State v. Bellingham Bay Brewery

Fullerton, J.

The respondent was accused, by an information filed in the superior court of Whatcom county, of the offense of selling intoxicating liquors in violation of the act of March 12, 1909, commonly known as the local option law. The information, aided by a written stipulation of facts filed therewith, sets forth that the city of Bellingham is a .unit in which the sale of intoxicating liquor is prohibited; that the respondent, the Bellingham Bay Brewery, is a corporation engaged in the manufacture of intoxicating liquors from raw materials, having its manufacturing plant within the corporate limits of the city of Bellingham, which plant was constructed prior to the passage of the local option law; that on December 20, 1911, the respondent sold to one John Doe, for cash at its manufacturing plant, one case of beer containing 24 bottles, and agreed to, and did immediately thereafter, deliver the same in its own conveyance at the private residence of the purchaser, in the city of Bellingham. It was conceded by the state that the respondent had the right to manufacture intoxicating liquors at its plant and deliver the same to its patrons in good faith within the limits of the city of Bellingham, provided it does so in its own conveyance at the private residences of such patrons. It is also conceded that the respondent has complied with the general license laws with reference to its business. A demurrer was interposed to the information, based on the ground that the same did not state facts sufficient to constitute an offense, which demurrer the trial court sustained and dismissed the proceedings. The state appeals.

The appeal presents but a single question; namely, can a person who manufactures intoxicating liquor from raw material in a unit which has voted against the sale of intoxicating liquor therein sell the same in that unit. The court had occasion to examine the provisions of the local option act in the late case of State v. Robinson, 67 Wash. 425, 121 Pac. 848, which involved the question whether a wholesale dealer in intoxicating liquors could make sales of the same in a unit which had voted against the sale of intoxicating liquors therein, the act not forbidding such dealer to deliver in his own conveyances, or through common carriers, any unbroken package of liquor to residences of individuals in such unit which are not places of business or of public resort. In the course of the opinion, we took occasion to point out the several provisions of the act which referred to sales of intoxicating liquor, and sought to show that the legislature had, in all of the several sections of the act, unless the one on which the wholesale dealer relied was an exception, defined in unequivocal language the instances when, and the persons by whom, sales of intoxicating liquors could be made, drawing the conclusion therefrom that the section on which the dealer relied did not authorize such sale. In the course of the opinion, this language being used:

“The act is pregnant with but one meaning, and that meaning is that intoxicating liquors shall not be sold in dry units except by druggists and pharmacists. Any other view would take the life blood out of the act. The wholesaler within a dry unit must, like his competitor without that unit, make his sales in wet territory. As we have suggested, had it been the intention of the law-making body to permit a unit to prohibit only the sale of intoxicating liquors at retail, that purpose would have been expressly stated in both the title and the body of the act, and it would not have taken twenty-two sections to state it. To hold that the language in the proviso to section 18 implies the right of a wholesaler in a dry unit to both sell and deliver therein would be to read out of the statute words of clear and certain meaning, and to read into it a privilege which the law-making branch of the government deemed it wise to withhold. The provisions in the act that intoxicating liquors shall not be sold in a dry unit ‘in any quantity whatever,’ that the taking or soliciting of orders or the making of agreements for the sale or delivery therein shall be deemed an unlawful sale, the stringent penalties flowing from a violation of the act, the care taken to safeguard sales by druggists and pharmacists who are privileged to sell — all point to the conclusion that all sales of intoxicating liquors within a dry unit, not expressly permitted by the act, are prohibited.”

Section 18 of the act to which we there referred reads as follows:

“It shall be unlawful for any person, or public or private carrier, to accept or receive for shipment, transportation or delivery to any person or place within any unit in which the sale of intoxicating liquor is forbidden under the provisions of this act, or to carry, bring into or transfer to any other person, carrier or agent, or handle, deliver or distribute in any such unit any intoxicating liquor of any sort or character whatsoever; and whoever shall, either as principal, agent or servant, knowingly violate any of the provisions of this section shall, upon conviction thereof, be fined not less than fifty dollars nor more than five hundred dollars, and upon a subsequent violation of this section, in addition to the fine hereinbefore prescribed, he shall, if a natural person, be imprisoned in the county jail for not less than thirty days nor more than six months: Provided, however, That nothing herein contained shall be construed to apply to any individual who may bring into such unit upon his person or as his personal baggage and for his private use intoxicating liquor in quantity not to exceed one gallon of spirituous liquor or one case of malt liquor, nor to physicians or druggists to whom any public carrier may deliver such goods in unbroken packages, nor to deliveries to churches or the proper officers thereof of wine in unbroken packages for sacramenta 1 purposes, nor to shipments or deliveries at residences which are not places of business or of public resort, by manufacturers or wholesalers in their own conveyances, or by any common carrier or otherwise, any unbroken packages of liquor, nor to shipments of liquor in continuous transit to a point outside of such unit, nor to shipments of commercially pure alcohol for mechanical or chemical purposes. This section shall apply to all packages of intoxicating liquor, whether broken or unbroken, and the carrying into or delivery of each such package of intoxicating liquor, regardless of the name by which it may be called, accepted, received, carried, transferred, handled, delivered, or distributed in violation of the provisions of this section, shall constitute a separate offense, and any liquor so carried or delivered shall be forfeited and shall be destroyed by the officer seizing the same: Provided, That nothing in this act shall be construed to prohibit the manufacture of intoxicating liquor from the raw material in any no-license unit, nor the delivery of the same.” Laws 1909, p. 165; Rem. & Bal. Code, § 6309.

In the case to which we have just referred, the defendant relied upon the first proviso. It will be observed that, while a wholesale dealer is permitted to deliver at residences which are not places of business or of public resort intoxicating liquor in unbroken packages, nothing is said in the immediate connection concerning the sale of such liquors therein, although sales in no-license units were expressly prohibited by preceding sections, and the argument was that sale and delivery were practically synonymous terms, and that the legislature must have intended to permit sales of intoxicating liquors to be made in no-license units by the persons who were authorized to make delivery of such liquors therein. It was to refute this contention that the language was used which we have quoted.

In the present case, the defendant relies upon the last proviso quoted. He likewise contends that permission to one in his situation to make deliveries in a no-license unit is permission to make sales therein. But we cannot so conclude. A manufacturer whose plant is in a no-license unit can continue therein to manufacture intoxicating liquors out of raw materials, and he may make deliveries from his plant to “residences which are not places of business, or of public resort,” in his own conveyance or by common carrier; but on the authority of the case cited, he cannot make sales of his product in such units. Sales can only be made, if made within the state, in those units where the sale of liquor is licensed.

It follows that the trial court erred in sustaining the demurrer and dismissing the proceedings. Its judgment is therefore reversed, and. the cause is remanded with instructions to reinstate the case, overrule the demurrer, and proceed with its further hearing in the manner prescribed by law.

Mount, C. J., Ellis, and Mourns, JJ., concur.