
    Commissioners of Excise of Tompkins County v. Taylor et al.
    
    
      Excise.—Intoxicating Liquors.
    
    Under the Act of 1857, c. 628, the sale of strong beer, in quantities less than five gallons, without a license, renders the seller liable to the penalty of $50.
    Appeal from the general term of the Supreme Court, in the sixth district, where judgment was rendered in favor of the plaintiff, upon a case submitted under § 372 of the Code.
    It appeared by the case submitted, that the defendants, on the 3d October 1859, sold “strong beer” to one J. E. Smith, in a quantity less than five gallons, to be drunk in their store, without having a license. The plaintiffs claimed that the defendant had thereby forfeited the sum of $50, for which this suit was brought; and the court below having so decided, the defendants took this-appeal.
    
      *Ferris and Dowe, for the appellants.
    
      Dana, Beers and Howard, for the respondents.
   Welles, J.

The law upon which the judgment in the court below was founded, is the 13th section of the act entitled “ an act to suppress intemperance, and to regulate the sale of intoxicating liquors,” passed 16th April 1857. (Laws, vol. 2, 405). That section is in the following words: “ Whoever shall sell any strong or spirituous liquors or wines, in quantities less than five gallons at a time, without having a license therefor, granted as herein provided, shall forfeit fifty dollars for each offence.” The only question to be decided is, whether strong beer is embraced in the terms strong or spirituous liquors, as expressed in the section referred to.

In the case of Nevin v. Ladue (3 Denio 43), it was held by the supreme court, that ale and strong beer were included in the terms “strong or spirituous liquors” as used in the excise law of the Revised Statutes (1 R. S. 680, § 15), making it penal to sell such liquors in quantities less than five gallons, without a license. The section of the revised statutes referred to is identical with § 13 of the act of 1857, above recited, excepting that in the former, the penalty for such sale was $25, and in the latter, it is $50.

The case of Nevin v. Ladue was afterwards taken to the court of errors (3 Denio 437), where the judgment of the supreme court was reversed, on the ground that upon the trial before the justice, where the action was originally commenced, the judgment was rendered against Nevin, on his confession that he had sold ale, or strong beer, or fermented beer, without a license; he was charged before the justice with having sold ale, strong beer, or fermented beer, and he confessed the charge. The court of errors held, that the term “ fermented beer” might have well been understood by Nevin tornean some one of the *various kinds of beer which had long been in use in this country, under the different names of spruce beer, ginger beer, molasses beer, &c., none of which could properly be termed “ strong beer ” or be included in the words of the statute, “ strong or spirituous liquors;” and all of which had undergone, tp some extent, the process of fermentation, and therefore, as the charge confessed was of selling only one of three kinds of liquor, to wit, ale, or strong beer, or fermented beer, the charge and confession might as well relate to the latter as to-either of the others, and being thus in the alternative, did not prove the sale of either one in particular. The only opinion reported in the court of errors was by Chancellor Walworth, who, after an elaborate examination of the question, holds decidedly that ale and strong beer were both included in the words “ strong liquors,” and that both were within the prohibition of the statute; but for the reason stated before, he was in favor of reversing the judgment. The report of the case states that Senators Barlow, Spencer and Wright delivered written opinions for reversal, on the ground that the question whether the sale of ale or strong beer was prohibited by the statute did not arise; it not being shown, as they construed the return of the justice, that the defendant had sold such liquors; but their opinions are not reported. It does not appear, that any member of the court expressed any dissent from the views of the chancellor. The case, especially as decided by the supreme-court, is an authority directly in point, in support of the-judgment of the court below in the case under consideration.

In the case of The People v. Wheelock (3 Parker Cr. R. 9), it was held, that the word “beer,” in its ordinary sense, denoted a beverage which is intoxicating, and was: within the meaning of the words “ strong and spirituous-liquors,” ah used in the revised statutes. The case was-decided at a general term of the supreme court in the-seventh district, in March 1855. There may seem to be,, at first view, a discrepancy between the case last referred to and that of Nevin v. Ladue, inasmuch as the' latter holds that the sale of “ fermented beer ” is not prohibited, and in the former, “beer” is held to be within the prohibition *of the statute. But this apparent discrepancy disappears, when it is borne in mind, that in Nevin v. Ladue, the expression “fermented beer” is used in addition or in contradistinction to “ strong beer,” showing clearly that fermented beer is there intended as something different from strong beer, or as beer which is not strong. In The Board of Commisssoners, &c., of Cayuga County v. Freeoff (17 How. Pr. 442), it was held at special term, that “ ale and strong beer ” were included in the prohibition of the 13th section of the excise law of 1857; that case was decided in January 1858. In the case of The People v. Crilley, decided at a general term of the supreme court in the second district, in July 1855 (20 Barb. 246), it was held, that the sale of ale in quantities less than five gallons, without a license, was not prohibited by the excise law of the revised statutes.

The foregoing are all the reported cases decided in this ■state that I have met with, bearing upon the question under consideration. But I understand, that in several of the districts, and particularly in the sixth, the supreme •court have uniformly held, both at general and special terms, that the sale of ale and strong beer are within the prohibitions of both the excise law of the revised statutes and that of 1857; and I am not aware that the case of The People v. Crilley (supra) has ever been followed out ■of the second district.

But, independently of any adjudications of the question, it seems to me entirely apparent, that the legislature had in view, both in the excise law of the revised statutes and in the statute of 1857, referred to, and particularly in the latter, the regulation of the sale of all and every kind of intoxicating liquors, and intended, to prohibit their sale in quantities less than five gallons, without the license provided for. Among the various descriptions of liquors mentioned in the statute of 1857, the sale of which it undertakes to regulate, none are specified by name, excepting wine, and that only by the general term, “ wine ” or “ wines,” without describing in any way the kind of wine. In other respects, descriptive words are ■employed to show the kind or character of liquors, the sale of which, without '^license, is denounced. 7 First, in the title of the act: It is to suppress intemperance, and to regulate the sale of intoxicating liquors; §§ 2 and 6 use the expression “ strong and spirituous liquors and wines;” § 5 uses the words “strong or ■spirituous liquors;” § 10, “ any sort of strong or spirituous liquors or wines;” §§ 11, 20, "25 and 27, “strong or spirituous liquors or wines,” §§ 12, 13, 14, 15, 18 and 28, “any strong or spirituous liquors or wines;” § 12, “any spirituous liquors or wines;” § 15, “ any strong or spirituous liquor;” § 19, “ intoxicating liquors;” § 29, “ imported or other intoxicating liquor,” also, “ intoxicating liquors or wines;” § 31, “intoxicating drinks.”

The ravages upon the physical, intellectual and spiritual condition of our race, by the habitual use of intoxicating beverages, together with the labors for the last forty years of benevolent and philanthropic individuals to arrest the scourge, by efforts to produce a revolution in the sentiments, practices and habits of the community in respect thereto, and the several legislative enactments with the same end in view, which have been the results of those' labors and efforts, are all, as I think, matters of judicial cognisance, and are proper to be borne in mind and referred to in our examinations, to ascertain the meaning and true interpretation of the statute now in force on the subject.

In view of these considerations, it is quite apparent, that the great and paramount object and design of the legislature, in the present statute, was to restrain, not by absolute and indiscriminate prohibition, but by a process of regulation, the habitual and intemperate use of any intoxicating beverage. In the language of the title of the act, it was to prevent intemperance. In looking through the act, we see that this was to be accomplished principally by regulating the sale of certain liquors, in small quantities, and by particular and limited prohibitions of such sales. The liquors, the traffic in which was to be thus regulated, were such as were known to be capable, when drank, of producing, and which generally resulted in, partial or total intoxication. Speculations have, from time to time, been ^indulged in, founded upon the per-centage of alcohol which different kinds of beverages contain, as ascertained by chemical analyses; and attempts have been made, to show that the character or strength of the liquors, the sale and use of which the statute was intended to regulate and repress, is to be governed by such per-centage. But it seems to me, that but one safe and sensible line of distinction can be drawn between the different kinds of liquor containing alcohol, in order to determine upon which of them the statute was intended to operate; and that is, between those which are capable of causing intoxication, and those containing so small a per-centage of alcohol that the human stomach cannot contain sufficient of the liquor to produce that effect; as is said to be the case with respect to spruce beer, ginger beer, lager beer and some others. It must be strong liquor; that is, strong enough with the inebriating principle or element, whether obtained by distillation or fermentation, to produce intoxication. If that be its character, the unlicensed vender at retail, or in the quantities mentioned in the 13th section, incurs the penalty of the statute.

Now, that ale, strong beer, porter and most of the fermented drinks known in this country, and which are sold at public houses and groceries, by the drink, can and do produce intoxication, to a greater or less extent, and that such is the ordinary effect of their use as a beverage, no man of mature yearo, who is not strangely oblivious to surrounding and passing events, can have failed to observe ; the fact is so patent, that it is impossible to close our eyes against it. There is, in my opinion, one aspect in which the unrestrained sale of such liquors by the drink, is far more injurious than that of distilled liquors. I allude to the temptation it presents to the reformed or reforming inebriate, who will much more readily yield to a drought of the former than of the latter, and thus fall a hopeless victim to the appetite which he had well nigh conquered.

Upon the whole, it seems to me but little short of absurd, to contend that the excise law now in force should receive the construction contended for by the appellant, which would leave "'at least one-half of the evil intended to be remedied entirely untouched and unprovided against. For the foregoing reasons, I am in favor of affirming the judgment of the supreme court.

Judgment affirmed.

Comstock, C. J. and Denio, J., dissented. 
      
       Lager beer, if intoxicating, is within the excise law: the court, however, will not take notice of its intoxicating character, but will submit the question to the jury. Rau v. People, 63 N. Y. 277; People v. Zeiger, 6 Park. 355. And see People v. Hart, 24 How. Pr. 289; Josephdaffer v. State, 32 Ind. 402.
     