Purity Extract & Tonic Co. v. Lynch

| Miss. | Mar 15, 1911

Mayes, C. J.,

delivered the opinion of the court.

The appellant brought suit in the circuit court of Hinds county against C. C. Lynch to recover the sum of five hundred dollars claimed to be due appellant by virtue of a contract which it had with Lynch and which he refused to pay. Appellant failed to recover judgment in the court below; hence prosecutes this appeal.

Only a brief statement of the facts need be made. Appellant is a corporation located in the city of Chattanooga, Tenn., and is engaged in the manufacture and sale of a beverage known as “Poinsetta.” Some time in November, 1910, appellant made a contract with Lynch, under the terms of which Lynch agreed to buy Poinsetta for a period of five years from January 1, 1911. The contract stipulated that appellant should deliver the beverage to the railroad company at Chattanooga, consigned to Lynch at Jackson, Hinds county. Miss. The contract further stipulated that Lynch should only have the right to sell the beverage in the county of Hinds, state of- Mississippi, and Lynch contracted to pay for this exclusive privilege the sum of five hundred’ dollars. Lynch failed to comply with his part of the contract, whereupon appellant instituted this suit. The defense is that the beverage is prohibited by law from being sold in Hinds county, and, since the contract is violative of the law, he claims nonliability under same.

The case is before the court on an agreed state of facts. The agreed facts state that Poinsetta contains no alcohol, preservatives, or saccharine. It is agreed that Poinsetta is sold as a beverage, and is composed of 90.45 per cent, of pure distilled water, and 9.55 per cent, of solids, all of the solids being derived from cereals in an unfermented state, and being wholesome and nutritious. But it also appears that it does contain 5.73 per cent, of malt. The formula for making the beverage is not given, but it is agreed that in the manufacture of same the cereals used are not treated in the same way as those used' in the preparation of any malt beverage containing alcohol which will intoxicate, but the treatment of the g’rain is by extracting the valuable food properties and combining them with water, so that the grain is not fermented or steeped in such a way as to produce saccharine matter or alcohol; that the beverage contains none of the-properties of alcoholic drinks or malt drinks that would intoxicate. The primary processes employed in the production of Poinsetta have some of the elements in common with some of those employed in preparing grain for malting porter, ale, or beer, etc.; but the process thereafter used in the preparation of this beverage is radically different from that used to produce ale, beer, etc. But Poinsetta is made from malt. It is agreed that its taste is distinct and different from any intoxicating malt or other liquor. It is agreed that it has not the appearance or odor of intoxicating liquor, and cannot be employed as a subterfuge.

In the discussion of this case we start out with the admission of counsel that this drink is a beverage containing no alcohol, it is true, but containing 5.73 per cent, of malt, and we unhesitatingly pronounce the beverage a malt liquor. It can be nothing else. The legislative acts of 1908, p. 116, section 1, prohibit the sale in this state of any vinous, alcoholic, malt, intoxicating, or spirituous liquors. The sale of malt liquor is prohibited, whether in fact it intoxicates or not. In the cases of Fuller v. City of Jackson, 52 South. 876, 30 L. R. A. (N. S.) 1078; Reyfelt v. State, 73 Miss. 415" court="Miss." date_filed="1895-10-15" href="https://app.midpage.ai/document/reyfelt-v-state-7987826?utm_source=webapp" opinion_id="7987826">73 Miss. 415, 18 South. 925, and Edwards v. City of Gulfport, 95 Miss. 148, 49 So. 620" court="Miss." date_filed="1909-03-15" href="https://app.midpage.ai/document/edwards-v-city-of-gulfport-7990363?utm_source=webapp" opinion_id="7990363">49 South. 620, it was held that, where the statute prohibited the sale of a certain named class of liquors as intoxicating liquors, such liquors could not be lawfully sold, though in fact they were not intoxicants. Poinsetta may or may not be an intoxicant; but it is a malt liquor, and as such is prohibited from being sold in this state. The prohibition law cannot be made effective unless it excludes all.subterfuges.

It is argued by counsel for appellant that if the legis-' Jative act in question is intended to shut off the sale of any beverage containing no alcohol, which is not in itself harmful, then the act is unconstitutional and beyond the police power of the state. In so far as this question is concerned, we have settled it in the case of Fuller v. City of Jackson, 52 South. 876, 30 L. R. A. (N. S.) 1078. Tu this connection we can do no better than to quote the language of Chief Justice Dowdell, in the case of Elder v. State, 162 Ala. 41" court="Ala." date_filed="1909-06-30" href="https://app.midpage.ai/document/elder-v-state-7364352?utm_source=webapp" opinion_id="7364352">162 Ala. 41, 50 South. 370: “If it should be conceded that the articles, the sale of which is prohibited by the act, are not in themselves injurious to health or morals, still there can be no doubt, under former decisions of this court, that to prohibit the sale of the articles mentioned is not without legislative competency. To prohibit the sale of malt liquors is undeniably within the police power of the state. The exercise of this power by the legislature, in the prohibition of the sale of malt liquor, is upon the idea of the conservation of public morals. To this end it must logically follow that it is ■equally within the police power of the state, through its lawmakers, to enact any and all laws in their wisdom necessary to prevent any evasion of the primary purpose. If, in the wisdom of the legislature, in order more thoroughly to prohibit the sale of malt liquor, which is known to be an intoxicant, and to safeguard against evasions of such law, it should be deemed necessary to prohibit the sale of any and all beverages containing as an ingredient ‘maltose,’ a known constituent of malt liquor, we are unable to see why such legislation would not reasonably come within the exercise of the state’s police power.” We are aware of the fact that the language of Chief Justice Dowdell, speaking for the Alabama court, was afterwards receded from by a majority of the court; but the principle declared by him has been followed by other courts and concurred in by this court in the Fuller case referred to above.

In the case of Pennell v. State, 141 Wis. 35" court="Wis." date_filed="1909-11-12" href="https://app.midpage.ai/document/pennell-v-state-8189716?utm_source=webapp" opinion_id="8189716">141 Wis. 35, 123 N. W. 115, it is held that: “In enacting a police regulation it may be found necessary to include within the purview of the statute certain acts innocent and not in themselves the subject of police regulation, where the inclusion of such acts is necessary in the opinion of the legislature to make the police regulation effective, as in Booth v. Illinois, 184 U.S. 425" court="SCOTUS" date_filed="1902-03-03" href="https://app.midpage.ai/document/booth-v-illinois-95605?utm_source=webapp" opinion_id="95605">184 U. S. 425, 22 Sup. Ct. 425, 46 L. Ed. 623" court="SCOTUS" date_filed="1902-03-03" href="https://app.midpage.ai/document/booth-v-illinois-95605?utm_source=webapp" opinion_id="95605">46 L. Ed. 623. . . . This principle has been applied to liquor laws quite uniformly, and with reference to statutes substantially like •ours which prohibited the sale, not only of intoxicants, but of those non-intoxicating beverages, the sale of which might easily be made a cover for the sale of intoxicants.” See, also, Luther v. State, 83 Neb. 455" court="Neb." date_filed="1909-02-20" href="https://app.midpage.ai/document/luther-v-state-6658358?utm_source=webapp" opinion_id="6658358">83 Neb. 455, 120 N. W. 125, 20 L. R. A. (N. S.) 1146, and State v. Fargo Bottling Works (N. D.), 124 N.W. 387" court="N.D." date_filed="1910-01-07" href="https://app.midpage.ai/document/state-v-fargo-bottling-works-co-6736264?utm_source=webapp" opinion_id="6736264">124 N. W. 387. 26 L. R. A. (N. S.) 872.

The police power of the state undoubtedly has its limitations. But those limitations have not been reached when the state law is only made broad enough to make its prohibitory laws effective and include in its provisions frauds, disguises, subterfuges, attempted evasions, or beverages easily used as subterfuges and known to be the handmaidens of intoxicating beverages.

Affirmed.