McKeown v. State , 197 Ark. 454 ( 1939 )

This appeal is from judgments rendered on directed verdicts finding the defendant guilty (1) of selling liquor on Sunday, and (2) of selling, in dry territory, beer containing alcohol in excess of 3.2 per cent. by weight.

Appellant owned and operated the Elite cafe in Malvern. On Sunday in August, 1938, the prosecuting attorney purchased Budweiser beer. Chemical analysis showed an alcoholic content of 3.76 per cent. by weight, and 4.70 per cent by volume. The chemist testified that, in his opinion, the beer could be used as an intoxicating liquid. Testimony of other witnesses that Budweiser beer had made them drunk was admitted over defendant's objections. Grounds of objections were that the witnesses had not bought the beer from defendant, and that they did not know the alcoholic content.

Exceptions were saved to the court's action in holding that instructions received from the State Revenue Department, and a letter written by the Attorney General construing the law, were not admissible.

Evidence that the beer was sold on Sunday is not contradicted; nor is the chemist's testimony as to alcoholic content denied.

A fine of $25 for violating the Sunday law was assessed, this being the lowest penalty permitted by 3421 of Pope's Digest.¹

One of the early cases involving violation of a similar law was Bridges v. State, 37 Ark. 224. The indictment was under 1618 of Gantt's Digest,² and the opinion was handed down in 1881. The court held that "Alcohol is embraced in one of the terms, goods, wares, or merchandise," and affirmed the judgment of conviction. In dealing with the same section of Gantt's Digest the court said, in Seelig v. State, 43 Ark. 96: "Where an act is in itself indifferent and only becomes criminal when done with a particular intent, there the intent must be proved. But if the act be unlawful, as to keep open a store on Sunday, the law implies the criminal intent, and proof of justification or excuse must come from the defendant." This opinion was in 1884. In March, 1885, the statute now appearing as 3421 of Pope's Digest was enacted.

The section appearing in Gantt's Digest as 1618 seems to have been taken from Ch. XLIV, Revised Statutes, where it appears as 5. There is a slight, but unimportant, variation in phraseology between Gantt's 1618 and 5 of Ch. XLIV, Revised Statutes, but with respect to each a section immediately following is: "Charity or necessity on the part of the customer may be shown in justification of the violation of the last preceding section." The quoted provision now appears as 3422, Pope's Digest.

In appellant's brief it is urged that the law's intent was "to keep closed on Sunday all stores and general merchandise establishments, including dram shops and saloons. It does prohibit the sale of ``spirits or wine.'" A summation of appellant's position appears in a footnote.³

We do not agree that the act of 1885 is to be regarded as "an old Sunday Blue Law"; nor is it a regulation based exclusively upon religious considerations. The contrary has been held.

An interesting discussion of the subject is to be found in Swann v. Swann, 21 F. 299. The opinion was written by Judge Caldwell in a controversy involving validity of a note executed in Tennessee on Sunday, enforcement of which was sought in Arkansas in 1884. Judge Caldwell quoted the Arkansas statute (now appearing as 3418 of Pope's Digest) and 1617 of Gantt's Digest.⁴ The latter section was repealed, but a new law was passed in 1887 covering the same subject-matter. The 1887 enactment appears in 3420 of Pope's Digest.⁵

Referring to these provisions, Judge Caldwell said:

"It is obvious the statute does not attempt to compel the observance of the first day of the week, as a day of rest, as a religious duty. It would be a nullity if it did so. In this country legislative authority is limited strictly to temporal affairs by written constitutions. Under these constitutions there can be no mingling of the affairs of church and state by legislative authority. . . . No citizen can be required by law to do, or refrain from doing, any act upon the sole ground that it is a religious duty. The old idea that religious faith and practice can be, and should be, propagated by physical force and penal statutes has no place in the American doctrine of government. Force can only affect external observance; whereas, religion consists in a temper of heart and conscious faith which force can neither implant nor efface. . . . The statute, then, is not a religious regulation, but is the result of a legitimate exercise of the police power, and is itself a police regulation. . . .

"Experience has shown the wisdom and necessity of having, at stated intervals, a day of rest from customary toil and labor for man and beast. It renews flagging energies, prevents premature decay, promotes the social virtues, tends to repress vice, aids and encourages religious teachings and practice, and affords an opportunity for innocent and healthful amusement and recreation. . . .

"While the law does not enforce religious duties and obligations as such, it has a tender regard for the conscience and convenience of every citizen in all matters relating to his religious faith and practice. The statute is catholic in its spirit, and accommodates itself to the varying religious faiths and practices of the people."

In Scales v. State, 47 Ark. 476, 1 S.W. 769, 58 Am.Rep. 768, Chief Justice COCKRILL said: "The principle which upholds these regulations underlies the right of the state to prescribe a penalty for the violation of the Sunday law. The law which imposes the penalty operates upon all alike, and interferes with no man's religious belief, for in limiting the prohibition to secular pursuits it leaves religious profession and worship free."

In Rosenbaum v. State, 131 Ark. 251, 199 S.W. 388, L.R.A. 1918B, 1109, Mr. Justice WOOD traced the origin of compulsory Sabbath observance.⁶ In the Rosenbaum Case the undisputed evidence showed that the defendant operated a moving picture show in violation of the statute, and a directed verdict of guilty was upheld.

A more recent case (1926) is Rhodes v. Hope,171 Ark. 754, 286 S.W. 877, 47 A.L.R. 1104. Upon undisputed proof that the defendant had sold gasoline on Sunday, in violation of a city ordinance patterned from the state law, the court directed a verdict of guilty. On appeal the judgment was affirmed. The opinion cites Petty v. State, 58 Ark. 1, 22 S.W. 654, and Goff v. State,20 Ark. 290.

Trial courts are empowered to direct verdicts of guilty in misdemeanor cases where the punishment is by fine only if the facts are undisputed, and where from all the evidence the only inference to be drawn is that the alleged crime has been committed by the defendant in circumstances which do not disclose legal justification.⁷

It may be urged that social intercourse, and personal, professional, and business relationships, have so changed within the past 53 years that the law promulgated in 1885 has become obsolete; that it should be treated as a dead letter decreed by custom and modern convenience to be a relic of other days. Answer to this argument is that courts are interpreters, and not the makers, of laws. As Chief Justice COCKRILL said in the Scales Case, "If the law operates harshly, as laws sometimes do, the remedy is in the hands of the Legislature. It is not the province of the judiciary to pass upon the wisdom and policy of legislation — that is for the members of the legislative department, — and the only appeal from their determination is to their constituency."

The defendant in the instant case was guilty of violating 3421 of Pope's Digest; and, since the statute imposes a one only, and not less than $25 could be assessed, it was not error for the court to direct a verdict. We are not willing to say that beer, in the circumstances in which it was being sold, was a necessity. Obviously, the defendant understood that the prosecuting attorney was making the purchase in order to test the law. The conclusion is inescapable that the defendant was keeping his place of business open for general commercial purposes, and that beer was being sold regularly and generally.

The next question is whether the sale of beer of the alcoholic content reflected by the record was unlawful in Malvern at the time in question.

Act No. 7 of the Extraordinary Session of 1933, p. 20; 2, defines beer as "any fermented liquor made from malt or any substance thereof and having an alcoholic content of not in excess of 3.2 per cent. by weight." Such beer was legalized under terms of the act.

By 27-A,⁸ provision was made for special elections in the several counties, upon petition of 51 per cent. of the qualified electors of any county presented to the county court within sixty days from the effective date of act 7. If a majority of the qualified voters opposed the sale of beer, such sale was prohibited. At the succeeding regular election the question might be submitted under the initiative and referendum amendment to the Constitution (which permits 15 per cent. of the electors to initiate a law).

Act No. 108 was approved March 16, 1935. It authorizes the manufacture, sale, transportation, possession, or other disposition of spirituous, vinous, and malt liquors. By 6 of Art. 1 the word "malt" is defined as "liquor brewed from the fermented juice of grain and containing more than five per centum of alcohol by weight." There is this further provision: "Beer containing not more than five per centum of alcohol by weight and all other malt beverages containing not more than five per centum of alcohol by weight are not defined as malt liquors, and are excepted from each and every provision of this act. It is further provided that malt and vinous beverages containing more than 3.2 per cent. of alcohol by weight and not more than 5 per cent. of alcohol by weight shall be taxed and regulated as provided for malt and vinous beverages containing not more than 3.2 per cent. alcohol by weight under the provisions of act 7 [of 1933]."

It will be observed that after defining the word "malt" to mean liquor containing more than 5 per cent. alcohol, beer containing not more than 5 per cent. alcohol is excluded from the provisions of act 108 and "malt and vinous beverages" containing more than 3.2 per cent. of alcohol, and not more than 5 per cent. of alcohol, "shall be taxed and regulated as provided for malt and vinous beverages containing not more than 3.2 per cent. alcohol."

The intent, as expressed by the language used, is to classify beer having an alcoholic content of not more than 5 per cent. as a malt beverage, as distinguished from malt liquor.

Section 1 of art. 7 of act 108 permits 35 per cent. of the voters of any county, city, town, district, or precinct, to petition the county court for an election upon the proposition whether "spirituous, vinous or malt liquors shall be sold, bartered, or loaned therein." Section 4 of art. 7, with respect to such election, directs that if a majority "shall be in favor of prohibiting the sale of liquor in the territory in which the election shall have been held, the law prohibiting such sale shall be in full force and effect at the expiration of sixty days from the date of the entry of the certificate of the canvassing board." Penalty for violation is a fine of not less than $60 nor more than $100, and confinement in the county jail for not less than 20 days nor more than 40 days.

An election was held in Malvern in 1935 on petition of 218 of the 492 qualified electors of the city — 218 being more than 35 per cent. of 492. The county court order recites that such election was held under authority of act 108 to determine whether "intoxicating liquors shall be sold, loaned, bartered in any hotel, dispensary, club, restaurant, or any other place or thing within the city of Malvern." By a vote of 179 to 118 such liquor traffic was prohibited.

It is contended by appellant that because the Malvern election was under authority of act 108, and because the election had for its purpose the sounding of public sentiment on the question of selling liquor as defined in the act, beer of an alcoholic content of not more than 5 per cent. was not within the purview, and could not be, since act 108 by express terms declares such beer to be a beverage and not a liquor. Therefore, it is insisted, control of sale of the beverage is referable to act 7 of 1933. It is further argued that act 7 contemplates the county as a unit, and under such act a city may not prohibit the sale of beer.

It must be conceded that the language of acts 7 and 108 in so far as it has been quoted by appellant justifies the result contended for. Act 7, by its terms, contemplates a county-wide vote, and sections one to four, inclusive, of art. 7 of act 108, deal with a drink having an alcoholic content of more than five per cent. If act 108 ended where appellant has terminated his citation of its terms, clearly his position would be sound.

But we must consider all of the act, rather than its partial recitals, to determine the legislative intent.

Section 5, art. 7, act 108, contradicts appellant's theory that the beer in question may be legally sold until, in a county-wide election conducted under authority of act 7 (on petition of 51 per cent. of the electors) the voters have expressed opposition to the traffic.

Section 5 is: "It shall be unlawful for anyone to sell, barter or loan, directly or indirectly, any beverage containing any alcohol; or any liquid mixture or decoction of any kind which produces or causes intoxication in any county, city, town, district or precinct in which the sale, barter or loan of spirituous, vinous or malt liquors is or shall be prohibited in accordance with the local option law."⁹

This section permits prohibition of the sale of malt liquors, etc., and it contemplates procedure as set out in the act — not procedure under authority of act 7. The first six words on page 260 of the printed acts of 1935 are: "The word ``malt' shall mean liquor." The optional vote authorized by 1 of art. 7 relates to the sale of "spirituous, vinous or malt liquors," and the sale of such may be prohibited in the manner set out in act 108.¹⁰

The election in Malvern was in conformity with act 108. The only vice urged against it is that authority to prohibit the sale of beer of not more than 5 per cent. alcoholic content is not within the act.

Article 9 of act 108 repeals all conflicting laws or parts of laws —

"Provided, however, that this act is not intended to repeal or conflict in any way . . . with the taxing provisions of act No. 7 of the Extraordinary Session of the Forty-Ninth General Assembly of the state of Arkansas, approved August 24, 1933."

Specifically, the Legislature, by the language of art. 9, has said that it did not intend to repeal the taxing provisions of act 7. It did intend, as we have seen, to substitute a permissive and increased alcoholic content for beer; and it is our view that it intended to provide new local option machinery.

It will be observed that the mandate of 5 of act 108 applies only to areas where the "sale or loan of spirituous, vinous, or malt liquors shall be prohibited in accordance with the local option law."

If it be said that the only local option law applicable to beer of not more than 5 per cent. alcoholic content is act 7 of 1933, we are met with the contradiction that the 1933 enactment does not apply to cities, towns, precincts, or districts. It is inconceivable that the framers of act 108, and the Legislature that passed it, could have intended, by 5, to require proponents of prohibition to proceed under a statute which could afford them no relief in any subdivision less than a county. Article 9 dispels such theory. It will not be assumed that the lawmakers, in one sentence, extended an option, and in another sentence withdrew it.

It is not necessary, in this opinion, to determine whether the language in 5 of act 108 prohibits the sale in dry territory of a beverage containing "any alcohol," or whether it merely prohibits sale of "a liquid mixture or decoction of any kind which produces or causes intoxication." Following the word "alcohol" in 5 a semicolon is used, followed by "or," a co-ordinating particle that marks an alternative. However, proof in the case at bar is sufficient to show that the beer sold by appellant contained enough alcohol to cause intoxication in certain circumstances, and with respect to certain people. Dr. Manglesdorf, the chemist, testified that 3.2 beer is intoxicating "if you drink enough of it." He also testified: "It is generally conceded by medical men that you can get stimulation and sufficient disorganization of the mental equilibrium to become intoxicated [by drinking 3.2 beer]."

In State v. Hutchinson, 194 Ark. 1057, 110 S.W.2d 7, the defendant below was charged with selling intoxicating liquors in a pool room. The question was whether 5 per cent. beer (as distinguished from beer having an alcoholic content of "more than 5 per cent.") was intoxicating. In discussing act 108 of 1935 the opinion says: "[The act] says in the latter part of 6 [of art. 1] that ``beer containing not more than 5 per cent. of alcohol by weight and all other malt beverages containing not more than 5 per cent. of alcohol by weight are not defined as malt liquors, and are exempt from each and every provision of this act.' This is far from saying that 5 per cent. beer is not an intoxicating liquor. The effect of the words quoted above are that said act 108 excludes from its taxation and regulation malt and vinous beverages containing more than 3.2 per cent. of alcohol and not more than 5 per cent. of alcohol."

The opinion then mentions certain provisions of act 7 of 1933, and continues: "We are not willing to construe these acts as saying that the Legislature passing them intended to say that 5 per cent. beer was non-intoxicating liquor. Such a declaration on the part of the Legislature would be arbitrary and contrary to what everybody knows."

Other authority is to the same effect.

The judgment of conviction for violating the Sunday law is affirmed.

Violation of 5 of art. 7 of act 108 is punishable by a fine of not less than $20 nor more than $100. No jail sentence is imposed. The trial court directed a verdict calling for a fine of $60 and imprisonment in the county jail for a period of twenty days. This was error. The judgment rendered on this verdict is reversed and the cause is remanded with directions that the provisions of 5 of art. 7 are applicable. However, a new trial on this charge must be had. It is so ordered.

SMITH, J., concurs.

McHANEY and BAKER, JJ., dissent.

¹ Pope's Digest, 3421: "Every person who shall, on Sunday, keep open any store or retail any goods, wares and merchandise, or keep open any dram shop or grocery, or who shall keep the doors of the same so as to afford ingress or egress, or retail or sell any spirits or wine, shall, on conviction thereof, be fined in any sum not less than twenty-five dollars nor more than one hundred dollars."

² Gantt's Digest, 1615: "Every person who shall, on Sunday, keep open any store, or retail any goods, wares, or merchandise, or keep open any dram-shop or grocery, or sell or retail any spirits or wine, shall, on conviction thereof, be fined in any sum not less than ten dollars nor more than twenty."

³ Counsel says: "The appellant . . . has engaged in [the cafe] business for a number of years. Beer of the alcoholic content testified to with respect to the bottle sold to the Prosecuting Attorney is a part of the regular stock of provisions and refreshments regularly served to customers of his restaurant business. The sale of such beer is now legal in this state and in the city of Malvern, and unless the prosecution and the lower court can invoke this old Sunday Blue Law to sustain a penalty against the appellant, he did not commit an illegal act. Therefore, under the law, the bottle of beer must be regarded and treated as any other beverage or refreshments generally and customarily served in restaurants and cafes. Since its sale is not illegal per se, it must be classed along with coffee, milk, tea, coca-cola, or other bottle beverages usually served at restaurants with food and meals. The beer sold is not wine, and neither is it ``spirits' as now defined by act 108."

⁴ Gantt's Digest, 1617: "Persons who are members of any religious society, who observe as Sabbath any other day of the week than the Christian Sabbath or Sunday, shall net be subject to the penalties of this act, so that they observe one day in seven, agreeably to the faith and practice of their church or society."

⁵ Pope's Digest, 3420: "No person who from religious belief keeps any other day than the first day of the week as the Sabbath shall be required to observe the first day of the week, usually called the Christian Sabbath, and shall not be liable to the penalties enacted against Sabbath breaking. Provided, no store or saloon shall be kept open or business carried on there on the Christian Sabbath; and provided further, no person so observing any other day shall disturb any religious congregation by its avocation or employment."

⁶ In the Rosenbaum Case Mr. Justice Wood said: "The Frank emperors had Sunday observed; the Code of Napoleon ordered it, and the observance of the Lord's day has been enjoined by statutes in England from the earliest times. Coming on down to the legislation in the mother country, which forms the basis of such legislation in practically all of the states of the Union, we find that in the reign of Charles II an act entitled, ``An act for the better observation of the Lord's day, commonly called Sunday,' was passed, which, among other things, provides: ``That no tradesman, artificer, workman, laborer, or other person whatsoever shall do or exercise any worldly labor, business, or work of their ordinary callings upon the Lord's day, or any part thereof (work of necessity and charity only excepted).' Stat. at Large, 29 Chas. II, Ch. 7, p. 412, (12 Chas. 3, p. 412)."

⁷ In Collins v. State, 183 Ark. 425, 36 S.W.2d 75, it was held that in the circumstances there shown the trial court did not have the right to direct a verdict of guilty. "Where the punishment may be imprisonment, or where the law provides that it may be fine or imprisonment, the trial judge has no power to direct a verdict." Citing Roberts v. State, 84 Ark. 564, 106 S.W. 952; Wylie v. State,131 Ark. 572, 199 S.W. 905; Parker v. State, 130 Ark. 234,197 S.W. 283; Snead v. State, 134 Ark. 303, 203 S.W. 703; Burton v. State,135 Ark. 164, 203 S.W. 1023; Huff v. State, 164 Ark. 211,261 S.W. 654. But in the Collins Case it was held that an instructed verdict may be given where the punishment is by fine only, etc.

⁸ Section 27-9 of act 7 of 1933, in part, is: "At each general election for state and county offices after the passage of this act or at a special election called by the county court upon a petition of 51 per cent. of the qualified electors of the county presented within sixty days next after the passage of this act, there may be submitted to the qualified electors of any county in the state of Arkansas so desiring in the manner provided for the submission in a county of the question under the initiative and referendum provision of the Constitution and laws of the state of Arkansas the question as to whether the sale of beer and light wine containing alcohol not in excess of 3.2 per cent. by weight shall or shall not be permitted within said county for two years in case the matter is voted on at a general election and in the case of a special election the question shall be voted on as to whether the sale of beer and light wine containing alcohol not in excess of 3.2 per cent by weight shall or shall not be permitted until the day of the next general election."

⁹ Section 5 of art. 7 of act 108 of 1935, in addition to that part quoted in the opinion, also provides. "Any person who shall sell, barter or loan, directly or indirectly, any such beverage, liquid mixture or decoction in any such county, city, town or precinct, shall, upon conviction, be fined the sum of not less than $20 nor more than $100 for each offense or any sale, barter or loan of any article with the agreement expressed or imposed that the right or title to or possession of any such beverage, liquid, mixture or decoction, shall also pass, shall be considered a sale, barter or loan within the terms of this act."

¹⁰ We pretermit a discussion of Amendment No. 7 to the Constitution, commonly referred to as the Initiative and Referendum Amendment. One of its provisions is: "Fifteen per cent. of the legal voters of any municipality or county may . . . invoke the initiative upon any local measures." Under "Definition," the word "measure" is construed to be "any bill, law, resolution, ordinance, charter, constitutional amendment or legislative proposal or enactment of any character."