. Reno Brewing Co., Inc.

• Decision Date: 07 March 1919
• Docket Number: 2367.
• Citation: 178 P. 902,42 Nev. 397
• Parties: STATE ex rel. THATCHER, Atty. Gen., v. RENO BREWING CO., Inc.
• Court: Nevada Supreme Court

178 P. 902

42 Nev. 397

STATE ex rel. THATCHER, Atty. Gen., v. RENO BREWING CO., Inc.

No. 2367.

Supreme Court of Nevada

March 7, 1919

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

Action by the state, on the relation of George B. Thatcher, Attorney General, against Reno Brewing Company, Incorporated. From an order granting an injunction pendente lite, defendant appeals. Order of Supreme Court modifying injunction vacated and set aside, and injunction as originally granted continued in full force and effect.

James T. Boyd, of Reno, for appellant.

George B. Thatcher, Former Atty. Gen., L. B. Fowler, Atty. Gen., and Robert Richards, Deputy Atty. Gen., for respondent.

Brown & Belford and A. F. Lasher, all of Reno, amici curiae.

DUCKER J.

This is an appeal from an order of the district court granting an injunction pendente lite, enjoining the appellant, the Reno Brewing Company, from keeping or maintaining a building or buildings at or in the vicinity of 990 East Fourth street, in Reno, Nev., for the manufacture, storing, selling, vending or giving away or furnishing a malt or brewed drink commonly called "Sierra Beverage," or any other beverage or malt or brewed drink of like kind or character.

The action was instituted in the district court on the relation of George B. Thatcher, the then Attorney General of Nevada under sections 14 and 17 of the Prohibition Law of this state, which read:

"Sec 14. All houses, buildings, club rooms and places of every description, including drug stores, where intoxicating liquors are manufactured, stored, sold or vended, given away, or furnished contrary to law (including those in which clubs, orders or associations sell, barter, give away, distribute or dispense intoxicating liquors to their members, by any means or device whatever, as provided in section six of this act) shall be held, taken and deemed common and public nuisances. And any person who shall maintain, or shall aid or abet, or knowingly be associated with others in maintaining such common and public nuisance, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than one hundred nor more than one thousand dollars, and by imprisonment in the county jail not less than thirty days nor more than twelve months for each offense, and judgment shall be given that such house, building or other place, or any room therein, be abated or closed up as a place for the sale or keeping of such liquors contrary to law, as the court may determine."

"Sec. 17. The commissioner, his agents and deputies, and the attorney-general, prosecuting attorney, or any citizen of the county where such a nuisance as is defined in section fourteen of this act exists, or is kept or maintained, may maintain a suit in equity in the name of the state to abate and perpetually enjoin the same, and courts of equity shall have jurisdiction thereof. The injunction shall be granted at the commencement of the action and no bond shall be required. ***"

Section 1 of said act provides as follows:

"Section 1. The word 'liquors' as used in this act shall be construed to embrace all malt, vinous or spirituous liquors, wine, porter, ale, beer or any other intoxicating drink, mixture or preparation of like nature; and all malt or brewed drinks, whether intoxicating or not, shall be deemed malt liquors within the meaning of this act; and all liquids, mixtures or preparations, whether patented or not, which will produce intoxication, and all beverages containing so much as one-half of one per centum of alcohol by volume, shall be deemed spirituous liquors, and all shall be embraced in the word 'liquors,' as hereinafter used in this act."

In paragraph 3 of the complaint it is alleged that-

"Said defendant owns, operates, and maintains buildings within said city of Reno, county of Washoe, state aforesaid, and at 990 East Fourth street, where it manufactures, stores, and threatens to sell or vend, give away or furnish, contrary to law, certain malt or brewed drink, under the name of 'Sierra Beverage,' containing approximately one-tenth (1/10) of one per cent. (1%) alcohol; and that said drink is what is commonly known and called 'near beer'; that the manufacture and storing of said liquor is contrary to and in violation of sections 1 and 14, respectively, of that certain initiative act adopted by the people of the state of Nevada at the last general election, entitled 'An act to prohibit the manufacture, sale, keeping for sale, and gift, of malt, vinous and spirituous liquors, and other intoxicating drinks, mixtures or preparations; making the superintendent of the Nevada state police ex officio commissioner of prohibition, and defining his duties; and providing for the enforcement of this act, and prescribing penalties for the violation thereof."'

The manufacture or sale, etc., of malt liquors is prohibited by the act as indicated in the title. By section 1 "The word 'liquors' as used in this act shall be construed to embrace all malt *** liquors, *** and all malt or brewed drinks, whether intoxicating or not, shall be deemed malt liquors. ***"

The manufacture or sale of liquors is prohibited in the two succeeding sections. The prohibition is complete whether the clause in section 1, "and all shall be embraced in the word 'liquors,' as hereinafter used in this act," was intended to include the entire classification of liquors in this section or not, or refers only to spirituous liquors.

Appellant contends that "Sierra Beverage" is not a liquor within the meaning of section 1, and not prohibited by the provisions of the act, for the reason that it is nonintoxicating and contains only about one-tenth of 1 per centum of alcohol.

In support of this contention it was urged in the oral argument and in the briefs that the manifest purpose of the act is to prohibit the manufacture, sale, and gift only of beverages or drinks that will produce intoxication, and such as the courts will take judicial notice of as intoxicating, and that class of beverages included in the last clause of section 1 which contain "so much as one-half of one per centum of alcohol by volume."

To give the act the construction claimed by appellant we must ignore as meaningless the clause in section 1, "and all malt or brewed drinks, whether intoxicating or not, shall be deemed malt liquors within the meaning of this act."

The presumption is that the framers intended to give force and effect not only to the main legislative intent of the act, but also to its several parts, words, clauses, and sentences, and chose appropriate language to express their intention.

This presumption is removed only when it appears, from a construction of a statute as a whole, effect cannot be given to the paramount purpose unless particular words or clauses are rejected, or without limiting or expanding their literal import.

In the application of this principle the sentence, "and all malt or brewed drinks, whether intoxicating or not, shall be deemed malt liquors within the meaning of this act," cannot be adjudged out of the act, or restricted or enlarged in its plain signification, unless, after exhausting every legitimate method of construction, it is found irreconcilable with the scope and purposes of the act, or void for constitutional reasons.

As pointed out in State v. Hemrich, 93 Wash. 439, 161 P. 79, L. R. A. 1917B, 962, the definitions of the term "malt liquor," as given in the standard dictionaries and by all law lexicographers, include the elements of malt and alcohol without regard to the proportions of these constituents. There is almost the same uniformity in the definitions of the courts which have attempted to define the term.

They recognize the presence of malt and alcohol as essential elements of malt liquor, or as in State v. Hemrich, supra, such properties including malt that will generate alcohol.

It is alleged in the complaint and admitted by appellant that "Sierra Beverage" contains malt and alcohol, and thus it is brought squarely within the meaning of these definitions as a malt liquor. Whether it is intoxicating or not is made immaterial by the language of section 1, declaring malt and brewed drinks to be malt liquors, unless it was not intended to give this clause its apparent effect.

The title of the act purports to prohibit the manufacture, sale, keeping for sale, and gift of malt, vinous, and spirituous liquors, and in the first part of section 1 liquors prohibited by the act are construed to embrace all malt, vinous, or spirituous liquors, wine, porter, ale, beer or any other intoxicating drink, mixture, or preparation.

It is urged that the general phrase in the...