State v. Sioux Falls Brewing Co.
| Decision Date | 03 March 1894 |
| Citation | 58 N.W. 1,5 S.D. 39 |
| Parties | STATE v. SIOUX FALLS BREWING CO. et al. [1] |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. Under a statute which does not specifically name the liquors the sale of which as a beverage it prohibits, but considers and holds all liquors intoxicating which are spirituous malt, vinous, or fermented, as well as all mixtures thereof which will produce intoxication, the malt or intoxicating quality of beer, when in question, should be shown by the evidence, the weight and sufficiency of which is for the court or jury, as the case may be.
2. It being a matter of general knowledge that there are varieties of the beverage denominated "beer," and used in this state, that contain no malt and are not intoxicating, we hold that the term "beer," in the absence of evidence as to its quality or effect, does not import an intoxicating liquor.
3. In the absence of a statute declaring that "beer" shall be deemed an intoxicating liquor, the mere statement of the witnesses that they bought beer, without any evidence as to the purpose for which it was bought, or that it contained malt, or of its effect upon persons using it, or of the manner in which it was made, is not sufficient to show that it was intoxicating; and a court will not take judicial notice that beer so sold was a malt or intoxicating liquor.
Appeal from circuit court, Minnehaha county; Frank R. Aikens, Judge.
Action by the state of South Dakota against the Sioux Falls Brewing Company, Moriz Levinger, and Moses Kauffman to abate an alleged liquor nuisance. There was judgment for plaintiff and defendants appeal. Reversed.
McMartin & Carland, for appellants. Robert Dollard, Atty. Gen., and Wm. A. Wilkes, for the State.
The relief demanded in this action is that a certain brick building, known as the "Sioux Falls Brewery," situated on lots 12, 13, and 14, of block 26, of Brookings & Edmunds' Sioux Falls, in the city of Sioux Falls, erected by the Sioux Falls Brewing Company, a corporation, be declared a common nuisance; and that the same be abated and perpetually enjoined; and that the defendants Levinger and Kauffman, their agents and servants, be restrained and enjoined from hereafter keeping for sale, or selling, any intoxicating liquors at the place aforesaid, contrary to the provisions of sections 1 and 13 of chapter 101 of the Laws of 1890. The answer was a general denial, and, upon the issues thus raised, the cause was tried to the court, without a jury. The court found, in effect, that William A. Wilkes, the person who brought the action in behalf of the state, was at the time a citizen of Minnehaha county, in said state; that the premises described in the complaint were at the commencement of this action, and now are, a brewery, and a place where intoxicating liquor, to wit, beer, was and is kept for sale, barter, and delivery as a beverage; that the defendant Moriz Levinger is the president of the Sioux Falls Brewing Company; and that he did, during the months of September, 1890, and at divers times subsequent thereto, sell and deliver intoxicating liquors, to wit, beer, as a beverage, within the building and upon the premises described in the complaint. As a conclusion of law, the court found, in effect, that the brewery building is a common nuisance, and that the defendants the Sioux Falls Brewing Company and Moriz Levinger be enjoined from further keeping and maintaining said nuisance, and that the same be abated. Judgment was entered accordingly, and the defendants appeal.
Section 6, c. 101, Laws 1890, provides that "all spirituous malt, vinous, fermented or other intoxicating liquors or mixtures thereof, by whatever name called, that will produce intoxication, shall be considered and held to be 'intoxicating liquors,' within the meaning of this act." Section 13: ***" Section 22: "*** In actions or proceedings for the abatement of nuisances under this act, evidence of the general reputation of the place designated in the complaint shall be admissible for the purpose of proving the existence of such nuisance; and in all cases other than those where intoxicating liquor is lawfully sold by virtue of the provisions of this act, the fact that any person engaged in any kind of business has or keeps posted in or about his place of business a receipt or stamp showing payment of the special tax levied under the laws of the United States upon the business of selling distilled malt or fermented liquors, or the holding of a license from the government of the United States in the name of any person, persons or corporations, to sell intoxicating liquors, shall be held and deemed prima facie evidence against such person, persons or corporations, that he, they or it are keeping for sale and selling intoxicating liquors contrary to law. ***"
The assignments of error relate to all the findings of fact and conclusions of law predicated thereon. As a consideration of many of the questions discussed in the briefs submitted by the respective counsel will not be essential, in our opinion, to a determination of this appeal, we will address our inquiry to the questions raised concerning the sufficiency of the evidence to sustain the findings of fact and conclusions of law upon which a judgment and decree in favor of the plaintiff were based. Sheriff Sundback testified, in substance, that in the month of October, 1890, he served the papers in this case upon the defendant Levinger, at the place known as the "Sioux Falls Brewery," and that said Levinger seemed to be in charge of the premises. In response to a request made by plaintiff's counsel to state what he found upon the premises, he submitted the following schedule or invoice, which seems to have been admitted without objection: Witness stated that he could not tell what was being done on the premises from personal knowledge; but, from what he saw and what he surmised, he judged that they were brewing beer; and that it was his impression that they were still so engaged, but he could not swear to that, although he had seen Mr. Levinger there from time to time until the date of the trial. F. C. Smith testified that he was on the premises in question about the 6th of last May, in company with a man who got a keg of beer, and put it in the buggy, and drove off with it; that he did not know whether he paid for it, as witness did not go into the premises; that he knew it was beer, because he drank some of it. James Gushard testified that he visited the premises last October, and bought a keg of beer from Mr. Levinger, and paid him for it, and took it away with him. Sam C. Bragstad testified that in September, 1890, he went up there, and asked Mr. Levinger if he could get a keg of beer, and that he bought it, and it was delivered to him at the hotel where he was at the time stopping. W. A. Wilkes, who brought this action, in the name of the state, testified that he has been for the last 12 years, and now is, a resident and citizen of Minnehaha county, S. D.; that the defendant Mr. Levinger was at the time of the commencement of this action, and since that time has been, in charge of the brewery described in the complaint, as one of its managers; that the Sioux Falls Brewery is located as described in the complaint, to wit, on lots 12, 13, and 14, of block 26, Brookings & Edmunds' Sioux Falls, in the city of Sioux Falls.
It will be noticed that our statute does not by its name define "beer" as an intoxicating liquor, and prohibit its sale as a beverage; and,...
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