C. J. Lincoln Co. v. State

McCulloch, C. J. This is an action instituted by the prosecuting attorney of the Sixth Judicial Circuit in the Pulaski Chancery Court, pursuant to the Act of February 6,1915, (Act No. 109, Acts 1915), to enjoin the ¡appellant from selling alcohol and from using it in the manufacture of medicines, tinctures and varnishes for sale. Appellant admitted the truth of the allegations and the court decided that it is not unlawful to use alcohol in the manufacture of medicines, tinctures or varnishes, or to sell medicines, etc., when so manufactured, but that it does constitute a violation of the law to sell raw alcohol for any purpose. A decree was entered in accordance with that conclusion of the óhancellor. The State has not appealed, and the question for decision on the present appeal is whether or not it is unlawful to sell alcohol. The first ¡act on the subject levied a tax on the business of selling, “either at wholesale or retail, any ardent or vinous liquors, it being an occupation of no real use to society (except the same is sold exclusively for medicinal purposes). Act of April 28, 1878 (Gantt’s Digest, section 5052). This court, in the case of State v. Martin, 34 Ark. 340, ¡affirmed a judgment of the ¡circuit court sustaining a demurrer to an indictment which charged the defendant with selling “one quart of alcohol without paying the special tax by law levied. ’ ’ In the opinion it was said that “¡alcohol is not either ardent or vinous spirits, or liquor of any kind, and its sale is not in any manner restricted or attempted to be regulated.” The next statute on the subject declared it to be unlawful “for any person to sell ¡any ardent, vinous, malt or fermented liquors in this State, or any compound of preparation thereof, commonly called tonics, bitters or medicated liquors, in 'any quantity or for ¡any purpose whatsoever, without first procuring a license,” etc., except that manufacturers of such liquors could sell in original packages of not less than five gallons. Act of March 8, 1879, page 33. The Act of March '21, 1881, (Acts 1881, page MO), commonly known as “The Three Mile Law,” made it unlawful to “vend or give away any spirituous or intoxicating liquors >of any kind, or any compound or preparation thereof, commonly called tonics or bitters,” within the radius of three miles of any church or school house, when so prohibited by an order of the county court. In State v. Witt, 39 Ark. 216, a count in the indictment charging the accused with having sold “one pint of alcohol” was quashed, and this court- affirmed the decision. The Legislature then passed the Act of March 26, 1883, (Acts of 1883, page 192), amending the Act of March 8,1879, by inserting the word “alcohol” after the word “sell,” and also by inserting the words “or intoxicating spirits of any character which are used -and drunk as a beverage.” That statute was passed to change the law so as to cure the omission pointed out in the cases just cited. Chamberlain v. State, 50 Ark. 132. The Act of March 16, 1911, (Acts of 1911, page 64), amended the Act of March 8, 1879, by striking out the exceptions which permitted the sale' of liquor in original packages. The law stood in that condition until the General Assembly of 1913 passed what is commonly known as the £ ‘ Going Law,” (Acts of 1913, page 180) which provides that the license for the sale of liquor can be obtained from the county court only upon presenting a petition signed by a majority of the adult white inhabitants of the municipality where the business is to be conducted. The first section of that act reads as follows: “Section 1. It shall be unlawful for any court, town or city council, or any officer thereof, to issue a license or permit, or any other authority to any corporation, person or persons, to sell, barter, or give away, any alcoholic, malt, vinous, or spirituous liquors, or any compound or preparation thereof, commonly called tonics, bitters, or medicated liquors, within the State of Arkansas, except as provided in this act.” The1 last statute on the subject is the “State Wide Prohibition Law” of February 6, 1915, (Act No. 30, Acts of 1915, page 98), the first section of which makes it unlawful for any county judge, or the council of any municipal corporation, to issue license to anyone, “to manufacture, sell, barter, or give away any alcoholic, vinous, malt, ¡spirituous or fermented liquors or any compound or preparation thereof, commonly called tonics, bitters or medicated liquors,” and the second section of which makes it unlawful for any person or corporation “to manufacture, sell or give away, or be interested, directly or indirectly, in the manufacture, sale or giving away” of any, of the before enumerated liquors. Now, the contention of appellant is, relying on the decisions in State v. Martin, supra, and State v. Witt, supra, that the “Going Law,” of 1913, and the “State Wide Prohibition Law,” of 1915, having omitted the noun “alcohol” and substituted the adjective “alcoholic” before the word “liquors’’ have changed the law so as to restore it to the state in which it was expounded by the decisions of the court in those cases. The contention is unsound, we think, for more than one reason. In the first place, the recent statutes are expressly declared to be cumulative to existing laws on the subject, and the lawmakers have not manifested any intention, in using the words “alcoholic liquors” instead of “alcohol,” of changing the law with respect to the character of liquors, the sale or giving away of which is forbidden. Moreover, the words “alcoholic liquors” do not fall within the restrictive definition laid down in the cases above cited. Those words necessarily include raw alcohol, for if a compound or dilution thereof constitutes alcoholic liquors, the raw alcohol, which is the basis of a compound, is included in the meaning of that term. It is ¡scarcely necessary to further discuss the decisions just referred to. They are generally disapproved by the decisions in other states. But even if the court was correct then in saying that it did not judicially know that alcohol was intoxicating, or that it was in common use for the purposes of dissipation or even that it was capable of being applied 'to such a use, it may be that we can, in the light of further developments'in the restrictions of the sale of intoxicants and the evasive substitutes which have come into use, take judicial cognizance of the fact, known to all, that alcohol is an intoxicant and is- frequently used by certain classes “for purposes of dissipation.” See cases cited on the brief of counsel for the State. This court has decided that the court should take cognizance of the fact that beer is intoxicating. Then why not alcohol, too? Williams v. State, 72 Ark. 19. The language quoted from the Martin case, supra, was dictum because the reason for affirming the judgment had already been stated to be that “it was not charged that the defendant was a liquor dealer, and such special taxes were required only of liquor dealers by the statute in force when the indictment was found.” In the statutes in force when that case was decided, as well as when the Witt case, supra, was decided, neither the word “alcohol” nor the words “alcoholic liquors” was used, so whatever else may be said about those cases it follows that neither of them is authority for upholding the contention of appellant in the present case. At any rate, we are convinced beyond doubt, from the language of the last statutes on the subject, that the Legislature did not intend to repeal existing laws prohibiing the unrestricted sale of alcohol, and did not intend to exclude the sale of that article from the prohibitive terms of the new statutes. The decree is therefore affirmed.