Hubman v. State

Battle, J. The sale of wine in this state without license is regulated by an act entitled “An act to regulate the sale of wine in the state of Arkansas,” approved April 3, 1889, which, as enacted, is, in part, as follows : “Section 1. That it shall be unlawful for any person to sell wine at any place in this state except as authorized in this act. ‘ ‘Section 2. Any person who grows or raises grapes or berries may make wine thereof, and sell the same upon the premises where such grapes or berries are grown and the wine made, in quantities not less than one quart; such person may also sell the wine of his own make in any place where the sale of intoxicating liquors is licensed and authorized by law, in quantities not less than one quart. Provided, This act shall not authorize the sale of wine in any district or locality where its sale is prohibited under special act of the general assembly. “Section 3. Nothing in this act shall prevent regularly licensed liquor dealers from selling wine at the same places they are authorized to sell liquors.” Under this act any person who grows or raises grapes or berries, and makes wine thereof, is permitted to sell the same in any quantities not less than one quart, without license, upon the premises where the grapes or berries are grown and the wine made, and in any place where the sale of intoxicating liquors is licensed and authorized by law. The constitutionality of the act was contested in State v. Deschamp, 53 Ark. 490. The indictment against Deschamp in that case, omitting caption, was as follows : “The grand jury of Scott county, in the name and by authority of the State of Arkansas, ¿ccuse LineDeschamp of the crime of selling wine unlawfully, committed as follows, viz : The said Line Deschamp on the 3d day of August, 1889, in the county, of Scott aforesaid, unlawfully did sell one quart of wine, the said sale not being made upon the premises where the grapes and berries were grown and the wine made, and said sale not being made in any place where the sale of intoxicating liquors .are [is] licensed and authorized by law, against the peace and dignity of the state of Arkansas.” A demurrer to the indictment was filed and sustained, and the defendant was discharged. The indictment was based upon the act of April 3, 1889. In passing upon its sufficiency, it became necessary to determine whether the act upon which it was based was constitutional. The court held that the effect of it was to allow any person growing or raising grapes or berries, and making wine thereof, to sell the same within the three-mile districts formed under section 4524 of Mansfield’s Digest, if the premises upon which such grapes or berries were grown and the wine made were in such districts, and to prohibit the sale in the same districts of wine made of grapes or berries grown out of this state. This was the joint effect of the act and section 4524, which prohibited the sale of wines, spirituous or intoxicating- liquors by any one within such districts. The result was, we found the act was unconstitutional, to the extent the joint effect of it and section 4524 was as stated, and eliminated so much of the act as produced this effect by striking- out the words, “at any place,” in the first section, and the words, “upon the premises where such grapes or berries are grown and the wine made,” in the second section, and held the remainder of the act constitutional. The judgrneut of the circuit court sustaining- the demurrer to the indictment was affirmed by this court, but upon what grounds was not stated. But they are apparent. In the first place, the indictment was based on the second section of the act, and did not show that the wine sold was not made out of grapes or berries grown by the defendant, or, if it was, that the sale of intoxicating- liquors were not licensed and authorized by law at the time and place it was sold. Wilson v. State, 35 Ark. 414, 416. In other words, it failed to show that he was affected by the second section ; and, in the second place, did not alleg’e that he sold the wine without license, and, therefore, was not entitled to the benefit of the third section of the act. State v. Keith, 37 Ark. 96. Repeal statutes latiugr to 5 of wine. In Galloway v. State, 60 Ark. 362, Chief Justice Bunn, in delivering- the opinion of the court, said: “The case really turns upon the construction to be given to the act entitled, ‘An act to reg’ulate the sale of wine in the state of Arkansas,’ approved April 3, 1889. * * * Certain words have been eliminated from the first and second sections of the act, to conform to the decisions of this court in the case of State v. Deschamp, 53 Ark. 490, the eliminated words having- a reference solely to the place of sale, and therefore not affecting- the issues in this case. The state contends that this act of 1889 repeals, or takes the place of, all other acts on the special subject of wine-selling in this state, especially the 15th section of the special act approved March 8, 1879, and its contention seems to us to be well founded, notwithstanding- the repealing act contains no repealing clause.” In Boldt v. State, 60 Ark. 600, Mr. Justice Hughes, in delivering the opinion of the court, said: “If the act of April 3, 1889, had not been repealed, as above shown [that is to say, so far as it relates to the sale of wine in local option districts], still this case is settled by the decision in State v. Deschamp; for the effect of that decision is that wine made of grapes and berries grown by the maker of the wine can be sold, in quantities not less than one quart, only where the sale of intoxicating liquors is licensed and authorized by law.” The opinions in these three cases, it seems, ought to decide the question as to the places in which a manufacturer can sell, without license, wine made from grapes ór berries grown by himself, and to restrict this right to places where the sale of intoxicating liquors is licensed and authorized by law. But it is contended that he has the right to sell such wine “anywhere in this state, except in localities where the sale of intoxicants is prohibited, either by special act of the legislature or by the three-mile law.” This contention is based on section 4851 of Sandels & Hill’s Digest, which reads as follows: “It shall not be lawful for any person to sell alcohol or any spirituous, ardent, vinous, malt-or fermented liquors in this state, or any compound or preparation thereof, commonly called tonics, bitters or medicated liquors, or intoxicating spirits of any character which are used and drank as a beverage in any quantity or for any purpose whatever, without first procuring a license from the county court of the county in which such sale is to be made, authorizing such person to exercise such privilege. Provided, manufacturers of alcohol, vinous, ardent, malt or fermented liquors can sell in original packages without license. Provided, further, such original packages shall not contain less than five gallons.” Under this statute, and section 4868 of the digest, it is-said the manufacturers mentioned in section 4851 can sell in original packages containing not less than five gallons’, without license, in any place in this state, except in local option districts, and localities where the sale of intoxicating liquors is prohibited by a special act of the legislature. How can this be true as to the manufacturers of wine? The act of April 3, 1889, was enacted subsequently to both the statutes named. The first section of it is explicit and comprehensive. As enacted it says : “It shall be unlawful for any ferson to sell wine at any flace in this state except as authorized in this act.” The persons who can sell without license are those who grow grapes or berries, and make w'ine thereof, and they were authorized to sell only in quantities not less than a quart, and upon the premises where the grapes or berries were grown and the wine made, and in places where the sale of intoxicating liquors is licensed and authorized by law. The act declares it shall be unlawful for them to sell wine without license, except in the quantities and at the places named. When amended to conform to the opinion of the court in State v. Deschamf, no change is made except to restrict the right to sell to places where “the sale of intoxicating liquors is licensed and authorized by law.” The word “licensed” has a well settled meaning: “Black on Intoxicating Uiquors” says : “A license is essentially the granting of a special privilege to one or more persons, not enjoyed by citizens generally, or at least, not enjoyed by a class of citizens to which the license belongs. A- common right is not the creature of a license law. In a general sense, a license is permission granted by some competent authority to do an act which, without such permission would be illegal. The popular understanding of the word ‘license’ is. undoubtedly a permission to do something which without the. license would not be allowable. This is also the legal meaning. The object of a license is to confer a right which does not exist without a license. A license is a privilege granted by the state, usually on payment of a valuable consideration, though this is not essential. To constitute a privilege, the grant must confer authority to do something which, without the grant, would be illegal; for, if w.hat is to be done under the license is open to every'one without it, the grant would be merely idle and nugatory, conferring no privilege whatever. But the thing to be done may be something lawful in itself, and only prohibited for the .purposes of the license ; that is to say, prohibited in order to compel the taking out of a license. From these definitions, which are among the best tó be found in the books, it will be apparent that three leading ideas are involved in the definition of a license under the liquor laws. First, it confers a special privilege or franchise, upon selected persons,- to pursue a calling not open to all. Second, it legalizes acts which, if done without its protection, would be offenses against the state. Third, it is a privilege granted as part of a system of police regulations, and herein is distinguishable from taxation.” Sec. 117. As used in the liquor laws of this state, a license is a privilege granted by the county court, or other competent authority, to sell liquor. In this sense it was doubtless used in the act of April'3. Construed in this sense, in the connection it is used in the act, the manufacturer cannot sell wine made out of grapes or berries grown by himself, without license, under the act regulating the sale of wine in this state, except in places where the county court, or other competent authority, can, in conformity with “the statutes in such cases made and provided,” grant the privilege of selling intoxicating liquors. But it is said that it has been the policy of the legislature to encourage the manufacture of native wine, and that “it would be absurd to suppose that the legislature intended to permit the sale of all other intoxicating liquors in original packages, and prohibit the sale of wine.” While the supposition may be absurd, the truth is it has not been done. The manufacturer of native wine can sell in quantities of not less than one quart. The legislature probably thought it was favoring him when it authorized him to sell in such quantities when other manufacturers were prohibited from selling their liquors, without license, except in original packages containing not less than five gallons. The language of the act of April 3d is plain and unambiguous. We cannot give it a meaning different from that it clearly conveys, to subserve some particular policy. As said by Mr. Justice Hughes in Railway Co. v. B' Shears, 59 Ark. 244, “it might be very just and reasonable and right that the statute should make an exception, such as is contended it does make, or ought to be construed to make, but this was within the power of the legislature, and its exercise of the power cannot be restrained or varied by the courts to subserve convenience, to relieve from hardships or from requirements that seem unreasonable, or even absurd, when the language is plain and unambiguous.” Our conclusion is, the manufacturer cannot lawfully sell wine made out of grapes or berries grown by himself, without license, except in places where the sale of intoxicating liquors can be licensed according to law. This opinion, of course, has no reference or application to special acts of the legislature governing the sale of wine in particular localities. Judgment affirmed. Bunn, C. J., and Wood, J., concur.