State v. Roach , 1883 Me. LEXIS 99 ( 1883 )

DaNeorth, J.

The respondent is charged with keeping a liquor nuisance under R. S., c. 17, § 1, as amended by c. 247, of the acts of 1880, by which, "all places used for the illegal sale, or keeping of intoxicating liquors, and all places of resort where intoxicating liquors are kept, sold, given away, drank, or dispensed in any manner, not provided for by law, are common nuisances.” The proof relied upon to sustain the charge, is the sale of cider in less quantities than five gallons, not drunk upon the premises. Hence, under the first request for instructions, the only question arising is, whether under the law, cider thus sold, is intoxicating liquor, or prohibited as such.

By R. S., c. 27, § 22, as amended by c. 215, § 1, of the acts of 1877, cider was made intoxicating liquor "when kept or deposited with intent to sell the same for tippling purposes.” This was the law, when the case of State v. McNamara, 69 Maine, 133, was decided. In that case it was held that to bring cider within the prohibition, applicable to intoxicating liquors, it must be kept for sale for " tippling purposes,” and that these two words explained in the light obtained by their use in other statutes, relating to the same subject matter, had acquired a legal, technical meaning, and to bring cider within that meaning, the sale must be for drinking upon the premises where sold; otherwise it was not considered intoxicating, or prohibited within the meaning of the law. This decision was made in 1879. In 1880, by c. 247, the same § 22 was again amended by the insertion of the words, "as a beverage,” so that cider under the law, as it now is, is considered intoxicating when "kept to be sold for tippling purposes, or as a beverage.” Under this law the present indictment was found.

It is evident that by this amendment the legislature intended to effect a change in the law; and that change must be to prohibit the keeping of cider for sale, when'it was not prohibited before. It may bo, and undoubtedly is, true, that the common meaning of "tippling purposes,” and "beverage,” as applied to the use of intoxicating liquors, is substantially the same. But as held in State v. McNamara, the former phrase had, by its use in legislative enactments, acquired a legal meaning, which the court felt bound to give it, in the construction of the statute that the intent of the legislature might be accomplished, while the latter has acquired no such meaning, and it is clear that the common one alone will give effect to the legislative intent.

It necessarily follows, that cider, under the present statute, must be considered an intoxicating liquor, and prohibited as such, when sold in less quantities than five gallons, to be used " as a beverage,” whether so used upon the premises when sold, or elsewhere.

As the remaining exceptions are abandoned, it is unnecessary to consider them.

Exceptions overruled.

Judgment for the state.

AppletoN, C. J., Bapjíows, VxrgiN, Peters and SynioNds, JJ., concurred.