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forbidden and such other liquors as contain a given percentage of alcohol.

ing. For the legislation and decisions of the highest courts of nearly all of the states establish that it is deemed impossible to effec- A test often used to determine whether a tively enforce either prohibitory laws or other beverage is to be deemed intoxicating within laws merely regulating the manufacture and the meaning of the liquor law is whether it sale of intoxicating liquors, if liability or contains one-half of 1 per cent. of alcohol by inclusion within the law is made to depend volume. A survey of the liquor laws of the upon the issuable fact whether or not a par- states reveals that in sixteen states the test ticular liquor made or sold as a beverage is is either a list of enumerated beverages withintoxicating. In other words, it clearly ap-out regard to whether they contain any alcopears *that a liquor law, to be capable of ef-hol or the presence of any alcohol in a beverfective enforcement must, in the opinion of age, regardless of quantity; (c) in eighteen the Legislatures and courts of the several

*283

(d) 4.

Note (c): 1. Alabama: Gen. Laws Sp. Sess. 1907, No. 53, § 1, p. 71, made it unlawful to sell "any al

states, be made to apply either to all liquors of Howard v. Acme Brewing Co., supra, see note of the species enumerated, like beer, ale or wine, regardless of the presence or degree of alcoholic content; or if a more general description is used, such as distilled, rectified, spirituous, fermented, malt, or brewed liquors, to all liquors within that general description regardless of alcoholic content; (b)

284

or to such of these liquors as contain *a named percentage of alcohol; and often several such standards are combined, so that certain specific and generic liquors are altogether

Note (b): Cases to this effect are Marks v. State, 159 Ala. 71, 48 South. 864, 133 Am. St. Rep. 20; Brown v. State, 17 Ariz. 314, 152 Pac. 578; Bradshaw v. State, 76 Ark. 562, 89 S. W. 1051; Seibert v. State, 121 Ark. 258, 180 S. W. 990; In re Lockman, 18 Idaho, 465, 110 Pac. 253, 46 L. R. A. (N. S.) 759; Hansberg v. State, 120 Ill. 21, 23, 8 N. E. 857, 60 Am. Rep. 549 (dictum); Kurz v. State, 79 Ind. 488; Sawyer v. Botti, 147 Iowa, 453, 124 N. W. 787, 27 L. R. A. (N. S.) 1007; State v. Colvin, 127 Iowa, 632, 103 N. W. 968; State v. Miller, 92 Kan. 994, 142 Pac. 979, L. R. A. 1917F, 238, Ann. Cas. 1916B, 365; State v. Trione, 97 Kan. 365, 155 Pac. 29; Com. v. McGrath, 185 Mass. 1, 69 N. E. 340; Extract & Tonic Co. v. Lynch, 100 Miss. 650, 56 South. 316; State v. Centennial Brewing Co., 55 Mont. 500, 179 Pac. 296; Luther v. State, 83 Neb. 455, 120 N. W. 125, 20 L. R. A. (N. S.) 1146; State v. Thornton, 63 N. H. 114; People v. Cox, 106 App. Div. 299, 94 N. Y. Supp. 526; People v. O'Reilly, 129 App. Div. 522, 114 N. Y. Supp. 258; La Follette v. Murray, 81 Ohio St. 474, 91 N. E. 294; State v. Walder, 83 Ohio St. 68, 93 N. E. 531; State v. Bottling Works, 19 N. D. 397, 124 N. W. 387, 26 L. R. A. (N. S.) 872; State v. Ely, 22 S. D. 487, 118 N. W. 687, 18 Ann. Cas. 92; State v. Oliver, 26 W. Va. 422, 427, 53 Am. Rep. 79 (dictum); Pennell v. State, 141 Wis. 35, 123 N. W. 115; United States v. Cohn, 2 Ind. T. 474, 52 S. W. 38; Purity Extract Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184.

Contra: City of Bowling Green v. McMullen, 134 Ky. 742, 122 S. W. 823, 26 L. R. A. (N. S.) 895; Reisenberg v. State (Tex. Cr. App.) 84 S. W. 585; State v. Olson, 95 Minn. 104, 103 N. W. 727; Intoxicating Liquor Cases, 25 Kan. 751, 37 Am. Rep. 284; State v. Virgo, 14 N. D. 293, 103 N. W. 610; State v. Maroun, 128 La. 829, 55 South. 472; Howard v. Acme Brewing Co., 143 Ga. 1, 83 S. E. 1096, Ann. Cas. 1917A, 91.

In Kansas, the Legislature overruled this decision by Laws 1909, c. 164, § 4 (see State v. Trione, supra); in Minnesota, made the prohibition apply to all malt liquors containing as much as 2 of 1 per cent. of alcohol by volume, Laws 1919, c. 455, p. 537; in North Dakota by Laws 1909, c. 187, p. 277 (see State v. Bottling Works, 19 N. D. 397, 124 N. W. 387, 26 L. R. A. [N. S.] 872), the prohibition applied to all liquors which retained "the alcoholic principle"; in Louisiana, Acts 1914, Nos. 146, 211, operated to cut down the per cent. of alcohol to 1.59 (see State v. George, 136 La. 906, 67 South. 956); in Georgia, Acts 1919, p. 123, changed the rule

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coholic, spirituous, vinous or malt liquors, intoxi-
cating bitters or beverages, or other liquors or bev-
erages,
which if drunk to excess will pro-

duce intoxication."
Marks v. State, 159 Ala. 71, 78, 48 South. 864, 867.

(133 Am. St. Rep. 20) stated that "or other liquors
or beverages
which if drunk to excess will
produce intoxication" did not modify or limit the
prohibition of the liquors enumerated. Any un-
intoxicating if drunk to excess.
enumerated liquor, however, must be proved to be

Gen. Laws 1919, Act 7, p. 6, in terms prohibits all liquors containing any alcohol.

2. Arizona: Constitution, art. 23, § 1, prohibits "ardent spirits, ale, beer, wine, or intoxicating liquor, or liquors of whatever kind."

Brown v. State, 17 Ariz. 314, 152 Pac. 578, held that "beer" was prohibited, whether or not it was intoxicating.

3. Arkansas: Acts 1917, Act 13, p. 41, as amended by Acts 1919, Act 87, p. 75, prohibits "any alcoholic, vinous, malt, spirituous, or fermented liquors."

Seibert v. State, 121 Ark. 258, 180 S. W. 990, held that the enumerated liquors are prohibited, whether they are intoxicating or not if they contained any alcohol.

An earlier act contained the words "or other intoxicating liquors," following "or fermented liquors." It was held in Bradshaw v. State, 76 Ark. 562, 89 S. W. 1051, that this clause did not modify the enumerated liquors, and that they were prohibited, whether intoxicating or not.

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4. Colorado: Sess. Laws 1915, c. 98, § 30 (prohibition), as amended by Sess. Laws 1919, c. 141, prohibits "intoxicating liquors • no matter how small the percentage of alcohol they may contain." 42. Hawaii: Rev. Laws 1915, § 2101 (license law). "Intoxicating liquors' shall be held to include spirituous liquors, and any beverage in which may be found any percentage of distilled spirits, spirits, alcohol and alcoholic spirits as defined by the laws of the United States, and any sake, beer, lager beer, ale, porter and malt or fermented or distilled liquors."

5. Idaho: Sess. Laws 1909, p. 18 (local option). "Spirituous, vinous, malt and fermented liquors, and other drinks that may be used as a beverage and produce intoxication." In re Lockman, 18 Idaho, 465, 110 Pac. 253, 46 L R. A. (N. S.) 759, held that the enumerated liquors are within the act whether or not they are intoxicating.

Constitutional amendment of November 7, 1916 (prohibition). Sess. Laws 1917, p. 528. The enforcement laws are cumulative, including Sess. Laws 1915, c. 28; Sess. Laws 1915, c. 11 (see section 23); Sess. Laws 1911, c. 15; and Sess. Laws 1909, p. 18. Thus the definition and interpretation above are retained.

6. Iowa: Code Supp. 1915, § 2382, prohibits "any intoxicating liquor, which term shall be construed to mean alcohol, ale, wine, beer, spirituous, vinous and malt liquor, and all intoxicating liquor whatever."

State v. Intoxicating Liquors, 76 Iowa, 243, 41 N.

(40 Sup.Ct.)

285 states it *is the presence of as much as or more W. 6, 2 L. R. A. 408 (1888), State v. Colvin, 127 Iowa, 632, 103 N. W. 968 (1905), and Sawyer v. Botti, 147 Iowa, 453, 124 N. W. 787, 27 L. R. A. (N. S.) 1007 (1910), held that liquor containing any alcohol whatever is prohibited.

7. Kansas: Laws 1881, c. 128, § 1 (Gen. Stat. 1915, 5498), prohibits "any spirituous, malt, vinous, fermented or other intoxicating liquors."

Intoxicating Liquor Cases, 25 Kan. 751, 37 Am. Rep. 284, held that in every case the question of the intoxicating quality of the beverage must go to the jury.

Laws 1909, c. 164, § 4 (Gen. Stat. 1915, § 5501), amended the act of 1881 as follows: "All liquors mentioned in section 1 of this act shall be construed and held to be intoxicating liquors within the meaning of this act."

State v. Miller, 92 Kan. 994, 142 Pac. 979, L. R. A. 1917F, 238, Ann. Cas. 1916B, 365, and State v. Trione, 97 Kan. 365, 155 Pac. 29, declared that the former case is no longer the law, and that the mere presence of the liquors mentioned makes the substance intoxicating for purposes of the prohibition statutes.

than one-half of 1 per cent. of alcohol; (d) ways for the jury to decide are no longer applicable where liquors are named in the act.

Laws 1917, c. 624, § 2, p. 1835 (city local option law), continues the definition.

13. Ohio: Rev. Stat. 1906, § 4364-9, laid a tax on the business of "trafficking in spirituous, vinous, malt, or any intoxicating liquors.”

La Follette v. Murray, 81 Ohio St. 474, 91 N. E. 294, held that "Friedon beer," a malt liquor containing .47 per cent. of alcohol and not intoxicating was within the statute. State v. Walder, 83 Ohio St. 68, 93 N. E. 531.

Laws 1919, § 6212-15, p. 388 (prohibition). 'Liquor' and 'intoxicating liquors' include any distilled, malt, spirituous, vinous, fermented or alcoholic liquor and also any alcoholic liquid which * capable of being used as a beverage."

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14. South Dakota: Sess. Laws 1890, c. 101, § 6, p. 229 (prohibition). Intoxicating liquors include "all spirituous, malt, vinous, fermented or other intoxicating liquors, or mixtures • that will produce intoxication."

Rev. Pol. Code 1903, § 2834, requires a license to sell "any spirituous, vinous, malt, brewed, ferment

See, also, Laws 1917, cc. 215, 216, "Bone-Dry Pro-ed or other intoxicating liquors." hibition Law."

8. Maryland: Laws 1914, c. 831, § 1, p. 1569 (prohibition in certain counties), forbids "any spirituous, vinous, fermented, malt, or intoxicating liquors, or any mixture thereof containing alcohol for beverage purposes.

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State v. Ely, 22 S. D. 487, 118 N. W. 687, 18 Ann. Cas. 92, held that the liquors named come within the act whether or not they are intoxicating. Rev. Code 1919, § 10237. "Intoxicating liquors' include whisky, alcohol, brandy, gin, rum, wine, ale, beer, absinthe, cordials, hard or fermentLaws 1916, c. 389, § 1, p. 786, prohibits in a certain ed cider, and all distilled, spirituous, vicounty "any kindred preparation or beverage, hav-nous, malt, brewed and fermented liquors, and every ing the appearance and taste of lager beer labeled except those beverages that are stating that the beverage is free of alcohol." See, also, note (d) 9, and note (h). These citations are not exhaustive of the Maryland county prohibition statutes.

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10. Mississippi: Code 1906, § 1746, as amended by Laws 1908, c. 115, p. 116 (Code 1917, § 2086), prohibits the sale of "any vinous, alcoholic, malt, intoxicating or spirituous liquors, or intoxicating bitters, or other drinks, which if drank to excess will produce intoxication."

Fuller v. City of Jackson, 97 Miss. 237, 52 South. $73, 30 L. R. A. (N. S.) 1078; Extract & Tonic Co. v. Lynch, 100 Miss. 650, 56 South. 316. All the enumerated drinks are prohibited whether they contain alcohol or are intoxicating or both or neither. Laws 1918, c. 189, § 1, p. 210, prohibits "spirituous, vinous, malted, fermented, or other intoxicating liquors of any kind."

11. New Mexico: Stats. 1915, § 2874. "All persons who make for sale fermented liquors of any name or description, from malt, wholly or in part, or from any substitute therefor, shall be considered brewSection 2937. "The words 'intoxicating liqinclude all malt, vinous and spiritu

ers." uors'

ous liquors."
Constitutional amendment, proposed by Legis-
lature of 1917, Laws 1917, p. 352, prohibits "ardent
spirits, ale, beer, alcohol, wine or liquor of any
kind whatsoever containing alcohol."

12. New York: Laws 1897, c. 312, § 2, Laws 1903, c. 486, § 2, as amended by Laws 1905, c. 679, § 2, defining intoxicating liquors as "all distilled or rectifed spirits, wine, fermented and malt liquors." People v. Cox, 106 App. Div. 299, 94 N. Y. Supp. 526, held that "malt rose," containing ".74 per cent. of alcohol" and made from malt, was within the meaning of the act.

People v. O'Reilly, 129 App. Div. 522, 114 N. Y. Supp. 258, affirmed 194 N. Y. 592, 88 N. E. 1128, holds that beer comes within the act whether intoxicating or not, and declares that an earlier line of cases holding that the intoxicating quality is al40 SUP.CT.-10

other liquid,
containing alcohol,
which ⚫ is capable of being used as a bev-
erage."

142. United States: 28 Stat. 697, § 8 (Indian Territory prohibition), prohibits "any vinous, malt, or fermented liquors, ог any other intoxicating drinks."

United States v. Cohn, 2 Ind. Ter. 474, 52 S. W. 38, held that the act prohibits all malt liquors whether or not they are intoxicating.

See, also, 39 Stat. 903 (Alaska prohibition), and 39 Stat. 1123 (D. of C. prohibition), both of which prohibit "all malt liquors."

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15. Washington: Code 1912, tit. 267, § 45 (local option). "Intoxicating liquor' shall include whisky, brandy, rum, wine, ale, beer, or any spirituous, vinous, fermented, malt or any other liquor containing intoxicating properties except preparations compounded by a registered pharmacist, the sale of which would not subject him to the payment of the special liquor tax required by the laws of the United States." Sess. Laws 1915, c. 2, § 2 (prohibition). ""Intoxi• shall cating liquor' *

include whisky," etc., (as above) "and all liquids * which contain any alcohol, which are capable of being used as a beverage.' State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A. 1917B, 962.

"

16. Wisconsin: Gen. Stat. 1911, § 1565c (local option). "Any spirituous, malt, ardent, or intoxicating liquors or drinks."

Pennell v. State, 141 Wis. 35, 123 N. W. 115, holds that the statute forbids fermented malt liquors containing alcohol whether intoxicating or not. See, also, Montana, note (g) 2.

Note (d): 1. Connecticut Public Acts 1919, c. 241, p. 2917, defines intoxicating liquors: All beer manufactured from hops and malt or from hops and barley, and all beer on the receptacle containing which the laws of the United States require a revenue stamp to be affixed, * [but shall not include beverages which con

it]

tain no alcohol.

2. Delaware: Laws 1917, c. 10, p. 19 (local option enforcement), defines as follows: All liquid mixtures ⚫ containing so much as 1/2 of 1 per cent. of alcohol by volume shall be deemed liquors and shall be embraced in the word 'liquors' as hereinafter used in this act."

3. Florida: Acts Sp. Sess. 1918, c. 7736, § 7, as

in six states, 1 per cent. of alcohol; (e) in one state, the presence of the "alcoholic prin

amended by Acts 1919, c. 7890, defines intoxicating liquor, which it prohibits, as all beverages containing "1⁄2 of 1 per cent. of alcohol or more by volume."

4. Georgia: Acts Sp. Sess. 1915, pp. 77, 79 (Park's Annotated Code Supplement 1917, Penal Code, § 448 [b]), defines "prohibited liquors" as beer, near-beer, * * and * • beverages containing one-half of 1 per cent. of alcohol or more by volume."

only those malt liquors which were intoxicating were within the meaning of the act.

"'Intoxi

Laws 1919, c. 455, p. 537 (prohibition). cating liquor' and 'liquor' shall include and mean ethyl alcohol and any distilled, fermented, spirituous, vinous or malt liquor or liquid of any kind potable as a beverage, whenever any of said liquors or liquid contain one-half of 1 per cent. or more of alcohol by volume."

10. Missouri: Rev. Stat. 1909, § 7243. "If a mashall be 'against the sale of intoxicating liquors,' it shall not be lawful for any person (to sell)

5. Illinois: Rev. Stat. 1874, c. 43, § 1 ("Dram-jority of the votes shop Act"), defines a dramshop as a place "where spirituous or vinous or malt liquors are retailed and intoxicating liquors shall be deemed to include all such liquors."

any kind of intoxicating liquors or beverage containing alcohol in any quantity whatever." State v. Gamma, 149 Mo. App. 694, 129 S. W. 734; State v. Burk, 151 Mo. App. 188, 131 S. W. 883; State v. Wills, 154 Mo. App. 605, 136 S. W. 25.

Hansberg v. People, 120 Ill. 21, 23, 8 N. E. 857, 858 (60 Am. Rep. 549). Indictment for selling "intoxicating liquors"; proof of selling "beer." The court said: "No evidence whatever was offered or Laws 1919, p. 414, § 15. "The phrases, 'intoxicatadmitted for the purpose of explaining or showing liquor,' or 'intoxicating liquors,' whenever used ing what 'beer' was made of, or what its charac-in this act shall be construed to mean and include teristics were, or whether it was malt, vinous, any distilled, malt, spirituous, vinous, fermented or spirituous or intoxicating." alcoholic liquor, all alcoholic liquids • which contain one-half of 1 per cent. of alcohol by volProvided, however, that when the above mentioned phrases ** •⚫ defined in the laws of the United States, then such definition by Congress shall supersede and take the place of the definition in this section."

Laws 1919, p. 931 (Search and Seizure Law). "'Intoxicating liquor or liquors' shall include all distilled, spirituous, vinous, fermented or malt liquors which contain more than one-half of 1 per cent. by volume of alcohol."

6. Indiana: Rev. Stat. 1881, § 2094. "Whoever sells * any spirituous, vinous, malt, or other intoxicating liquors." Kurz v. State, 79 Ind. 488, 490. "It devolves on the state, therefore, to prove that the beer sold was either a malt liquor or that it was, in fact, an intoxicating liquor."

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Laws 1911, c. 119, § 29 (Saloon Regulation Act). "The words 'intoxicating liquors' shall apply to any spirituous, vinous or malt liquor, or to any intoxicating liquor whatever, which is used as a beverage and which contains more than onehalf of 1 per cent. of alcohol by volume." Laws 1917, c. 4, § 2 (Prohibition Act). "The words 'intoxicating liquor' as used in this act shall be construed to mean all malt, vinous, or spirituous liquor, containing so much as one-half of 1 per cent. of alcohol by volume."

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7. Maine: Rev. Stats. 1916, c. 127, § 21 (Prohibition Act), declares "wine, ale, porter, strong beer, lager beer, and all other malt liquors, and cider when kept or deposited with intent to sell the same for tippling purposes, * are declared intoxicating within the meaning of this chapter." State v. Frederickson, 101 Me. 37, 63 Atl. 535, 6 L. R. A. (N. S.) 186, 115 Am. St. Rep. 295, 8 Ann. Cas. 48, holds that cider comes within the act, whether or not it is in fact intoxicating.

State v. Piche, 98 Me. 348, 56 Atl. 1052, holds that in case of a liquor not enumerated the jury must find the question of intoxicating quality.

Laws 1919, c. 235, § 21, prohibits "as well as any beverage containing a percentage of alcohol, which by federal enactment, or by decision of the Supreme Court of the United States, now or hereafter declared, renders a beverage intoxicating."

8. Maryland: Laws Extra Session 1917, c. 13, § 1 (prohibition in Prince George county). "Malt liquors shall be construed to embrace porter, ale, beer and all malt or brewed drinks whether intoxicating or not containing as much as one-half of 1 per cent. of alcohol by volume; that the words 'intoxicating liquors' shall embrace both spirituous liquors and malt liquors and all liquid mixtures * containing so much as one-half of 1 per cent. of alcohol by volume." See, also, note (c) 3, and note (h).

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9. Minnesota: Gen. Stat. 1913, § 3188, and Gen. Stat. Supp. 1917, § 3161, provide that "the terms 'intoxicating liquor' and 'liquor' shall include distilled, fermented, spirituous, vinous, and malt liquor."

State v. Gill, 89 Minn. 502, 95 N. W. 449, held that
Note (e): See note (e) on following page.

ume:

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11. Nebraska: Cobbey's Compiled Stats. 1907, § 7161, forbids the sale of "malt, spirituous, or vinous liquors or any intoxicating drinks" without a license.

Luther v. State, 83 Neb. 455, 120 N. W. 125, 20 L.. R. A. (N. S.) 1146, holds that all malt liquors fall within the meaning of the statute whether or not they are intoxicating.

which

Laws 1917, c. 187, § 1 (prohibition). "'Intoxicating liquors' ✦ ✦ • embrace all malt, fermented, vinous or spirituous liquors, wine, porter, beer, ale, or any intoxicating drink, and all malt or brewed drinks, and all mixtures will produce intoxication, and, in addition thereto, such liquors of a different character and not hereinbefore enumerated capable of use as a beverage containing over one-half of 1 per cent. of alcohol.” 12. Nevada: Laws 1919, c. 1, § 1 (prohibition). "The word 'liquors' brace all malt, vinous or spirituous liquors, wine, porter, ale, beer or any other intoxicating drink, • and all malt or brewed drinks, whether intoxicating or not, shall be deemed malt liquors within the meaning of this act; and all beverages containing so much as one-half of 1 per cent. of alcohol by volume, shall be deemed spirituous liquors." State v. Reno Brewing Co., 42 Nev. 397, 178 Pac. 902.

shall

em

13. Oklahoma: Sess. Laws 1913, c. 26, § 6 (prohibition), defines intoxicating liquors as "spirituous vinous, fermented or malt liquors * or any liquors which contain as much as one-half of 1 per cent. of alcohol measured by volume." See Laws 1917, c. 186.

Estes v. State, 13 Okl. Cr. 604, 166 Pac. 77, held that the state to secure conviction for violation of the act must prove either that the liquor contained more than one-half of 1 per cent. of alcohol or that it was in fact intoxicating.

14. Oregon: Laws 1905, c. 2 (local option), used only the term "intoxicating liquors."

State v. Carmody, 50 Or. 1, 91 Pac. 446, 1081, 12 L. R. A. (N. S.) 828, held that the court will judicially recognize that "beer" is intoxicating in an indictment for selling "intoxicating liquors." Laws 1915, c. 141, § 2, p. 151. "'Intoxicating liquor' * embrace all spirituous, malt, vinous, fermented or other intoxicating liquors; and all mixtures which shall contain in excess of one-half of 1 per cent. of alcohol by volume, shall be deemed to be embraced within such term, independently of any other test of their intoxicating character."

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15. Tennessee:

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Acts 1917, c. 4, p. 6 (Ann. Code,

(40 Sup.Ct.)

ciple"; (f) and in two states, 2 per cent. of al

1918, § 6798a34). Clubs, etc., may not have on their premises any liquor "containing more than onehalf of 1 per cent. of alcohol."

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16. Utah: Laws 1911, c. 106, § 2; Laws 1913, c. 81, uors, or rectified spirits; vinous, fermented, brew§ 2 (license laws). "Any spirituous, vinous, fer- ed and malt liquors; and any beverage mented or malt liquor that may be used as a bev-containing more than 1 per cent. of alcohol, by erage and produce intoxication."

Laws 1917, c. 2, § 2 (prohibition). "'Liquors' embrace all fermented, malt, vinous or spirituous liquors, alcohol, wine, porter, ale, beer, absinthe, or any other intoxicating drink, * and all malt or brewed drinks; and all liquids which will produce intoxication; and all beverages containing in excess of one-half of 1 per cent. of alcohol by volume."

17. Virginia: Code 1887, § 587 (local option). "Any wine, spirituous or malt liquors, or any mixture thereof."

Savage v. Com., 84 Va. 582, 619, 5 S. E. 563, 565, held that a sale of "ginger extract" in order to be illegal requires the proof that the extract is intoxicating.

Acts 1916, c. 146, § 1, p. 216. "Ardent spirits embrace alcohol, brandy, whisky, rum, gin, wine, porter, ale, beer, all malt liquors, absinthe and all compounds, • and all beverages containing more than one-half of 1 per cent. of alcohol by volume."

volume."

Laws 1917, c. 147, § 60 (prohibition). "By the words spirit, liquor, spirituous liquor, intoxicating liquor • [is meant] all distilled liquors or rectified spirits; vinous, fermented, brewed and malt liquors; and any beverage * containing more than 1 per cent. of alcohol, by vol

ume."

4. South Carolina: Rev. Stat. 1893, Crim. Stat. § 437; Code 1902, Crim. Code, § 555; Code 1912, Crim. Code, § 794-prohibit any spirituous, malt, vinous, fermented, brewed or other liquors and beverages, or any compound or mixture thereof which contain alcohol.

Acts 1917, No. 94, § 1, prohibits "any spirituous, malt, vinous, fermented, brewed, or other liquors and beverages or any compound or mixture thereof, which contains alcohol in excess of 1 per cent." 5. Vermont: Rev. Laws 1880, § 3800, prohibited the sale of cider at places of amusement.

State v. Spaulding, 61 Vt. 505, 17 Atl. 844, held that the prohibition covered all cider whether in

Laws 1902, No. 90, § 1, p. 94 (Gen. Laws 1917, § 6452). "Intoxicating liquors' shall mean and ale, porter, beer,. lager beer, cider, all wines, any beverage which contains more than 1 per cent. of shall be alcohol by volume."

18. West Virginia: Code 1860, c. 32, § 1, as amend-toxicating or not. ed by Acts 1877, c. 107 (Code 1913, § 1113), prohibits the sale of "spirituous liquors, wine, porter, ale, beer, or any drink of a like nature all mixtures · known as 'bitters' • which will produce intoxication deemed intoxicating liquors." State v. Oliver, 26 W. Va. 422, 427, 53 Am. Rep. 79, in a dictum declares that beer is prohibited, whether it is intoxicating beer or not.

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Code 1906, c. 32, § 1, is substantially the same. "State v. Henry, 74 W. Va. 72 [81 S. E. 569], on indictment for selling 'intoxicating liquors,' held that evidence of sale of 'bevo' containing 1.31 per cent. of alcohol sufficient to sustain a conviction." Acts 1913, c. 13, § 1 (Code 1913, § 1280). ''Liquors'

• embrace all malt, vinous or spirituous liquors, wine, porter, ale, beer or any other intoxicating drink, and all malt or brewed drinks, whether intoxicating or not, shall be deemed malt liquors, .. and all beverages containing so much as one-half of 1 per cent. of alcohol by volume."

Note (e): 1. California: Stat. 1911, c. 351, § 21 (local option and license). "Alcoholic liquors' • include spirituous, vinous and malt liquors, and any other liquor which contains

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1 per cent." of alcohol or more.

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6. Wyoming: Comp. Stat. 1910, § 2838. "Any person who shall sell * any liquors, either spirituous, vinous, fermented or malt witha license," etc. Sess. Laws 1919, c. 25, § 2 (prohibition). "'Intoxicating liquor' . • include any distilled malt, spirituous, vinous, fermented or alcoholic liquor and all alcoholic liquids capable of being used as a beverage, which shall contain more than 1 per cent. of alcohol."

Note (f): North Dakota: Rev. Code 1895, § 7598, contains a proviso to the effect that fermented and alcoholic liquors containing less than 2 per cent. of alcohol by volume shall not be deemed to be intoxicating.

Laws 1897, c. 65, § 10, subd. 25. "Courts will take judicial notice that beer is a malt liquor and intoxicating."

State v. Currie, 8 N. D. 545, 80 N. W. 475 (1899), held that the statute meant that beer is to be presumed to be intoxicating until proved not to be so. Rev. Code 1899, § 7598, prohibits "all spirituous, People v. Strickler, 25 Cal. App. 60, 142 Pac. 1121, malt, vinous, fermented, or other intoxicating liqheld that the clause "and any other liquor uors or mixtures thereof, ⚫ that will prowhich contains 1 per cent. or more, of alcohol" duce intoxication, • sold liquors modified the enumerated liquors, so that a malt which shall contain liquor containing less than 1 per cent. of alcohol amyl alcohol," and not intoxicating did not fall within the act.

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2. Massachusetts: Rev. Laws 1902, c. 100, § 2 (local option and license). "Ale, porter, strong beer, lager beer, cider, all wines, any beverage which contains more than 1 per cent. of alcohol by volume shall be deemed to be intoxicating." Com. v. McGrath, 185 Mass. 1, 69 N. E. 340, held that cider fell within the act whether it contained 1 per cent. of alcohol or was intoxicating or neither.

Com. v. Blos, 116 Mass. 56, held that a liquor not enumerated in the statute is not prohibited unless it falls within the general definition which is a question for the jury.

Rev. Laws Supp. 1908, c. 100, § 1, retains the same definition.

3. New Hampshire: Gen. Laws 1878, c. 109, § 15, restricted the sale of "lager beer or other malt liq

uors."

State v. Thornton, 63 N. H. 114, held that all malt liquors come within the meaning of the act whether or not they are intoxicating.

Supp. to Pub. Stat. and Sess. Laws 1901-1913, p. 7, defines intoxicating liquors as "all distilled liq

etc.

or any

• • as a beverage and
methyl alcohol,

State v. Virgo, 14 N. D. 293, 103 N. W. 610 (1905), held that the act only applied to such liquors as were in fact intoxicating.

Laws 1909, c. 187, p. 277. Intoxicating liquors include alcohol, brandy, rum, beer, ale, porter, wine, and hard cider, also all spirituous, malt, etc., liquors, which will produce intoxication in any degree, or any mixture of such or any kind of beverage whatsoever which while preserving the alcoholic principle or any other intoxicating quality may be used as a beverage and may become a substitute for the ordinary intoxicating beverages.

State v. Fargo Bottling Works, 19 N. D. 397, 124 N. W. 387, 26 L. R. A. (N. S.) 872, held that "Purity Malt" containing 1.75 per cent. of alcohol preserved "the alcoholic principle" and whether or not it was intoxicating it might not lawfully be

sold.

Note (g): 1. Louisiana: Shreveport Ice Co. v. Brown, 128 La. 408, 54 South. 923, held that a statute regulating the sale of "spirituous and intoxicating liquors" includes only intoxicating liquors.

Acts 1910, No. 171, § 1, defines "grog-shop" as a

*287

cent. of alcohol by weight or volume is deem- sions of the courts as well as the action of the ed, for the purpose of regulation or prohibi- Legislatures make it clear or, at least, fur*289 tion, intoxicating as a *matter of law. Only one state has adopted a test as high as 2.75 per cent. by weight or 3.4 per cent. by volume.(h) Only two states permit the question of the intoxicating character of an enumerat-cating liquors.(k)

*288

ed liquor to be put in issue.(1) In *three other states the matter has not been made clear either by decision or legislation.(j) The deci

place where "intoxicating, spirituous, vinous, or malt liquors are sold" (and forbids them in prohibition territory).

State v. Maroun, 128 La. 829, 55 South. 472, held that the malt liquors must be intoxicating to be

within the meaning of the statute.

Acts 1914, No. 146, repeats a similar definition of grog-shop or blind tiger. Acts 1914, No. 211, for

bids the manufacture of near-beer with more than

1.59 per cent. of alcohol by weight or 2 per cent. by volume, and prohibits the sale of the near-beer thus made under the same roof where any other beverage is sold.

State v. George, 136 La. 906, 67 South. 953, seems to hold that this near-beer may be sold in prohibition territory where the "grog-shops" are not al

lowed.

nish ground upon which Congress *reasonably might conclude that a rigid classification of beverages is an essential of either effective regulation or effective prohibition of intoxi

Purity Extract Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184, determined that state legislation of this character is valid

*290

and set forth with clearness the constitutional ground upon which it rests:

"When a state exerting its recognized authority undertakes to suppress what it is free to regard as a public evil, it may adopt such measures having reasonable relation to that end as it may deem necessary in order to make its action effective.

cause

*291

It does not follow that be

*292

a transaction separately considered is innocuous it may not be included in a prohibition the scope of which is regarded as essential in the legislative judgment to accomplish a *purpose within the admitted power of the government." 226 U. S. 201, 33 Sup. Ct. 46, 57 L. Ed. 184. "It was competent for the Legisrum, wine, ale, and any spirituous, vinous, fer-lature of Mississippi to recognize the difficulties mented, or malt liquors • or liquid besetting the administration of laws aimed at which contain as much as 2 per cent. of alcohol by *293 volume and which is capable of being used as a beverage."

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2. Montana: Laws 1917, c. 143, § 2. 'Intoxicating liquors'

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include whisky, brandy, gin,

State v. Centennial Brewing Co., 55 Mont. 500, 179 Pac. 296, holds specifically mentioned liquors prohibited regardless of alcoholic content.

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Note (h): Rhode Island: Pub. Laws 1887, c. 634, § 2. "'Intoxicating liquors' include ale, wine, rum, or other strong or malt liquors, or any liquor or mixture of liquors which shall contain more than 2 per cent. by weight of alcohol" and this is not to be construed to permit the sale of liquors containing less than 2 per cent. if intoxicating.

Public Laws 1919, c. 1740, § 1 (amending Gen. Laws, c. 123, § 1). "Nonintoxicating beverages' as used in this act, includes and means all distilled or rectified spirits, wines, fermented and malt liquors which contain one per centum and not more than four per centum by weight of alcohol.

"Sec. 2. No person shall manufacture or sell or suffer to be manufactured or sold, or keep or suffer to be kept on his premises or possessions or under his charge for the purposes of sale and delivery, any nonintoxicating beverages, unless hereinafter provided."

as

"Sec. 5. The electors of the several cities and towns ⚫ • shall cast their ballots for or against the granting of licenses for the sale of nonintoxicating beverages pursuant to this act.

Maryland: Laws 1918, c. 219, p. 580 (prohibiting at night the sale of intoxicating liquors to be carried away from the place of sale), expressly excludes from the operation of the act "malt liquors containing less than 4 per cent. of alcohol by weight."

This provision, however, is not attempting to make a classification of intoxicating liquors. For laws of this state which do that see note (c) 7, and note (d) 9.

Note (i): 1. Kentucky: Statutes 1903, § 2560, as amended by Laws 1906, c. 21, forbids the sale in dry territory of "spirituous, vinous cr malt liq

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the prevention of traffic in intoxicants. It prohibited, among other things, the sale of 'malt liquors.' In thus dealing with a class of beverages which in general are regarded as intoxicating, it was not bound to resort to a discrimination with respect to ingredients and pro

*294

cesses of manufacture which, in the endeavor
to eliminate innocuous beverages from the con-
demnation, would facilitate subterfuges and
frauds and fetter the enforcement of the law.
A contrary conclusion logically pressed would
save the nominal power while preventing its
effective exercise." 226 U. S. 204, 33 Sup. Ct.
*295
"The state, *within the lim-

47, 57 L. Ed. 184.
medicated bitters" capable of producing intoxica-
tion.

Ex parte Gray (Tex. Cr. App.) 83 S. W. 828, and Reisenberg v. State (Tex. Cr. App.) 84 S. W. 585, held that nonintoxicating malt beverages may be sold without a license.

Gen. Laws 1918, c. 24 (prohibition), uses the same terms as the older statute and is cumulative, so presumably it has the same meaning.

3. Louisiana: See note (f) 1. The test of 2 per cent. applies only to near-beer. Presumably a vinous liquor must be proved intoxicating in fact under the decisions.

Note (j): 1. New Jersey: Laws 1918, c. 2, § 1 (local option). "The term 'intoxicating liquor' shall mean any spirituous, vinous, malt, brewed, or any other intoxicating liquor." No interpretations.

2. North Carolina: Sp. Sess. 1908, c. 71, § 1, prohibits the sale of "any spirituous, vinous, fermented, or malt liquors, or intoxicating bitters."

Pub. Laws 1909, c. 438, Schedule B, §§ 26, 63, imposed a license tax on the sale of near-beer or any drinks containing one-half of 1 per cent. alcohol or

more.

Parker v. Griffith, 151 N. C. 600, 66 S. E. 565, and State v. Danenberg, 151 N. C. 718, 66 S. E. 301, 26 L. R. A. (N. S.) 890, held that the sale of nearbeer containing 1 per cent. of alcohol was lawful.

3. Pennsylvania: No definition.
Note (k): See note (b), supra.

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