178 P. 902 | Nev. | 1919
By the Court,
This is an appeal from an order of the district court granting an injunction pendente lite, enjoining the appellant, the Reno Brewing Company, from keeping or maintaining a building or buildings at or in the vicinity of 990 East Fourth Street, in Reno, Nevada, for the manufacturing, storing, selling, vending, or giving away or furnishing a malt or brewed drink commonly called “Sierra Beverage,” or any other beverage or malt or brewed drink of like kind or character.
The action was instituted in the district court on the relation of Geo. B. Thatcher, the then attorney-general of Nevada, under sections 14 and 17 of the prohibition law of this state, which reads:
“Sec. 14. All houses, buildings, club rooms and places of every description, including drug stores, where intoxicating liquors are manufactured, stored, sold or vended, given away, or furnished contrary to law (including those in which clubs, orders or associations sell, barter, give away, distribute or dispense intoxicating liquors to*403 their members, by any means or device whatever, as provided in section six of this act) shall be held, taken and deemed common and public nuisances. And any person who shall maintain, or shall aid or abet, or knowingly be associated with others in maintaining such common and public nuisance, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than one hundred nor more than one thousand dollars, and by imprisonment in the county jail not less than thirty days nor more than twelve months for each oifense, and judgment shall be given that such house, building or other place, or any room therein, be abated or closed up as a place for the sale or keeping of such liquors contrary to law, as the court may determine.”
“Sec. 17. The commissioner, his agents and deputies, and the attorney-general, prosecuting attorney, or any citizen of the county where such a nuisance as' is defined in section fourteen of this act exists, or is kept or maintained, may maintain a suit in equity in the name of the state to abate and perpetually enjoin the same, and courts of equity shall have jurisdiction thereof. The injunction shall be granted at the commencement of the action and no bond shall be required. * * *”
Section 1 of said act provides as follows:
“Section 1. The word ‘liquors’ as used in this act shall be construed to embrace all malt, vinous or spirituous liquors, wine, porter, ale, beer or any other intoxicating drink, mixture or preparation of like nature; and all malt or brewed drinks, whether intoxicating or not, shall be deemed malt liquors within the meaning of this act; and all liquids, mixtures or preparations, whether patented or not, which will produce intoxication, and all beverages containing so much as one-half of one per centum of alcohol by volume, shall be deemed spirituous liquors, and all shall be embraced in the word ‘liquors,’ as hereinafter used in this act.”
In paragraph 3 of the complaint it is alleged that—
“Said defendant owns, operates, and maintains buildings within said city of Reno, county of Washoe, state*404 aforesaid, and at 990 East Fourth Street, where it manufactures, stores, and threatens to sell or vend, give away or furnish, contrary to law, certain malt or brewed drink, under the name of ‘Sierra Beverage,’ containing approximately one-tenth (y10) of one per cent (1%) alcohol; and that said drink is what is commonly known and called ‘near-beer’; that the manufacture and storing of said liquor is contrary to and in violation of sections 1 and 14, respectively, of that certain initiative act adopted by the people of the State of Nevada at the last general election, entitled ‘An act to prohibit the manufacture, sale, keeping for sale, and gift, of malt, vinous and spirituous liquors, and other intoxicating drinks, mixtures or preparations; making the superintendent of the Nevada state police ex officio commissioner of prohibition, and defining his duties; and providing for the enforcement of this act, and prescribing penalties for the violation thereof.’ ”
The manufacture or sale, etc., of malt liquors is prohibited by the act as indicated in the title. By section 1 “The word ‘liquors’ as used in this act shall be construed to embrace all malt * * * liquors, * * * and all malt or brewed drinks, whether intoxicating or not, shall be deemed malt liquors. * * *”
The manufacture or sale of liquors is prohibited in the two succeeding sections.. The prohibition is complete whether the clause in section 1, “and all shall be embraced in the word ‘liquors,’ as hereinafter used in this act,” was intended to include the entire classification of liquors in this section or not, or refers only to spirituous liquors.
Appellant contends that “Sierra Beverage” is not a liquor within the meaning of section 1, and not prohibited by the provisions of the act, for the reason that it is nonintoxicating and contains only about one-tenth of 1 per centum of alcohol.
In support of this contention it was urged in the oral argument and in the briefs that the manifest purpose
To give the act the construction claimed by appellant we must ignore as meaningless the clause in section 1, “and all malt or brewed drinks, whether intoxicating or not, shall be deemed malt liquors within the meaning of this act.”
As pointed out in State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A. 1917b, 962, the definitions of the term “malt liquor,” as given in the standard dictionaries and by all law lexicographers, include the elements of malt and alcohol without regard to the proportions of these constituents. There is almost the same uniformity in the definitions of the courts which have attempted to define the term.
They recognize the presence of malt and alcohol as
The title of the act purports to prohibit the manufacture, sale, keeping for sale, and gift of malt, vinous, and spirituous liquors, and in the first part of section 1 liquors prohibited by the act are construed to embrace all malt, vinous, or spirituous liquors, wine, porter, ale, beer or any other intoxicating drink, mixture, or preparation.
The prohibition law is a late enactment in this state, and apparently framed with extreme care to prevent evasions and to enforce its primary object. Doubtless, due regard was paid to the prohibition laws of other states and the decisions of the courts upon them in framing the measure.
An extensive view of the earlier as well as the later
It is incidental to the power to entirely prohibit traffic in, and consumption of, intoxicating liquors, for the reason that the right to enact such legislation necessarily carries with it the power to adopt all means, having any reasonable relation thereto, that the legislative body may deem necessary to enforce the dominant purpose of a prohibition measure. The conceded power of the state to preserve the welfare, health, and morals of the people by forbidding the use of intoxicating liquors, would be only a “barren scepter in its gripe,” without the power to prohibit the use of all nonintoxicating liquors which may be generally and conveniently used to render prohibitory laws nugatory by evasion.
In Purity Extract and Tonic Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184, the court said:
*409 “The statute establishes its own category. The question in this court is whether the legislature had power to establish it. The existence of this power, as the authorities we have cited abundantly demonstrate, is not to be denied because some innocent articles or transactions may be found within the proscribed class. The inquiry must be whether, considering the end in view, the statute passes the bounds' of reason, and assumes the character of a merely arbitrary fiat. That the opinion is extensively held that a general prohibition of the sale of malt liquors, whether intoxicating or not, is a necessary means to the suppression of trade in intoxicants, sufficiently appears from the legislation of other states and the decision of the courts in its construction. [Citing cases.] We cannot say that there is no basis for this wide-spread conviction. The state, within the limits we have stated, must decide upon the measures that are needful for the protection of its people, and, having regard to the artifices which are used to promote the sale of intoxicants under the guise of innocent beverages, it would constitute hn unwarrantable departure from accepted principle to hold that the prohibition of the sale of all malt liquors, including the beverage in question, was beyond its reserved power.”
It follows from what we have said that the “Sierra Beverage,” which, as its name signifies, is a beverage, and contains alcohol and malt, is prohibited by the statute.
The contention is based on section 14, wherein the places which shall be deemed common and public nuisances are designated as those where “intoxicating liquors” are manufactured, stored, sold, including those places where the same are dispensed to members of
In some of the succeeding sections the word “liquors” is used, and in others the term “intoxicating liquors”; but it seems clear that in each instance reference is made to all of the liquors included in section 1, for otherwise the traffic in spirituous liquor containing so much as one half of 1 per centum of alcohol by volume could not be prevented.
Our conclusion in this regard is strengthened when section 14 is considered together with sections 6 and 17.
In section 6 the places banned, and made subject to actions for abatement as nuisances by virtue of section 14, are places where, in the language of the section, liquors are dispensed to members of clubs and associations. The word “intoxicating” is not found in this section, and it is likewise omitted in section 17. In the second paragraph of this section provision is made for the judgment that shall be ordered when the court finds the material allegations of the complaint true in a case of this kind. It provides, in effect, that the judgment of abatement shall prohibit liquors from being “sold, bartered, given away, distributed, dispensed or stored in” the house or place found to be a common and public nuisance. If it were intended, as appellant insists, that only intoxicating liquors were meant in section 14, then it would seem most reasonable to conclude that provision would have been made for the judgment to follow the finding in this regard.
A consideration of the entire act, and its scope and purpose, convinces us that the term “intoxicating liquors,” as used in section. 14, is to be taken as used interchangeably with the word “liquors,” in section 1, and that the district court had jurisdiction to grant the injunction.
The order of the district court granting the injunction is affirmed.