LIQUOR LAWS. Laws regulating, pro hibiting, or taxing the sale of intoxicating liquors.
The term liquor, when used In a statute prohibiting its sale, refers only to spirituous or intoxicating liquors; State v. Townley, 18 N. J. L. 311; People v. Crilley, 20 Barb. (N. Y.) 246. Alcohol is held not an intoxi cating liquor; State v. Witt, 39 Ark. 216; contra, Snider v. State, 81 Ga. 753, 7 S. H. 631, 12 Am. St. Rep. 350. Within the mean ing of a statute restricting the sale of ardent or vinous spirits of any kind, alcohol is in cluded; State v. Martin, 34 Ark. 340; contra, Lemly v. State, 70 Miss. 241, 12 South. 22, 20 L. R. A. 645. Where a statute defines in toxicating liquor as including alcohol, etc., its sale is unlawful, however much it may be diluted; State v. Intoxicating Liquors, 76 la. 243, 41 N. W. 6, 2 L. R. A. 408; and so where no liquor is sold except alcohol, it being sold in the shape of toddy, punch, etc., and drunk on the premises ; Winn v. State, 43 Ark. 151.
Ale is held an intoxicating liquor; State v. Wittmar, 12 Mo. 407; State v. Sharrer, 2 Coldw. (Tenn.) 323; Rau v. People, 63 N. Y. 277 (contra, People v. Crilley, 20 Barb. [N. Y.] 246; Walker v. Prescott, 44 N. H. 511) ; beer ; Milwaukee Malt Extract Co. v. Ry. Co., 73 Ia. 98, 34 N. W. 7,61; Waller v. State, 38 Ark. 656 ; Watson v. State, 55 Ala. 159; State v. Goyette, 11 R. I. 592; Banda low v. People, 90 Ill. 218 (see BEER; JUDICIAL NOTICE) • whisky; Frese v. State, 23 Fla. 267, 2 South. 1; Intoxicating Liquor Cases, 25 Kan. 751, 37 Am. Rep. 284; brandy ; State v. Wadsworth, 30 Conn. 55; State v. Witt mar, 12 Mo. 407; blackberry brandy; Fen ton v. State, 100 Ind. 598; rum and gin; State v. Wadsworth, 30 Conn. 55; State v. Wittmar, 12 Mo. 407; Corn. v. Peckham, 2 Gray (Mass.) 514; toddy or sling made with brandy or gin mixed with sugar and water; Com. v. White, 10 Mete. (Mass.) 14; wine; Schwab v. People, 4 Hun (N. Y.) 520; State v. Wittmar, 12 Mo. 407; Hatfield v. Com., 120 Pa. 395, 14 Atl. 151. Champagne is in cluded within a statute forbidding credit for liquors ; Kizer v. Randleman, 50 N. C. 428.
Medicated bitters producing intoxication are intoxicating liquors where the compound is reasonably liable to be used as an intoxi cating beverage; James v. State, 21 Tex. App. 353, 17 S. W. 422; Foster V. State, 36 Ark. 258; Corn. v. Hallett, 103 Mass. 452; Intoxicating Liquor Cases, 25 Kan. 757, 37 Am. Rep. 284; State v. Wilson, 80 Mo. 303; but not where their use as a beverage is rendered practically impossible by reason of other ingredients ; Carl v. State, 87 Ala. 17, 6 South. 118, 4 L. R. A. 380; or where made and sold in good faith for medicinal purpos es; Russell v. Sloan, 33 Vt. 656.
The test whether roots and tinctures change liquor into medicine is whether liquor loses its distinctive character by their intro duction so that it is no longer desirable as a beverage; State v. Leifer, 38 Ia. 426. See Lemly v. State, 69 Miss. 628, 12 South. 559, 20 L. R. A. 645. The question what are vin ous, spirituous, malt, or brewed liquors is one of fact for the jury ; Cora. v. Reyburg,
122 Pa. 299, 16 Atl. 351, 2 L. R. A. 415.
For the opinion of the United States at torney general on blending whisky, see 26 Op. Atty. Gen. 216; and Thornton, Pure Food & Drugs § 384, and id. § 385, the opin ion of the President on labelling whiskies.
For hundreds of years dealers have engag ed in the sale of intoxicants as a beverage without a single instance in which it was held illegal at common law. When restric tive legislation commenced it necessarily as sumed that such sales were legal until made illegal by positive enactment, either by con stitution or statute; In re Phillips, 82 Neb. 45, 116 N. W. 950, 17 L. R. A. (N. ,S.) 1001.
The legislature of a state has plenary power over the matter of licensing the traffic in intoxicating liquors, and it may, in its discretion, fix the terms on which the license shall be granted ; Schulherr v. Bordeaux, 64 Miss. 59, 8 South. 201; State v. Pond, 93 Mo. 606, 6 S. W. 469; Delamater v. South Dakota, 205 U. S. 93, 27 Sup. Ct. 447, 51 L. Ed. 724, 10 Ann. Cas. 783; Appeal of Allyn, 81 Conn. 534, 71 Atl. 794, 23 L. R. A. (N. S.) 630, 129 Am. St. Rep. 225. The intendment of law which grants such discre tionary powers to license boards is that the discretionary decision shall be the result of examination and consideration; that it shall constitute a discharge of official duty and not a mere expression of personal will; U. S. v. Douglass, 8 Mackey (D. C.) 99. The dis cretion must be a sound, legal one according to the requirements of the people, having re gard to the location and the requirements of the public ; Muller v. Com'rs of Buncombe County, 89 N. C. 171; it must be based upon the circumstances of each particular case as Presented to the court, and not biased by general opinions as to the propriety of such licenses; Schlaudecker v. Marshall, 72 Pa. 200; favoritism and monopoly must be avoid ed; Zanone v. Mound City, 103 Ill. 552; and it must not be used in an arbitrary manner; People v. Cregier, 138 Ill. 401, 28 N. E. 812; Amperse v. City of Kalamazoo, 59 Mich. 78, 26 N. W. 222, 409; U. S. v. Ronan, :13 Fed. 117; Sparrow's Petition, 138 Pa. 116, 20 Atl. 711. It will not be assumed that the court acted in such a manner ; State v. Gray, 61 Conn. 39, 22 Atl. 675. Discretion cannot be used to grant licenses to act retrospectively in order to condone an offence previously committed; Edwards v. State, 22 Ark. 253. Where no discretion is given by a municipal ordinance as to the number and locality of liquor shops, it is held that the authorities can exercise none; People v. Cregier, 138 Ill. 401, 28 N. E. 812; see U. S. v. Ronan, 33 Fed. 117 ; but where discretion is conferred, a license may be refused where the locality is already overcrowded with liquor shops; Peo ple v. Board of Excise, 16 N. Y. Supp. 798. Such a board must, however, consider all the merits before it can legally refuse a li cense ; Martin v. Symonds, 4 Misc. 6, 23 N. Y. Supp. 689.