United States v. Robason, 6908.

• Court: U.S. District Court — District of Kansas
• Writing for the Court: Hal C. Davis, of Topeka, Kan., for defendant
• Citation: United States v. Robason, 38 F.Supp. 991 (D. Kan. 1941)
• Decision Date: 18 February 1941
• Docket Number: No. 6908.,6908.
• Parties: UNITED STATES v. ROBASON.

38 F. Supp. 991

UNITED STATES v. ROBASON.

No. 6908.

District Court, D. Kansas, First Division.

February 18, 1941.

S. S. Alexander, U. S. Atty., of Topeka, Kan., for the government.

Hal C. Davis, of Topeka, Kan., for defendant.

HOPKINS, District Judge.

The sole question presented here is the sufficiency of a Kansas statute attempting to make effective the United States statute prohibiting the transportation of intoxicating liquor into a dry state.

A jury was waived and the trial and case submitted to the Court for decision. The indictment charges that on or about November 26, 1940, the defendant imported about 125 pints of whiskey from Nebraska into Kansas. The facts are substantially these:

Defendant stated that he had transported from Falls City, Nebraska, to his home in Rossville, Kansas, the liquor described in the indictment. He also stated that he had lived in Rossville for 40 years; had been operating a cafe for four years there; had been hauling liquor from Nebraska to his cafe in Rossville in periodical loads similar to the one charged in the indictment since 1938; that he retailed the liquor at his cafe in Rossville; that he sold anywhere from six to two dozen pints of whiskey per week. And so the question presented is whether the Laws of Kansas G.S.1939 Supp. 21-2109, 2109a and 21-2190, are a sufficient compliance to make effective the Liquor Enforcement Act of 1936, 27 U.S.C.A. § 221, and subsequent sections, in so far as importing intoxicating liquors into Kansas is concerned.

Section 2 of the Twenty-First Amendment to the Constitution of the United States, which repealed the Eighteenth Amendment, reads: The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."

Pursuant to this constitutional provision, and to make it effective, Congress passed the Liquor Enforcement Act of 1936, and a part of that act pertinent hereto, 27 U.S. C.A. § 223, reads:

"(a) Whoever shall import, bring, or transport any intoxicating liquor into any State in which all sales * * * of intoxicating liquor containing more than 4 per centum of alcohol by volume are prohibited, * * * or attempt so to do * * shall * * * be guilty of a misdemeanor * * *.

"(b) In order to determine whether any one importing, bringing, or transporting intoxicating liquor into any State, or anyone attempting so to do, or assisting in so doing, is acting in violation of the provisions of this chapter, the definition of intoxicating liquor contained in the laws of such State shall be applied, but only to the extent that sales of such intoxicating liquor (except for scientific, sacramental, medicinal, and mechanical purposes) are prohibited in such State."

Kansas has been one of the pioneers, first, in the regulation, and second, in the prohibition of the beverage liquor traffic. Indeed as early as 1855, her Territorial Legislature passed acts regulating such traffic. Those interested in the subject will find a synopsis of all the liquor laws of Kansas from 1855 to 1933, together with citations pertaining thereto, in a note or appendix to the opinion in Chapman v. Boynton, D.C., 4 F.Supp. 43, 47, from which it appears that prohibition of the beverage liquor traffic has had a progressive development in Kansas from regulation of the saloon and tavern down to and including "bone dry."

At the general election on November 2, 1880, the people of Kansas approved an amendment to the constitution (Article 15, section 10) providing: The manufacture and sale of intoxicating liquors shall be forever prohibited in this state, except for medical, scientific and mechanical purposes."

The above constitutional amendment has never been changed and since its passage Kansas has, in theory at least, been a dry state.

21-2101, General Statutes of Kansas Annotated, 1935, which has long been upon the statute books, in part reads: "It shall be unlawful for any person to directly or indirectly manufacture, sell, barter, or give away, furnish or keep or have in his possession for personal use or otherwise any spirituous, malt, vinous, fermented or other intoxicating liquors, * * *."

21-2109 of such statute was amended in the legislative session of 1937. See 1939 Supplement to the General Statutes of Kansas, 1935. The section now reads: The terms spirituous, malt, vinous, fermented or other intoxicating liquors as used in sections 21-2101 to 21-2108, inclusive, of the General Statutes of 1935, and all amendments thereto, are hereby defined to include all beverages which contain more than three and two tenths percent (3.2%) of alcohol by weight and all such beverages are hereby declared to be intoxicating liquors under the laws of this state. (G.S. 1935, § 21-2109; L.1937, ch. 213, § 1; May 1.)"

The next section reads: "21-2109a. The words `intoxicating liquors' or `intoxicating liquor' wherever used in the General Statutes of 1935, and acts amendatory thereto, shall be construed to mean all such beverages referred to in section 1 (21-2109) which contain more than three and two tenths percent (3.2%) of alcohol by weight. (L.1937, ch. 213, § 2; May 1.)"

In the legislative session of 1939 (Chapter 179, Session Laws of 1939), a further law was passed for the express purpose of qualifying Kansas for protection under the Twenty-First Amendment to the Constitution of the United States. The first section of this act recites: "21-2190. Importations of liquor into state prohibited; exceptions; permits; application; validity; form; rules and regulations; fee; return by consignee. That all importations of intoxicating liquor into this state are hereby prohibited: * * *." Then follows regulations for importation of intoxicating liquors for scientific, sacramental, medicinal, and mechanical purposes and provisions with reference to permits.

21-2195 reads: "Same; purpose of §§ 21-2190 to 21-2195. This act is intended to qualify Kansas for protection under the twenty-first amendment to the constitution of the United States. (L.1939, ch. 179, § 6; June 30.)"

It will be observed that the statutory definition of intoxicating liquors in Kansas includes all beverages such as spirituous, malt, vinous, fermented, or other intoxicating liquors which contain more than 3.2% of alcohol by weight. The liquor, therefore, must be a beverage and one of the beverages described in 21-2109.

Webster's New International Dictionary, Second Edition, (1940), defines the word "beverage" as:

"Liquid for drinking; drink; usually, drink artificially prepared, and of an agreeable flavor; as, an intoxicating beverage.

"2. Specif., any of various drinks, such as weak beer, or the diluted juice of fruit, sugar cane, ginger, etc."

The term "intoxicating liquors" is sufficiently defined in the statute itself, in so far as the Kansas laws are concerned, and the federal law makes the Kansas law applicable. As used in the federal statute and in the Kansas statute, the term "intoxicating liquors" should be given practical, common sense interpretation, one in keeping with the object Congress had in view in passing the Liquor Enforcement Act of 1936.

Under the decisions of the Supreme Court of Kansas, bitters, cordials, tonics, etc., and other compounds,¹ where the distinctive character and effect of intoxicating liquors are gone and their use as intoxicating liquors is practically impossible, are not within the statute, but if intoxicating liquor remains as a distinctive force in the compound and the same is reasonably likely to be used as an intoxicating beverage, then it is within the statute. Peach cider² may be an intoxicating liquor where sold for beverage purposes. Jamaica ginger³ when sold as a beverage may be an intoxicating liquor, even though it has a medicinal use, and even though classified in the United States dispensatory with lemon, vanilla, cinnamon, clove, and like tinctures, extracts, and essences. Hard cider,⁴ wild cherry extract,⁵ raisin vinegar,⁶ where knowingly sold to one to be used as a beverage, have been held to be intoxicating liquors.

The earlier decisions in Kansas have been largely reviewed in the case of State ex rel. v. Owston, 138 Kan. 173, 23 P.2d 616. That case quotes liberally from Justice Brewer's decision in the Intoxicating Liquor Cases, 25 Kan. 751, 37 Am. Rep. 284, and quoting from Justice Brewer at page 177 of the opinion in 138 Kan., at page 618 of 23 P.2d:

"Now the cases before us group themselves into three classes; and the same division is far reaching and of general application. The first embraces what are generally and popularly known as intoxicating liquors, unmixed with any other substances. Thus in one case the sale of brandy is charged. The second includes articles equally well known, standard articles, and which, while containing alcohol, are never classed as intoxicating beverages. Their uses are culinary, medical, or for the toilet. They are named in the United States dispensatory and other similar standard authorities; the formulæ for their preparation are there given; their uses and character are as well recognized and known by their names as those of a horse, a spade, or an arithmetic. The possibility of a different and occasional use does not change their recognized and established character. A particular spade may be fixed up for a parlor ornament, but the spade does not belong there. So, essence of lemon may contain enough alcohol to produce intoxication, more alcohol proportionately than many kinds of wine or beer. It is possible than a man may get drunk upon it, but it is no intoxicating liquor. Bay rum, cologne, paregoric, tinctures generally, all contain alcohol, but in no fair or reasonable sense are they intoxicating liquors or mixtures thereof. The third class embraces compounds, preparations, in which the alcoholic stimulant is present, which are not of established name and character,...