Caldarera v. McCarroll, Commr. of Rev. , 198 Ark. 584 ( 1939 )

Griffin Smith, C. J.,

(concurring).- Act No. 7, approved August 24,1933, is an act to permit the manufacture, sale, and distribution of light wines and beers, and to provide for taxing such products.

The term “beer” was defined as “any fermented liquor made from malt or any substitute therefor, and having an alcoholic content of not more than 3.2 per cent, by weight.”

“Intoxicating liquor” was declared to mean vinous, malt fermented liquor or distilled spirits with an alcoholic content in excess of 3.2 per cent, by weight.

Certain taxes were levied by § 4. By § 5 it was provided that funds realized from such taxes, were to be used for the state’s constitutional, educational, and charitable institutions and departments, such moneys to be deposited in the treasury to the credit of “The Beverage Tax Fund, which is hereby created.”

Section 10 is: “The purpose of this act is to legalize the manufacture and sale within the state of beer and light wine of an alcoholic content not in, excess of 3.2 per cent by weight, and to so regulate the business of manufacturing and selling such liquors as to prevent the illicit manufacture and consumption of liquor having an alcoholic content in excess of 3.2 per cent by weight, the manufacture and sale of which it is not the purpose of this act to legalize.”

Section 13 directs that “Before any permit authorized by this act shall be issued and delivered to any applicant therefor, such applicant shall make and subscribe to an oath that he will not allow any intoxicating liquors as defined by this act, of any kind or character, including beer or light wine and distilled spirits having an alcoholic content in excess of 3.2 per cent, by weight, to be kept, stored, or secreted in or upon the premises described in such permit.”

Section 19, in part, is: “It shall be unlawful for any brewer or distributor of light wines or beer to manufacture or knowingly bring upon,his premises and keep thereon any beer or wine of an alcoholic content in excess of 3.2 per cent, by weight, or any distilled spirits of any alcoholic content whatever.”

It will be noted that in creating the fund arising from the sale of light wines and beer, such fund is- designated a “Beverage Tax Fund.” However, in § 10, the wines and beer legalized by the act are referred to as “such liquors,” the alcoholic content being expressly limited to 3.2 per cent.

There can be no doubt that the legislature intended to adopt, and did adopt, the definition found in the act of Congress generally refered to as the Volstead Act, the determination under the federal statute having been that beer containing not in excess' of one-half of one per cent. of alcohol by volume was not intoxicating.

Act 108, approved March 16, 1935, legalized the sale of intoxicating liquors, title being “The Arkansas Alcoholic Control Act.” Between 1933 and 1935 national prohibition was repealed, and this state proposed to abandon the so-called “dry” policy it had fostered for so many years.

The 1935 enactment (§ -6) 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 No. 7 of . . . 1933.”

The word “malt” was defined as “liquor brewed from the fermented juices of grain and containing not more than 5 per cent, of alcohol by weight. 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 excepted from each and every provision of this act.”

The effect of act 108 was to classify as malt liquor any commodity containing more than 5 per cent, of alcohol, and to designate as “malt beverages” those drinks having an alcoholic content of more than 3.2 per cent, and not more than 5 per cent. Act No. 7 had classified any malt fermented liquor having an alcoholic content of more than 3.2 per cent, as an “intoxicating liquor.” Act 108 applied a new term to the commodity occupying the twilight zone between “3.2 per cent, and not more than 5 per cent.,” in consequence of which “malt beverages” emerged for the purpose of sale and taxation, as distinguished from beer having an alcoholic content of not moré than 3.2 per cent.

Recognition of light wines and beer, as defined by the 1933 enactment, was given by the general assembly of 1939. Section 4 of act 173 is: “Because doubts and uncertainties need to be speedily' resolved as between the industries affected, the courts and the public, with respect -to what -apparently was, and is, the intention of the general assembly to heep separate and apart the taxation, regulation a/nd control of the manufacture, sale, and distribution of light wines a/nd beers, as expressed in act No. 7 of 1933, from alcoholic liquors, as expressed, in act No. 108 of 1935, an emergency is hereby declared to exist.” [Italics supplied.]

While act 108 undertook to except from its provisions all malt beverages containing not more than 5 per cent, of alcohol, and to tax and regulate malt beverages containing more than 3.2 per cent, of alcohol and not more than 5 per cent, under the provisions of act No. 7 of 1933, yet in every sentence of every classification, and in every definition or explanation in the two acts, it was made clear that in the first instance a non-intoxicating malt beverage was legalized, while by1 act 108 an entirely different commodity was dealt with. Indeed, by the express language of act 7, any malt fermented liquor having an alcoholic content of more than 3.2 per cent, is an intoxicating liquor, and it is not the commodity taoced or authorized to he sold.

Amendment No. 19 to our Constitution was adopted in November, 1934. It prohibits any increase of the rates of - property, excise, privilege, or personal taxes, as then levied, except by vote of the people, or in case of ■an emergency, then by a vote of three-fourths of the members elected to each house of the general assembly.

The tax on non-intoxicating malt beverages was an existing tax when the amendment was adopted, and therefore cannot be increased except in the manner mentioned.

Intoxicating malt beverages—those having an alcoholic content of more than 3.2 per cent, and not more than 5 per cent.—emerged from the legislative mill in 1935 as a new product, a separate and distinct commodity occupying the field between the extremes of intoxicating liquors and non-intoxicating beers. 'Being a new product, it was made legally saleable in this state after Amendment No. 19 was adopted, and therefore the taxes levied and the permits required by act 310 of 1939 are not within the purview of the amendment.

Mr. Justice Holt concurs in the views herein expressed.