134 Ky. 742 | Ky. Ct. App. | 1909
Opinion of the court by
— Affirming.
The appellee, W. H. McMullen, was charged with a violation of the prohibition law. He was tried in the city court of Bowling Green, and a fine of $60 inflicted, from which he appealed to the Warren Circuit Court, where the appeal was tried upon an agreed statement of facts.
“ These five cases all involve practically the same question, and they are all submitted upon appeal by the defendants from judgments in the city court against each defendant for $60, upon conviction for selling by retail malt liquors in local option territory. This court is asked to determine whether or not defendants are guilty of violating the local option law as found in section 2557, Ky. St. (Russell’s St. Sec. 3635), under the following agreed statement of facts, to-wit: It is agreed that defendant, McMullen, sold a bottle of next-to-beer in Bowling Green, Ky., as charged in the warrant. Next-to-beer is a malt liquid, that is to say, containing malt as an ingredient ,and used as a beverage, and is nonintoxicating, that is to say, that in the largest quantities in which it may be drunk it will not intoxicate. It is agreed that it contains less than 2 per cent, of alcohol and more than one-half of 1 per cent. Defendant has United States government license for the sale of malt liquors, and the agreement filed in the other cases is in substance the same as the one quoted. ’
“It thus appears in the evidence that the liquor sold by defendants is what is termed malt liquor,’ or a liquid containing malt, and that such liquor is a nonintoxicant, and will not intoxicate in the largest quantities in which it may be imbibed. It is insisted upon by counsel for the plaintiff that under and by virtue of section 2557, Ky. St., no spirituous, vinous
“The first general local option law in the state was enacted in 1874 (see G-en. St. 1879, p. 946), and in it the same term is employed, to wit: ‘A prohibition of the sale of spirituous, vinous or malt liquors.’ The force and validity of this act (Acts 1873-74, p. 10, c. 117) was passed upon by the Kentucky Court of Appeals in Anderson v. Commonwealth, 13 Bush, 485, and in its opinion, written by Chief Justice Lindsay, the court said:
“We unanimously hold that the sale by retail of intoxicating liquors may be constitutionally regulated, and that in any locality where, in the opinion
“With these aids or helps found in our judicial and legislative expressions from time to time since 1874, when the first law was put upon our statute books upon this subject-matter, we are to interpret and determine wliat is the meaning, scope and purpose of these words, ‘spirituous, vinous and malt liquors’ as found and used for so long in our statutes. Does it mean that these liquids may not be legally vended in prohibited localities, whether they contain or have in their makeup a sufficient quantity of alcohol to cause the drinker, in the largest quantity in which it may or might be imbibed, to become intoxicated? Or was it the intent, purpose and scope of this legislation, by the use of these common and general terms therein, to prohibit the sale of intoxicants, and not drinks, whatever they may contain, that will not intoxicate, such as it is agreed that the defendants sold or are charged with selling, and admit they did sell, in these prosecutions? It seems clear that in the Mitchell Case, supra, it was regarded as essential, in order to convict for a violation of the law for selling liquor in local option territory, that the liquid sold should be an intoxicant. Two defenses were made by defendant — one, that Jamaica ginger was not what is known as a ‘spirituous liquor,’ and the other that it was not intoxicating; and under the evidence
“So, while the question here presented has not been considered by our highest court in its present form, we have both judicial and legislative sanction which clearly indicate that these words, as found in
Judgment affirmed.