Leidy v. Metz Bros. Brewing Co.

Reese, C. J. In December, 1909, Metz Brothers Brewing Company, a corporation, applied to the board of fire and police commissioners of the city of Omaha for license to sell at wholesale malt, spirituous, and vinous liquors during the license year commencing January 1, 1910. A remonstrance was filed alleging, among other things, that the applicant had sold malt liquors, to wit, beer, at retail during 1909. The board overruled the remonstrance and granted the license. An appeal was prosecuted forthwith to the district court for Douglas county and the judge presiding held that the applicant had been guilty of selling beer at retail as charged by the remonstrant, but that the — 165 — “Slocumb law” did not apply to such conduct, and tbe ruling of tbe board was confirmed. Tbe remonstrant has appealed to this court. The only witness produced before the board was Mr. Charles Metz, president of the corporation. His testimony is frank and unequivocal. It appears that in 1864 Metz & Brother, a partnership, were engaged in brewing beer in Omaha, and continued until the formation of the plain! iff corporation in 1894, and from the last named date until the present time said business had been conducted by the corporation. In 1909 the corporation was licensed to sell at wholesale intoxicating and malt liquors. During all of that year the licensee sold large quantities of beer to consumers; all of the liquor thus sold was placed in quart or pint bottles, which were sealed and thereafter packed in cases containing tAvo dozen bottles. The boxes were securely fastened, and purchasers were not permitted to open a case or drink beer while upon the applicant’s premises. The applicant and its predecessor in business sold beer to consumers in like manner for 15 years last past. The applicant does not solicit orders, but fills them whether received directly from purchasers or through the agency of the mail or telephone, and the greater part of case beer is sold direct to consumers. No discrimination is made in the price per case charged for beer between the smallest and largest order received. Before applicant’s license was issued in 1909, the attorney for the board of fire and police commissioners prepared a written opinion advising the board that a brewer could not lawfully sell beer according to the course of business pursued by the applicant, and .Metz Brothers Brewing Company was given, or procured, a copy of that opinion. Counsel for the respective parties present the case in a double aspect. The applicant’s counsel contends that the learned district judge erred in holding that Metz Brothers BreAving Company sold any beer at retail Avithin the meaning of the “Gibson law,” but that in any event a violation of that act should not disqualify a manufacturer — 166 — from receiving a license to manufacture beer and to sell it at wholesale. The remonstrant’s counsel argue that the district judge’s finding is correct, but his conclusion is unsound. The traffic in intoxicating liquors is subject to such restraints and regulations as the legislature may prescribe. State v. Hardy, 7 Neb. 377; Hunzinger v. State, 39 Neb. 653; In re Phillips, 82 Neb. 45. Prior legislative enactments passed for the purpose of regulating and restricting that traffic were merged in the “Slocumb law” (laws 1881, ch. 61; Ann. St. 1909, ch. 32, sec. 7150 et seq.). The “Gibson law” (laws 1907, ch. 82) is supplemental to chapter 61, laws 1881. The act of 1907 has no independent title, but when enacted becáme a part of the Slocumb law as fully as though it had been originally written in the text of the earlier acts, Rohrer v. Hastings Brewing Co., 83 Neb. 111. A corporation cannot qualify as a retail dealer in intoxicating or malt liquors. Rohrer v. Hastings Brewing Co., supra. By the terms of the Gibson act it is made unlawful for any person, natural or corporate, engaged in the manufacture of malt, spirituous or vinous liquors, to become interested directly or indirectly in any retail license for the sale of intoxicating or malt liquors, or to in any manner assist any retail dealer to procure such a license, or to lease premises for the use of such a retail dealer. Section 3 of the act (laws 1907, ch. 82) provides: “No liquor license issued to any person or corporation engaged as a manufacturer, wholesaler or jobber of malt, spirituous or vinous liquors shall entitle the holder thereof to engage, or in any manner to become interested, under pretext or otherwise, in the retail traffic in such liquors in this state.” Within seven days after the Gibson act became effective, this court, in an opinion filed in the case of In re Reusch, 79 Neb. 449, stated: “We think that the intention of the legislature in the passage of sections 1, 2, 3 and 5 of the act assailed (laws 1907, ch. 82) was to prevent manufacturers, wholesalers or jobbers of intoxicating liquors, or their agents, from selling or being — 167 — interested in the sale of intoxicating liquors at retail.” With this settled construction of the law, it becomes necessary to ascertain whether the applicant did, within the meaning of the statute, sell beer at retail in 1909. The liquor traffic has frequently been classified for. revenue and license purposes by acts of parliament and congressional and legislative enactments, and quantity has generally been the factor differentiating a wholesale from a retail sale. The fact that no such standard was adopted in the Gibson act is good evidence that some other element controls, one so well known that neither the persons engaged in the traffic, nor the officers charged with the enforcement of the law, should have any difficulty in understanding the test and making the application. Wholesale dealers as a rule sell only to merchants who buy to sell to the consumer, whereas retail dealers sell direct to the consumer, and not to other retail merchants. The definition of the word “retail,” as should be applied to sales as given in Webster’s New International Dictionary, is: “To sell in small quantities, as by the single yard, pound, gallon, etc.; to sell directly to the consumer and in the Standard Dictionary: “To sell in small quantities, such as are immediately called for by consumers.” If the contention of applicant is to prevail, the manufacturer can inclose two pints in a sealed package as easily as twenty-four and deliver to consumers, and thus practically nullify the provisions of our liquor laws and peddle his product throughout the city and country. In State v. Scampini, 77 Vt. 92, the court considered the proper construction to be given the words “wholesale” and “retail” as applied to the liquor traffic. In that case, as in the one at bar, the statute to be construed did not classify according to the amount of liquor sold at any one time. The court held in the Yermont case that sales by wholesale are only those sold to persons having a license to sell direct to the consumer for consumption. ' The opinion cites with approval the definition given by Bacon, V. C., in Treacher & Co. v. Treacher, W. N. (1874, Eng.) 4, — 168 — which is as follows: “As a general rule ‘wholesale’ merchants dealt only with persons who bought to sell again, whilst ‘retail’ merchants dealt with consumers.” The same definition is given to the words in 3 Stroud, Judicial Dictionary (2d ed.) p. 2237, and in 12 Ency. Laws of Eng. 587. The same distinction is made in classifying the liquor traffic in State v. Lowenhaught, 11 Lea (Tenn.) 13. Counsel for the applicant criticises the case last cited, and correctly argues.that the statement is dictum as applied to the record in that case.. But the Tennessee court adopt the same classification in State v. Tarver, 11 Lea (Tenn.) 658, where the question is necessarily involved in the decision made, and the court say: “That the distinction between a wholesale and retail dealer did not depend upon, the quantity sold by either, but that sales to purchasers of packages or quantities for the purposes of trade or being resold, constituted a wholesale dealer; and sales to persons or customers for purposes of consumption constituted a retail dealer.” See, also, Webb v. Baird, 11 Lea (Tenn.) 667. The question is considered and the question re-examined by the Tennessee court in Harrison v. State, 96 Tenn. 548, and the same conclusion reached that was attained in State v. Tarver, supra. The rule announced in the Vermont case and in the Tennessee cases is practical and unerring in its application. The limit which nature has placed upon the consumption of strong drinks by an individual will practically limit all sales to unlicensed consumers to purchases of a retail character. The mere fact that the applicant has engaged in the retail traffic for years will not work a repeal of a law enacted three years since, to prevent it, in common with all other manufacturers, from engaging in that business. The “original package” theory presented as a defense to sales of bottled beer by the case does not apply. The legislature has not said that a sale by wholesalers of their commodity in original packages shall not constitute a sale at retail. Should the law be so construed, every manufacturer and wholesaler might engage in the retail traffic, subject only — 169 — to their inability to sell by the drink. To adopt any standard other than the one Ave have suggested, in classifying the liquor traffic for the purposes of the liquor laws of this state, will inwolve the entire subject in doubt and uncertainty, and eventually Avill emasculate a highly remedial statute. The finding of the district judge that the sales were made at retail is sustained by the law and the evidence. See State v. Spence, 53 So. (La.) 596. The conclusion announced that such a violation of law presents no bar to the granting of a wholesaler’s license cannot be upheld. If a wholesaler sells at retail, he is in the plight of one Avho sells Avithout a license, because his license affords no protection as against a prosecution. Adams v. Hackett, 27 N. H. 289; Gersteman v. State, 35 Tex. Cr. Rep. 318; Pearson v. International Distillery, 72 Ia. 348; Rohrer v. Hastings Brewing Co., 83 Neb. 111. The applicant, therefore, during the year 1909 violated section 13 of the Slocumb law (Laws 1881, ch. 61; Ann. St. 1909, ch. 32, sec. 7161) and license should not have been granted it for the current year. The judgment of the district court, therefore, is reversed and the cause remanded, with instructions to-cancel the license issued to the applicant. Reversed.