Payne v. State , 125 Miss. 896 ( 1921 )

Ethbidge,, J.,

delivered the opinion of the court.

The state of Mississippi and county of Lee filed a bill in the chancery court against the appellant, Payne, alleging that the appellant was engaged in the business of selling spirituous and intoxicating liquors and drinks, consisting mainly of what is known as Jamaica ginger, lemon, vanilla, and pineapple extracts, consisting of eighty per cent, to ninety per cent alcohol, which, if drunk in the usual way that intoxicating liquors are drunk, will and do cause intoxication, and that the appellant had sold named persons such liquors, and that he conducted a store, carrying on a small mercantile business, in connection with which he sells intoxicating liquors and carries them in the said storehouse for that purpose; and prayed for a judgment against the appellant for five hundred dollars for the státe of Mississippi, and five hundred dollars for Lee county, and for a decree abating said place of business as a nuisance. The defendant denied the allegations of the bill with reference to the sale of said articles, and denied that said articles were spirituous liquors. Proof for the plaintiff showed that the appellant had sold Jamaica ginger to numbers of people in such quantities and under such circumstances as would warrant the belief that they were sold as beverages, were used as beverages, and produced intoxication in the buyers. The chancellor held that the sale constituted a sale of spirituous liquors within the meaning of chapter 256, Laws of 1912 (Hemingway’s Code, section 2121).

It is the contention of the appellant that the preparation which he sold consisted of alcohol and the essence of ginger, and was not spirituous liquors within the meaning of said statute. The statute reads as follows:

‘ ‘ That any person who may sell or give away vinous or spirituous liquors unlawfully, or who shall allow the same to be sold or given away at his place of business, for any purpose whatever, or shall permit any person not interested in or connected with such business to keep or drink or give away at such place of business any vinous or spirituous' liquors, shall be subject to pay to the state, county, city, town or village, where the offense is committed, each, the sum of five hundred dollars; and the state, county, city, town or village, or any taxpayer of the state, county, city, town or village in the name thereof, or the state revenue agent, or any sheriff within the county acting for them, may sue for and recover civilly, either jointly or separately, each said sum of five hundred' dollars; and such civil suit may be commenced by attachment without bond.”

The appellant relies principally upon the case of Lemly v. State, 70 Miss. 241, 12 So. 22, 20 L. R. A. 645, in which opinion this court, speaking through Chief Justice Campbell, held that pure alcohol was not .a spirituous liquor within the meaning of chapter 39, Code of 1880. It is true that the syllabus of this opinion states that alcohol is not vinous or spirituous liquor within the meaning of chapter 39, Code of 1880, and that prior to the passage of the Laws of 1886, p. 35, alcohol,was specifically first mentioned in the laws prohibiting the sale of- spirituous and intoxicating liquors. The reasoning of this opinion is that the legislature did not contemplate alcohol prior to 1886 because alcohol was not usually sold as a beverage and was regularly sold by druggists for certain purposes, and that it was not the intention of the legislature to embrace pure alcohol in prohibiting the sale of spirituous liquors because such liquors as were then sold as beverages were not prepared from alcohol, or from pure alcohol, but were distilled. In that case the opinion was a correct construction of the legislative intent as applied to the laws in the Code of 1880 and the evils with which that Code was dealing. The true purpose of the rules of construction is to ascertain the legislative intent, and all statutes bearing on the subject may be considered. The general definition of spirituous liquors would include alcohol, and most of the authorities of other states in defining the term “spirituous liquors” make it embrace alcohol. The Standard dictionary defines “spirituous” as follows:

“Containing alcohol; especially, containing a large percentage of alcohol; intoxicating; ardent; as, spirituous wine; specifically, distilled, in distinction from fermented or brewed.”

In Words and Phrases, First Series, it is said:

“Spirituous liquors technically and strictly include all liquors which contain alcohol in appreciable quantities. In this sense vinous and malt liquors are also spirituous, in that each contains spirits of alcohol; but in ordinary acceptation the term ‘spirituous’ liquors imports distilled liquors, and in a statute requiring a license to sell spirituous, vinous, or malt liquors the term is employed in its ordinary sense, as indicated from the use of the super-added terms ‘vinous’ and ‘malt,’ which have no office to perform unless the phrase ‘spirituous liquors’ is confined to the definition which it has in common parlance, denoting liquids which are the results of distillation.”

“Spirituous liquors imply such liquors as contain alcohol, and thus have spirit, no matter by what particular name denominated, or in what legal form or combination they may appear. Hence distilled liquors, fermented liquors, and vinous liquors are all spirituous liquors. ‘Spiritous’ means containing or partaking of spirit; having the refined, strong, ardent quality of alcohol in greater or less degree.”

In chapter 256, Laws of 1,912 (Hemingway’s Code section 2121),, above set out, the language used in describing liquors is “vinuous or spirituous.” This language must be interpreted in the light of the legislative history and general course of judicial definition, and it is not governed solely by the definition laid down in the case of Lemly v. State, supra. The language in that case is not one of precise definition, but is one of interpretation in the light of legislative history and public policy. However, the court has condemned the sale of liquors which contained high percentage of alcohol as beverages both prior to and subsequent to the decisions of the Lemly Case, and, whatever may be said as to the correct distinction of pure alcohol and beverages, a sale of beverages containing high percentages of alcohol, mixed so as to make palatable as a drink and not as a medicine, is condemned by the law as coming within the definition of spirituous liquors.

In the case of King & Wall v. State, 58 Miss. 737, 38 Am. Rep. 344, it was held that where the appellants were indicted for selling vinous and spirituous liquors without license, and the defendants had been selling a compound called “Home Bitters,” which they claimed Avas a medicine, though it contained thirty per cent, of alcohol, the other ingredients being bark, peelings, and seeds of trees, fruit, herbs, etc., and it was sold as any other merchandise without any inquiry by the seller as to the purpose for which it was being bought, and the witnesses for the prosecution testified that they bought it because of the alcohol contained in it, and for the purpose of producing intoxication, and the trial court instructed the jury, in effect, that if the compound was intoxicating, and was sold by defendant as a spirituous beverage, and not as a medicine, they ought to find the defendants guilty. And for! ,the defendants the court charged the jury, substantially, that if -the defendants sold the compound in good faith as a medicine, and not as a spirituous beverage, they ought to be acquitted, notwithstanding the fact that it* contained spirituous liquors sufficient to intoxicate,, and this court held these instructions to properly present the law. To the same effect are Bertrand v. State, 73 Miss. 56, 18 So. 545; Goode v. State 87 Miss. 499, 40 So. 13.

We think the proof in the present case shows with sufficient clearness that the appellant was selling this Jamaica ginger as a beverage. At least he knew it was being so used, or it was sold in such quantities as to indicate such knowledge. Since 1908 a sale of alcohol has been prohibited except under very restricted conditions not applicable to this case. Under the present policy of absolute prohibition, and especially from 1908 to date, it is plain that the legislative policy has been to prohibit the sale of intoxicatfing liquors ffindeir whatever name and under whatever form proposed to be sold. The acts of 1910 and of 1912 used terms, and' enacted laws, with this end in view; and the purpose of enacting chapter 256, Laws of 1912, was to enable the authorities charged with the enforcement of the liquor laws to suppress the liquor traffic by imposing penalties to be recovered in civil actions, and by injunction in addition to the regular criminal laws.

We are therefore of the opinion that the liquor sold in the present case comes within the purview and purpose of chapter 256, Laws of 1912 (Hemingway’s Code, section 2121), and the judgment will be affirmed.

Affirmed.