
    Stevens v. The State.
    
      Local option — Act of March 3, 1888 — Sale of beer as beverage — In one township by agent of manufacturer located in another state — Interstate commerce act of congress of August 2, 1890 —Interpretation of law.
    
    The sale of beer as a beverage, in any quantity, whether by the manufacturer or not, is prohibited in a township where the people have availed themselves of the provisions of the local option law, passed March 3, 1888 (85 Laws, 55) ; and, being a police regulation, a sale of an unbroken package made in such township by an agent of a manufacturer, located in another state, is not protected from the operation of the law on the ground that it interferes with interstate commerce, such police power being conferred on the states by an act of congress adopted August 2, 1890, known as the Wilson act (26 Stab, 313),
    2. The fact that the provision in the local option law, restricting the sale of wine to such as is manufactured from the pure juice of the grape “cultivated in this state,” may be invalid as a discrimination in favor of domestic wines, does not affect the provisions of the statute as a whole; the other provisions being open to no such objection are valid.
    (Decided January 30, 1900.)
    Error to the Circuit Court of Jefferson county.
    The plaintiff in error was indicted and convicted in the common pleas court of Jefferson county, on the charge of unlawfully selling intoxicating liquors in a prohibition township of the county. He plead not guilty. The parties waived a jury, and submitted the issue to the court on the following agreed statement of facts:
    “That said Emil Stevens, the defendant, on March 23rd, 1898, in the county of Jefferson and township of Mt. Pleasant, was then and there not a legally registered druggist, and then and there and without the limits of a municipal corporation sold intoxicating liquors other than cider or wine manufactured from the pure juice of the grape cultivated in the state of Ohio, as a beverage to divers persons, said selling being then and there prohibited, and said selling not being for exclusively known medicinal, art, scientific, mechanical or sacramental purposes. That at the time of said sale and for more than thirty days prior thereto, said township of Mt. Pleasant was a prohibition or local option township, in which the sale of intoxicating liquors was forbidden and unlawful, under the laws of the said state of Ohio. That said intoxicating liquors, sold as aforesaid, were beer manufactured in the state of West Virginia, and were shipped in small barrels, called kegs, from the manufactory in West Virginia, to the defendant, Emil Stevens, in the township of Mt. Pleasant, and there received by the said Emil Stevens, in said township and state. That each keg was a single package and was shipped singly by the manufacturer to the defendant, Emil Stevens, and was so received by him in'said township and state. That the sale heretofore admitted to be made by the said Emil Stevens was a sale of one of said kegs of intoxicating liquor, and was sold as aforesaid in exactly the same form and condition as received by him. That the sale was made of the original and unbroken package as shipped by the manufacturer from the manufactory in West Virginia, and as received by the defendant Emil Stevens in said township and state. • That the said defendant, Emil Stevens, was in the employ of said manufactory which shipped said kegs of intoxicating liquors, and that by virtue of said employment, it was- the business of the said defendant, Emil Stevens, to make sales in said township and state of the product of the said manufactory similar to the one hereinbefore described. That the keg of intoxicating liquor,' sold by the defendant as aforesaid, was one of the large number of such kegs, which several days prior to said sale and upon their receipt from said manufactory had been stored away in said township by said defendant and afterwards there sold to divers persons as aforesaid by said defendant. It is agreed that, for the intoxicating liquors sold by the said defendant in Mt. Pleasant township as aforesaid, the defendant then and there collected and received the purchase price from the vendees.
    The court found the defendant guilty and sentenced him to pay a fine and be imprisoned a certain number of days. A motion for a new trial and in arrest of judgment were made and overruled. The judgment was affirmed by the circuit court; and, upon the record, this court is asked to reverse both the lower courts and discharge the accused, on the ground that the judgment is contrary to law.
    
      Howard & Handlan, and John M. Cook, for plaintiff in error.
    First — Are the liquor laws of Ohio, police regulations under the act of congress, known as the Wilson act of August 8th, 1890?
    Subsequent to the line of decisions of Brown v. Maryland, 12 Wheaton, 443; Bowman v. Railway Co., 125 U. S., 425, and Leisy v. Hardin, 419 (to all of which reference is here made for the earlier law applicable to the case at bar), it must bé conceded that certain fundamental principles concerning rights secured by the constitution of the United States were established firmly; that congress alone had the power to regulate commercial transactions between the different states, and citizens thereof; that the states themselves had no right to prescribe rules or legislate upon the question, but it is now understood to be competent to a state to control and regulate the sale of and prescribe rules governing intoxicating liquors while remaining in the original package, and which have been shipped into such state from another state to the same extent that such state could control and regulate its own domestic products. Under the provisions of that law, however, the state seeking to control or regulate the sale of and govern imported intoxicating liquors must do so through its laws enacted in good faith in the exercise of its police powers.
    It matters not the supreme court of the United States has said that the law upon its face and in express terms states that it is a police law. The courts will, nevertheless, examine its provisions and then look to the object sought to be accomplished by means of such a law. Brimmer v. Rebman, 138 U. S., 78.
    Section 8907 (2) of the Revised Statutes of Ohio (by Giauque) expressly excepts from the operation of the prohibition, the manufacture and sale of cider or sale of wine manufactured from the pure juice of the grape.
    Section 8892 recognizes the difference and distinction between various liquors intoxicating in their nature as spirituous, vinous, malt and other kinds.
    And Section 4327 and following contemplate the inspection of spirituous liquors alone, as distinguished from vinous or malt liquors and other kinds.
    To what extent can the state go in the exercise of the police power? Robins v. Shelby Taxing Dist., 120 U. S., 493.
    The prohibition, so far as it extends, does not go to the use of intoxicating liquors, does not declare its use to be unhealthy or dangerous, does not treat intoxicating liquor as deleterious or injurious, but simply forbids the sale and makes a sale unlawful as to the seller. In re Rahrer, 140 U. S., 561.
    We submit this law has not gone far enough to make it a valid exercise of the police power. Its provisions do not relate or extend to its avowed purpose or objects, and that it must do this, and answer this requirement, is well established. Nugler v. Kansas, 132 U. S., 861; Railway Co. v. Husen, 95 U. S., 465.
    Farther reaching in its sweeping effect than any of the foregoing or hereinafter cited cases is the very latest opinion of the supreme court of the United States on the question of the sufficiency of statutory necessities, and the relative weight and consideration that that court gives to the stated reasons for, and purpose of a given law as compared to its effect and operation. Collins v. New Hampshire, 18 Sup. Ct. Rep., 769; Scott v. Donald, 165 U. S., 100; Vance v. Vandercook, 18 Sup. Ct. Rep., 674.
    Second — Do the state laws restrain a sale by a manufacturer?
    It is contended on behalf of the defendant Stevens, that all of the provisions and liquor enactments of the state of Ohio, both constitutional and statutory, do not apply at all to a manufacturer of intoxicating liquors and to sales made by the manufacturers of such liquors at the manufactories thereof, but apply only to the wholesale or retail dealer as distinguished from the manufacturers, and particularly are they aimed at the retail business of trafficing in intoxicating liquor. Kaufman v. Hillsboro, 45 Ohio St., 700; Senior v. Rattorman, 44 Ohio St., 678; Schollenberger v. Penns., 18 Sup Ct. Rep., 766.
    Third — Do the statutes of the state of Ohio discriminate in favor of the manufacturers of beer within that state against the manufacturers of beer in other states?
    A brewery situated in Ohio could have lawfully made this sale in a township where the inhabitants had not voted “against the sale.” There is no law in Ohio that regulates sales by the manufacturer in a township that authorizes the sale, and applies a different rule or regulation to a manufacturer whose plant is in a township which has declared “against the sale.” The law as to the manufacturer, and sales by him, at his plant, is one of those which the constitution speaks of as “of a general nature and must be uniform in its operation throughout the state.” Sec. 26, Article 2 of the Constitution of Ohio.
    
      If the Ohio brewer could legally have made the sales at his plant in the prohibition township, then the foreign manufacturer must be accorded the same privilege. Woodruff v. Parkham, 8 Wall, 140; Hinton v. Lott, 8 Wall, 150; 8 Wall, 152; Welton v. No. 91 U. S., 280; Brown v. Md., 12 Wheaton, 419; Guy v. Baltimore, 100 U. S., 443; County of Mobile v. Kimball, 102 U. S., 691; Webber v. Va., 103 U. S., 351; Walling v. Michigan, 116 U. S., 446; Minnesota v. Barber, 136 U. S., 313; “State Freight Tax Case,” 82 U. S., 15 Wall, 232.
    
      A. C. Lewis, Prosecuting Attorney, for defendant in error.
    The questions presented by the plaintiff in error, more specifically stated, are as follows:
    First — Is the local option law a valid exercise of police power?
    Second — Does it restrain a sale by the manufacturer?
    Third — Does it discriminate against the foreign brewer?
    The first question appears to us to be so well settled that we do not care to discuss it. Gordon v. The State — Santoro v. The State, 46 Ohio St., 607 et seq.; McGuire v. The State, 42 Ohio St., 530 et seq.; Black on Intoxicating liquors, Secs. 45, 92.
    In the consideration of the second question, plaintiff in error bases his argument on the provisions of the Dow law, rather than on the plain terms of the local option statute. The former expressly excepts manufacturers “in quantities of one gallon or more,” thereby implying the inclusion of manufacturers in smaller quantities. Hence, for the purpose of determining the scope of the latter enactment, if the definition of “trafficking” found in the Dow law is of any aid it indicates the legislative intent to include manufacturers.
    
      The attempt of the legislature to exempt “the manufacture and sale of cider” and wine, shows that sales of other liquors by the manufacturer were intended to be prohibited. See Sec. 4, Local Option Law; Black on Intoxicating Liquors, Secs. 100,141; Bailey Liq. Co. v. Austin, 82 Fed. Rep., 785; Vance v. Vandercook Co., 18 Sup. Ct. Rep., 674; Rhodes v. State of Iowa, Id., 664.
    Besides, it must be remembered that the local option law is aimed expressly against the evils resulting from the sale of liquor as a beverage. And, “will any one say that evils are likely to arise from the sale to * * * a person of a drink of liquor, and none likely to follow the sale to the same person of a gallon?” Senior v. Ratherman, 44 Ohio St., 677.
    It has been held that a brewer cannot engage in the retail trade without taking out a license as a retailer. 69 Amer. Dec., 226; 45 N. W. Rep., 149; 22 Atl. Rep., 1; 68 Wise., 538; Pim v. Nicholson, 6 Ohio St., 177.
    Where. the text of the statute is plain and unambiguous, the title cannot have the effect to modify it. Boston Min. Co. in re. 51 Cal., 624.
    If we are right in our position that the local option law does not prohibit the sale of liquor as a beverage by the manufacturer as well as the wholesaler and retailer, then the third question presented by plaintiff in error must be answered in the negative.
    Against this conclusion it might be argued that the law discriminates against foreign wines not manufactured from native grapes, because it allows the “sale of wine manufactured from the pure juice of the grape cultivated in this state.”
    But this court has held that this provision excepting domestic wines is not invalid. McGuire v. The State, 42 Ohio St., 530.
    However, should the court, upon reconsideration, hold that such proviso is discriminatory and void, it would not affect the validity of the remainder of the statute. Moreover, the sale of all wines would then be in violation of the valid part of the statute. Black on Intox. Liquor, Sec. 44.
    We claim that the case of Vance v. Vandercook Co., 18 U. S. Sup. Ct. Rep., 674 et seq., which was decided since the plaintiff in error was convicted, is decisive of this case.
   Minshall, J.

From the agreed statement of facts it appears that on March 23, 1898, the defendant below, Emil Stevens, as the agent of the manufacturer located in the state of West, Virginia, sold a keg of beer to a person in Mt. Pleasant township, in Jefferson county, the township having before that time by a vote of its electors, availed itself of the provisions of the local option law, prohibiting the sale of intoxicating liquors in such townships as a beverage (85 Laws, 55). The sale was made in an unbroken package as a beverage and not for any of the permitted purposes specified in the law. Prior to what is known as the Wilson act, adopted by congress August 8, 1890, such a sale under the previous decisions of the supreme court of the United States, would have been permissible, notwithstanding any law of the state prohibiting the same, it having been held that until the package is broken the article remains within the protection of inter-state commerce over which the states have no control. But the act just referred to changed the law of the United States in this regard, and provided,

“That all fermented, distilled or other intoxicating liquors or liquids, transported into any state or territory, or remaining therein for use, consumption, sale or storage therein, shall, upon arrival in such state or territory, be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such state or territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.” (26 Stat., 313.)

Notwithstanding the plain power here conferred on the states in the exercise of the police power to regulate the traffic in intoxicating liquors, irrespective of whether the traffic be interstate or domestic, it is contended that to be a police regulation within the above statute of the United States, the prohibition of the sale of intoxicating liquors must be absolute; and because as claimed, the local option law permits the sale of cider, and wine manufactured from the pure juice of the grape, it is not a proper exercise of the police power within the act of congress. There is nothing in the language of the statute that gives countenance to such construction. It makes all intoxicating liquors, transported into any state for sale or consumption, subject to the operation and effect of all laws of such state enacted in the exercise of its police powers. There is no purpose manifested here as to what shall be the character of these laws, other than that they shall be of a police nature; and any law that regulates the traffic is of a police nature, and within the above statute, unless it should discriminate against the products of other states.

The contention is based upon a misconception of some things said in Scott v. Donald, 165 U. S., at p. 100. That it is a misconception is clearly pointed out by Justice White in the subsequent case of Vance v. Vandercook, 170 U. S., 438, 446. This having been pointed out, it is then said: “From the fact that the state law permits the sale of liquor, subject to particular restrictions and only on enumerated conditions, it does not follow that the law is not a manifestation of the police power of the state. The plain purpose of the act of congress having been to allow state regulations to operate upon the sale of original packages of intoxicants coming from, another state, it would' destroy the obvious meaning to construe it as permitting the state laws to attach and control the sale only in case the state absolutely forbade sales of liquor, and not to apply in case the state determined to restrict or regulate the same.” The local option law, section 2, prohibits the sale of all intoxicating liquors as a beverage, or the keeping of a place therefor, in all townships availing themselves of its provisions. It, however, permits the manufacture and sale of cider, and the sale of wine manufactured from the pure juice of the grape, cultivated in this state, but prohibits the keeping of a place where wine and cider are sold as a beverage. It also permits the sale by a registered druggist of pure wine or liquors for mechanical, medicinal or sacramental purposes. The law seems sufficiently drastic, and, if enforced, must conduce to the peace, good order and sobriety of a township; and is therefore in every sense a police regulation. The constitutional validity of the law was sustained in a well considered opinion by Dickman, J., in Gordon v. State, 46 Ohio St., 607; and “the overwhelming preponderance of authority,” as said by Black, is the same way. See his work on Intoxicating Liquors, Sec. 45.

A somewhat elaborate argument has been made to show that under the local option law the defendant had the right to sell beer by the keg, being the agent of a manufacturer. The argument is based on the provision of the Dow law, which permits the manufacturer to sell at his place of business in quantities of one gallon or more at any one time. The two laws are, however, different systems adopted by the legislature for the purpose of regulating the evils resulting from the traffic in intoxicating liquors, under the power conferred by section 18 of the schedule, and are not to be construed together; that is the meaning of the language as limited in the one, cannot be referred to to ascertain the meaning of the language used in the other. In either case the language employed must be interpreted with reference to the object and purpose of the act in which it is found. The Dow law seeks to regulate the evils resulting from the traffic, by imposing a tax on it and the place where it is carried on; the local option law seeks to regulate the evils by prohibiting the traffic in intoxicating liquors as a beverage in any form at any place in a township where the people have availed themselves of its provisions.

But it may be said, and is probably true, that, so far as the local option law restricts the sale of wine to that manufactured from the pure juice of the grape “cultivated in this state,” it is invalid as .a discrimination in favor of domestic wine. This, however, is not necessarily an integral part of the law, and does not therefore affect it in its entirety. The discrimination being, for the reason stated, invalid, may be disregarded, so that wine manufactured from the pure juice of the grape, cultivated in another .state, may be sold under the same restrictions imposed on wines produced from grapes cultivated in this state. Tierman v. Rinker, 102 U. S., 123. The extent, however, to which this may be done is quite limited: It cannot be sold as a beverage at any place kept therefor in the township (last clause, section 2). As to whether it could be peddled through the township as a beverage, we are not called on to determine. But in view of the purpose and object of the law — the prevention of intemperance — we may say that such a construction would be quite doubtful.

But there is, in the law, no discrimination in favor of beer produced in this state; and the only purpose of mooting the question here, is to show that, however decided, it cannot affect the whole statute. It will stand with the invalid clause eliminated by the force and effect of the commercial clause, as well as by that of the equal privileges clause, of the federal constitution.

We see no error in the record and the judgment is

Affirmed.  