State ex rel. Saley v. Bokmeyer Bros.

Stevens, J.

1. Intoxicating liquors : alcoholic compound unfit for beverage purpose. I. The defendants Bokmeyer Brothers and C. F. Bokmeyer are engaged iñ the drug business at Sheffield, Iowa, and the defendants Hartz & Bahnsen Company are located at Eock Island, Illinois, and manufacture and sell at wholesale a compound known as Black Hawk Stomach Bitters. The defendant Herbert Foster is a traveling salesman for Hartz & Bahnsen Compány. In February, 1918, the sheriff of Franklin County seized two barrels of Black Hawk Stomach Bitters in bottles, under a search warrant, and took same from the possession of the defendants Bokmeyer Bros, and C. F. Bokmeyer, as intoxicating liquors. Later, this suit to enjoin the defendants from maintaining a nuisance, and from keeping for sale and Selling intoxicating liquors, was instituted. A prepared formula for the manufacture of the Bitters, showing the contents and exact quantity of each ingredient, was offered in evidence, but it is not necessary to include it herein. The compound is 23 per cent alcohol, and each 45 gallons, the quantity manufactured at a time, is supposed to contain 12y2 pounds of cascara bark.

The contention of the defendant is that the quantity of cascara included in the mixture is so great that it cannot possibly be used as a beverage. The decision of this case turns largely upon a question of fact: that is, whether the bottles seized contained cascara in quantities forbidding its use as a beverage. Wm. H. Harrison, assistant chemist for the dairy and food department of the state of Iowa, called as a witness by the plaintiff, testified that he was a graduate of Northwestern University, and was for four years an instructor in chemistry in that institution, and that, before coming to. Iowa, he was employed by the state food commission of Illinois. A bottle of Black Hawk Stomach Bitters, taken from one of the barrels in question, was delivered, sealed, to. Mr. Harrison, who made a chemical analysis thereof for the purpose of ascertaining its contents. He testified that he found it contained 23.6 per cent by volume of alcohol, 6 per cent total solids, .1 per cent of ash, and small amounts of rumex, tumeric, and cassia, 4.1 grains of ordinary cane sugar, and no, cascara. W. B. Zuker, professor of chemistry at Highland Park College of Pharmacy, testified that he made a careful analysis of a bot-tie of the same compound, taken from one of the barrels seized, and found it to contain 22.82 per cent alcohol by volume, 5.92 per cent total solids, ash .11 per cent, sugar 4.075 per cent, some cinnamon and cassia, but no cascara.

Opposed to this testimony was that of ft. A. Kuever, associate professor of the College of Pharmacy at the Iowa State University, who testified that he also made an analysis of the contents of two bottles which were taken from the barrels in question, of four bottles sent to him by the defendant Hartz & Bahnsen Company, and a quantity manufactured by him from the formula furnished by it; that he found the contents of the bottles taken from the barrels in question to be about 23 per cent alcohol. He also found a quantity of each of the several ingredients mentioned in the formula, and that there were 15 grains of cascara to each fluid ounce, or ordinary dose. A comparative test of the contents of the bottles received from the sheriff, the bottles received from the defendant, and the small quantity compounded by the witness, was made, and revealed all of the ingredients named in the formula in approximately identical quantities.

A. N. Brandenburt, in charge of the manufacture of the Bitters, testified that the mixture was compounded in strict conformity to the formula, and that all of it contained the same relative quantity of cascara. His testimony was, to some extent, corroborated by Mr. Bahnsen, who also testified that the compound had been approved by the commissioner of internal revenue, and was sold without the payment of a government tax. This witness, personally, does not take part in its manufacture.

Two physicians residing at Sheffield were examined on behalf of the defendant. Each expressed the opinion that, if the compound in fact contained 16.2 grains of cascara to each fluid ounce, it would not be suitable for use as a beverage; that cascara taken in that quantity would operate as a laxative, and if taken in a larger quantity, as a cathartic. Neither of the medical witnesses.recommended it for medicinal use, and at least one of them expressed the opinion that, if the cascara were omitted, it would be a good drink. Dr. Schwab, one of the physicians, also testified that, shortly after the drug stores surrendered their permits to sell liquor, men Who first began to use the Bitters complained that it physicked them very much, and that a number visited his office for treatment on account thereof. Several persons residing in the vicinity, who had used the Bitters according to directions, testified that it acted as a laxative, and one witness said that he drank some at the request of a friend, whose name he did not remember, and that, on account of its effect as a laxative, he did not find it suitable as a beverage.

The competency of each of the chemists who analyzed the Bitters is not seriously questioned. One separate hot tie was analyzed by each of the State’s witnesses, and two bottles by the defendants’ witness. It is, in effect, conceded that the mixture could be used as a beverage, if it were not for the cascara. The evidence does not disclose whether the four bottles, the contents of which were analyzed, were taken from the same barrel or not, nor does it show that the two bottles analyzed by Harrison and Zuker were taken from one barrel, and the bottles sent to the State University from the other; but the result of the analysis is utterly irreconcilable. It is to. be regretted that a further analysis by a wholly disinterested chemist was not obtained. The mixture, if compounded of the ingredients and in the proportion indicated by the formula offered in evidence, while having little medicinal value, would hardly be suitable' for use as a beverage. In fact, the evidence does not show more than an attempt to use it for that purpose. The defendants Bokmeyer Bros, and C. F. Bokmeyer, previous to the commencement of this suit, received large consignments of intoxicating liquors, had an internal revenue receipt posted in their place of business, and have not appealed from the decree of the court permanently finding them guilty of maintaining a nuisance, and enjoining them from keeping for sale or selling intoxicating liquors; so that the mixture in question was taken from a place judicially determined to have been one in which intoxicating liquors were kept for sale and sold in violation of law. The question of fact presented,' therefore, in so far as it involves the other defendants, is a very perplexing one. The analysis of the two bottles introduced in evidence by the State, made separately by Harrison and Zuker, showed practically identical results; whereas the two bottles analyzed at the instance of the defendant showed materially different results, except as to the quantity of alcohol. The latter, according to the testimony, contained sufficient of the extractive qualities of cascara to render the same unfit for use as a beverage. If all of the experts had analyzed the contents of the same bottle, with the results indicated by the analysis made, we would readily conclude that some of the witnesses were either incompetent or lacking in veracity. We cannot, upon the record before us, however, say that any expert witness has testified falsely. All appear to have been qualified to make the test'. Each examined the contents of a different bottle. Whether the bottles analyzed by the witnesses for the State were taken from one barrel, and the mixture analyzed by the witness for the defendant from the other, does not appear. The testimony of the State’s witnesses is positive, and based upon a scientific analysis of the compound. It is to be regretted that a further analysis of the contents of both barrels was not obtained.

The decree of the court below enjoins the defendants from selling intoxicating liquors in the state of Iowa. The fact that the preparation contained a large percentage of alcohol is by no means conclusive that the sale thereof is prohibited by law in this state. If it is so compounded with other substances as to destroy its character and use as a beverage, and it is shown to possess medicinal qualities, the sale thereof is not prohibited. The question is one of fact. All agree that the failure to include cascara in the mixture leaves it suitable for use as a beverage. If sold in this condition in this state, it violates our statute prohibiting the sale of intoxicating liquors. The trial court found that at least one of the bottles, the contents of which were analyzed by the State’s witnesses, contained no cascara, and was, therefore, sold in violation of law.

We think the evidence affirmatively shows that none of the mixture analyzed by the witnesses for the State contained cascara. We cannot, therefore, disturb the judgment of the court below. The particular bottles seized were not, however, sold by the defendant Foster. It is shown that the defendants Bokmeyer Bros, and C. F. Bokmeyer have purchased Black Hawk Stomach Bitters of him, but whether they contained the quantity of cascara necessary to destroy their properties as an intoxicant is not shown. We hardly think the evidence justified a decree against this defendant, and, as to him, it is reversed.

2' HQüonsA;T mail óigale. plaee II. . The only other point argued by counsel is that the Bitters were purchased by mail,- the order being accepted at Bock Island, Illinois, and that, therefore, a sale in this state was not shown. Chapter 218, Acts of the Thirty-seventh General Assembly, amending Section 2382 of the Supplemental Supplement to the Code, 1915, provides:

“And in case of a sale in which a shipment or delivery of such liquors is made by a common or other carrier, the sale thereof shall be deemed to be made in the county wherein the delivery thereof is made by such carrier to the consignee, his agent or employee.”

The delivery of the compound in question was made to thei defendant at Sheffield, and therefore, under the above enactment, the same was made in this state. The judgment and decree of the court below is, therefore, — Affirmed.

Ladd, C. J., Weaver and Gaynor, JJ., concur.