State v. Walder
| Decision Date | 22 November 1910 |
| Docket Number | 12316 |
| Citation | 83 Ohio St. 68,93 N.E. 531 |
| Parties | The State Of Ohio v. Walder. |
| Court | Ohio Supreme Court |
Unlawful to sell malt liquor - Whether intoxicating or non-intoxicating - In county where local option is in force.
It is unlawful to sell malt liquor to be used as a beverage in a county of this state where the county local option law is in force, whether such malt liquor is in fact intoxicating or non-intoxicating. Such is the effect of section three (3) of said enactment, which declares that the "phrase 'intoxicating liquor' as used in this act, shall be construed to mean any distilled malt, vinous or any intoxicating liquor whatever." See 99 O. L., 35.
At the April term of the court of common pleas of Fulton county held in the year 1909, the following charge was made against the defendant in error, to-wit:
This is followed by the proper jurat signed by the clerk of the court.
Upon this affidavit, a warrant was issued, and the accused party taken into custody and before the said John M. Killits, as judge of the court of common pleas, where he was tried on the charge made in said affidavit.
The bill of exceptions shows that certain facts were agreed upon at the trial, namely: "It was admitted by and between counsel in open court that whatever crime was committed, if any, was committed in the county of Fulton and state of Ohio that a local option election was held in the county of Fulton, state of Ohio, on the twenty-fourth day of November 1908, and that a majority of the votes cast were in favor of the sale of intoxicating liquors as a beverage being prohibited; that whatever, if any, crime was committed, was committed more than thirty days after the date of the holding of said local option election; that a certificate of said local option election has been filed with the clerk of court of Fulton county, Ohio, and that said certificate is on record as provided by law."
The state introduced its evidence and rested, and the accused introduced his evidence and rested. Thereupon the court found him guilty as charged in the affidavit, and assessed a fine of fifty dollars and the costs of the prosecution. The finding of the court appears in the journal entry as follows:
"On consideration whereof the court find that the liquor charged in the affidavit to have been sold by defendant was a malt liquor, but was not intoxicating, and the court finds as a matter of law that the sale of said malt liquor is within the inhibition of statute and contrary to law." A motion for new trial was overruled, to all of which rulings and judgment proper exceptions were entered. A bill of exceptions was prepared, allowed and signed.
The circuit court granted leave to file therein a petition in error, which was filed, and on hearing the cause on error, said court reversed the court of common pleas, on the ground, as stated in the judgment entry, "that said judgment is contrary to law, in this, to-wit, that there was no evidence offered upon the trial of said cause showing or tending to show that the beverage sold was an intoxicating liquor." The case was remanded to the court of common pleas.
The state prosecutes error in this court to reverse the judgment of the circuit court.
Mr. F. H. Wolf, prosecuting attorney, and Mr. Wayne B. Wheeler, for plaintiff in error.
Section 3 of the county local option law (99 O. L., 36), is as follows: "The phrase 'intoxicating liquor,' as used in this act shall be construed to mean any distilled, malt, vinous or any intoxicating liquor whatever."
The question which arises in this case is, whether a malt liquor sold in a county where this law is in operation, violates the statute.
A proper construction of the definition in question, necessitates the determination of the intention of the general assembly in framing it. Had no such definition of the phrase "intoxicating liquor" been prescribed, the question as to the nature of the liquor dealt in by the defendant as intoxicating in point of fact would have been material in every prosecution instituted thereunder. The difficulty in the enforcement of the statute framed in such general terms, and the possibility of the lack of uniformity in the results of prosecution instituted under such language, have induced the general assembly to adopt the legislative policy followed in formulating various other police regulations of the state, such as the laws respecting food adulterations, those requiring the registration of physicians, druggists, stationary engineers, etc. This policy is that which eliminates disputes as to intrinsically doubtful facts, such as would have to be established by so-called expert testimony, and establishes a positive standard which though arbitrary is to be upheld by the courts, if the legislature had power to establish it. 23 Cyc., 57; State v. Intoxicating Liquors, 76 Ia. 243; Commissioners v. Timothy, 8 Gray, 480; State v. Wittmar, 12 Mo. 407.
That the legislature intended to include all malt liquors as coming within this definition, whether in fact there was a sufficient amount of alcohol in them to make them intoxicating, is clearly shown by recent legislation and the decision of this court. When the municipal option law was enacted defining intoxicating liquor to mean any distilled, malt, vinous or any other intoxicating liquor, Sections 4364-20a to 4364-20i, there was doubt in the minds of the courts as to whether or not under that wording it included all malt liquors, whether intoxicating or not. This doubt arose from the decision of Justice Brewer in the Kansas case under a similar wording of the law, holding the word "other" showed these terms, vinous, malt and distilled, were qualified by the word "intoxicating."
Following the decision of this court in State, ex rel., v. Kauffman, 68 Ohio St. 635, in construing the Dow law, the legislature made the definition of intoxicating liquor to conform to it with the distinct purpose of settling this mooted question.
In the General Code the codifying commission struck out the word "whatever" on the theory it added nothing to the definition of intoxicating liquor. The legislative intent is absolutely clear, both from the reading of the statute, and especially from the fact that the statute was put in its present form immediately following the construction by this court as to what similar language meant.
Both laws have the same title, "To further provide against the evils resulting from the traffic in intoxicating liquor," and they were sustained on this theory of providing against the evils of the traffic. Senior v. Ratterman, 44 Ohio St. 661.
There are three theories upon which this case may be decided:
First. That the term "malt liquor" includes all malt liquids, whether they contain any alcohol or not. This might be called the literal construction placed upon the term.
Second. The term "malt liquor" includes all malt alcoholic beverages, regardless of the amount of alcohol contained therein. This is the middle ground, and the decisions cited in this brief show the reason for such a construction.
Third. The term "malt liquor" includes only such malt liquors as are intoxicating in fact. This represents the other extreme from the first one named.
See definitions in Standard Dictionary, Century Dictionary and Webster's for "liquor" and "malt liquor."
Webster's International Dictionary defines "malt" to be barley, or other grain steeped in water and dried in a kiln, thus forcing germination until the saccharine principle has been evolved. It is used in brewing and the distillation of whiskey. United States v. Cohn, 52 S.W. 44.
A number of cases have been decided covering this question as to the power of the legislature to enact such a definition, and what the term "malt liquor" means. Hewitt v. People, 57 N.E. 1077; United States v. Cohn, 52 S.W. 38; State v. Frederickson, 101 Me. 37; Feibelman v. State, 130 Ala. 122; Dinkins v. State, 43 So. 114; Edwards v. Gulfport, 49 So. 620; State v. Virgo, 14 N. Dak., 293; Pennel v. State, 123 N.W. 115; 1 Jones on Evidence, p. 270; Briffitt v. State, 58 Wis. 39; State v. Spaulding, 61 Vt. 509, 17 A. 844; Eaves v. State, 113 Ga. 749, 39 S. E. Rep., 318; Merkle v. State, 37 Ala. 139; Vinegar Co. v. Printing Co., 35 F. 570; Kettering v. Jacksonville, 50 Ill. 39; People v. Adams, 95 Mich. 541; People v. Kinney, 124 Mich. 486, 83 N.W. 147; Jones v. Surprise, 64 N. H., 243; People v. Foster, 64 Mich. 715; Feldman v. Morrison, 1 Ill.App. 460; Commonwealth v. Chappel, 116 Mass. 7; Commonwealth v. Dean, 14 Gray, 99; Commonwealth v. Bubser, 14 Gray, 83; Commonwealth v. Anthes, 12 Gray, 29; State v. Wadsworth, 30 Conn. 55.
The legislature having defined what liquors shall be deemed intoxicating, was it incumbent upon the state in the trial of the case below to prove that one of the liquors named in the definition of intoxicating liquors was in fact intoxicating? The state contends that it was...
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