State v. Centennial Brewing Co.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. This appeal by the Centennial Brewing Company from a judgment of conviction of a violation of the prohibition law presents for decision the question: Is it a criminal offense in this state to sell malt liquor which contains less than two per centum of alcohol measured by volume ? At the general election held in November, 1916, the people, by direct vote, adopted a statute called familiarly the prohibition law. By its terms, any person who manufactures, sells, exchanges, barters, gives or disposes of any ardent spirits or any compound thereof capable of use as a beverage, or any ale, beer, wine or intoxicating liquor of any kind, is guilty of a mis — 510 — demeanor. The Act did not become effective until December 31, 1918. (Chap. 39, Laws 1915; Chap. 175, Laws 1917.) By an Act approved March 5, 1917 (Chap. 143, Laws 1917), and known as the Enforcement Act, elaborate machinery was provided for the enforcement of the prohibition law, and as one means to that end, section 2 defines intoxicating liquors as follows: “See. 2. The phrase ‘intoxicating liquors’ shall be held and construed to include whisky, brandy, gin, rum, wine, ale, and any spirituous, vinous, fermented or malt liquors and liquor or liquid of any kind or description, whether medicated or not, and whether proprietory (proprietary), patented or not, which contains as much as two per centum of alcohol measured by volume, and which is capable of being used as a beverage. ’ ’ It is the contention of appellant that the concluding clauses, “which contains as much as two per cenhm of alcohol measured by volume, and which is capable of being used as a beverage,” modify the terms spirituous, vinous, fermented or malt liquors and liquor or liquid of any kind, and therefore it is not unlawful to sell spirituous, vinous, fermented or malt liquors which do not contain as much as two per centum of alcohol measured by volume, or which are not capable of use as beverages. This contention cannot be upheld. 1. It assumes necessarily that the Enforcement Act amends [1] the prohibition law. To illustrate: By the prohibition law the sale of ardent spirits is prohibited altogether without reference to alcoholic contents, whereas, if appellant’s contention be upheld, the sale of spirituous liquors containing less than two per cent of alcohol is not prohibited. “Ardent spirits” and “spirituous liquors” are terms of general use and each has a well-defined, well-understood meaning. In Webster’s International Dictionary the term “ardent” is defined as: “Hot or burning; causing a sensation of burning; fiery, as ardent spirits, that is distilled liquors. ’ ’ Century Dictionary — Ardent Spirits: “Distilled alcoholic liquors, as brandy, whisky, gin, rum,” Standard Dictionary — Ardent Spirits: — 511 — “Alcoholic distilled liquors.” Worcester’s Dictionary — Ardent Spirits: “A term applied to liquors obtained by distillation such as rum, whisky, brandy and gin.” Black’s Law Dictionary— Ardent Spirits: “Spirituous or distilled liquors.” “Spirituous liquor means distilled liquor.” (1 Woollen & Thornton on the Law of Intoxicating Liquors, sec. 7.) Spirituous — “Containing much alcohol; distilled, whether pure or compounded, as distinguished from fermented; ardent; applied to a liquor for drink.” (Century Dictionary.) Spirituous Liquors — -“Any intoxicating liquor produced by distillation or by rectifying, compounding or otherwise treating or using distilled alcoholic fluids in distinction from fermented or brewed intoxicating beverages.” (Standard Dictionary.) Spirituous Liquors — “These are inflammable liquids produced by distillation and forming an article of commerce.” (Black’s Law Dictionary; Cyclopedic Law Dictionary.) Spirituous Liquor— “Distilled liquor.” (Anderson’s Law Dictionary.) The term “spirituous liquor” means distilled liquor. (Black on Intoxicating Liquors, sec. 3.) “Spirituous liquor is that which is in whole or in part composed of alcohol extracted by distillation; whisky, brandy and rum being examples.” (15 R. C. L. 249.) In Sarlls v. United States, 152 U. S. 570, 38 L. Ed. 556, 14 Sup. Ct. Rep. 720, the supreme court of the United States approved the definitions as given by Webster, Worcester and Century Dictionaries. In United States v. Ellis, 51 Fed. 808, the court, in speaking of these terms used in a prohibition statute, said: “Ardent and spirituous are used indiscriminately as having the same meaning.” There cannot be any question that ardent spirits and spirituous liquors are terms used to express the same meaning, and since by the prohibition law the sale of ardent spirits is prohibited absolutely, the sale of all spirituous liquors is likewise prohibited, without reference to the alcoholic contents, unless the Enforcement Act has amended the prohibition law. But such was not its purpose and is not its effect. — 512 — It does not assume to be an amendment and it does not [2, 3] reenact any part of the prohibition law, and for this reason it cannot have the effect of an amendment. Section 25, Article Y, of the state Constitution, provides: “No law shall be revised or amended, or the provisions thereof extended by •reference to its title only, but so much thereof as is revised, amended or extended shall be re-enacted and published at length.” Neither can the doctrine of amendment by implication apply. 2. Appellant’s contention leads to a contradiction of terms [4] employed in section 2 of the Enforcement Act. Reduced to its- simplest form, the contention amounts to this: The sale of spirituous, vinous, fermented or malt liquor, not capable of being used as a beverage, is not prohibited. The word “beverage” means a drink or liquor for drinking. (Century Dictionary.) Every one of the terms — spirituous liquor, vinous liquor, fermented or malt liquor — has a well-understood meaning. Every one of those liquors is not merely capable of being used as a beverage, but it is in fact a beverage, and it is a contradiction of terms to speak of spirituous, vinous, fermented or malt liquor, not capable of being used as a beverage. 3. The grammatical construction of the section does not admit [5, 6] of the application of appellant’s theory. Under the construction contended for, the sentence would read: The phrase “intoxicating liquors” shall be held and construed to include any spirituous, vinous, fermented or malt liquors which contains as much as two per centum, of alcohol and which is capable of being used as a beverage. In the connection in which they are employed, the words “any,” “spirituous,” “vinous,” “fermented” and “malt” are adjectives, all modifying the noun “liquors,” which is plural in number, whereas each of the verbs “contains” and “is” is singular. The rule of. grammatical construction is merely an aid in interpretation, and if the text of the statute indicates a legislative intention contrary to that which would follow from the application of the rules of grammar, then the rule of grammati — 513 — cal construction must give way, but in the absence of a clear intention disclosed by the text, then, as said by this court in Jay v. School District, 24 Mont. 219, 61 Pac. 250, “we must elicit the purpose and intent of it [the statute] from the terms and expressions employed, if this is possible, calling to our aid the ordinary rules of grammar.” 4. The contention of appellant does violence to another rule [7, 8] of statutory construction. The last antecedent before either of the modifying clauses is liquor or liquid. It is a rule of law as old as the law itself, that a relative clause shall be construed to relate to the nearest antecedent that will make sense (Traverse City v. Blair Township, 190 Mich. 313, Ann. Cas. 1918E, 81, 157 N. W. 81; Endlich on Interpretation of Statutes, sec. 414), or, as more aptly stated: “By what is known as the doctrine of the ‘last antecedent,’ relative and qualifying words, phrases and clauses are to be applied to the words or phrase immediately preceding and are not to be construed as extending to or including others more remote, unless such extension is clearly required by a consideration of the entire Act.” (36 Cyc. 1123.) As said of the last preceding rule, this one is merely an aid in interpretation, and, in case of conflict, must give way to the more general rule that the intention of the legislature is to be pursued, if possible, but unless the statute requires a different construction, the rule of the last antecedent is applicable as fairly indicating the true purpose and intent of the lawmakers. Appellant argues plausibly that no reason can be advanced why a malt liquor containing only one-half of one per cent of alcohol should be under the ban, while a patented medicine containing 1.95 per cent of alcohol and capable of being used as a beverage is suffered to be sold. We confess our inability [9, 10] to justify the apparent discrimination; but this furnishes no reason for a construction of the language contrary to its manifest import. We cannot substitute judicial opinion of expediency for the will of the legislature. It is too well settled now to be open to argument that it is within the province — 514 — of the legislature to define the term “intoxicating liquors,” and, if it is deemed necessary,- in order to avoid subterfuges and frauds which fetter the effective enforcement of the law, to include within the definition beverages which are in themselves innocuous, they may be included. (1 Woollen & Thornton on Intoxicating Liquors, sec. 114; Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192, 57 L. Ed. 184, 33 Sup. Ct. Rep. 44.) In that case the court said: “It is well established that, when a state exerting its recognized authority undertakes to suppress what it is free to regard as a public evil, it may adopt such measures having reasonable relation to that end as it may deem necessary in order to make its action effective. It does not follow that because a transaction separately considered is innocuous, it may not be included in a prohibition the scope of which is regarded as essential in the legislative judgment to accomplish a purpose within, the admitted power of the government.” In our judgment, the meaning of section 2 above is [1] perfeetly clear. Whisky, brandy, gin, rum, wine, ale, spirituous liquors-, vinous liquors, fermented or malt liquors, as those terms are generally understood, are all declared to be. intoxicating liquors within the meaning of the prohibition law, and that, too, without reference to the amount of alcohol contained in them. Every other liquor or liquid of whatever kind or description, whether medicated, proprietary or patented, is likewise within the same definition if it contains as much as two per centum of alcohol measured by volume, and is capable of being used as a beverage. This construction harmonizes the two statutes and treats the Enforcement Act as a supplement to, and not as an amendment of, the prohibition law. It makes a grammatically correct sentence of the section and avoids any contradiction in terms. It applies the relative clauses to the last antecedent and, above all other considerations, it gives force and effect to the manifest purpose of the lawmakers. The Act adopted by the people in November, 1916, is not in any sense a statute regulating the liquor traffic. Its avowed — 515 — purpose is to outlaw a business theretofore regulated by -license legislation. The title of the Act indicates its purpose. “An Act prohibiting the introduction into, the manufacture of, and the giving, exchanging, bartering, selling, or disposing of ardent spirits, ale, beer, wine or intoxicating liquors within the state of Montana,” etc. The manufacture and sale of denatured alcohol, alcohol for scientific or manufacturing purposes and wine intended for the sacrament are specifically excepted from the operation of the law, but, with these exceptions, the sale of everything which falls within the fair import of the terms employed is prohibited [12] absolutely. The statute was clearly designed as one of suppression and not of supervision. As indicated beyond cavil, the purpose of section 2 above is to aid in the enforcement of the prohibition law by making certain that which was deemed to be uncertain- — by giving to the term “intoxicating liquors” a definition so comprehensive as effectually to forestall every attempt at evasion by any subterfuge whatever. Long before either of these statutes was enacted, legislative and judicial history had disclosed that the ingenuity of man can devise almost limitless means for evading a prohibition law; that any beverage by name may be counterfeited, and that the use of such general terms as “intoxicating liquors” only leads to confusion and a practical annulment of the law itself, and with this history and experience before them, the members of the legislative assembly in 1917 undertook the enactment of Chapter 143 to render the prohibition law effective and its enforcement a matter of reasonable certainty. No importance whatever can be attached to the fact that in [13] defining intoxicating liquors in section 2 of the Enforcement Act, the term “beer” by name is omitted. As heretofore observed, this Act is not in any sense an amendment of the prohibition law, and by that law the sale of beer is prohibited absolutely. It could have been only out of abundance of caution that any liquor was designated by name. The concluding clauses of that section were not designed to exempt from the — 516 — operation of the prohibition law any liquor properly so called. They were designated to mark the deadline beyond which bitters, drugs and other patented and proprietary medicines and nostrums, under whatever name or description, might not become the vehicle for a continuation of the traffic in alcoholic beverages. The legislature doubtless concluded that the alcoholic contents of these preparations — less than two per cent — would be so far neutralized by the other ingredients as to render them practically harmless as beverages. No useful purpose could be served by a review of the all but limitless number of adjudicated eases construing prohibition laws. The statutes of the several states differ so materially in the language employed that the construction of one is of little aid in the interpretad "u of another. Furthermore, there is a conflict among the authorities construing somewhat similar statutes. In People v. Strickler, 25 Cal. App. 60, 142 Pac. 1121, the court was called upon to construe a section of the local option law which reads as follows: “The term ‘alcoholic liquors’ as used in this Act, shall include spirituous, vinous and malt liquors, and any other liquor or mixture of liquors which contain one per cent by volume, or more, of alcohol, and which is not so mixed with other drugs as to prevent its use as a beverage.” The rule of the last antecedent was disregarded, and it was held that the clause “which contain one per cent per volume, or more, of alcohol,” modifies the terms “spirituous, vinous and malt liquors” as well as the terms “liquor” or “mixture of liquors.” In State v. Hemrich, 93 Wash. 439, L. R. A. 1917B, 962, 161 Pac. 79, the Washington supreme court construed a section of the prohibition law which provides: “The phrase ‘intoxicating liquor,’ wherever used in this Act, shall be held and construed to include whisky, brandy, gin, rum, wine, ale, beer and any spirituous, vinous, fermented or malt liquor, and every other liquor or liquid containing intoxicating properties.” The doc-' trine of the last antecedent was applied, and it was held that — 517 — the phrase “containing intoxicating properties” modifies the terms “other liquor or liquid,” and does not modify any of the other preceding terms. The strained construction given to the statute considered in Ex parte Hunnicutt, 7 Okl. Cr. 213, 123 Pac. 179, may have been justified under the circumstances, but the reasoning by which the conclusion was reached does not commend it to our judgment. None of the decisions is particularly persuasive here. Under the construction of these statutes which we have [14] adopted, it is a criminal offense in this state to sell malt liquor which contains less than two per centum of alcohol. In passing, we may observe that section 2 of the Enforcement Act, in so far as it includes malt liquors within the definition of intoxicating liquors, is to be construed according to the approved usage of the language (Rev. Codes, sec. 15), that is to say, “malt liquor” having acquired a well-defined meaning, will be held to have been used by the legislature to indicate an alcoholic beverage,- — the percentage of alcohol being immaterial. (State v. Hemrich, above.) The judgment is affirmed. 'Affirmed. Mr. Chief Justice Brantly and Mr. Justice Cooper concur.