73 Iowa 98 | Iowa | 1887
The petition shows, in substance, that the plaintiff is the manufacturer of a beverage denominated “New Era, Beer;” that it tendered such product to the defendant for shipment into Polk county, Iowa, and offered to pay the freight therefor, and the defendant refused to receive and transport the same, on the ground that it could not lawfully do so under the prohibitory law of the state. The petition averred, however, that the product is an absolutely non-alcoholic and non-intoxicating beverage, and that such had been determined to be its character by skilled and competent chemists. The plaintiff insists that, such being the character of the product, the defendant, as a common carrier, was bound by law to receive and transport it, aud that, too, regardless of the fact that the plaintiff did not present to the defendant a certificate from the auditor of Polk county, showing that the consignee had authority to sell intoxicating liquors.
It is provided in chapter 8 of the laws of the Twentieth General Assembly that “ whenever the words ‘ intoxicating liquors’ occur in this chapter, [chapter 6, tit. 11, Code,] the
Looking at the statute alone, the inference would be that it was supposed that there is but one kind of beer, and that it is intoxicating. This being so, it appears to us that the product in question being denominated beer, without anything in its name tending to show that it was not intoxicating, the defendant had a right to assume that it is intoxicating, and therefore prohibited, and govern itself accordingly. The words “New Era,” added to the word “heer,” indicated nothing as to the character of the product.
Suppose the plaintiff had tendered to the defendant, for transportation, an article denominated simply “ brandy,” would the plaintiff be entitled to maintain its action for mandamus to compel the defendant to receive the article, upon an allegation that it was a new kind of brandy which had no intoxicating quality? We think not. The defendant would discover by the name that the article is apparently prohibited, and could not determine otherwise without resorting to chemical analysis, or some other kind of evidence. The determination would call for the exercise of a discretion as to what evidence should be resorted to, and what should be deemed satisfactory. Where an act is to be performed or omitted in the discretion of a party, the performance cannot be enforced by an order of mcmdamus. In High, Extr. Rem., the author says: “Stated in general terms, the principle is that mandamus will lie to compel the performance of duties purely ministerial in their nature, and so clear and specific that no element of discretion is left in their performance, but that, as to all acts or duties, necessarily calling for the exercise of judgment or discretion
The fact, then, that the product in question is not intoxicating, does not, in our opinion, give a right to this action. From the name of the product the defendant had a right .to infer that the transportation was prohibited, and we think it was not bound at its peril to correctly analyze the product, or determine otherwise that it was not in fact intoxicating. We think that the demurrer was properly sustained.
Affirmed.