161 N.E. 249 | Ind. | 1928
This is an appeal from a judgment assessing a fine of $150 and thirty days imprisonment at the Indiana State Farm for the unlawful possession of intoxicating liquor under § 4, ch. 48, acts of 1925, § 2717 Burns 1926, and assessing a fine of $250 and six months imprisonment for maintaining a common nuisance under § 24, ch. 48, acts of 1925, § 2740 Burns 1926.
The only alleged error relied upon is the overruling of appellant's motion in arrest of judgment, his contention *32 being that the "Act concerning intoxicating liquors," ch. 48, acts of 1925 is unconstitutional and void because, "it assumes to definitely define and fix a standard, wholly at variance with known facts as to when liquor is intoxicating and when not, to wit: that one-half of one per cent. of alcohol by volume constitutes the liquor intoxicating" and because "the legislature has no power to render that a common nuisance, punishable by fine and abatable, which is not in fact a nuisance," (i.e. maintenance of a place where liquor, defined by the statute as intoxicating, but not actually intoxicating, is sold, etc).
In Guetling v. State (1926),
Under the police power of the state, the legislature, within its discretion and as a matter of legislative expediency, may, in order to effectively enforce a prohibition law, take 1, 2. away not only the right to possess or sell intoxicating liquors but also take *33
away the right to possess or sell certain similar liquors although non-intoxicating. Commonwealth v. Timothy (1857), 8 Gray 480; State v. O'Connell (1904),
In Everard's Breweries v. Day (1924),
"The power to prohibit traffic in intoxicating liquors includes, as an appropriate means of making that prohibition effective, power to prohibit traffic in similar liquors although non-intoxicating."
And in State of Rhode Island v. Palmer (National Prohibition Cases), supra, the same court said:
"While recognizing that there are limits beyond which Congress cannot go in treating beverages as within its power of enforcement, we think those limits are not transcended by the provision of the Volstead Act (title 2, § 1), wherein liquors containing as much as one-half of 1 per cent. of alcohol by volume and fit for use for beverage purposes are treated as within that power."
In Purity Extract Co. v. Lynch, supra, the United States Supreme Court, affirming a judgment of the Supreme Court of Mississippi, (
We have likewise held in Schmitt v. Cook Brewing Co.,supra, "this court has nothing to do with the wisdom or unwisdom of the legislative act." Our legislature, in the same 3. manner as the National Congress and the legislatures of most of the other states, has seen fit to make unlawful the sale of certain liquor which may not be in fact intoxicating by conclusively defining as intoxicating "all malt, vinous or spirituous liquor containing as much as one-half of one per cent. of alcohol by volume," and since this enactment (§ 2) has a substantial relation to the purpose of the act (ch. 48, acts of 1925), the courts cannot declare that the limit of legislative power has been transcended thereby.
The evidence adduced at the trial has not been brought up by this appeal and there is nothing in the record to show that the liquor appellant was convicted of possessing was not 4, 5. actually intoxicating. Neither is there anything in the record to show that the percentage of alcohol named in our statute (one-half of one per cent.) is not sufficient to constitute a liquor intoxicating, and this court does not judicially know what percentage of alcohol is the minimum percentage required to give a liquor the actual capacity to intoxicate the average man. As above stated, however, actual capacity to intoxicate, is not, under our statute, the exclusive test as to whether liquor is within its terms. As we recently pointed out in Bernstein v. State (1928),
This method of writing prohibition acts, viz: by defining certain classes of liquors as intoxicating and then prohibiting them as such, instead of directly prohibiting them, may 6, 7. be open to the criticism made by the appellant that it is not logical, but it was used in the National Prohibition law, and has been used in the prohibition laws of the various states for many years, and has been uniformly upheld. The courts have held that the words of such a statute do not purport to change the nature of things and make liquors intoxicating which are not intoxicating, but that by this method it is only enacted that the words "intoxicating liquor" where used in the act shall be deemed to include any liquor containing more than the specified amount of alcohol. State v. Guinness, supra;Commonwealth v. Brelsford, supra; State v. Labrecque, supra; see also, State v. O'Connell, supra.
"What the Volstead Act does, we think," said the court inState v. Gauthier, supra, (and as we have pointed out our statute uses the same percentage of alcohol in its 8. definition as does the Volstead act) "is to create a conclusive presumption that liquor containing alcohol in the proportion specified is intoxicating." See Marks v. State
(1909),
Judgment affirmed. *37
