r JMIZIL 19*0 THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW Gift of binder -Moss Co. LIQUOR PROHIBITION BY ARCHIBALD DOUGLAS DABNEY, B. L. 'M Judge of the Corporation Court, Charlottesville, Virginia ; formerly Commonwealth's Attorney, United States Commissioner, and a member of the Editorial Staff of The Michie Company, Law Publishers The Michie Company, Law Publishers Charlottesville, Virginia 1920 COPYRIGHT, 1920 BY THE MICHIE COMPANY T PREFACE. This book is not a treatise on the Prohibition of Intoxicating Liquors, but a mere collation of the decisions construing swch statutes. It is intended to arrange these decisions in as logical a man- ner as possible with reference to the various provisions of the National Prohibition Act, and to so digest them as to give a ready reference to the reported cases. In the endeavor to finish the book as quickly as possible after the law became effective, most valuable assistance was given by Mr. James F. Minor, author of Minor on Workmen's Com- pensation Laws, and by Mr. Homer Ritchey, author of Ritchey on Federal Employers' Liability Act, both of the Charlottes- ville, Virginia bar, to each of whom grateful appreciation is given. A. D. DABNEY. 67OK87 Table of Cases Cited Aaron v. State, 18 Ariz. 378, 161 Pac. 881 121, 336, 339 Abbott v. State, 11 Ga. App. 43, 74 S. E. 621 87, 410, 458 Acme Brewing Co., v 91 175 Adams Exp., Commonwealth v 154 Adams Exp. Co. v. Commonwealth, 154 Ky. 462, 157 S. E. 908, 48 L. R. A., N. S., 3'42 118 Adams Exp. Co. v. Commonwealth, 160 Ky. 66, 169 S. W. 603 130 155 Adams Exp. Co. v. Commonwealth, 174 Ky. 296, 192 S. W 56 313 Adams Exp. Co. v. Commonwealth, 177 Ky. 159, 197 S. W. 630 380 Adams Exp. Co. v. Commonwealth, 177 Ky. 449, 197 S. W. 957 239, 452 Adams Exp. Co. v. Commonwealth, 178 Ky. 59, 198 S. W. 556. 351, 31 Adams Exp. Co. v. Commonwealth, 182 Ky. 748, 207 S. W. 482, 483 284 Adams Exp. Co. v. New York, 232 U. S. 14, 30, 34 Sup. Ct. 203, 58 L. Ed. 483 90 Adams Exp. Co. v. Young, 184 Ky. 49, 211 S. W. 407 330 Advertiser Co. v. State, 193' Ala. 418, 69 So. 501 162 Advertiser Co., State v 164 Agalos, State v 86, 212, 355 Ahart, Ex parte 138, 239 Ahern, Commonwealth v 447 Ah Sin r. Wittman, 198 U. S. 500, 504, 25 Sup. Ct. 756, 49 L. Ed. 1142, 1144 61 Alderete, Ex parte 196 Alderman, State v 120 326 Alexander v. State (Tex. Cr. App.), 204 S. W. 644, 645 113, 260, 313', 327, 415 Allen, People v 327 351, 411 Allen, State v 275 Allison v. Hern, 102 Kan. 48, 169 Pac. 187 229 Allison v. State, 1 Ala. App. 206, 55 So. 453 288, 356, 398, 403, 407 Allison v. State (S. D.), 167 N. W. 402 252 Allston, State v 122 Alton r. Salley (Mo.), 215 S. W. 241 173, 459 vi TABLE OF CASES CITED American Exp. Co. v. Commonwealth, 171 Ky. 1, 186 S. W. 887 124, 138, 161, 400 Amonett v. State (Tex. Cr. App.), 204 S. W. 438.. 3O6, 360, 361, 375, 456, 460 Andalousia, Flagin v 86, 413 Anderson v. Daugherty, 137 Tenn. (10 Thompson) 125, 191 S. W. 974 196 Anderson, Dutton v 176, 193 Anderson v. Fant (S. C.) r 79 S. E. 640.. 641 97 Anderson, Legg v 193 Anderson, McMillan v 448 Anderson v. State, 20 Ga. App. 747, 93 S. E. 237 S'64 Anderson v. State, 109 Miss. 521, 68 So. 770 114 Argo, People v 374 Armington & Sons v. State (Ga. App.), 100 S. E. 15 228, 459 Arsenault, State v 238, 241, 283 Atchison, etc., R. Co. v. Danciger v 233 Atchison, etc., R. Co., De Hasque v 141 Atlanta, Lumpkin v 88, 344 Atlanta, Pitts v 444 Atlanta, Shaw v 435 Atlantic Coast Line R. Co., Greer Drug Co 81 Atwell, Gunn v 231 Atwood, Green v 73, 74 Atwood, State v 317 Augusta, Du Vail v 344 Autrey v. State (Ga. App.), 99 S. E. 389 322, 325, 359,440 Autrey v. State, 18 Ga. App. 13, 88 S. E. 715 446 Avicolli, State v 397 B Babbitts. Corrigan, 157 la. 382, 138 N. W. 466 186 Baca v. State, 18 Ariz. 350, j.61 Pac. 686 277, 452 Bachtold, State v 244, 449 Bacot v. State, 94 Miss. 225, 48 So. 228, 21 L. R. A., N. S., 524n 377 Bailey, State v 343, 347 Bain v. State, 76 Tex. Cr. App. 519, 176 S. W. 563 114 Baldwin, State v 286, 289, 290, 291, 329, 378, 392, 445 Balfe v. People (Colo.), 179 Pac. 137 205, 206, 238, 245, 378 Baltimore, etc., R. Co., State v 173, 179, 184 Banks v. State (Ind.), 123 N. E. 691 133 Barber v. Buonanni Co., 179 la. 642, 161 N. W. 688, 689..... 189, 433 Barber v. City Drug Store, <17S la. 651, 155 N. W. 992.. 190, 191, 194 Barber v. Dapolonia (Ga.), 171 N W. 586 187 Barbour v. Georgia, 249 U. S. 454, 39 Sup. Ct. 316 63 TABLE OF CASES CITED vii Barbour v. State, 146 Ga. 667, 668, 92 S. E. 70 131 Barbour v. State (Ga. App.), ;99 S. E. 782 299, 300, 309, 329 Bare v. Commonwealth, 122 Va. 783, 94 S. E. 168, 169.. 304, 3'40, 411 Barksdale v. State '(Ga. App.), 100 S. E. 771 325 Barnhill v. State, 74 Tex. Cr. App. 97, 167 S. W. 348 454 Barr, State v 85, 364, 379 Bartemeyer v. Iowa, 18 Wall. 29, 21 L. Ed. 929 60, 62, 63 Bartow, State v E41, 249 Bass Pub. Co., State v 96, 164 Bates, State v 239 Batten v. Smarley, 168 la. 362, 150 N. W. 583 188 Battle v. State, 6 Ga. App. 578, 65 S. E. 333 139 Baumgartner v. State (Ariz.), 178 Pac. 50 115, 302, 354, 363, 462 Baumgartner, United State v 75, 85, 89, 270 Baxter v. Chattanooga Brewing Co. (Ala.), 82 So. 16 117 Beaty v. State, 7 Ga. App. 327, 66 S. E. 808 387 Becker, State v 265 Beer Co. v. Massachusetts, 97 U. S. 25, 33, 24 L,. Ed. 989 60, 63 Begley v. Commonwealth, 176 Ky. 796, 197 S. W. 448 353 Beiser v. State, 9 Ala. App. 72, 63 So. 685 137 Belchner v. State (Okla. Cr. App.), 183 Pac. 925 445 Belden & Co. v. Leisy Brewing Co., 161 C. C. A. 420, 249 Fed. 462 104 Bell, People v 146 Belton, Felia v 233 Benevolent and Protective Order of Elks, Davidson v 189, 192 Benjamin v. Montgomery (Ala. App.), 81 So. 145 356 Benton, Hathaway v 174, 175, 177 Benton v. State, 9 Ga. App. 422, 71 S. E. 498 343 Berger, State v 240 Berner -v. McHenry, 169 La. 483, 151 N. W. 450 152 Berry v. State (Tex. Cr. App.), 203' S. W. 901 371, 416, 417 Berryman v. United States (C. C. A.), 259 Fed. 208 129, 453 Biandi v. United States (C. C. A.), 259 Fed. 93 399, 400 Biegelow, Marston v 348 Billingsley v. State, 4 Okla. Cr. App. 597, 113' Pac. 241 382 Billinggsey, State v 306, 378, 389, 408, 426 Bird v. Sears (la), 173 N. W. 925 oSO, 449, 454 Bird v. State (Tex. Cr. App.), 206 S. W. 844.. 240, 306, 367, 368, 369, 441 457 Birmingham, Borok v 428 Birmingham, Flowers v 324, 327, 418, 419,426 Bishop v. State, 18 Ga. App. 714, 90 S. E. -369 328, 383, 384 Bishop v. United States (C. C. A.), 259 Fed. 195 127, 362, 380, 451 Black v. Delaye, 193 vAla. 500, 68 So. 99, L. R. A. 1915E, 640. 60, 62, 65, 163, 185 viii TABLE OF CASES CITED Black v. Southern Exp. Co. (Ala.), 75 So. 343 66 Black v. State, 75 Neb. 603, 106 N. W. 787 197 Blackburn v. State, 79 Tex. Cr. App. 446, 385 S. W. 581 102, 110 Blackman v. United States, 162 C. C. A. 519, 520 Fed. 449 323 Blackwell, State v 33'4 Blair v. 'Commonwealth, 122 Va. 798, 94 S. E. 185 263 Blakely, Sawyer v 448 Blauntic, State v 203, 419, 421 Bledsoe v. Jackson, 16 Ga. App. 479, 85 S. E. 676 436 Bloodworth v. Milledgeville, 12 Ga. App. 560, 79 S. E. 131 391 Bluthenthal v. Kennedy, 165 N. C. 372, 81 S. E. 337 73 Bodecker, State v 265 Bondurant v. State, 14 Okla. Cr. App. 38, 171 Pac. 488 378 Bonner v. State, 2 Ga. App. 711, 58 S. E. 1123 396 Boos v. State, 181 Ind. 562, 105 N. E. 117 108 Booth v. Illinois, 184 U. S. 425, 22 Sup. Ct. 425, 46 L. Ed. 623.. 61 Borders v. Macon, 18 Ga. App. 333, 89 S. E. 451 392, 419, 420, 421 Borok v. Birmingham, 191 Ala. 75, 67 So. 389, Ann Cas. 1916C 1061 428 Bossingham, State v 174 Bowers v. Maas, 154 la. 640, 135 N. W. 25 183, 186, 335 Boynton, State v 304, 383', 403 Bracy v. Commonwealth, 119 Va. 867, 89 S. E. 144 281, 411 Braden v. State (Okla. Cr. App.), 181 Pac. 736 325 Bradford, State v 239 Bradley, State v 132, 3'42, 3"43, 844, 425 Bradley v. United States (C. . A.), 254 Fed. 289 451 Bragg v. State, 15 Ga. App. 623, 630, 84 S. E. 82 419, 455 Bragg v. State (Ga. App.), 99 S. E. 310 109 Brantley v. State, 107 Miss. 466, 65 So. 512 114 Brantly v. State, 91 Ala. 17, 8 So. 816 413 Braxton v. State (Ala. App.), 82 So. 657 373,443 Bray v. Commerce, 5 Ga. App. 605, 63 S. E. 596 347, 348, 456 Brenneman, Northern, etc., Co. v 221 Bridgeforth v. State (Ala. App.), 77 So. 77 389 Bridgeforth v. State, 15 Ala. App. 502, 74 So. 402 112 Brigman v. State, 8 Ala. App. 400, 62 So. 980 391, 419, 458 Brittain v. State (Civ. Cr. App.), 214 S. W. 351 271 Brokhaus v. State, 11 Okla. Cr. App. 625, 150 Pac. 510 396 Bronanni Co., Barber v 43'3 Brookins, Seattle v 390 Brooks v. State, 19 Ga. App. 3, 90 S. E. 989.. 205, 293, 301, 302, 303, 413 Brooks v. State, 19 Ga. App. 45, 90 S. E. 971 299 Browder v. State (Okla. Cr. App.), 180 Pac. 571 453 Brown, Herbring v 59 TABLE OF CASES CITED ix Brown v. State (Ala. App.), 81 So. 366 132 Brown v. State, 17 Ariz. 314, 152 Pac. 518 74, 82, 91, 140 Brown v. State, 8 Ga. App. 691, 70 S. E. 40 273 Brown, State v 266 Browning, Zamata v 69 Buchanan, Cheatwood v 347 Buckman, State v 146 Bucks Stove Co., Gompers v 197 Bullard v. United States, 158 C. C. A. 177, 254 Fed. 837.. 297, 305, 315 Bullock, People v 133', 377 Bundy v. State (Okla. Cr. App.), 184 Pac. 795 273, 329, 407 Bunker, State v 33'4 342 Buonanni Co., Barber -v 189 Burchfield, State v 116 Burgan i: State (Ga. App.), 99 S. E. 636 224, 230, 279, 329 Burnham, Cox v 96 Burr, National Mason Acci. Ass'n v 3'48 Burton v. Commonwealth, 122 Va. 847, 94 S. E. 923 72, 277, 314 Burton v. State (Ark.), 206 S. W. 51 125, 126 Busick, State v 115, 268, 403, 404 Butler v. State, 12 Okla. Cr. App. 530, 159 Pac. 1090 3'41 Butler, State v 292, 319, 323, S36, 382, 401, 402, 449, 453 Butler v. Washington, 11 Ga. App. 133, 74 S. E. 858 431 Butterfield v. United States, 154 C. C. A. 332, 241 Fed. 556 65 C Caffee v. State, 11 Okla. Cr. App. 485, 148 Pac. 680 334, 336, 337 Caffini v. Hermann, 112 Me. 282, 91 Atl. 1009 209, 279 Cage v. State, 11 Ga. App. 318, 75 S. E. 160 431, 440 Cagle v. State, 106 Miss. 370, 63 So. 672 458 Calhoun v. State, 144 Ga. 679, 87 S. E. 893 388 California, Murphy v 61 Calliari, People v 322, 397 Campbell, Crane v 60, 61, 214 Campbell v. State (Ala. App.), 78 So. 715 334, 429 Campbell v. Thomasville, 6 Ga. App. 212, <4 S. E. 815 87 Canales v. State (Tex. Cr. App.), 215 S. W. 964 375, 431 Cannington v. State, 14 Ga. App. 814, 82 S. E. 356 456 Canode, Cartwright v 212 Cardwell, State v 104, 287, 362 Carl v. State, 87 Ala. 17, 6 So. 118, 4 L. R. A. 380 413 Carleton v. State, 129 Ark. 361, 196 S. W. 124 345 Carmichael -v. State, 11 Ala. App. 209, 65 So. 694 447 Carrico v. State (Okla. Cr. App.), 180 Pac. 870 452 Carson v. State, 3 Ala. App. 206, 58 So. 88 96, 366, 459 Carswell v. State, 7 Ga. App. 198, 66 S. E. 488 84, 435 x TABLE OF CASES CITED Carter v. Commonwealth, 123 Va. 810, 96 S. E. 766.... 315, 334, 335 Carter v. State, 68 Ga. 96 264 Carter v. State, 21 Ga. App. 493', 94 S. E. 630 438 Cartwright v. Canode, 106 Tex. 502, 171 S. W. 696 212 Cartey v. State, 135 Ark. 169, 204 S. W. 207 280 Cashin v. State, 18 Ga. App. 87, 88 S. E. 996 243 Caskey, State v 386 Cassidy v. Howard, 140 Ga. 844, 80 S. E. 1 192 Cassidy v. State, 10 Ga. App. 123, 72 S. E. 939 281 Castle v. Lewis (C. C. A.), 254 Fed. 917, 918 280, 337, 452 Cathey, State v 208, 401 Cedarto wn, Morgan v 347 Centennial Brewing Co., State v 80, 83, 87, 93 Cerecedo Hermanos y. Compania, United States v 90 Ceresa, State v 397, 398 Certain Appurtenance Used in Sale of Intoxicating Liquors, State v 219 Certain Intoxicating Liquors, State v 71, 13'6, 217,228 Chambeilain, State v 147 Chance v. State (Tex. Cr. App.), 210 S. W. 208, 209 296, 305 Charles Blum Co., Christopher v 107 Chatanooga Brewing Co., Baxter v 117 Cheatwood v. Buchanan, 9 Ga. App. 828, 72 S. E. 284 347 Cheek v. State, 3' Ala. App. 646, 57 So. 108 210, 400, 429 Cheek v. State, 14 Ala. App. 44, 70 So. 990 428 Chicago, etc., R. Co. v. Lake County, etc., Sav. Co., 186 Ind. 358, 362, 114 N. E. 454 432 Chicago, etc., R. Co., State v 174 Chicco, State v 183 Christensen, Crowley v 60, 62 Christopher v. Charles Blum Co. (Fla.), 82 So. 765 107 Chronister v. State (Ark.), 215 S. W 634 250, 288 Cihok v United States, 146 C. C. A. 509, 232 Fed. 551 414 Cipra, State v 172 City Club, Lyon -v 88 City Drug Store, Barber v 190, 191, 194 Civic Improv. v. Hanson, 181 la. 327, 164 N. W. 752 175 Clancy, State v 235 Clark v. Norfolk, etc., R. Co. (W. Va.), 100 S. E. 480 208 Clark v. State, 5 Ga. App. 605, 63 S. E. 606 415 Clark v. State, 74 Tex. Cr. App. 464, 169 S. W. 895 419, 421 Clark, State v 3'45, 414, 455 Clark Distilling Co. v. Western Maryland R. Co., 242 U. S. 311, 321, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B, 1218n, Ann. Cas. 1917B, 845 60, 61, 65, 68, 464, 465 Claunch v. State (Tex. Cr. App.), 203' S. W. 981 66, 93 TABLE OP CASES CITED xi Clifford, State v 324 Clopton v. Commonwealth, 190 Va. 831, 63 S. E. 1022 259, 264, 273 1 Coates v. State, 5 Ala. App. 182, 59 So. 323 419 420, 461 Coates v. State (Tex. Cr. App.), 215 S. W. 856 85, 329, 355 Cochran v. Commonwealth, 122 Va. 801, 94 S. E. 329.. 140, 248, 314, 425, 448 Cochran v. State (Ala. App.), 82 So. 560 99 Cockran v. State (Ala.), 82 So. 560 237 Cohen v. State, 7 Ga. App. 5, 65 S. E. 1096 281 Cole v. State, 120 Ga. 485, 48 S E. 156 387, 393, 396 Cole v. State (Okla. Cr. App.), 180 Pac. 713 245, 254 Coleman v. State, 7 Ala. App. 424, 61 So. 20 210, 211 Coleman v. State, 74 Tex. Cr. App. 36, 166 S. W. 164 103 Collins v. Commonwealth, 123' Ga. 815, 96 S. E. 826.. 319, 328, 457 Collins, Lofton v 193 Collins v. Milledgeville, 17 Ga. App. 817, 88 S. E. 716 360 Collins, United States v 99, 126, 128, 129 Collotta v. State, 110 Miss. 448, 70 So. 460 175 Combs v. Commonwealth, 162 Ky. 86, 172 S. W. 101 134, 204 Combs v. Commonwealth, 171 Ky. 231 188 S. W. 326 427 Commerce, Bray v 347, 348, 456 Commonwealth v. Adams Exp., 179 Ky. 394, 200 S. W. 648.. 155 Commonwealth, Adams Exp. Co. v 118, 130, 155, 239, 284, 313', 351, 361, 380, 452 Commonwealth v. Ahern, 228 Mass. 547, 117 N. E. 827 447 Commonwealth, American Exp. Co. v 124, 138, 161, 400 Commonwealth, Bare v 204, 340, 411 Commonwealth, Begley v 353 Commonwealth, Blair v 263 Commonwealth, Bracy v 281, 411 Commonwealth, Burton v 72, 277, 314 Commonwealth, Carter v 315, 334, 335 Commonwealth, Clopton v 259, 264, 273 Commonwealth, Cochran v 140, 248, 314, 425, 448 Commonwealth, Collins v 319, 328, 457 Commonwealth, Combs v 134, 204, 427 Commonwealth, Elkhorn Min. Corp. v 117 Commonwealth, Fletcher v 265 Commonwealth, Frey v 209, 313, 355, 397 Commonwealth, Fugate v 425 Commonwealth r. Gardner, 7 Gray (Miss.), 494, 497 357 Commonwealth, Goodman v 138 Commonwealth v. Goodwin, 109 Va. 828, 64 S. E. 54 93 Commonwealth, Hoskins v 203', 345 Commonwealth, Huddleston v 104, 300, 454 Commonwealth, Kennan v 263 xii TABLE OF CASES CITED Commonwealth, Lane v 246 > 335 Commonwealth, Lemon -u 375, 389, 433 Commonwealth v. Louisville, etc., R. Co. (Ky.), Ho S. W. 938. 277 Commonwealth, Lucchesi v '65, 382 Commonwealth, Martin 130 Commonwealth, Mullins v 83', 262, 268, 363 Commonwealth, Neal v 336, 337, 338, 339 Commonwealth, O'Donnell v 107, 237, 366, 377 Commonwealth, Pettus v 132 Commonwealth, Pine v 64, 204, 238, 252, 288, 300, ?11, 312, 336, 368, 457 Commonwealth, Robinson v 280, 302, 359 Commonwealth v. Robinson-Pettet Co.. 181 Ky. 702, 205 S. W. 774 298, 3'5S Commonwealth v. Ruh, 173 Ky. 771, 191 S. W. 498, L. R. A. 1917D, 283 174, 175 Commonwealth, Rush v 193 Commonwealth, Shiflett v 262 Commonwealth, Sickel v 98, 127, 247, 249, 258, 465 Commonwealth v. Southern Exp. Co., 128 Ky. 132, 206 S. W. 167 154 Commonwealth, Southern Exp. Co. v 240 Commonwealth v. Stone (Ky.), 176 S. W. 1138 107 Commonwealth v. Fay, 146 Mass. 146, 15 N. E. 503' 447 Commonwealth v. Thayer, 49 Mass. (8 Mete.) 525, 526 441 Commonwealth, Tomlin v 314 Commonwealth v. White (Ky.), 179 S. E. 469 118 Commonwealth, Wilkerson v 244 Commonwealth, Wilson v 342, 419, 447 Commonwealth v. Wood, 4 Gray (Mass.), 11 357 Commonwealth, Woods v 432 Compton, State v 312 Condit v. State, 130 Ark. 341, 197 S. W. 579 113, 309, 434 Conley v. State (Okla. Cr. App.), 179 Pac. 480 265, 336, 382, 449 Conner, State v 445 Cook v. State, 124 Ga. 653, 53 S. E. 104 106 Cook Brewing Co., Schmitt v 62, 63', 67, 80, 144 Cool, State v 414 Cooper v. Ft. Valley, 13 Ga. App. 169, 78 S. E. 1097 347, 448 Cooper v. Gadsden, 10 Ga. App. 609, 65 So. 715 383, 385, Cooper v. State, 19 Ariz. 486, 172 Pac. 276 90, 140, 151, 3'46, 351, 354 Cooper, State v 257 Corley v. State (Ga. App.), 98 S. E. 401, 402 255 Cornell, Orr v 198, 199 TABLE OF CASES CITED xiii Correlis v. State (Fla.), 82 So. 601 70 Corrigan, Babbitt v 186 Country Club r. State (Tex.), 214 S. W. 296 134, 180 Country Club, State v 137 Coverdale, State v 92, 345, 346, 380 Cowart v. State, 14 Ga. App. 763, 82 S. E. 313 1 347, 348 Cowart v. State, 18 Ga. App. 677, 90 S. E. 286 441 Cowart v. Young, 74 Ga. 694 224 Cowles, Everett v 430 Cowley v. State, 72 Tex. Cr. App. 173, 161 S. W. 471 296 Cox v. Burnham, 120 la. 43, 94 N. W. 265 96 Cox, Ohio v 57, 58 Cox v. State (Okla.), 160 Pac. 895 226 Ccx, State v 139, 354, 355 Craig, People v 96 Craig v. State, 9 Ga. App. 233, 70 S. E. 974 387, 393 Crane v. Campbell, 245 U. S. 304, 38 Sup. Ct. 98, 62 L. Ed. 304 60, 61, 214 Crane, In re 62 Crapp v. State (Ga. App.), 98 S. E. 174 221 Cravey v. State, 10 Ala. App. 168, 64 So. 756 383 Crawley v. State (Ala. App.), 73 So. 222, 223 110 Crider, State v 263 Cripe v. State, 4 Ga. App. 832, 62 S. E 567 88, 344 Cross, Rosenoff v 145 Crowley i: Christensen, 137 U. S. 86, 91, 11 Sup. Ct. 13, 34 L. Ed. 620 60, 62 Cumberland, State v 179 Gumming v. Funkenstein Co. (Ala. App.), 81 So. 343 356 Cunningham v. State (Ala. App.), 75 So. 816 252 Cureton v. State, 135 Ga. 660, 70 S. E. 332, 49 L. R. A., N. S., 182n 62, 131 Curry v. State, 117 Md. 587, 83 1 Atl. 1030 245, 358, 403, 405 Curtwright, State v 266 D Dalton v. State (Ga. App.), 100 S. E. 781 325 D'Amico v. State (Del.), 102 Atl. 78 102, 383, 384 Danciger v. Atchison, etc., R. Co. (Mo.), 212 S. W. 5 233 Danciger, Missouri, etc., R. Co. v 123 1 Dann, People v 350 Dantzler v. State, 104 Miss. 233, 61 So. 305 105 Dapolonici, Barber v 187 Darneal v. State (Okla. Cr. App.), 171 Pac. 737 102 Daugherty, Anderson v 196 xiv TABLE OF CASES CITED Davidson v. Benevolent & Protective Order of Elks, No. 374, 174 la. 1, 156 N. W. 187 189, 192 Davis, Ex parte 60, 64, 72 Davis v. State (Ga. App.), 100 S. E. 782 133, 440 Davis v. State, 100 Ind. 154 253 Davis v. State (Okla. Cr. App.), 182 Pac. 908 445 Davis, State v 2, 148, 149, 150, 151, 163', 218, 220, 226, 227, 261, 265, 352 Davis, Wachal v 148 Deal v. State, 14 Ga. App. 121, 80 S. E. 537, 541 102, 106, 135, 444 Dean v. State, 13O Ark. 322, 197 S. W. 684. .113, 264, 365, 383, 384, 461 IJeck, McConathy v 225 Decker, State v. . . : 165 Dees v. State (Ala. App.), 75 So. 645 91, 252, 333 De Hasque v. Atchison, etc., R. Co. (Okla.), 173 Pac. 73 141 Delaney v. Plunkett, 146 Ga. 547, 91 S. E. 561, L. R. A. 1917D, 996, Ann. Cas. 1917E, 685 62, 131, 235 Delaye, Black v 60, 62, 65, 163, 185 De Moss v. United States, 162 C. C. A. 259, 250 Fed. 87 67, 381 Dent v. State, 14 Ga. App. 269, 80 S. E. 548 344 Denton, State v 63, 110, 111, 202, 455 Dereiko, State v 271, 308, 376 Dick And Bros. Quincy Brewing Co., State v 176 Dillon v. Saleeby (S. C.), 18 S. E. 123 69 Dinkins v. State, 149 Ala. 49, 43 So. 114 65 District Court, Nies v 193, 194, 195, 197, 198, 199, 200, 334, 377, 393 District Court, Rust v 199 District Court, State v 197, 198, 200 District Court Wells v 197 Dollison, Loyd v 143 Donaldson v. State, 3 Ga. App. 451, 60 S. E. 115 92, 3'65, 441 Dononvan v. State, 170 Ind. 470, 99 N. E. 786 256 Donovan, State -v 72 Doremus, State v 209 Dorah, Newberry v 131 Doss v. State, 7 Ala App. 121, 1 So. 748 458 Dosset v. United States, 161 C. C. A. 20, 248 Fed. 902 278, 294, 300 Dou'blin v. State, 15 Ala. App. 527, 74 So. 86 318 Doucet, State v, 246, 357 Dozier v. State, 14 Ga. App. 473, 81 S. E. 368 318 Duff, State v 247, 267, 268, 282 Duluth, Sponnick v 230 Dunbar v. State, 21 Ga. App. 502, 94 S. E. 587 319, 320 Duncan v. State (Ga.), 99 S. E. 612 229 Duncan v. State, 100 S. E. 38 229 TABLE OP CASES CITED xv Dunn v. State, 8 Ala. App. 382, 62 So. 379 341, 421 Dunn v. State, 8 Ala. App. 410, 62 So. 996 301 Dunn v. State, 18 Ga. App. 95, 89 S. E. 170 419, 420 Dunn, State v 267 Durein, State v 62 Duren v. State, 21 Ga. App. 524, 94 S. E. 902 314 Durr, State v 417, 436 Dutton v. Anderson (Ala), 145 N. W. 321 176, 193 Du Vail v. Augusta, 115 Ga. 813, 42 S. E. 265 344 E Earp v. State (Ariz.), 184 Pac. 942 245,265 Eastman, Simpson v 3'47, 348 Eberle v. Michigan, 232 U. S. 700, 34 Sup. Ct. 464 60, 144 Echols v. State (Ala.), 75 So. 814 255, 278 Eden, State v 207 Edenfield v. State, 14 Ga. App. 401, 81 S. E. 253 461 Edmunds v. State (Ala. App.), 81 So. 847 373 Edwards v. State (Ark.), 213' S. W. 11 98, 125 Elder v. State, 162 Ala. 41, 50 So. 370 66 Elder Harrison Co. v. Jervey, 97 S. C. 185, 81 S. E. 501 73 Elkhorn Min. Corp. v. Commonwealth, 173 Ky. 417, 191 S. W. 256 117 Elligott, Hoffman Brewing Co. v 89, 90 Elliott v. State, 19 Ariz. 1, 164 Pac. 1179 108, 309, 403, 404 Elliott, State v 260 Ellis v. State, 133 Ark. 540, 202 S. W. 702 296, 305 Ellis, United States v 80 Elmore, State v 102 Emmons, People v 91, 280, 294, 371, 412 Emonds, State v 145, 376 Emsweller v. Wallace, 78 W. Va. 214, 88 S. E. 787 212, 272 Engman v. State, 77 Tex. Ct. 721, 37 L. Ed. 599 61 Glass, State v 182, 190 Glover v. State, 11 Ala. App. 287, 66 So. 877 261 Goldsberg, People v 267, 321, 374 Goldstein v. United States (C. C. A.), 256 Fed. 813, 815 282 Golpi v. State, 14 Okla. Cr. App. 564, 174 Pac. 288 124, 294 Gompers v. Bucks Stove Co., 221 U. S, 418, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A., N. S., 874n 197 Goodman v. 'Commonwealth, 169 Ky. 542, 184 S. W. 876 138 Goodman v. State (Ind.), 121 N. E. 826 432 Goodwin, Commonwealth v 93 b xviii TABLE OF CASES CITED Gordon, Jackson v 137, 139, 202, 351, 354 Gordon, State v 153, 211, 419, 423, 424, 428 Gosell, State v 115 Grace v. State, 1 Ala. App. 211, 56 So. 25 119, 267 Granlich v.. State, 135 Ark. 243, 204 S. W. 848 251, 307 Grant v. State, 87 Ga. 265, 13 S. E. 554 343. 347 Great Northern Pac. S. S. Co. v. Ranier Brewing Co (C. C. A.), 255 Fed. 762 123, 158 Great Northern R. Co., State v 126, 130, 152, 221, 222 Green v. Atwood (Wash.), 180 Pac. 399 73, 74 Green, State v 259, 260 Gresham v. State, 1 Ala. App. 230, 55 So. 447 262 Grider v. State, 10 Ala. App. 170, 64 So. 756 294 Grier v. Johnson, 88 la. 99, 55 N. W. 80 197 Griffin v. Smith (Ga. App.), 99 S. E. 386 229, 230 Griffin v. State, 142 Ga. 636, 83 S. E. 540 333 Griffin v. State, 15 Ga. App. 552, 83 S. E. 871 206, 281 Gross, State v 103, 110, 367 Grusin v. State, 10 Ga. App. 149, 75 S. E. 350 368 Guarreno v. State, 148 Ala. 637, 42 So. 833 371 Gudger, United States v- 129 Guiaccimo v. State, 5 Okla. Cr. App. 371, 115 Pac. 129 450 Guignard v. United States (C. C. A.), 258 Fed. 607 436, 439 Guilbert v. Kaufman, 68 Ohio St. 635, 67 N. E. 1062 66 Gulf, etc., R. Co. v. State (Tex. Cr. App.), 212 S. W. 845. 64, 68, 69, 70, 72, 97, 179 Gulfort v. Martin, 96 Miss. 131, 50 So. 502 272 Gummer, State v 265 Gunn v. Atwell, 148 Ga. 137, 96 S. E. 2 231 H Haar v. State, 14 Ga. App. 548, 81 S. E. 811 409, 442 Hale v. State (Okla. Cr. App.), 181 Pac. 735 451, 461 Hall v. Mobley, 13 Ga. 318 224 Hall v. State, 19 Ariz. 12, 165 Pac. 300 88, 137, 140, 410 Hall v. State, 7 Ga. App. 186, 66 S. E. 486 280 Hall v. State, 8 Ga. App. 747, 70 S. E. 211 257, 263, 264 Hamilton v. State, 80 Tex. r. App. 516, 191 S. W. 1160 113 Hampton, State v .315, 328 Haney, State v 266 Hanson, Civic Improv. League v 175 Harris v. Hutchison, 160 la. 149, 140 N. W. 830, 44 L. R. A., N. S., 1035 199,200 Harris, People v 150 Harris v. State (Ark.), 215 S. W. 620 255, 284, 295 Harris v. State, 21 Ga. App. 796, 95 S. E. 321... 244 TABLE OF CASES CITED xix Harris v. State, 113 Miss. 457, 74 So. 323, L. R. A. 1917D, 1031n 118 Harris v. State (Okla. Cr. App.), 181 Pac. 944 323 Harrison v. State, 12 Ala. App. 284, 68 So. 532 304, 358, 461 Harrison, State v 191 Hartsville v. McCall, 101 S. C. 277, 85 S. E. 599 125 Harwell v. State, 11 Ala. App. 188, 65 So. 702 363, 462 Harwell v. State, 12 Ala. App. 265, 68 So. 500 355, 383, 384, 411 Hastings, State v 108, 138, 140, 147, 351,379 Hathaway v. Bluton, 127 la. 299, 154 N. W. 474 174, 175, 177 Hatinger, People v 280 Hawkins v. State (Okla. Cr. App.), 182 Pac. 732 256 Hayes v. State, 18 Ga. App. 68, 88 S. E. 752 419 Haymond v. State (Ind.), 119 N. E. 5, 6 256 Haynes v. State, 5 Ala. App. 167, 59 So. 325 119 Hays, State v 106, 350, 416, 442 Hazelhurst, Langston v 347, 348 Head z: State (Tex. Cr. App.), 198 S. W. 581 315 Heier v. State (Ind.), 122 N. E. 578 321 Heldt, State v 265 Hemmelweit v. State (Ala.), 75 So. 961 321 Hemrich, State v 62, 80, 81, 82. 83, 93, 94, 345 Henderson v. Heyward, 109 Ga. 373, 34 S. E. 590, 47 L. R. A. 366, 77 Am. St. Rep. 384 60 Henderson Brewing Co., Owens v 73 Hendrix v. State* (Ga. App.), 100 S. E. 55 133, 296, 299, 300, 445 Hendry r. State, 147 Ga. 260, 93 S. E. 413, 414 306 Henley r. State, 3 Ala. App. 215, 58 So. 96 368, 369, 373 Henry, State v 293, 325, 365 Herbring v. Brown (Ore.), 180 Pac. 328 59 Herman i'. State, 125 Ark. 278, 188 S. W. 541 '97, 398 Hermann, Caffini v 209, 279 Hern, Allison v 229 Herring v. State, 11 Ala. App. 202, 65 So. 707 417, 423, 424, 427 Herring v. State (Ala. App.), 75 So. 646 254, 287 Herstrom, Van Bug Fish Co. 197 Johnson v. State, 172 Ala. 424, 55 So. 226, Ann. Cas. 1913E, 296 116, 119 Johnson v. State, 3 Ala. App. 155, 57 So. 499 413 Johnson v. State, 13 Ga. App. 371, 79 S. E. 178 347 Johnson v. State 13 Ga. App. 654, 79 S. E. 758 446 Johnson v. State, 6 Okla Cr. App. 490, 119 Pac. 1131..- 450 Johnson v. State, 75 Tex. Cr. App. 177, 171 S. W. 211. .61, 251, 411, 415 Johnson v. State, 81 Tex. Cr. App. 71, 193 S. W. 674 292, 310 Jones v. Montgomery (Ala. App.), 77 So. 969 447 Jones v. State, 4 Ala. App. 159, 58 So. 1011 208 Jones v. State, 12 Ga. App. 564, 77 S. E. 892 252, 347 Jones v. State, 17 Ga. App. 118, 86 S. E. 284 206 Jones v. State, 108 Miss. 530, 66 So. 987 113 Jones v. State (Okla. Cr. App.), 183 Pac. 519 451 Jones v. Slate, 76 Tex. Cr. App. 239, 174 S. W. 349 247 xxii TABLE OF CASES CITED Jones, State v 100, 176, 357 Jones v. United States (C. C. A.), 259 Fed. 104 127 Jones-Hansen-Cadillac Co., State v 96, 170, 218, 220 Joy, People v 119 Julius, State v 150, 274, 360 K Kansas, Mugler v 60, 62, 65, 193 Kansas City, Kansas City Berweries Co. v 177, 185 Kansas 'City Breweries Co., v. Kansas City, 96 Kan. 731, 153 Pac. 523 177, 185 Kapicsky, State v 168, 178 Kasiska, State v , 180 Kaufman, Guilbert v. . 66 Kearney, Ex parte 197 Kelley v. State, 171 Ala. 44, 55 So. 141 244, 259, 263 Kelly, State v ! 271, 287, 359 Kemp v. State, 130 Ark. 175, 196 S. W. 918 294, 310 Kendrick v. State, 11 Okla. Cr. App. 380, 146 Pac. 727 Ill Kennan v. Commonwealth, 122 Va. 831, 94 S. E. 186 263 Kennedy, Bluthenthal v 73 Kerney v. State, 21 Ga. App. 500, 94 S. E. 625 372 Kidd v. Pearson, 128 U. S. 1, 32 L. Ed. 346, 2 Interst. Com. Rep. 232 60, 143 Kiefer, State v 176, 449 Killeen, State v 85, 355, 426 Killian, State v 100, 322 Killough v. State (Okla. Cr. Ap,p.), 183 Pac. 430 261 Kindrix v. State (Ark.), 212 S. W. 84 462 King, State v 273 Kirk v. State, 10 Ala. App. 216, 65 So. 195 278, 399 Kirk v. State, 14 Ala. App. 44, 70 S. E. 990 381, 382, 428 Kirkpatrick v. State, 12 Ga. App. 252, 77 S. E. 104 164 Kirkwood Leisure Hours' Social, etc., Club, State v 174 Klamatli County, Irwin v 330 Klein, State v 86, 179, 355 Knapp, State v 169, 186, 189, 192, 193 Knowles v. State, 80 Ala. 9 413 Koerner, State v 265 Komada & Co. v. United States, 215 U. S. 392, 396, 30 Sup. 5 State v. Elmore (Mo. App.), 189 S. W. 612 102 State v. Emonds (Wash.), 182 Pac. 584 145, 376 State, Engman v 367 State, Estes v 84 State v. Fabbri, 98 Wash. 207, 167 Pac. 133, L. R. A. 1918A, 416 62, 67, 99, 101 State, Fahnestock v 253 State, Fair v 391 State v. Fargo Bottling Works Co., 19 N. D. 396, 124 N. W. 387, 26 L. R. A., N. S-, 872n 62 State, Farmer v 347, 348 State v. Ferris, 142 La. 198, 76 So. 608 117, 423 State, Files v 103, 327, 328, 352, 370, 462 State, Finch v 106, 264, 440 State, Findley v 321 State v. Finlayson (N. D.), 170 N. W. 910 196, 197 xl TABLE OF CASES CITED State, First Nat. Bank v 218 State, Fisher v 265, 311, 313, 349, 424 State, Fitch v 60, 61, 248 State, Fletcher v 347, 424 State, Flood v 349, 433 State v. Fogg, 107 Me. 177, 77 Atl. 714 183, 187, 275 State, Ford v 57 State v. Ford Touring Car No. 1, 440, 316, 117 Me. 232, 103 Atl. 364 222, 256 State v. Fortin, 106 Me. 382, 76 Atl. 896, 21 Ann. Cas. 454 369 State v. Fountain (la.), 168 N. W. 285 280, 342, 343, 365, 393, 399 State V. Francis, 157 N. C. 612, 72 S. E. 1041 259, 320, 358 State v. Frazee (W. Va.), 97 S. E. 604 464 State v. Freeman, 162 N. C. 594, 77 S. E. 780 259, 283, 287, 318 State, Freeman v 445 State, Gable v 108 State, Gales v 372, 412 State, Gardner v 119 State, Garfield v 118 State, Gary v 396 State, Gaskins v 343, 347 State v. Gastonguay (Me.), 105 Atl. 402 176, 353, 448 State v. Geist (Mo. App.), 195 S. W. 1050 309 State v. Gens, 107 S. C. 448, 93 S. E. 139 122, 291, 328 State v. George, 136 La. 906, 67 So. 953 66 State, George v 347, 348 State v. Germain (N. D.), 170 N. W. 121 60, 67 State v. Gesell, 137 Minn. 41, 162 N. W. 683 403, 422 State, Gilliland v 138, 435 State, Gillispie v 339 State, Girder v 294 State v. Glass, 99 Kan. 159, 160 Pac. 1145 182, 190 State, Glover v 261 State, Golpi v 124, 294 State, Goodman v 432 State v. Gordon, 32 N. D. 31, 155 N. W. 59, Ann. Cas. 1918A, 442 419, 423, 424, 428 State v. Gordon (Wash.), 163 Pac. 772 153, 211 State v . Gosell, 137 Minn. 41, 162 N. W. 683 115 State, Grace v 119, 267 State, Gramlich v 251, 307 State, Grant v 343, 347 State v. Great Northern R. Co., 98 Wash. 197, 167 Pac. 103. 126, 130, 221, 222 State v. Great Northern R. Co., 101 Wash. 464, 172 Pac. 546.. 152 State v. Green, 127 La. 830, 54 So. 44 259, 260 TABLE OF CASES CITED xli State, Gresham v 262 State, Griffin v 206, 281, 333 State v. Gross, 76 N. H. 304, 82 Atl. 533 103, 110, 367 State, Grusin v 368 State, Guarreno v 371 State, Gulf, etc., R. Co. v 64, 68, 69, 70, 72, 97, 179 State v. Gummer, 22 Wis. 411 265 State, Haar v 409, 442 State, Hale v 451, 481 State, Hall v 88, 137, 140, 257, 263, 264, 280, 410 State, Hamilton v. 113 State v. Hampton, 106 S. C. 275, 91 S. E. 314 315, 323 State v. Haney, 151 Mo. App. 251, 132 S. W. 55 266 State, Harris v 118, 244, 255, 284', 295, 323 State v. Harrison, 159 la. 67, 140 N. W. 223 191 State, Harrison v 304, 3'58, 461 State, Harwell v 355, 363, 383, 384, 411, 462 State v. Hastings, 2 Boyce (Del.) 482, 81 Atl. 403 108, 138, 140, 147, 351, 379 State, Hawkins v 256 State, Hayes v 419 State, Haymond v 256 State, Haynes v 119 State v. Hays, 38 S. D. 546, 162 N. W. 311 106, 350, 416, 442 State, Head v 315 State, Heier v 321 State v. Heldt, 41 Tex. 220 265 State, Hemmelwiet v 321 State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A. 1917B, 962n 62, 80, 81, 82, 83, 93, 94, 345 State, Hendrix v 133, 296, 299, 300, 445 State, Hendry v 306 State, Henley v 368, 369, 373 State v. Henry, 74 W. Va. 72, 81 S. E. 569 293, 325, 365 State, Herman v 397, 398 State, Herring v 254, 287, 417, 423, 424, 427 State, Hicks v 72, 73, 374 State, Higgins v 381 State, High v 382, 445, 451 State, Hightower v 118 State, Hill v Ill, 137, 304, 404 State, Kinsman v 289 State, Hodge v 417, 423 State v. Hoffman (Ore.), 166 Pac. 765 169, 434 State, Holden v , 442 State v. Holland, 99 Wash. 645, 170 Pac. 332 147, 408 xlii TABLE OF CASES CITED State v. Hollingsworth, 134 La. 554, 64 So. 409 365 State, Hollingsworth v 441 State, Hollingworth v 454 State, Holmes v 297, 366, 383, 402, 397, 458 State, Holt v 238, 243, 354, 422 State v. Horner, 174 N. C. 788, 94 S. E. 291 100, 101, 301, 439 State, Horton v 104 State, Howard v 84, 86, 206 State, Howze v 371 State, Huff v 336 State, Huggins v 434 State v. Hughes (Ala.), 82 So. 104 228 State, Hughes v 358 State, Humphrey v 140 State, In re 180, 207 State v. Intoxicating Liquors, 110 Me. 260, 85 Atl. 1060 210 State v. Intoxicating Liquors, 112 Me. 138, 91 Atl. 175 224, 231 State v. Intoxicating Liquors, 112 Me. 220, 91 Atl. 947 231 State v. Intoxicating Liquors, 112 Me. 393, 92 Atl. 326 230 State v. Intoxicating Liquor, 82 Vt. 287, 73 Atl. 586 216, 225 State v. Intoxicating Liquors and Vessels (Me.), 106 Atl. 711. 85, 86, 139 State v. Intoxicating Liquors and Vessels (Me.), 106 Atl. 771.. 355 State, Jackson v 64, 71, 131, 259, 347, 357, 383, 386, 423, 443 State v. Jamison (Mo. App.), 199 S. W. 713 104 State v. Jaques, 68 Mo. 260 265, 266 State v. Jarvis (la.), 165 N. W. 61 167, 168, 334, 335, 353, 447 State v. Jenkins, 64 N. H. 375, 10 Atl. 699 66 State, Jenkins v 205, 276, 438 State v. Jenson (Utah), 184 Pac. 179 215, 226 State v. John, 129 La. 208, 55 So. 766 250, 2-64, 268, 274 State, Johns v 447 State, Johnson Z/..61, 116, 119, 251, 292, 310, 347, 411, 413, 415, 446 450 State v. Jones, 115 Me. 200, 98 Atl. 659 357 State v. Jones (Mo.), 209 S. W. 876, 877 176 State v. Jones, 174 N. C. 709, 95 S. E. 376 100 State, Jones v 118, 206, 208, 247, 252, 347, 451 State v. Jones-Hansen-Cadillac Co. (Neb.), 172 N. W. 3'6..96, 170, 218, 220 State v. Julius, 29 S. D. 638, 137 N. W. '590 150, 274, 360 State v. Kapicsky, 105 Me. 127, 73 Atl. 830, 23 L. 'R. A., N. S., 737 168, 178 State v. Kasiska, 27 Idaho 548, 150 Pac. 17 180 States. Kelly, 89 S. E. 303, 71 S. E. 987 271, 287, 359 State, Kelley v 244, 259, 263 State, Kemp v 294, 310 TABLE OF CASES CITED xliii State, Kendrick v Ill State, Kerney v 372 State v. Kiefer, 172 la. 306, 151 N. W. 440 176, 449 State v. Killeen (N. H.), 107 Atl. 601 85, 355, 426 State v. Killian (N. C.), 101 S. E. 109 100, 322 State, Killough v 261 State, Kindrix v 462 State v. King, 92 Kan. 669, 141 Pac. 247 273 State, Kirk v 278, 381. 382, 399 State, Kirkpatrick v 164 State v. Kirkwood Leisure Hours Social, etc., Club (Mo. App.), 187 S. W. 819 174 State v. Klein (la.), 174 N. W. 481 86, 179, 355 State v. Knapp, 177 la. 278, 158 N. W. 517 169 State v. Knapp, 178 la. 25, 158 N. W. 515 186, 189, 192, 193 State, Knowles v 413 State -v. Koerner (Wash.), 175 Pac. 175, 176 265 State, Kunsberg v 66, 333 State v. Kurent (Kan.), 181 Fac. 603 .' 62 State v. Kurent (Kan.), 184 Pac. 721 199, 200, 285, 375 State v. Labrecque, 78 N. H. 182, 97 Atl. 747 66, 81 State, Lacey v 351 State v. Ladd, 15 Mo. 430 266 State, Ladson v 246 State v. Lafargue, 141 La. 936, 75 So. 998 403, 404 State, Lambie v 65 State, Land v 72, 206 State, Landers v 85 State v. Laymon (S. D.), 167 N. iW. 402 252, 403, 406 State v. Leary, 75 N. H. 459, 76 Atl. 192, 44 L. R. A., N. S., 457n 188 State, Lebrecht v 220 State v. Lee, 164 N. C. 533, 80 S. E. 405 203 State, Lee v 326 State v. Legendre, 89 Vt. 526, 96 Atl. 9 109, 386 State v. Leonard (Mo. App.), 190 S. W. 957 266 State v. Lesh, 27 N. D. 165, 145 N. W. 829 149, 261, 283 State, Lester v 263 State, Lewis v 84, 269, 446 State v. Lieber, 143 La. 158, 78 So. 431 121, 286 State v. Li Fieri (Del.), 102 Atl. 77 254, 269 State, Lindsay v 388 450 State, Lippman -v 222 State, Liquor Transp. Cases v 120, 123, 124, 130, 258, 277 State v. Little, 171 N. C. 805, 88 S. E. 723 362 State, Littlefield v Ill, 320 xliv TABLE OF CASES CITED State, Littleton v 372, 4O2 State, Lochinar v 103 State, Loeb v 103 State, Longmire v 64, 248 State, Looper v 434 State, Lopez v 109 State, Loudermilk v 318, 368, 369 State, Louisville, etc., R. Co. v 66 State v. Lovell, 47 Vt. 493 62 State, Lowery v 99, 296, 408, 429 State v. Lunsford, 150 N. C. 862, 64 S. E. 765 274 State, Lupo v 106 State, Luther v 66 State v. Lynch, 5 Boyce's (28 Del.) 569, 96 Atl. 32 93 State, Lynn v 456 State v. Lyon, 83 S. C. 509, 65 S. E. 730 172, 173, 181 State v. Lyons (Mo. App.), 215 S. W. 484 402 State, McAdams v 247, 251, 252 State, McAlester v 370, 443, 450 State, McAllister v 143, 276, 352, 389, 429 State v. McCasky, 97 Wash. 401, 166 Pac. 1163 149, 382, 386 State v. McCowen (Mo. App.), 189 S. W. 618 351, 362 State, McCruen v 386 State v. Macek, 104 Kan. 742, 180 Pac. 985 62, 257, 272, 285 State, McElwee v 360 State, M|cGee v 298 State, McGovern v 347 State v. McGuire, 139 La. 88, 71 So. 239 356 State, Mclntosh v 371 State, Mack v 343. 347 State v. McKone, 31 N. D. 547, 154 N. W. 256 419, 420 State, McNeal v 123, 240, 258 State, McNeil v 246 State v. Maguire, 31 Idaho 24, 169 Pac. 175 167, 187, 425 State, Maisel v 326, 336 State, Malick v 316, 346 State, Malone v 311 State v. Manship, 174 N. C. 798, 94 S. E. 2 392 State, Maples v 215, 226 State v. Marastoni, 85 Ore. 37, 165 Pac. 1177 67, 99, 101 State, Marks v 65, 80, 81, 84, 85, 86, 87, 91, 92, 94, 263, 3'55, 413 State v. Markuson, 5 N. D. 147, 64 N. W. 934 197 State v. Markuson, 7 N. D. 155, 73 N. W. 82 197 State v. Maroun, 133 La. 1083', 63 So. 593 241 State v. Marquardt (La.), 169 N. W. 338 202 State v. Marshall, 100 Miss. 626, 56 So. 729, Ann. Cas. 1914A, 434 172, 173, 182, 185 TABLE OF CASES CITED xlv State v. Martin, 92 Wash. 3"66, 159 Pac. 88 145, 151, 232 State, Martin v 396, 409 State, Martoni v 376, 383, 385, 460 State v. Matarazza (N. J. Sup.), 107 Atl. 266 275 State v. Mathews, 115 Me. 84, 97 Atl. 824 305 State v. Mattox Cigar, etc., Co. (Ala.), 77 So. 756 66, 91 State, Maynes v 123', 240 State, Medlock v 106, 397, 398, 401 State v. Meyers, 132 Minn. 4, 155 N. W. 766 292, 302, 311 State v. Midland Aerie No. 412, Fraternal Order of Eagles, 98 Kan. 793, 161 Pac. 903 179 State v. Miller, 92 Kan. 994, 142 Pac. 979, L. R. A. 1917F, 238, Ann. Cas. 1916B, 365 83, 84, 437 State, Mills v 383', 385 State, Milwaukee Beer Co. v 207 State v. Missouri Athletic Club (Mo.), 170 S. W. 904, 905 97 State, Mitchell v 112 State, Montgomery v 377 State, Monyean v Ill State, Moody v 115 State v. Moore, 166 N. C. 284, 81 S. E. 294 249 State, Moore v 383, 384 State, Morris v 445 State, Morse v 416 State v. Morton, 38 S. D. 504, 162 N. W. 155 145, 146, 147. 352 State, Morton v 352 State, Moses v 359 State, Mosley v 367 State, Moss v 287 State v. Mostella, 159 N. C. 459, 74 S. E. 578 356, 416 State, Motlow v t>2 State v. Mountain City Club, 136 Tenn. (9 Thompson) 102, 188 S. W. 579 178 State v. Mull (N. C.), 101 S. E. 89 98 State v. Muller, 80 Wash. 368, 141 Pac. 910 240 State, Mulling v 347 State, Mullins v 433 State, Mundy v 293, 300, 308 State, Munn v 122 State, Murray v 291, 327, 417, 450 State, Myers v 347 State, Neal v. 317 State, Nelson v 288, 353, 354, 460 State v. Newlin (Ore.), 165 Pac. 225 364 State v. Nocolay (Mo. App.), 184 S. W. 1183 86, 147 State, Nixon v 307, 435 State, Norred v 325 xlvi TABLE OF CASES CITED State, Nowell v 132, 444 State, O'Brien v 281 State i: O'Connell, 99 Me. 61, 58 Atl. 59 66 State v. Ogleston (N. C.), 98 b. E. 537 363, 437 State v. O'Kelley, 258 Mo. 345, 167 S. W. 980, 52 L. R. A., N. S., 860n 151, 153 State, Oldacre v 284, 319 State, One Cadillac Automobile v 215, 220 State, One Moon Automobile v 223 State v. One Packard Automobile (Okla.), 172 Pac. 66 220 State, O'Rear v 13 1 State v. O'Toole (Me.), 108 Atl. 99 387, 388, 405 State v. Otto, 38 S. D. 353, 161 N. W. 340 275, 455 State, Overton v 378, 381 State, Page v 256, 388 State, Pappenburg v 432, 450 State, Park v 239 State, Parker v 133 State, Parks v,.\ 444 State, Pate v 445 State, Patterson v ..88, 99, 301, 381, 387, b91, 394, 414 State, Payne v 456 State, Peebles v 286, 356 State v. Peloquin, 106 Me. 358, 76 Atl. 888 261 262 State, Pennell v 66 State v. Pensacola, etc., S. S. Co. (Ala.), 75 So. 892 230, 231 State, Perdue v 290 State v. Perello, 102 Kan. 695, 171 Pac. 6oO 249 State, Perro v 222 State v. Peters, 142 La. 249, 76 So. 702 400 State, Peyton v 295, 317 State, Phelps v 460 State v. Phillips, 109 Miss. 22, 67 So. 651 93 State, Phillipps v 387 State v. Pierce, 88 Vt. 277, 92 Atl. 218 397, 398 State, Pines v 256, 264, 273 State, Pitts v 457 State, Plair v 317 State v. Pope, 79 S. C. 87, 60 S. E. 234 120, 450 State, Pope v 114, 269, 456 State, Porras v 386 State, Price v 316 State, Procter v 272 State, Proctor v 235 State v. Provencher, 135 Minn. 214, 160 N. W. 673, Ann. Cas. 1917E, 598 116 TABLE OF CASES CITED xlvii State, Pruett v 440 State, Quinn v 38, 396, 450 State v. Radke, 139 Minn. 276, 166 N. W. 346 305 State, Ragan v 362, 400 State v. Ragghianti, 129 Tenn. (2 Thompson) 560, 167 S. W. 689 180, 181, 198 State v. Randall, 170 N. C. 757, 87 S. E. 227, Ann. Cas. 1918A, 438 133', 373 State v. Raph (la.), 168 N. W. 259 191, 233 State, Rash v 107, 204, 250, 335, 363 State v. Raub (Wash.), 173 Pac. 1094 431 State v. Raven, 91 S. C. 265, 74 S. E. 500 99, 100, 270 State v. Rawlings, 232 Mo. 544, 134 S. W. 530 334, 342 State, Ray v 255, 320, 361 State, Reddick v ; 370, 396, 403, 406 State, Regadanz v 253 State f. Reisen, 165 Wis. 258, 161 N. W. 747, 748 172 State, Ren v 450 State v. Reno Brewing Co. (Neb.), 178 Pac. 902 97, 177 State, Reynolds v 296, ai6, 432 State v. Richardson (Mo. App.), 182 S. W. 782 342 State, Rigrish v 256 State, Rivard v 122 State, Rabbins v 258 State, Roberts v 90, 96, 103', 205 State, Robertson v 126, 297 State, Robinson State, Shaneyfelt v 92, 367, 436 State, Sharpe v 220 State, Shaw v 347 State v. Shelton (la.), 169 N. W. 351 354 State, Shepherd v 305, 375 State v. Silka, 179 la. 663, 161 N. W. 703 187, 188, 189 State, Sills v 245 State, Silva v 433 State v. Simmerson (N. C.), 98 S. E. 784 134 State v. Simons (N. C), 100 S. E 239 134, 377, 378, 379 State, Simpson v 109 State v. Sixo, 77 W. Va. 243, 87 S. E. 267 333 State, Shermetta v 105 State, Staten v 442 State, Slaughter v 347 State v. Small, 80 Me. 452, 14 Atl. 942 357 State v. Small, 82 S. C. 93, 63 S. E. 4 166 State v. Smith, 96 Kan. 320, 150 Pac. 640 237 State v. Smith, 139 La. 442, 71 So. 734 264 State v. Smith (Mo. App.), 201 S. W. 942 318 State v. Smith, 89 N. J. L. 52, 97 Atl. 780 267, 323, 326 State, Smith t/..84, 126, 245, 322, 3'43, 347, 371, 392, 409, 410, 431, 440, 446 State, Snead v 344, 436 State v. Snell, 99 Wash. 195, 169 Pac. 320 151 State, Snider v 88, 398 State v. Snyder (la.), 171 N. W. 8 312 State v. Soucie, 109 Me. 251, 83 Atl. 700 210 State v. Southern Exp. Co. (Ala.), 75 So. 343. 160, 203, 228 State, Southern Exp. Co. z>..121, 122, 155, 156, 160, 185, 252, 294, 452 State v. Spain, 29 Mo. 415 266 State, Spigener v 241 287, 370, 403, 405, 428 TABLE OF CASES CITED xlix State v. Spirituous Liquors, 75 N. H. 273, 73 Atl. 169 223 State, Springer v 264, 419, 421, 422 State f. Stanley, 38 N. D. 311, 164 N. W. 702 107, 257, 403 1 State v. Stanley, 134 La. 131, 63 So. 850 39 State. Stapleton v 290 State, Starr v 347, 348 Slate, State Nat. Bank v 219, 223 State r. Stickney, 111 Me. 590, 90 Atl. 705 112 State, Stocks v 329 State, Stokes v 340 State, Stoner v 87 State v. Stoughton Club, 163 Wis. 362, 158 N. W. 93 180, 182 State v. Stout, 112 Ind. 245, 13 N. E. 715 253 State, Stout v 203, 299, 339, 401 State, Stover v 117 Slate, Stramler v 397, 39S State, Strickland v 101 State, Strozier v 263, 36J State, Stubblefield v 445 State, Sturgeon v 248, 282 State f. Sullivan, 97 Wash. 639, 166 Pac. 1123 102, 243, 292, 415 State, Sweatt v 403, 404 State v. Synder (la), 171 N. W. 8 455 State v. Taggart (la.), 172 N. W. 299 285, 324 State, Taylor v 349, 385 State, Telico v 445 State, Terretto v 69, 70, 453 State v. Terry, 128 La. 680, 55 So. 15 149 State, Thames v 370 State, Tharpe v 285 State, Thayer r 279 State, Theatrical Club v *>G State :. Theodore (Mo.), 191 S. W. 422 334, 343 State, Thomas v 100, 311, 392, 415, 417, 447 State, Thompson v 84 State, Thurman v 3S8 State v. Tincher, 81 W. Va. 441, 94 S. E. 503 60, 333, 334, 339, 3*1, 399 State, Tooke v 206 State, Toole v 209. 230 State v. Tooley, 107 S. C. 408, 93 S. E. 132 202, 203 State, Touchstone v 343, 347 State, Trentham v 393 State r. Trione, 97 Kan. 365, 155 Pac. 29 416, 436 State, Troutner v 140, 280 State f. Trowbridge, 112 Me. 16, 90 Atl. 494 243 d 1 TABLE OF CASES CITED State v. Truba, 88 Vt. 557, 93 Atl. 293 274, 35ft State v. Tullos, 135 La. 640, 65 So. 870 145 State v. Turner, 171 N. C. 803, 88 S E. 523 392 State, Turner v 119, 285, 346 State v. Tygart (la.), 172 N. W. 299 324 State v. Tygarts Valley Brewing Co., 71 W. Va. 38, 75 S. E. 149 350 State, Untreinor v 371 State, Vance v 255, 403, 404 State v. Van Vleet (Minn.), 165 N. W. 962 403, 408 State, Van Winkle v 150 State, Voves v 283 State v. Wainscott, 169 N. C. 379, 85 S. E. 380 249, 303 State, Waldemar v 290 State, Wales v 350, 437, 442 State v. Walker, 221 Mo. 511, 120 S. W. 1198 96 State, Walker v 237, 306 State v. Walters, 178 la. 1108, 160 N. W. 821, 822.. 368, 369, 452, 459, 462 State, Walters v 108 State, Ward v 443 State, Warrick v 287, 288, 413 State v. Watkins, 164 N. C. 425, 79 S. W. 619 267 State, Watkins v 123, 12 1 State v. Watson, 92 Kan. 983, 142 Pac. 956 235, 416 State, Watson v 32, 419, 427 State v. Waxman (N. J. Supp.), 107 Atl. 150 98, 296, 349 State v. Webb, 36 N. D. 235, 162 N. W. 358 168, 271, 357 State, Webb v 284, 419, 421, 460 State, Weimberg v 84, 387 State v. Whalen (Wash.), 183' Pac. 130 374 State v .Wheeler, 38 N. D. 456, 165 N. W. 574, 575 177 State, White v 101, 227, 347, 435, 458 State, Whitley, v 276, 279, 350, 451 State, Whitten v 105 State v. Wilbur (Ore.), 166 Pac. 51 283, 284, 307 State, Wilburn v 84, 361 State, Wilcox v 290 State, Wiley v 72 State v. Wilkerson, 164 N. C. 431, at p. 435, 79 S. E. 888, at p. 890 338, 344 State, Wilkins v 243, 376 State v. Willey (Del.), 108 Atl. 79 j.,2 State v. Williams, 172 N. C. 973, 90 S. E. 905 110 State, Williams v 112, 264, 303, 316, 434, 438 State, Willingham v 340 TABLE OF CASES CITED li State v. Wills, 73 W. Va. 446, 80 S. E. 783 146 State, Wilson v 113, 118, 310, 336, 350 State, Windom v 366 State, Winfrey v 125, 247, 251, 267, 295, 361 States. Winner, 153 N. C. 602, 69 S. E. 9 110, 403, 406 State, Wolf v 347 State, Womack v 306 State, Woods v 114, 362 State, Woodward v 183, 412 State v. Woolfolk (Mo.), 190 S. W. 877 184 State, Wooten v 383, 385 State, Wozniak v 271 State, Wright v 135, 136, 413, 444 State, Wynn v 348 State, Yaughan v 235 State v. Yocum (Mo. App.), 205 S. W. 232 106, 297 State v. York, 74 N. H. 125, 127, 65 Atl. 685, 13 Ann. Cas. 116. 6*> State, Young v 253 State v. Zagone, 13'5 La. 550, 65 So. 737 365 State v. Zehnder, 182 Mo. App. 161, 168 S. W. 661 105 State Nat. Bank v. State (Okla.), 172 Pac. 1073 219, 223 Stickney, State v 112 Stocks v. State, 19 Ga. App. 607, 91 S. E. 944 329 Stoevenor & Co., Fisher v 183 Stokes v. State, 5 Ala. App. 159, 59 So. 310 340 Stone, Commonwealth v 107 Stoner v. State, 5 Ga. App. 716, 63 S. E. 602 81 Stoughton Club, State v 180, 182 Stout v. State, 15 Ala. App. 260, 72 So. 762 203, 299, 339, 401 Stout, State v 253 Stover v. State, 19 Ariz. 308, 170 Pac. 788 117 Stramler v. State, 15 Ala. App. 600, 74 So. 727 397, 398 Stratford v. Seattle Brewing, etc., Co., 94 Wash. 125, 162 Pac. 31, L. R. A. 1917C, 931n 60 Stratton, Mead v 97 Strickland v. State, 9 Ga. App. 201, 70 S. E. 990 101 Strickler, People v 93 Strozier v. State, 127 Ark. 543, 192 S. W. 884 263, 360 Stubblefield v. State (Okla. Cr. App.), 180 Pac. 252 445 Stubblefield v. State (Okla. Cr. App.), 180 Pac. 561 445 Sturgeon v. State, 17 Ariz. 513, 154 Pac. 1050, L. R. A. 1917B, 1230 248, 260 Sue Chung Kee, People v 397 Sullivan, State v 102, 243, 292, 415 Sweatt v. State, 153 Ala. 70, 45 So. 588 403, 404 Synder, State v 312, 455 lii TABLE OF CASES CITED Taggart, State v 285, 324 Tay, Commonwealth v 447 Taylor v. State, 5 Ga. App. 237, 62 S. E. 1048 387 Taylor v. State, 14 Ga. App. 114 80 S. E. 292 349 Taylor v. Wildman (la.), 145 N. W. 449, 451 60 Telico v. State, 13 Okla. Cr. App. 608, 166 Pac. 76 445 Terretto v. State (Tex. Cr. App.), 215 S. W. 329 69, 70, 453 Territory v. Robertson, 19 Okla. 149, 92 Pac. 144 175 Terry, State v 149 Texas, Rippey v 143 Thames v. State, 10 Ala. 210, 64 So. 648 370 Tharpe v. State (Ga. App.), 100 S. E. 754 285 Thatcher v. Reno Brewing Co. (Nev.), 178 Pac. 902.. ..61, 80, 81, 82 Thayer, Commonwealth v 441 Thayer v. State (Okla. Cr. App.), 183 Pac. 931 279 Theatrical Club v. State (Ala.), 74 So. 969 66 Theodore, State v 334, 342 Thomas, Skinner v 215, 226 Thomas v. State, 12 Ala. App. 293, 68 So. 549 311 Thomas v. State, 13 Ala. App. 246, 68 So. 799 392, 415, 417, 447 Thomas v. State (Ga. App.), 100 S. E. 760 100 Thomasville, Campbell v 87 Thompkins v. State, 2 Ga. App. 639, 58 S. E. 1111 84 Thompson v. Simmons & Co., 139 Ga. 845, 78 S. E. 419 186 Thornton v. Skelton (Ga.), 99 S. E. 299 192, 223, 352, 353 Thurman v. State, 14 Ga. App. 543, 81 S. E. 796. . . 388 Tierman, Giozza v 61 Tincher, State v 60, 333, 334, 341, 399 Tomlin v. Commonwealth (Va.), 97 S. E. 305 314 Tooke v. State, 4 Ga. App. 495, 61 S. E. 917, 918 206 Toole v. State, 170 Ala. 41, 54 So. 195 209, 230 Tooley, State v 202, 203 Touchstone v. State, 17 Ga. App. 333, 86 S. E. 744 343, 347 Trentham v. State, 22 Ga. App. 134, 95 S. E. 538 393 Tribe of the Sioux, Shideler v 134, 189 Trione, State v 416, 437 Troutner v. State, 17 Ariz. 506, 154 Pac. 1048, L. R. A. 1916D, 262 140, 280 Trowbridge, State v 243 Truba, State v 274, 356 True v. Hunter, 174 la. 442, 156 N. W. 363 334, 342 Tullos, State v 148 Turner v. State, 14 Ala. App. 29, 70 So. 971 346 Turner v. State, 13 Ark. 48, 196 S. W. 477 285 Turner v. State. 18 Ga. App. 393, 89 S. E. 538 119 TABLE OF CASES CITED liii Turner, State v 392 Turner v. United States (C. C. A.), 259 Fed. 103 324 Tuscaloosa, Lane v 398 Tuscaloosa, Merriwether v 343 Tuttle v. Hutchison, 173' la. 503, 151 N. W. 845, 851 197 Tygart, State v 324 Tygarts Valley Brewing Co., State v 350 U Union Nat. Bank v. Finley, 180 Ind. 470, 475, 103 N. E. 110.. 432 United States v. Baumgartner (D. C.), 259 Fed. 722 75, 85, 89, 270 United States, Berryman v 129, 453 United States, Biandi v 399, 400 United States, Bishop v 127, 362, 380, 451 United States, Blackman v 323 United States, Bradley v 451 United States, Bullard v 297, 305, 315 United States, Butterfield v 65 United States r. Cerecedo Hermanos Y. Compania, 209 U. S. 337, 339, 2-8 Sup. Ct. 532, 52 L. Ed. 821 90 United States, Cihok v 414 United States v. Collins (D. C.), 254 Fed. 869 99, 126, 128, 129 United States, De Moss v 67, 381 United States, Dosset v 278, 294, 300 United States v. Ellis (D. C.), 51 Fed. 808 80 United States, Faraone v 409 United States, Fetters v 282, 366 United States, Ford v 378 United States, Goldstein v 282 United States v. Gudger, 249 U. S. 373, 39 Sup. Ct. 323, 63 L. Ed 129 United States, Guignard v 436, 439 United States v. Hill, 248 U. S. 420, 39 S. Ct. 143 68, 129 United States v. Hillsdale Distillery Co. (D. C.), 242 Fed. 536 159, 268 United States v. James (D. C.), 256 Fed. 102 64, 67, 68 United States, Jones v 127 United States, Komada & Co. v 90 United States, Laughter v 121, 128, 432 United States v. Luther (D. C.), 260 Fed. 579 124, 250, 259 United States, McKnight v 157 United States, Malcolm v 258, 378 United States, Mayer v 246 United States v. Minery (D. C.), 259 Fed. 707 75, 76 United States v. One Buick Automobile (D. C.), 255 Fed. 7&3. 217 United States v. One Cadillac Eight Automobile (D. C.). 255 Fed. 173... 211 liv TABLE OF CASES CITED United States v. One Ford Automobile (D. C), 259 Fed. 894. 216 United States v. One Ford Five Passenger Automobile (D. C.), 259 Fed. 645 220 United States v. One Seven Passenger Paige Car (D. C.), 259 Fed. 641 227 United States, Preyer v 129 United States v. Ranier Brewing Co. (D. C.), 259 Fed. 350 89 United States v. Ranier Brewing Co. (D. C.), 259 Fed. 359 75 United States, Robilio v 400, 432, 453 United States, Sarlls v 80 United States v. Schmauder (D. C.), 258 Fed. 251.. 75, 76, 82, 88, 89, 90, 270, 282, 346 United States, Schmidt Brewing Co. v 159 United States, Scoggins v 350, 441, 442 United States, Scroggins v 102 United States, Shawnee Nat. Bank v 217, 219, 226, 227. 233 United States v. Simpson (D. C.), 257 Fed. 860 122, 249 United States, Smiling v 438 United States v. Standard Brewery (D. C.), 260 Fed. 486 270 United States, Turner v 324 United States, Villers v 454 United States, Weems v 450 United States, Williams v 330 United States, Young v 249, 357 Untreinor v. State, 146 Ala. 133, 41 So. 170 371 V Van Bug Fish Co. v. Herstrom (Wash.), 177 Pac. 334, 335.. 219 Vance v. State, 80 Tex. Cr. App. 177, 190 S. W. 176 255, 403 Van Deman, etc., Co., Rast v 61 Van Pelt, Marasso v 69 Van Vleet, State v....: 403, 408 Van Winkle v. State, 4 Boyce's (27 Del.) 578, 91 Atl. 385 150 Villers v. United States (C. C. A.), 255 Fed. 75 454 Voves v. States, 161 C. C. A. 227, 249 Fed. 191 283 W Wachal v. Davis, 145 N. W. 867 148 Wainscott, State v 249, 302 Waldemar v. State, 21 Ga. App. 504, 94 S. E. 624, 625 290 Wales v. State (Tex. Cr. App.), 212 S. W. 503 350. 437. 442 Walker v. State (Ala. App.), 81 So. 179 237, 366 Walker, State v 96 Wallace, Emsweller v 212, 272 Walters v. State, 174 Ind. 545, 92 N. E. 537 108 Walters, State v 368, 369, 452, 459, 462 Ward v. State (Okla. Cr. App.), 175 Pac. 60 443 TABLE OF CASES CITED Iv Warrick v. State, 8 Ala. App. 391, 62 So. 342 287, 288, 413 Washington, Butler v 431 Watkins v. State, 13 Okla. Cr. App. 507, 165 Pac. 621 123, 124 Watkins, State v 264 Watkins v. Wilkerson, 141 Ga. 163, 80 S. E. 71S, Ann. Cas. 1915C, 1124 191 Watson v. State, 8 Ala. App. 414, 62 So. 997 382, 419 Watson v. State, 11 Ala. App. 199, 65 So. 689 427 Watson, State v 235, 416 Waxman, State v 98, 296, 349 Waycross, Highsmith v 347 Webb v. State (Ark.), 212 S. W. 567 460 Webb v. State, 13 Ga. App. 733, 80 S. E. 14 284, 419, 421 Webb, State v 168, 270, 357 Weems v. United States (C. C. A.), 257 Fed. 57 450 Weinberg v. State, 81 Tex. Cr. App. 306, 194 S. W. 116 84, 387 Wells v. District Court, 126 la. 340, 102 N. W. 106 197 Wells Fargo & Co. Exp., McAdams v 128 Westbrook, Ex parte 125, 128 Westbrook, Mack v 60, 61, 215, 221, 223 Western Maryland R. Co., Clark Distilling Co. z>...60, 61, 65, 68, 464, 465 Whalen, State v 374 Wheeler, People v 60, 204 Wheeler, State v 177 White, Commonwealth v 118 White, Le Clair v 333 White v. State, 93 Ga. 47, 19 S. E. 49 347, 458 White v. State, 18 Ga. App. 214, 89 S. E. 175 101 White v. State (Ga. App.), 98 S. E. 171 227 White v. State, 88 Neb. 177, 129 N. W. 259 435 Whitley v. State (Ark.), 215 S. W. 331 276 Whitley v. State (Ark.), 215 S. W. 703 279, 451 Whitley v. State, 14 Ga. App. 577, 81 S. E. 797 350 Whitlock, Monumental Brewing Co 104 Whitten v. State, 75 Tex. Cr. App. 225, 170 S. W. 718 105 Whittle, Southern Exp. Co. v 65, 334 Wilbur, State v 284, 307 Wilburn v. State, 8 Ga. App. 28, 68 S. E. 460 84, 361 Wilcox v. State, 19 Ga. App. 83, 90 S. E. 1032 290 Wildman, Taylor v 60 Wiley v. State (Ala.), 81 So. 343 72 Wilkerson v. Commonwealth, 122 Va. 920, 95 S. E. 388 244 Wilkerson, State v 338, 344 Wilkerson, Watkins v 191 Wilkins v. State (Fla.), 78 So. 523 243, 376 Willey, State v 132 Ivi TABLE OP CASES CITED Williams v. State, 129 Ark. 344, 196 S. W. 125 112, 434 Williams v. State, 89 Ga. 438, 15 S. E. 552 264 Williams v. State (Ga. App.), 99 S. E. 711 303, 316 Williams v. State (Ga. App.), 100 S. E. 763 438 Williams, State v 110 Williams v. United States (C. C. A.), 254 Fed. 48 330 Willingham v. State, 11 Ala. App. 205, 65 So. 847 340 Wills, State v 146 Wilson v. Commonwealth, 181 Ky. 370, 205 S. W. 39-1.. 342, 419, 447 Wilson v. New, 243 U. S. 332, 346, 37 Sup. Ct. 298, 61 L. Ed. 755, L,. R. A. 1917E, 938 65 Wilson v. State, 114 Ark. 574, 169 S. W. 795 113 Wilson v. State, 130 Ark. 204, 196 S. W. 921 118, 310, 350 Wilson v. State, 11 Okla. Cr. App. 510, 148 Pac. 823 336 Windom v. State, 19 Ga. App. 452, 91 S. E. 911 366 Winfrey v. State, 133 Ark. 357, 202 S. W. 23.. 125, 247, 251, 267, 295, 361 Winner, State v 110, 403, 406 Wittman, Ah Sin v 61 Wolf v. State, 16 Ga. App. 250, 85 S. E. 86 347 Womack v. State, 130 Okla. Cr. App. 323, 164 Pac. 477 306 Wood, Commonwealth v 357 Woods v.. Commonwealth 171 Ky. 200, 188 S. W. 350 432 Woods v. State, 114 Ark. 391, 170 S. W. 79 114, 362 Woodward, Ex parte i 65 Woodward v. State, 173 Ala. 7, 55 So. 506 183 Woodward v. State, 5 Ala. App. 202, 59 So. 688 412 Woolfolk, State v 184 Wooten v. State, 17 Ga. App. 333, 86 S. E. 740 383, 385 Wozniak v. State (Neb.), 174 N. W. 298 271 Wright v. State, 4 Ala. App. 150, 58 So. 803 413 Wright v. State, 14 Ga. App. 185, 80 S. E. 544 135, 136, 444 Wynn v. State, 11 Ga. App. 182, 65 So. 687 348 Y Yaughan v. State, 148 Ga. 517, 97 S. E. 540 235 Yocum, State v 106, 297 York, State v 66 Young, Adams Exp. Co. v 330 Young, Cowart v 224 Young v. State (Ind.), 124 N. E. 679 253 Young v. United States, 162 C. C. A. 133, 249 Fed. 935, 936.. 249, 357 Z Zagone, State v 365 Zamata v. Browning (Utah), 170 Pac. 1057 69 Zehnder, State v 105 Zwissig, Ex parte 206 NATIONAL PROHIBITION LAW ANALYSIS Manufacture Sale Transporta- tion Intoxicating Liquors Concurrent Power Ratification Constitutional- ity Treated p. 56-74 CONSTITUTIONAL AMENDMENT. ARTICLE 18. SECTION 1. After one year from the ratification of this article the manufac- ture, sale or transportation of intoxicat- ing liquors within, the importation there- of into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. SEC. 2. The Congress and the several States shall have concurrent power to en- force this article by appropriate legisla- tion. SEC. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the leg- islatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress. Ratification was proclaimed by the State Department, January 16, 1919. NATIONAL PROHIBITION ACT Title to Act This title, relating solely to War Prohibi- tion, is superseded by title II since January 16, 1920 See p. 75 LEGISLATIVE ENFOECEMENT. AN ACT To prohibit intoxicating beverages, and to regulate the manufacture, produc- tion, use, and sale of high-proof spir- its for other than beverage purposes, and to insure an ample supply of al- cohol and promote its use in scientific research and in the development of fuel, dye, and other lawful industries. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the short title of this Act shall be the "National Prohibition Act." TITLE I. TO PROVIDE FOR THE ENFORCEMENT OF WAR PROHIBITION. The term " War Prohibition Act" used in this Act shall mean the provisions of any Act or Acts prohibiting the sale and manufacture of intoxicating liquors until the conclusion of the present war and thereafter until the termination of de- mobilization, the date of which shall be determined and proclaimed by the Presi- dent of the United States. The words NATIONAL PROHIBITION ACT 3 "beer, wine, or other intoxicating malt or vinous liquors" in the War Prohibi- tion Act shall be hereafter construed to mean any beverages which contain one- half of 1 per centum or more of alcohol by volume. SEC. 2. That the Commissioner of In- ternal Revenue, his assistants, agents, and inspectors, shall investigate and re- port violations of the War Prohibition Act to the United States attorney for the district in which committed, who shall be charged with the duty of prosecuting, subject to the direction of the Attorney General, the offenders as in the case of other offenses against laws of the United States; and such Commissioner of Inter- nal Revenue, his assistants, agents, and inspectors may swear out warrants be- fore United States commissioners or other officers or courts authorized to issue the same for the apprehension of such of- fenders, and may, subject to the control of the said Unted States attorney, con- duct the prosecution at the committing trial for the purpose of having the of- fenders held for the action of a grand jury. SEC. 3. Any room, house, building, boat, vehicle, structure, or place of any kind where intoxicating liquor is sold, manu- factured, kept for sale, or bartered in vi- NATIONAL PROHIBITION ACT olation of the War Prohibition Act, and all intoxicating liquor and all property kept and used in maintaining such a place, is hereby declared to be a public and common nuisance, and any person who maintains or assists in maintaining such public and common nuisance shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than $100 nor more than $1,000, or be im- prisoned for not less than thirty days or more than one year, or both. If a person has knowledge that his property is occu- pied or used in violation of the provisions of the War Prohibition Act and suffers the same to be so used, such property shall be subject to a lien for and may be sold to pay all fines and costs assessed against the occupant of such building or property for any violation of the War Prohibition Act occurring after the pas- sage hereof, which said lien shall attach from the time of the filing of notice of the commencement of the suit in the office where the records of the transfer of real estate are kept; and any such lien may be established and enforced by legal action instituted for that purpose in any court having jurisdiction. Any violation of this title upon any leased premises by the lessee or occupant thereof shall, at the option of the lessor, work a forfeiture of the lease. NATIONAL PROHIBITION ACT 5 SEC. 4. The United States attorney for the district where such nuisance as is de- fined in this Act exists, or any officer des- ignated by him or the Attorney General of the United States, may prosecute a suit in equity in the name of the United States to abate and enjoin the same. Actions in equity to enjoin and abate such nuisance may be brought in any court having ju- risdiction to hear and determine equity cases. The jurisdiction of the courts of the United States under this section shall be concurrent with that of the courts of the several States. If it be made to appear by affidavit, or other evidence under oath, to the satisfac- tion of the court, or judge in vacation, that the nuisance complained of exists, a temporary writ of injunction shall forth- with issue restraining the defendant or defendants from conducting or permitting the continuance of such nuisance until the conclusion of the trial. Where a tem- porary injunction is prayed for, the court may issue an order restraining the de- fendants and all other persons from re- moving or in any way interfering with the liquor or fixtures, or other things used in connection with the violation constituting the nuisance. No bond shall be required as a condition for making any order or issuing any writ of injunc- tion under this Act. If the court shall NATIONAL PROHIBITION ACT find the property involved was being un- lawfully used as aforesaid at or about the time alleged in the petition, the court shall order that no liquors shall be manu- factured, sold, bartered, or stored in such room, house, building, boat, vehicle, structure, or places of any kind, for a pe- riod of not exceeding one year, or during the war and the period of demobilization. Whenever an action to enjoin a nuisance shall have been brought pursuant to the provisions of this Act, if the owner, lessee, tenant, or occupant appears and pays all costs of the proceedings and files a bond, with sureties to be approved by the clerk of the court in which the action is brought, in the liquidated sum of not less than $500 nor more than $1,000, con- ditioned that he will immediately abate said nuisance and prevent the same from being established or kept therein a period of one year thereafter, or during the war and period of demobilization, the court, or in vacation the judge, may, if satisfied of his good faith, direct by appropriate order that the property, if already closed or held under the order of abatement, be delivered to said owner, and said order of abatement canceled, so far as the same may relate to said property; or if said bond be given and costs therein paid be- fore judgment on an order of abatement, the action shall be thereby abated as to NATIONAL PROHIBITION ACT 7 said room, house, building, boat, vehicle, structure, or place only. The release of the property under the provisions of this section shall not release it from any judg- ment, lien, penalty, or liability to which it may be subject by law. In the case of the violation of any in- junction, temporary or permanent, granted pursuant to the provisions of this title, the court, or in vacation a judge thereof, may summarily try and punish the de- fendant. The proceedings for punish- ment for contempt shall be commenced by filing with the clerk of the court from which such injunction issued information under oath setting out the alleged facts constituting the violation, whereupon the court or judge shall forthwith cause a warrant to issue under which the defend- ant shall be arrested. The trial may be had upon affidavits, or either party may demand the production and oral exami- nation of the witnesses. Any person found guilty of contempt under the pro- visions of this section shall be punished by a fine of not less than $500 nor more than $1,000, or by imprisonment of not less than thirty days nor more than twelve months, or by both fine and imprison- ment. SEC. 5. The Commissioner of Internal Revenue, his assistants, agents, and in- NATIONAL PROHIBITION ACT specters, and all other officers of the United States whose duty it is to enforce criminal laws, shall have all the power for the enforcement of the War Prohibi- tion Act or any provisions thereof which is conferred by law for the enforcement of existing laws relating to the manufac- ture or sale of intoxicating liquors under the laws of the United States. SEC. 6. If any section or provision of this Act shall be held to be invalid, it is hereby provided that all other provisions of this Act which are not expressly held to be invalid shall continue in full force and effect. SEC. 7. None of the provisions of this Act shall be construed to repeal any of the provisions of the "War Prohibition Act," or to limit or annul any order or regulation prohibiting the manufacture, sale, or disposition of intoxicating liq- uors within certain prescribed zones or districts, nor shall the provisions of this Act be construed to prohibit the use of the power of the military or naval au- thorities to enforce the regulations of the President or Secretary of War or Navy issued in pursuance of law, prohibiting the manufacture, use, possession, sale, or other disposition of intoxicating liquors during the period of the war and demobi- lization thereafter. NATIONAL PROHIBITION ACT 9 TITLE II. PROHIBITION OF INTOXICATING BEVERAGES. SEC. 1. When used in Title II and Ti- tle III of this Act (1) the word "liquor" or the phrase "intoxicating liquor" shall be construed to include alcohol, brandy, whisky, rum, gin, beer, ale, porter, and wine, and in addition thereto any spirit- uous, vinous, malt, or fermented liquor, liquids, and compounds, whether medi- cated, proprietary, patented, or not, and by whatever name called, containing one- half of 1 per centum or more of alcohol by volume which are fit for use for bev- erage purposes: Provided, That the fore- going definition shall not extend to deal- coholized wine nor to any beverage or liquid produced by the process by which beer, ale, porter or wine is produced, if it contains less than one-half of 1 per cen- tum of alcohol by volume, and is made as prescribed in section 37 of this title, and is otherwise denominated than as beer, ale, or porter, and is contained and sold in, or from, such sealed and labeled bot- tles, casks, or containers as the commis- sioner may by regulation prescribe. (2) The word "person" shall mean and include natural persons, associations, copartnerships, and corporations. 10 NATIONAL PROHIBITION ACT "Commis- sioner" 'Application" "Permit" "Bond" 'Regulation' Authority of Commissioner Authority of Agents Records (3) The word "commissioner" shall mean Commissioner of Internal Revenue. (*) The term "application" shall mean a formal written request supported by a verified statement of facts showing that the commissioner may grant the request. (5) The term "permit" shall mean a formal written authorization by the com- missioner setting forth specifically therein the things that are authorized. (6) The term "bond" shall mean an obligation authorized or required by or under this Act or any regulation, exe- cuted in such form and for such a penal sum as may be required by a court, the commissioner or prescribed by regulation. (7) The term "regulation" shall mean any regulation prescribed by the com- missioner with the approval of the Secre- tary of the Treasury for carrying out the provisions of this Act, and the commis- sioner is authorized to make such regula- tions. Any act authorized to be done by the commissioner may be performed by any assistant or agent designated by him for that purpose. Records required to be filed with the commissioner may be filed with an assistant commissioner or other person designated by the commissioner to receive such records. NATIONAL PROHIBITION ACT 11 Duties of Commissioner Prosecution Warrants Preliminary Trial Search Warrants See p. 95 SEC. 2. The Commissioner of Internal Revenue, his assistants, agents, and in- spectors shall investigate and report viola- tions of this Act to the United States at- torney for the district in which committed, who is hereby charged with the duty of prosecuting the offenders, subject to the direction of the Attorney General, as in the case of other offenses against the laws of the United States; and such Com- missioner of Internal Revenue, his assist- ants, agents, and inspectors may swear out warrants before United States com- missioners or other officers or courts au- thorized to issue the same for the appre- hension of such offenders, and may, sub- ject to the control of the said United States attorney, conduct the prosecution at the committing trial for the purpose of having the offenders held for the action of a grand jury. Section 1014 of the Re- vised Statutes of the United States is hereby made applicable in the enforce- ment of this Act. Officers mentioned in said section 1014 are authorized to issue search warrants under the limitations provided in Title XI of the Act approved June 15, 1917 (fortieth Statutes at Large, page 217, et seq.). SEC. 3. No person shall on or after the date when the eighteenth amendment to the Constitution of the United States 12 NATIONAL PROHIBITION ACT Acts Pro- hibited Liberal Construction Thingn Permitted In General Warehouse Receipts Specific Articles Permitted Denatured Alcohol or Rum goes into effect, manufacture, sell, barter, transport, import, export, deliver, fur- nish, or possess any intoxicating liquor except as authorized in this Act, and all the provisions of this Act shall be liber- ally construed to the end that the use of intoxicating liquor as a beverage may be prevented. Liquor for nonbeverage purposes and wine for sacramental purposes may be manufactured, purchased, sold, bartered, transported, imported, exported, deliv- ered, furnished, and possessed, but only as herein provided, and the commissioner may, upon application, issue permits therefor: Provided, That nothing in this Act shall prohibit the purchase and sale of warehouse receipts covering distilled spirits on deposit in Government bonded warehouses, and no special tax liability shall attach to the business of purchasing and selling such warehouse receipts. SEC. 4. The articles enumerated in this section shall not, after having been man- ufactured and prepared for the market, be subject to the provisions of this Act if they correspond with the following de- scriptions and limitations namely: (a) Denatured alcohol or denatured rum produced and used as provided by laws and regulations now or hereafter in force. NATIONAL PROHIBITION ACT 13 Medicinal Preparations Patent Medicines Toilet, etc. Preparations Flavoring Extracts, etc. Vinegar and Cider Liquor for Manufacturing Purposes Permits Use of Liquor for Manufac- turing (b) Medicinal preparations manufac- tured in accordance with formulas pre- scribed by the United States Pharma- copoeia, National Formulary, or the American Institute of Homeopathy that are unfit for use for beverage purposes. (c) Patented, patent, and proprietary medicines that are unfit for use for bev- erage purposes. (d) Toilet, medicinal, and antiseptic preparations and solutions that are unfit for use for beverage purposes. (e) Flavoring extracts and sirups that are unfit for use as a beverage, or for in- toxicating beverage purposes. (f) Vinegar and preserved sweet cider. A person who manufactures any of the articles mentioned in this section may purchase and possess liquor for that pur- pose, but he shall secure permits to man- ufacture such articles and to purchase such liquor, give the bonds, keep the rec- ords, and make the reports specified in this Act and as directed by the commis- sioner. No such manufacturer shall sell, use, or dispose of any liquor otherwise than as an ingredient of the articles au- thorized to be manufactured therefrom. No more alcohol shall be used in the man- ufacture of any extract, sirup, or the ar- ticles named in paragraphs b, c, and d of 14 NATIONAL PROHIBITION ACT Sale of Permitted Articles for Beverage Purposes Unlawful Notice to Desist Penalty this section which may be used for bever- age purposes than the quantity necessary for extraction of solution of the elements contained therein and for the preserva- tion of the article. Any person who shall knowingly sell any of the articles mentioned in para- graphs a, b, c, and d of this section for beverage purposes, or any extract or sirup for intoxicating beverage purposes, or who shall sell any of the same under cir- cumstances from which the seller might reasonably deduce the intention of the purchaser to use them for such purposes, or shall sell any beverage containing one- half of 1 per centum or more of alcohol by volume in which any extract, sirup, or other article is used as an ingredient, shall be subject to the penalties provided in section 29 of this Title. If the commis- sioner shall find, after notice and hearing as provided for in section 5 of this Title, that any person has sold any flavoring extract, sirup, or beverage in violation of this paragraph, he shall notify such per- son, and any known principal for whom the sale was made, to desist from selling such article; and it shall thereupon be unlawful for a period of one year there- after for any person so notified to sell any such extract, sirup, or beverage without making an application for, giving a bond, and obtaining a permit so to do, which NATIONAL PROHIBITION ACT 15 Analysis of Alcoholic Articles Notice to Show Cause Revocation of Permit permit may be issued upon such condi- tions as the commissioner may deem nec- essary to prevent such illegal sales, and in addition the commissioner shall re- quire a record and report of sales. SEC. 5. "Whenever the commissioner has reason to believe that any article men- tioned in section 4 does not correspond with the descriptions and limitations therein provided, he shall cause an analy- sis of said article to be made, and if, upon such analysis, the commissioner shall find that said article does not so correspond, he shall give not less than fifteen days' no- tice in writing to the person who is the manufacturer thereof to show cause why said article should not be dealt with as an intoxicating liquor, such notice to be served personally or by registered mail, as the commissioner may determine, and shall specify the time when, the place where, and the name of the agent or of- ficial before whom such person is re- quired to appear. If the manufacturer of said article fails to show to the satisfaction of the com- missioner that the article corresponds to the descriptions and limitations provided in section 4 of this Title, his permit to manufacture and sell such article shall be revoked. The manufacturer may by ap- propriate proceeding in a court of equity 16 NATIONAL PROHIBITION ACT Review by Court When Permit Necessary When Un- necessary Physicians' Prescriptions Hospitals Duration of Permits have the action of the commissioner re- viewed, and the court may affirm, modify, or reverse the finding of the commis- sioner as the facts and law of the case may warrant, and during the pendency of such proceedings may restrain the manu- facture, sale, or other disposition of such article. SEC. 6. No one shall manufacture, sell, purchase, transport, or prescribe any liq- uor without first obtaining a permit from the commissioner so to do, except that a person may, without a permit, purchase and use liquor for medicinal purposes when prescribed by a physician as herein provided, and except that any person who in the opinion of the commissioner is con- ducting a bona fide hospital or sanato- rium engaged in the treatment of persons suffering from alcoholism, may, under such rules, regulations, and conditions as the commissioner shall prescribe, pur- chase and use, in accordance with the methods in use in such institution, liquor, to be administered to the patients of such institution under the direction of a duly qualified physician employed by such in- stitution. All permits to manufacture, prescribe, sell, or transport liquor, may be issued for one year, and shall expire on the 31st day of December next succeeding the is- NATIONAL PROHIBITION ACT 17 suance thereof: Provided, That the com- missioner may without formal application or new bond extend any permit granted under this Act or laws now in force after August 31 in any year to December 31 of the succeeding year: Provided further, That permits to purchase liquor for the purpose of manufacturing or selling as provided in this Act shall not be in force to exceed ninety days from the day of is- suance. A permit to purchase liquor for any other purpose shall not be in force to exceed thirty days. Permits to purchase liquor shall specify the quantity and kind to be purchased and the purpose for which it is to be used. No permit shall be issued to any person who within one year prior to the application therefor or issu- ance thereof shall have violated the terms of any permit issued under this Title or any law of the United States or of any State regulating traffic in liquor. No per- mit shall be issued to anyone to sell liq- uor at retail, unless the sale is to be made through a pharmacist designated in the permit and duly licensed under the laws of his State to compound and dispense medicine prescribed by a duly licensed physician. No one shall be given a permit to prescribe liquor unless he is a physician duly licensed to practice medicine and ac- tively engaged in the practice of such profession. Every permit shall be in 18 NATIONAL PROHIBITION ACT Form of Permit Application for Permit Permit Bond Review by Court of Re- fusal of Per- mit Wine for Sacramental Purposes writing, dated when issued, and signed by commissioner or his authorized agent. It shall give the name and address of the person to whom it is issued and shall des- ignate and limit the acts that are per- mitted and the time when and place where such acts may be performed. No permit shall be issued until a verified, written application shall have been made there- for, setting forth the qualification of the applicant and the purpose for which the liquor is to be used. The commissioner may prescribe the form of all permits and applications and the facts to be set forth therein. Before any permit is granted the commissioner may require a bond in such form and amount as he may prescribe to insure compliance with the terms of the permit and the provisions of this Title. In the event of the refusal by the commissioner of any application for a permit, the appli- cant may have a review of his decision before a court of equity in the manner provided in section 5 hereof. Nothing in this title shall be held to apply to the manufacture, sale, transpor- tation, importation, possession, or distri- bution of wine for sacramental purposes, or like religious rites, except section 6 (save as the same requires a permit to purchase) and section 10 hereof, and the NATIONAL PROHIBITION ACT 19 Permit Restrictions Ecclesiastical Manufacture See p. 142 Prescriptions provisions of this Act prescribing penal- ties for the violation of either of said sec- tions. No person to whom a permit may be issued to manufacture, transport, im- port, or sell wines for sacramental pur- poses or like religious rites shall sell, barter, exchange, or furnish any such to any person not a rabbi, minister of the gospel, priest, or an officer duly author- ized for the purpose by any church or congregation, nor to any such except upon an application duly subscribed by him, which application, authenticated as regulations may prescribe, shall be filed and preserved by the seller. The head of any conference or diocese or other eccle- siastical jurisdiction may designate any rabbi, minister, or priest to supervise the manufacture of wine to be used for the purposes and rites in this section men- tioned, and the person so designated may, in the discretion of the commissioner, be granted a permit to supervise such manu- facture. SEC. 7. No one but a physician holding a permit to prescribe liquor shall issue any prescription for liquor. And no physician shall prescribe liquor unless after careful physical examination of the person for whose use such prescription is sought, or if such examination is found impracticable, then upon the best infor- 20 NATIONAL PROHIBITION ACT Necessity as Medicine Amount Permissible Refilling Prohibited Pharmacist Record Physician's Record Prescription Blanks mation obtainable, he in good faith be- lieves that the use of such liquor as a medicine by such person is necessary and will afford relief to him from some known ailment. Not more than a pint of spirit- uous liquor to be taken internally shall be prescribed for use by the same person within any period of ten days and no pre- scription shall be filled more than once. Any pharmacist filling a prescription shall at the time indorse upon it over his own signature the word "canceled," together with the date when the liquor was deliv- ered, and then make the same a part of the record that he is required to keep as herein provided. Every physician who issues a prescrip- tion for liquor shall keep a record, alpha- betically arranged in a book prescribed by the commissioner, which shall show the date of issue, amount prescribed, to whom issued, the purpose or ailment for which it is to be used and directions for use, stating the amount and frequency of the dose. SEC. 8. The commissioner shall cause to be printed blanks for the prescriptions herein required, and he shall furnish the same, free of cost, to physicians holding permits to prescribe. The prescription blanks shall be printed in book form and shall be numbered consecutively from NATIONAL PROHIBITION ACT 21 Violation of Permit Procedure one to one hundred, and each book shall be given a number, and the stubs in each book shall carry the same numbers as and be copies of the prescriptions. The books containing such stubs shall be returned to the commissioner when the prescrip- tion blanks have been used, or sooner, if directed by the commissioner. All un- used, mutilated, or defaced blanks shall be returned with the book. No physician shall prescribe and no pharmacist shall fill any prescription for liquor except on blanks so provided, except in cases of emergency, in which event a record and report shall be made and kept as in other cases. SEC. 9. If at any time there shall be filed with the commissioner a complaint under oath setting forth facts showing, or if the commissioner has reason to be- lieve, that any person who has a permit is not in good faith conforming to the provisions of this Act, or has violated the laws of any State relating to intoxicating liquor, the commissioner or his agent shall immediately issue an order citing such person to appear before him on a day named not more than thirty and not less than fifteen days from the date of service upon such permittee of a copy of the citation, which citation shall be ac- companied by a copy of such complaint, 22 NATIONAL PROHIBITION ACT Revocation of Permit Review by Court Record of Liquor Handled or in the event that the proceedings be initiated by the commissioner, with a statement of the facts constituting the violation charged, at which time a hear- ing shall be had unless continued for cause. Such hearings shall be held within the judicial district and within fifty miles of the place where the offense is alleged to have occurred, unless the parties agree on another place. If it be found that such person has been guilty of willfully violating any such laws, as charged, or has not in good faith conformed to the provisions of this Act, such permit shall be revoked, and no permit shall be granted to such person within one year thereafter. Should the permit be revoked by the com- missioner, the permittee may have a re- view of his decision before a court of eq- uity in the manner provided in section 5 hereof. During the pendency of such ac- tion such permit shall be temporarily re- voked. SEC. 10. No person shall manufacture, purchase for sale, sell, or transport any liquor without making at the time a per- manent record thereof showing in detail the amount and kind of liquor manufac- tured, purchased, sold or transported, to- gether with the names and addresses of the persons to whom sold, in case of sale, and the consignor and consignee in case NATIONAL PROHIBITION ACT 23 Manufacturers and Druggists Records Sale Re- stricted to Permittees Labels Specifications in Labels of transportation, and the time and place of such manufacture, sale, or transporta- tion. The commissioner may prescribe the form of such record, which shall at all times be open to inspection as in this Act provided. SEC. 11. All manufacturers and whole- sale or retail druggists shall keep as a part of the records required of them a copy of all permits to purchase on which a sale of any liquor is made, and no man- ufacturer or wholesale druggist shall sell or otherwise dispose of any liquor except at wholesale and only to persons having permits to purchase in such quantities. SEC. 12. All persons manufacturing liq- uor for sale under the provisions of this title shall securely and permanently at- tach to every container thereof, as the same is manufactured, a label stating name of manufacturer, kind and quantity of liquor contained therein, and the date of its manufacture, together with the number of the permit authorizing the manufacture thereof; and all persons pos- sessing such liquor in wholesale quanti- ties shall securely keep and maintain such label thereon; and all persons selling at wholesale shall attach to every pack- age of liquor, when sold, a label setting forth the kind and quantity of liquor contained therein, by whom manufac- 24 NATIONAL PROHIBITION ACT See p. 154 Duties of Carriers Records Delivery Oath of Consignee See p. 158 Duty of Consignor tured, the date of sale, and the person to whom sold; which label shall likewise be kept and maintained thereon until the liquor is used for the purpose for which such sale was authorized. SEC. 13. It shall be the duty of every carrier to make a record at the place of shipment of the receipt of any liquor transported, and he shall deliver liquor only to persons who present to the car- rier a verified copy of a permit to pur- chase, which shall be made a part of the carrier's permanent record at the office from which delivery is made. The agent of the common carrier is hereby authorized to administer the oath to the consignee in verification of the copy of the permit presented, who, if not personally known to the agent, shall be identified before the delivery of the liq- uor to him. The name and address of the person identifying the consignee shall be included in the record. SEC. 14. It shall be unlawful for a per- son to use or induce any carrier, or any agent or employee thereof, to carry or ship any package or receptacle contain- ing liquor without notifying the carrier of the true nature and character of the shipment. No carrier shall transport nor shall any person receive liquor from a carrier unless there appears on the out- NATIONAL PROHIBITION ACT 25 Information on Package See p. 161 False Statement Order for Delivery to False Consignee See p. 162 Advertisement of Liquor side of the package containing such liq- uor the following information: Name and address of the consignor or seller, name and address of the consignee, kind and quantity of liquor contained therein, and number of the permit to pur- chase or ship the same, together with the name and address of the person using the permit. SEC. 15. It shall be unlawful for any consignee to accept or receive any pack- age containing any liquor upon which ap- pears a statement known to him to be false, or for any carrier or other person to consign, ship, transport, or deliver any such package, knowing such statement to be false. SEC. 16. It shall be unlawful to give to any carrier or any officer, agent, or person acting or assuming to act for such carrier an order requiring the delivery to any person of any liquor or package con- taining liquor consigned to, or purporting or claimed to be consigned to a person, when the purpose of the order is to en- able any person not an actual bona fide consignee to obtain such liquor. SEC. 17. It shall be unlawful to adver- tise anywhere, or by any means or method, liquor, or the manufacture, sale, keeping for sale or furnishing of the 26 NATIONAL PROHIBITION ACT Legitimate Price Lists Advertisement, Manufacture or Sale of Things for Making Liq- See p. 165 same, or where, how, from whom, or at what price the same may be obtained. No one shall permit any sign or billboard containing such advertisement to remain upon one's premises. But nothing herein shall prohibit manufacturers and whole- sale druggists holding permits to sell liq- uor from furnishing price lists, with de- scription of liquor for sale, to persons permitted to purchase liquor, or from ad- vertising alcohol in business publications or trade journals circulating generally among manufacturers of lawful alcoholic perfumes, toilet preparations, flavoring extracts, medicinal preparations, and like articles: Provided, however, That noth- ing in this Act or in the Act making ap- propriations for the Post Office Depart- ment, approved March 3, 1917 (Thirty- ninth Statutes at Large, Part 1, page 1058, et seq.), shall apply to newspapers published in foreign countries when mailed to this country. SEC. 18. It shall be unlawful to adver- tise, manufacture, sell, or possess for sale any utensil, contrivance, machine, prepa- ration, compound, tablet, substance, for- mula direction, or recipe advertised, de- signed, or intended for use in the unlaw- ful manufacture of intoxicating liquor. SEC. 19. No person shall solicit or re- ceive, nor knowingly permit his employee NATIONAL PROHIBITION ACT 27 Order for or Information Regarding Liquor Civil Suit for Causing Intoxication to solicit or receive, from any person any order for liquor or give any information of how liquor may be obtained in viola- tion of this Act. SEC. 20. Any person who shall be in- jured in person, property, means of sup- port, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlaw- fully selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication, and in any such action such person shall have a right to recover actual and exemplary damages. In case of the death of either party, the action or right of action given by this section shall survive to or against his or her executor or administrator, and the amount so re- covered by either wife or child shall be his or her sole and separate property. Such action may be brought in any court of competent jurisdiction. In any case where parents shall be entitled to such damages, either the father or mother may sue alone therefor, but recovery by one of such parties shall be a bar to suit brought by the other. SEC. 21. Any room, house, building, boat, vehicle, structure, or place where 28 NATIONAL PROHIBITION ACT Liquor Nuisances See p. 167 Punishment Injunction against Such Nuisance intoxicating liquor is manufactured, sold, kept, or bartered in violation of this ti- tle, and all intoxicating liquor and prop- erty kept and used in maintaining the same, is hereby declared to be a common nuisance, and any person who maintains such a common nuisance shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than $1,000 or be imprisoned for not more than one year, or both. If a person has knowledge or reason to believe that his room, house, building, boat, vehicle, structure, or place is occupied or used for the manufacture or sale of liquor contrary to the provision of this title, and suffers the same to be so occupied or used, such room, house, building, boat, vehicle, structure, or place shall be subject to a lien for and may be sold to pay all fines and costs assessed against the person guilty of such nui- sance for such violation, and any such lien may be enforced by action in any court having jurisdiction. SEC. 22. An action to enjoin any nui- sance defined in this title may be brought in the name of the United States by the Attorney General of the United States or by any United States attorney or any prosecuting attorney of any State or any subdivision thereof or by the commis- sioner or his deputies or assistants. Such NATIONAL PROHIBITION ACT 29 Trial Temporary Injunction Bond Order Abatement action shall be brought and tried as an action in equity and may be brought in any court having jurisdiction to hear and determine equity cases. If it is made to appear by affidavits or otherwise, to the satisfaction of the court, or judge in va- cation, that such nuisance exists, a tem- porary writ of injunction shall forthwith issue restraining the defendant from con- ducting or permitting the continuance of such nuisance until the conclusion of the trial. If a temporary injunction is prayed for, the court may issue an order re- straining the defendant and all other per- sons from removing or in any way inter- fering with the liquor or fixtures, or other things used in connection with the vio- lation of this Act constituting such nui- sance. No bond shall be required in in- stituting such proceedings. It shall not be necessary for the court to find the property involved was being unlawfully used as aforesaid at the time of the hear- ing, but on finding that the material alle- gations of the petition are true, the court shall order that no liquors shall be manu- factured, sold, bartered, or stored in such room, house, building, boat, vehicle, structure, or place, or any part thereof. And upon judgment of the court ordering such nuisance to be abated, the court may order that the room, house, building, structure, boat, vehicle, or place shall not 30 NATIONAL PROHIBITION ACT be occupied or used for one year there- after; but the court may, in its discretion, permit it to be occupied or used if the owner, lessee, tenant, or occupant thereof shall give bond with sufficient surety, to be approved by the court making the order, in the penal and liquidated sum of not less than $500 nor more than $1,000, payable to the United States, and con- ditioned that intoxicating liquor will not thereafter be manufactured, sold, bar- tered, kept, or otherwise disposed of therein or thereon, and that he will pay all fines, costs, and damages that may be assessed for any violation of this title upon said property. See 171 SEC. 23. That any person who shall, with intent to effect a sale of liquor, by against" himself, his employee, servant, or agent, Trafficing f or himself or any person, company, or corporation, keep or carry around on his person, or in a vehicle, or other convey- ance whatever, or leave in a place for an- other to secure, any liquor, or who shall travel to solicit, or solicit, or take, or ac- cept orders for the sale, shipment, or de- livery of liquor in violation of this title is guilty of a nuisance and may be re- strained by injunction, temporary and permanent, from doing or continuing to do any of said acts or things. In such proceedings it shall not be nee- NATIONAL PROHIBITION ACT 31 Intent Officers' Fees Forfeiture of Lease Violation of Injunction Contempt Proceedings essary to show any intention on the part of the accused to continue such violations if the action is brought within sixty days following any such violation of the law. For removing and selling property in enforcing this Act the officer shall be en- titled to charge and receive the same fee as the sheriff of the county would receive for levying upon and selling property un- der execution, and for closing the prem- ises and keeping them closed a reasonable sum shall be allowed by the court. Any violation of this title upon any leased premises by the lessee or occupant thereof shall, at the option of the lessor, work a forfeiture of the lease. SEC. 24. In the case of the violation of any injunction, temporary or permanent, granted pursuant to the provisions of this title, the court, or in vacation a judge thereof, may summarily try and punish the defendant. The proceedings for pun- ishment for contempt shall be commenced by filing with the clerk of the court from which such injunction issued information under oath setting out the alleged facts constituting the violation, whereupon the court or judge shall forthwith cause a warrant to issue under which the defend- ant shall be arrested. The trial may be had upon affidavits, or either party may demand the production and oral exami- 32 NATIONAL PROHIBITION ACT Punishment See p. 201 Property Rights in Liquor or Articles for Manufacturing Unlawfully Search Warrants Seizure Search of Private Dwelling nation of the witnesses. Any person found guilty of contempt under the pro- visions of this section shall be punished by a fine of not less than $500 nor more than $1,000, or by imprisonment of not less than thirty days nor more than twelve months, or by both fine and im- prisonment. SEC. 25. It shall be unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violating this title or which has been so used, and no property rights shall exist in any such liquor or property. A search warrant may issue as provided in Title XI of public law numbered 24 of the Sixty-fifth Congress, approved June 15, 1917, and such liquor, the containers thereof, and such property so seized shall be subject to such disposition as the court may make thereof. If it is found that such liquor or property was so unlawfully held or possessed, or had been so unlaw- fully used, the liquor and all property de- signed for the unlawful manufacture of liquor shall be destroyed unless the court shall otherwise order. No search war- rant shall issue to search any private dwelling occupied as such unless it is be- ing used for the unlawful sale of intoxi- cating liquor, or unless it is in part used for some business purpose such as a store, NATIONAL PROHIBITION ACT 33 See p. 213 Seizure of Vehicle Bond for Return of Seized Ve- hicles shop, saloon, restaurant, hotel, or board- ing house. The term "private dwelling" shall be construed to include the room or rooms used and occupied not transiently but solely as a residence in an apartment house, hotel, or boarding house. The property seized on any such warrant shall not be taken from the officer seizing the same on any writ of replevin or other like process. SEC. 26. When the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law. Whenever intoxicating liquors trans- ported or possessed illegally shall be seized by an officer he shall take posses- sion of the vehicle and team or automo- bile, boat, air or water craft, or any other conveyance, and shall arrest any person in charge thereof. Such officer shall at once proceed against the person arrested under the provisions of this title in any court having competent jurisdiction; but the said vehicle or conveyance shall be returned to the owner upon execution by him of a good and valid bond, with suffi- 34 NATIONAL PROHIBITION ACT Sale of Vehicle upon Convic- tion Liens on Vehicles Advertisement for Claimant cient sureties, in a sum double the value of the property, which said bond shall be approved by said officer and shall be con- ditioned to return said property to the custody of said officer on the day of trial to abide the judgment of the court. The court upon conviction of the person so arrested shall order the liquor destroyed, and unless good cause to the contrary is shown by the owner, shall order a sale by public auction of the property seized, and the officer making the sale, after deduct- ing the expenses of keeping the property, the fee for the seizure, and the cost of the sale, shall pay all liens, according to their priorities, which are established, by in- tervention or otherwise, at said hearing or in other proceeding brought for said purpose, as being bona fide and as having been created without the lienor having any notice that the carrying vehicle was being used or was to be used for illegal transportation of liquor, and shall pay the balance of the proceeds into the Treasury of the United States as miscel- laneous receipts. All liens against prop- erty sold under the provisions of this section shall be transferred from the prop- erty to the proceeds of the sale of the property. If, however, no one shall be found claiming the team, vehicle, water or air craft, or automobile, the taking of the same, with a description thereof, NATIONAL PROHIBITION ACT 35 shall be advertised in some newspaper published in the city or county where taken, or if there be no newspaper pub- lished in such city or county, in a news- paper having circulation in the county, once a week for two weeks, and by hand- bills posted in three public places near the place of seizure, and if no claimant shall appear within ten days after the last publication of the advertisement, the property shall be sold and the proceeds after deducting the expenses and costs shall be paid into the Treasury of the United States as miscellaneous receipts. Disposition SEC. 27. In all cases in which intoxi- of Confiscated . Liquors eating liquors may be subject to be de- stroyed under the provisions of this Act the court shall have jurisdiction upon the application of the United States attorney to order them delivered to any depart- ment or agency of the United States Government for medicinal, mechanical, or scientific uses, or to order the same sold at private sale for such purposes to any person having a permit to purchase liquor the proceeds to be covered into the Treasury of the United States to the credit of miscellaneous receipts, and all liquor heretofore seized in any suit or proceeding brought for violation of law may likewise be so disposed of, if not claimed within sixty days from the date this section takes effect. 36 NATIONAL PROHIBITION ACT General Powers of Officers See p. 234 Punishment In General Punishment of Permittee SEC. 28. The commissioner, his assist- ants, agents, and inspectors, and all other officers of the United States, whose duty it is to enforce criminal laws, shall have all the power and protection in the en- forcement of this Act or any provisions thereof which is conferred by law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquors under the law of the United States. SEC. 29. Any person who manufactures or sells liquor in violation of this title shall for a first offense be fined not more than $1,000, or imprisoned not exceeding six months, and for a second or subse- quent offense shall be fined not less than $200 nor more than $2,000 and be impris- oned not less than one month nor more than five years. Any person violating the provisions of any permit, or who makes any false rec- ord, report, or affidavit required by this title, or violates any of the provisions of this title, for which offense a special pen- alty is not prescribed, shall be fined for a first offense not more than $500; for a second offense not less than $100 nor more than $1,000, or be imprisoned not more than ninety days; for any subse- quent offense he shall be fined not less than $500 and be imprisoned not less than NATIONAL PROHIBITION ACT 37 Prior Conviction Cider and Fruit Juices Incrimination No Excuse from Testify- ing Immunity three months nor more than two years. It shall be the duty of the prosecuting officer to ascertain whether the defend- ant has been previously convicted and to plead the prior conviction in the affidavit, information, or indictment. The penal- ties provided in this Act against the man- ufacture of liquor without a permit shall not apply to a person for manufacturing nonintoxicating cider and fruit juices ex- clusively for use in his home, but such cider and fruit juices shall not be sold or delivered except to persons having per- mits to manufacture vinegar. SEC. 30. No person shall be excused, on the ground that it may tend to incrim- inate him or subject him to a penalty or forfeiture, from attending and testifying, or producing books, papers, documents, and other evidence in obedience to a sub- poena of any court in any suit or proceed- ing based upon or growing out of any al- leged violation of this Act; but no natural person shall be prosecuted or subjected to any penalty or forfeiture for or on ac- count of any transaction, matter, or thing as to which, in obedience to a subpoena and under oath, he may so testify or pro- duce evidence, but no person shall be ex- empt from prosecution and punishment for perjury committed in so testifying. SEC. 31. In case of a sale of liquor 38 NATIONAL PROHIBITION ACT Venue of Prosecution See p. 236 Indictments, etc. Unnecessary Allegations Bill of Particulars See p. 331 Possession as Prima Fa- cie Evidence where the delivery thereof was made by a common or other carrier the sale and de- livery shall be deemed to be made in the county or district wherein the delivery was made by such carrier to the con- signee, his agent or employee, or in the county or district wherein the sale was made, or from which the shipment was made, and prosecution for such sale or delivery may be had in any such county or district. SEC. 32. In any affidavit, information, or indictment for the violation of this Act, separate offenses may be united in separate counts and the defendant may be tried on all at one trial and the penalty for all offenses may be imposed. It shall not be necessary in any affidavit, infor- mation, or indictment to give the name of the purchaser or to include any defensive negative averments, but it shall be suffi- cient to state that the act complained of was then and there prohibited and unlaw- ful, but this provision shall not be con- strued to preclude the trial court from directing the furnishing the defendant a bill of particulars when it deems it proper to do so. SEC. 33. After February 1, 1920, the possession of liquors by any person not legally permitted under this title to pos- sess liquor shall be prima facie evidence NATIONAL PROHIBITION ACT 39 Possession in Private Dwelling Records Subject to Inspection that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provision of this title. Every person legally permitted under this title to have liquor shall report to the commissioner within ten days after the date when the eighteenth amendment of the Constitution of the United States goes into effect, the kind and amount of intoxicating liquors in his possession. But it shall not be unlawful to possess liquors in one's private dwelling while the same is occupied and used by him as his dwelling only and such liquor need not be reported, provided such liq- uors are for use only for the personal consumption of the owner thereof and his family residing in such dwelling and of his bona fide guests when entertained by him therein; and the burden of proof shall be upon the possessor in any action concerning the same to prove that such liquor was lawfully acquired, possessed, and used. SEC. 34. All records and reports kept or filed under the provisions of this Act shall be subject to inspection at any rea- sonable hour by the commissioner or any of his agents or by any public prosecutor or by any person designated by him, or by any peace officer in the State where 40 NATIONAL PROHIBITION ACT Copies as Evidence See p. 463 Repeal of Inconsistent Laws Taxes and Stamps the record is kept, and copies of such rec- ords and reports duly certified by the per- son with whom kept or filed may be in- troduced in evidence with like effect as the originals thereof, and verified copies of such reports shall be furnished to the commissioner when called for. SEC. 35. All provisions of law that are inconsistent with this Act are repealed only to the extent of such inconsistency and the regulations herein provided for the manufacture or traffic in intoxicating liquor shall be construed as in addition to existing laws. This Act shall not re- lieve anyone from paying any taxes or other charges imposed upon the manu- facture or traffic in such liquor. No liq- uor revenue stamps or tax receipts for any illegal manufacture or sale shall be issued in advance, but upon evidence of such illegal manufacture or sale a tax shall be assessed against, and collected from, the person responsible for such il- legal manufacture or sale in double the amount now provided by law, with an ad- ditional penalty of $500 on retail dealers and $1,000 on manufacturers. The pay- ment of such tax or penalty shall give no right to engage in the manufacture or sale of such liquor, or relieve anyone from criminal liability, nor shall this Act re- lieve any person from any liability, civil NATIONAL PROHIBITION ACT 41 Compromise of Civil Action Invalidity Part of Act Storage and Transporta- tion of Bonded Liquor Manufacture of Non-Alco- holic Bever- ages or criminal, heretofore or hereafter in- curred under existing laws. The commissioner, with the approval of the Secretary of the Treasury, may compromise any civil cause arising under this title before bringing action in court; and with the approval of the Attorney General he may compromise any such cause after action thereon has been com- menced. SEC. 36. If any provision of this Act shall be held invalid it shall not be con- strued to invalidate other provisions of the Act. SEC. 37. Nothing herein shall prevent the storage in United States bonded ware- houses of all liquor manufactured prior to the taking effect of this Act, or pre- vent the transportation of such liquor to such warehouses or to any wholesale druggist for sale to such druggist for pur- poses not prohibited when the tax is paid, and permits may be issued therefor. A manufacturer of any beverage con- taining less than one-half of 1 per centum of alcohol by volume may, on making ap- plication and giving such bond as the commissioner shall prescribe, be given a permit to develop in the manufacture thereof by the usual methods of fermenta- tion and fortification or otherwise a liq- 42 NATIONAL PROHIBITION ACT uid such as beer, ale, porter, or wine, con- Over y^% taining more than one-half of 1 per centum of alcohol by volume, but before any such liquid is withdrawn from the factory or otherwise disposed of the alcoholic con- tents thereof shall under such rules and regulations as the commissioner may pre- Reduction scribe be reduced below such one-half of 1 per centum of alcohol: Provided, That such liquid may be removed and trans- ported, under bond and under such regu- lations as the commissioner may pre- scribe, from one bonded plant or ware- house to another for the purpose of hav- ing the alcohol extracted therefrom. And such liquids may be developed, under permit, by persons other than the manu- facturers of beverages containing less than one-half of 1 per centum of alcohol by volume, and sold to such manufact- urers for conversion into such beverages. Tax The alcohol removed from such liquid, if evaporated and not condensed and saved, shall not be subject to tax; if saved, it shall be subject to the same law as other alcoholic liquors. Credit shall be allowed on the tax due on any alcohol so saved to the amount of any tax paid upon distilled spirits or brandy used in the fortification of the liquor from which the same is saved. When fortified wines are made and used NATIONAL PROHIBITION ACT 43 Burden of Proof of Alcoholic Percentage for the production of nonbeverage alco- hol and dealcoholized wines containing less than one-half of 1 per centum of al- cohol by volume, no tax shall be assessed or paid on the spirits used in such forti- fication, and such dealcoholized wines produced under the provisions of this Act, whether carbonated or not, shall not be subject to the tax on artificially carbo- nated or sparkling wines, but shall be subject to the tax on still wines only. In any case where the manufacturer is charged with manufacturing or selling for beverage purposes any malt, vinous, or fermented liquids containing one-half of 1 per centum or more of alcohol by vol- ume, or in any case where the manufac- turer, having been permitted by the com- missioner to develop a liquid such as ale, beer, porter, or wine containing more than one-half of 1 per centum of alcohol by volume in the manner and for the pur- pose herein provided, is charged with failure to reduce the alcoholic content of any such liquid below such one-half of 1 per centum before withdrawing the same from the factory, then in either such case the burden of proof shall be on such man- ufacturer to show that such liquid so manufactured, sold, or withdrawn con- tains less than one-half of 1 per centum of alcohol by volume. In any suit or pro- 44 NATIONAL PROHIBITION ACT ceeding involving the alcoholic content of any beverage, the reasonable expense of analysis of such beverage shall be taxed as costs in the case. Appointment g EC> 3g. The Commissioner of Internal of Necessary Assistants Revenue and the Attorney General of the United States are hereby respectively au- thorized to appoint and employ such as- sistants, experts, clerks, and other em- ployees in the District of Columbia or elsewhere, and to purchase such supplies and equipment as they may deem neces- sary for the enforcement of the provisions of this Act, but such assistants, experts, clerks, and other employees, except such executive officers as may be appointed by the commissioner or the Attorney Gen- eral to have immediate direction of the enforcement of the provisions of this Act, and persons authorized to issue permits, and agents and inspectors in the field service, shall be appointed under the rules and regulations prescribed by the Civil Service Act: Provided, That the commis- sioner and Attorney General in making such appointments shall give preference to those who have served in the military or naval service in the recent war, if oth- erwise qualified, and there is hereby au- thorized to be appropriated, out of any money in the Treasury not otherwise ap- propriated, such sum as may be required NATIONAL PROHIBITION ACT 45 "Alcohol" Defined for the enforcement of this Act, including personal services in the District of Co- lumbia, and for the fiscal year ending June 30, 1920, there is hereby appropri- ated, out of any money in the Treasury not otherwise appropriated, the sum of $2,000,000 for the use of the Commis- sioner of Internal Revenue and $100,000 for the use of the Department of Justice for the enforcement of the provisions of this Act, including personal services in the District of Columbia, and necessary printing and binding. SEC. 39. In all cases wherein the prop- erty of any citizen is proceeded against or wherein a judgment affecting it might be rendered, and the citizen is not the one who in person violated the provisions of the law, summons must be issued in due form and served personally, if said per- son is to be found within the jurisdiction of the court. TITLE III. INDUSTRIAL ALCOHOL. SEC. 1. When used in this title The term " alcohol" means that sub- stance known as ethyl alcohol, hydrated oxide of ethyl, or spirit of wine, from whatever source or whatever processes produced. 46 "Container" Industrial Alcohol Permits Warehouses for Industrial Alcohol NATIONAL PROHIBITION ACT The term "container" includes any re- ceptacle, vessel, or form of package, tank, or conduit used or capable of use for holding, storing, transferring, or ship- ment of alcohol. INDUSTRIAL ALCOHOL PLANTS AND WARE- HOUSES. SEC. 2. Any person now producing al- cohol shall, within thirty days after the passage of this Act, make application to the commissioner for registration of his industrial alcohol plant, and as soon thereafter as practicable the premises shall be bonded and permit may issue for the operation of such plant, and any per- son hereafter establishing a plant for the production of alcohol shall likewise be- fore operation make application, file bond, and receive permit. SEC. 3. Warehouses for the storage and distribution of alcohol to be used exclu- sively for other than beverage purposes may be established upon filing of appli- cation and bonds, and issuance of permit at such places, either in connection with the manufacturing plant or elsewhere, as the commissioner may determine; and the entry and storage of alcohol therein, and the withdrawals of alcohol therefrom shall be made in such containers and by such means as the commissioner by regu- lation may prescribe. NATIONAL PROHIBITION ACT 47 Transfer Tax Withdrawal from Bonded Warehouse SEC. 4. Alcohol produced at any regis- tered industrial alcohol plant or stored in any bonded warehouse may be trans- ferred under regulations to any other reg- istered industrial alcohol plant or bonded warehouse for any lawful purpose. SEC. 5. Any tax imposed by law upon alcohol shall attach to such alcohol as soon as it is in existence as such, and all proprietors of industrial alcohol plants and bonded warehouses shall be jointly and severally liable for any and all taxes on any and all alcohol produced thereat or stored therein. Such taxes shall be a first lien on such alcohol and the prem- ises and plant in which such alcohol is produced or stored, together with all im- provements and appurtenances thereunto belonging or in any wise appertaining. SEC. 6. Any distilled spirits produced and fit for beverage purposes remaining in any bonded warehouse on or before the date when the eighteenth amendment of the Constitution of the United States goes into effect, may, under regulations, be withdrawn therefrom either for de- naturation at any bonded denaturing plant or for deposit in a bonded ware- house established under this Act; and when so withdrawn, if not suitable as to proof, purity, or quality for other than beverage purposes, such distilled spirits 48 NATIONAL PROHIBITION ACT Denaturing Continuation of Distillery or Bonded Warehouse Production of Industrial Alcohol Exemption from Existing Statutes shall be redistilled, purified, and changed in proof so as to render such spirits suit- able for other purposes, and having been so treated may thereafter be denatured or sold in accordance with the provisions of this Act. SEC. 7. Any distillery or bonded ware- house heretofore legally established may, upon filing application and bond and the granting of permit, be operated as an in- dustrial alcohol plant or bonded ware- house under the provisions of this title and regulations made thereunder. SEC. 8. Alcohol may be produced at any industrial alcohol plant established under the provisions of this title from any raw materials or by any processes suitable for the production of alcohol, and, under regulations, may be used at any industrial alcohol plant or bonded warehouse or sold or disposed of for any lawful purpose, as in this Act provided. SEC. 9. Industrial alcohol plants and bonded warehouses established under the provisions of this title shall be exempt from the provisions of sections 3154, 3244, 3258, 3259, 3260, 3263, 3264, 3266, 3267, 3268, 3269, 3271, 3273, 3274, 3275, 3279, 3280, 3283, 3284, 3285, 3286, 3287, 3288, 3289, 3290, 3291, 3292, 3293, 3294, 3295, 3302, 3303, 3307, 3308, 3309, 3310, 3311, 3312, 3313, 3314, and 3327 of the Revised NATIONAL PROHIBITION ACT 49 Statutes; sections 48 to 60, inclusive, and sections 62 and 67 of the Act of August 27, 1894 (Twenty-eighth Statutes, pages 563 to 568), and from such other provi- sions of existing laws relating to distill- ers and bonded warehouses as may, by regulations, be declared inapplicable to industrial alcohol plants and bonded warehouses established under this Act. Regulations may be made embodying any provision of the sections above enumerated. Denaturing Plants Sale of Denatured Alcohol Distilled Vinegar TAX-FREE ALCOHOL,. SEC. 10. Upon the filing of application and bond and issuance of permit dena- turing plants may be established upon the premises of any industrial alcohol plant, or elsewhere, and shall be used exclusively for the denaturation of alcohol by the ad- mixture of such denaturing materials as shall render the alcohol, or any compound in which it is authorized to be used, unfit for use as an intoxicating beverage. Alcohol lawfully denatured may, under regulations, be sold free of tax either for domestic use or for export. Nothing in this Act shall be construed to require manufacturers of distilled vine- gar to raise the proof of any alcohol used in such manufacture or to denature the same. 50 NATIONAL PROHIBITION ACT Removal for Denaturing Tax Free Withdrawal SEC. 11. Alcohol produced at any in- dustrial alcohol plant or stored in any bonded warehouse may, under regula- tions, be withdrawn tax free as provided by existing law from such plant or ware- house for transfer to any denaturing plant for denaturation, or may, under regulations, before or after denaturation, be removed from any such plant or ware- house for any lawful tax-free purpose. Spirits of less proof than one hundred and sixty degrees may, under regulations, be deemed to be alcohol for the purpose of denaturation, under the provisions of this title. Alcohol may be withdrawn, under reg- ulations, from any industrial plant or bonded warehouse tax free by the United States or any governmental agency thereof, or by the several States and Ter- ritories or any municipal subdivision thereof or by the District of Columbia, or for the use of any scientific university or college of learning, any laboratory for use exclusively in scientific research, or for use in any hospital or sanitorium. But any person permitted to obtain al- cohol tax free, except the United States and the several States and Territories and subdivisions thereof, and the District of Columbia, shall first apply for and se- cure a permit to purchase the same and NATIONAL PROHIBITION ACT 51 give the bonds prescribed under Title II of this Act, but alcohol withdrawn for nonbeverage purposes for use of the United States and the Several States, Territories, and subdivisions thereof, and the District of Columbia may be pur- chased and withdrawn subject only to such regulations as may be prescribed. GENERAL PROVISIONS. Penalties SEC. 12. The penalties provided in this title shall be in addition to any penalties provided in Title II of this Act, unless expressly otherwise therein provided. Regulations SEC. 13. The commissioner shall from time to time issue regulations respecting the establishment, bonding, and opera- tion of industrial alcohol plants, denatur- ing plants, and bonded warehouses au- thorized herein, and the distribution, sale, export, and use of alcohol which may be necessary, advisable, or proper, to secure the revenue, to prevent diversion of the alcohol to illegal uses, and to place the nonbeverage alcohol industry and other industries using such alcohol as a chem- ical raw material or for other lawful purpose upon the highest possible plane of scientific and commercial efficiency consistent with the interests of the Gov- ernment, and which shall insure an am- ple supply of such alcohol and promote 52 NATIONAL PROHIBITION ACT Remission of Tax on Lost Alcohol Punishment for Violation of This Title its use in scientific research and the de- velopment of fuels, dyes, and other law- ful products. SEC. 14. Whenever any alcohol is lost by evaporation or other shrinkage, leak- age, casualty, or unavoidable cause dur- ing distillation, redistillation, denatura- tion, withdrawal, piping, shipment, ware- housing, storage, packing, transfer, or recovery of any such alcohol the commis- sioner may remit or refund any tax in- curred under existing law upon such al- cohol, provided he is satisfied that the al- cohol has not been diverted to any illegal use: Provided, also, That such allowance shall not be granted if the person claim- ing same is indemnified against such loss by a valid claim of insurance. SEC. 15. Whoever operates an industrial alcohol plant or a denaturing plant with- out complying with the provisions of this title and lawful regulations made there- under, or whoever withdraws or attempts to withdraw or secure tax free any alco- hol subject to tax, or whoever otherwise violates any of the provisions of this title or of regulations lawfully made thereun- der shall be liable, for the first offense, to a penalty of not exceeding $1,000, or im- prisonment not exceeding thirty days, or both, and for a second or cognate offense to a penalty of not less than $100 nor more NATIONAL PROHIBITION ACT 53 Collection of Tax Seizure of Property Application of Existing Laws Repeal of Conflicting Statutes than $10,000, and to imprisonment of not less than thirty days nor more than one year. It shall be lawful for the commis- sioner in all cases of second or cognate offense to refuse to issue for a period of one year a permit for the manufacture or use of alcohol upon the premises of any person responsible in any degree for the violation. SEC. 16. Any tax payable upon alcohol under existing law may be collected ei- ther by assessment or by stamp as regula- tions shall provide; and if by stamp, reg- ulations shall issue prescribing the kind of stamp to be used and the manner of affixing and canceling the same. SEC. 17. When any property is seized for violation of this title it may be re- leased to the claimant or to any interven- ing party, in the discretion of commis- sioner, on a bond given and approved. SEC. 18. All administrative provisions of internal-revenue law, including those relating to assessment, collection, abate- ment, and refund of taxes and penalties, and the seizure and forfeiture of prop- erty, are made applicable to this title in so far as they are not inconsistent with the provisions thereof. SEC. 19. All prior statutes relating to alcohol as denned in this title are hereby 54 NATIONAL PROHIBITION ACT repealed in so far as they are inconsistent with the provisions of this title. Canal Zone SEC. 20. That it shall be unlawful to import or introduce into the Canal Zone, or to manufacture, sell, give away, dis- pose of, transport, or have in one's pos- session or under one's control within the Canal Zone, any alcoholic, fermented, brewed, distilled, vinous, malt, or spirit- uous liquors, except for sacramental, sci- entific, pharmaceutical, industrial, or me- dicinal purposes, under regulations to be made by the President, and any such liq- uors within the Canal Zone in violation hereof shall be forfeited to the United States and seized: Provided, That this section shall not apply to liquor in transit through the Panama Canal or on the Pan- ama Railroad. That each and every violation of any of the provisions of this section shall be punished by a fine of not more than $1,000 or imprisonment not exceeding six months for a first offense, and by a fine not less than $200 nor more than $2,000 and imprisonment not less than one month nor more than five years for a second or subsequent offense. That all offenses heretofore committed within the Canal Zone may be prosecuted and all penalties therefor enforced in the NATIONAL PROHIBITION ACT 55 same manner and to the same extent as if this Act had not been passed. * When Act SEC. 21. Titles I and III and sections Effective ^ 2?> 37> and g g Qf title jj Qf ^ A(jt shall take effect and be in force from and after the passage and approval of the Act. The other sections of title II shall take effect and be in force from and after the date when the eighteenth amendment of the Constitution of the United States goes into effect. Constitutionality and Preliminary Consideration There have been many judicial decisions as to the constitu- tionality of the various state prohibition laws, but the en- tirely new point of departure supplied by the Prohibition Amendment to the Federal Constitution, makes it exceed- ingly unlikely, if not impossible, that any question as to the constitutionality of this "National Prohibition Act" will be successfully raised ; except, possibly, as to whether the Eighteenth Amendment itself was constitutionally adopted, or whether the provisions of the Act are within the author- ity conferred upon Congress by the said amendment. We shall therefore be very brief in our treatment of its consti- tutionality as substantive law, in most cases giving merely a citation of the decisions. As to Constitutionality of Special Provisions. See post, where their subject matter is treated. The XVmth Amendment to the Constitution of the United States. Not a Law Complete in Itself. The prohibition amendment to the federal Constitution is not a law complete in itself, in that it fixes no penalty for its violation. Ford v. State (Tex. Civ. App.), 209 S. W. 490, 494. Validity and Mode of Adoption. The addition to the Constitution of the United States of an amendment prohib- iting the manufacture, sale, etc., of intoxicating liquors, is an amendment of the organic law, and not prohibited by article 10, reserving to the states or people the powers not dele- gated' to the United States by the Constitution, nor prohib- ited by it to the states. Ohio v. Cox (D. C), 257 Fed. 334, 335. 58 CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION The requirement of Const. U. S. art. 5, that "two-thirds of both houses" shall propose amendments for adoption or rejection by the state Legislatures, means two-thirds of a quorum of each house, and not two-thirds of the whole membership of each, since "house" means a body of men united in their legislative capacity. Ohio v. Cox (D. C.), 257 Fed. 334, 336. Congress has no concern of the manner in which the peo- ple of the several states pass upon proposed amendments to the United States Constitution. Mullen v. Howell (Wash.), 181 Pac. 920. The authority to act in the matter of a proposed amend- ment to the Constitution of the United States does not arise in or out of the Constitution of the state, but arises out of the federal Constitution, and any act, whether by resolution or bill, on the part of the state Legislature, is a sufficient expression of the legislative will, unless Congress itself chal- lenges the method or manner of its adoption. Mullen v. Howell (Wash.), 181 Pac. 920. Referendums. Const. U. S. art. 5, providing that pro- posed amendment shall be valid "when ratified by the Leg- islatures of three-fourths of the several states, or by con- ventions in three-fourths thereof," does not preclude sub- mission of joint resolution of state Legislature ratifying proposed amendment to a referendum, the words "Legisla- tures" and "conventions" not having present-day meanings, the former referring to legislative authority, including all its branches, and not merely the legislative assembly. Mullen v. Howell (\Vash.), 181 Pac. 920. Under the Washington State Const, Amend. 7, art. 2, 1, providing for referendum of "acts, bills, or laws," joint resolution of state Legislature ratifying constitutional amendment for national prohibition proposed by Res. Dec. 19, 1917, 40 Stat. 1050, is subject to referendum, the amend- ment to the United States Constitution being a law within the seventh amendment of the state Constitution. Mullen v. Howell (Wash.), 181 Pac. 920. But it was held by the Oregon Supreme Court that nei- CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION 59 ther House Joint Resolutions No. 1, ratifying proposed "National Prohibition Amendment," nor any other resolu- tion of the Legislature, is subject to referendum by Oregon Const, art. 4, 1, la; such sections applying only to pro- posed laws. Herbring v. Brown, (Ore.), 180 Pac. 328. To ascertain what is meant by the term "bill" and "act" in Const, art. 4, 1, la (amended), as to initiative and ref- erendum, reference must be made to the sense in which the words were used before such amendments were passed, and, when reference is so made, it is found that the first term means a proposed law (article 4, 1 [original], and sections 18, 19; article 5, 15), while the second means a bill which has been enacted by the Legislature into a law (article 4, 20, 21, 22, 28) ; a "joint resolution" being neither a bill nor an act. Herbring v. Brown, (Ore.), 180 Pac. 328. The subject matter upon which the powers given by Const, art. 4, 1, la, may be exercised, namely, initiative laws, constitutional amendments, and acts of the Legislature re- ferred to the people, are referred to collectively as "meas- ures merely as a matter of convenience and not with intent to include other and different powers." Herbring v. Brown, (Ore.), 180 Pac. 328. But in mandamus to compel submission of joint resolution ratifying amendment to United States constitution, the con- tention that the Legislature has no power to act by resolution is nonjusticiable ; the power to question the manner of adop- tion being in Congress, and not the courts. Mullen v. Howell, (Wash.), 181 Pac. 920. Police Powers of States to Regulate, Restrict or Forbid the Manufacture or Sale, Gift, Purchase and Trans- portation of Intoxicating Liquors, Fully Recognized. In General. It must now be regarded as settled that, on account of their well-known noxious qualities and the extra- ordinary evils shown by experience commonly to be conse- quent upon their use. a state has power absolutely to pro- hibit manufacture, gift, purchase, sale, or transportation of 60 CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION intoxicating liquors within its borders without violating the guarantees of the fourteenth Amendment. Seaboard Air Line Railway v. North Carolina, 245 U. S. 298, 38 Sup. Ct. 96, 62 L. Ed. 299. Clark Distilling Co. v. Western Maryland R. Co., 242 U. S. 311, 321, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B, 1218n, Ann. Cas. 1917B, 845. Crane v. Campbell, 245 U. S. 304, 38 Sup. Ct. 98, 62 L. Ed. 304. Eberle v. Michigan, 232 U. S. 700, 34 Sup. Ct. 464. Purity Extract, etc., Co. v. Lynch, 226 U. S. 192, 201, 33 Sup. Ct. 44, 57 L. Ed. 184. Crowley v. Christensen, 137 U. S. 86, 91, 77 Sup. Ct. 13, 9 Sup. Ct. 6, 34 L. Ed. 620. Kidd v. Pearson, 128 U. S. 1, 32 L. Ed. 346, 2 Interst. Com. Rep. 232. Mugler v. Kansas, 123 U. S. 623, 662, 8 Sup. Ct. 273, 31 L. Ed. 205. Beer Co. v. Massachusetts, 97 U. S. 25, 33, 24 L. Ed. 989. Bartemeyer v. Iowa, 18 Wall. 29, 21 L. Ed. 929. Black v. Delaye, 193 Ala. 500, 68 So. 993, L. R. A. 1915E, 640. Fine v. Moran (Fla.), 77 So. 533. Henderson v. Heyward, 109 Ga. 373, 34 S. E. 590, 47 L. R. A. 366, 77 Am. St. Rep. 384. Mack v. Westbrook, 148 Ga. 690, 98 S. E. 339, 341. Fitch v. State, 102 Neb. 361, 167 N. W. 417, 419. State v. Germain (N. D.), 170 N. W. 121. State v. Tincher, 81 W. Va. 441, 94 S. E. 503. Stratford v. Seattle Brewing, etc., Co., 94 Wash. 125, 162 Pac. 31, L. R. A. 1917C, 931n. Taylor v. Wildman (la.), 145 N. W. 449, 451. People v. Wheeler, 185 Mich. 164, 151 N. W. 710. Ex parte Davis (Tex. Cr. App.), 215 S. W. 341. It is also well established that, 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 hav- ing reasonable relation to that end as it may deem necessary in order to make its action effective. It does not follow that because a transaction separately considered, is innocuous, CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION 61 it may not be included in a prohibition the scope of which is regarded as essential in the legislative judgment to accom- plish a purpose within the admitted power of the govern- ment. Booth v. Illinois, 184 U. S. 425, 22 Sup. Ct. 425, 46 L. Ed. 623. Otis v. Parker, 187 U. S. 606, 23 Sup. Ct. 168, 47 L. Ed. 323. Ah Sin v. Wittman, 198 U. S. 500, 504, 25 Sup. Ct. 756,49 L. Ed. 1142, 1144. Silz r. Hesterburg, 211 U. S. 31, 29 Sup. Ct. 10, 53 L. Ed. 75. Murphy v. California, 225 U. S. 623, 32 Sup. Ct. 697, 56 L. Ed. 1229, 41 L. R. A., N. S., 153. Purity Extract, etc., Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184. See also, Crane v. Campbell, 245 U. S. 304, 38 Sup. Ct. 98, 62 L. Ed. 304. Rast v. Van Deman, etc., Co., 140 U. S. 342, 36 Sup. Ct. 370, 60 L. Ed. 679, L. R. A. 1917A, 421n, Ann Cas. 1917B, 455. Mack v. Westbrook, 148 Ga. 690, 98 S. E. 339, 341. Fitch v. State, 102 Neb. 361, 167 N. W. 417. Thatcher v. Reno Brewing Co. (Nev.), 178 Pac. 902. Johnson v. State, 75 Tex. Cr. App. 177, 171 S. W. 211. The power of the states, under their Constitutions and under the federal Constitution, to prohibit the manufacture and sale of intoxicating liquor and to provide such means for the enforcement of prohibition as seems expedient to the Legislature, is now so well settled that it is no longer an open question. Crane v. Campbell, 245 U. S. 304, 38 Sup. Ct. 98, 62 L. Ed. 304. Seaboard Air-Line Railway v. Ncrth Carolina, 245 U. S. 298, 38 Sup. Ct. 96, 62 L. Ed. 299. Clark Distilling Co. v. Western Maryland R. Co., 242 U. S. 311. 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B, 1218n, Ann. Cas. 1917B, 845. Giozza i'. Tierman, 148 U. S. 657, 13 Sup. Ct. 721, 37 L. Ed. 599. 62 CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION Crowley v. Christensen, 137 U. S. 86, 11 Sup. Ct. 13, 34 L. Ed. 620. Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205. Bartemeyer v. Iowa, 18 Wall. 129, 21 L. Ed. 929. Black v. Delaye, 193 Ala. 500, 68 So. 993, L. R. A. 191 5E, 640. Delaney v. Plunkett, 146 Ga. 547, 91 S. E. 561, L. R. A. 1917D, 926, Ann. Cas. 1917E, 685. Cureton v. State, 135 Ga. 660, 70 S. E. 332, 49 L. R. A., N. S., 182n. In re Crane, 27 Idaho 671, 151 Pac. 1006, L. R. A. 1918A, 942. Schmitt v. Cook Brewing Co. (Ind.), 120 N. E. 19, 22. State v. Kurent (Kan.), 181 Pac. 603. State v. Macek, 104 Kan. 742, 180 Pac. 985. State v. Durein, 70 Kan. 1, 78 Pac. 152, 15 L. R. A., N. S., 908, and note. State v. Seaboard Air-Line R. Co., 169 N. C. 295, 84 S. E. 283. State v. Fargo Bottling Works Co., 19 N. D. 396, 124 N. W. 387, 26 1L. R. A., N. S., 872n. Motlow v. State, 125 Tenn. 547, 145 S. W. 177, L. R A. 1916F, 177. Ex parte Fulton (Tex. Cr. App.), 215 S. W. 331. State v. Lovell (1847), 47 Vt. 493. State v. Fabbri, 98 Wash. 207, 167 Pac. 133, L. R. A. 1918A, 416. State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A. 1917B, 962n. State v. Davis, 77 W. Va. 271, 87 S. E. 262, L. R. A. 1917C, 639. And a state act making it unlawful "to have or keep" intoxicating liquors in a public place in local option terri- tory, or to transport liquor therein, does not deny any right guaranteed by the federal Constitution. Ex parte Fulton (Tex. Cr. App.), 215 S. W. 331. Prohibition of Possession as Ex Post Facto Law or Denial of Due Process of Law. A state statute making it unlawful to have possession of intoxicating liquor for CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION 63 sale, in force from and after April 1, 1913, and ratified March 3, 1913, is not objectionable as ex post facto when applied to the finding of liquor in the possession of accused April 17, 1913, in the absence of anything to show that the liquor was acquired prior to the ratification of the act. State v. Denton, 164 N. C. 530, 80 S. E. 401. And the application of Laws Ga. (Ex. Sess.) 1915, pt. 1, tit. 2, 16 and 30, making it illegal to have in possession more than one gallon of vinous liquor, to the possession of liquor acquired after the law was enacted, but before it be- came effective, does not render that act invalid. Barbour v. Georgia, 249 U. S. 454, 39 S. Ct. 316. Nor does it render that act invalid as depriving of prop- erty without due process of law. Barbour v. Georgia, 249 U. S. 454, 39 S. Ct. 316. Whether the prohibition of sale may be constitutionally applied to liquor acquired before the enactment of the stat- ute was raised in Bartemeyer v. Iowa, 18 Wall. 129, 21 L. Ed. 929, and Beer Co. v. Massachusetts, 97 U. S. 25, 33, 24 L. Ed. 989, but was not decided. The question presented here, however, is simpler. Barbour v. Georgia, 249 U. S. 454, 39 S. Ct. 316. Right to Define as Intoxicant and Otherwise Pre- vent the Traffic. "To prohibit the traffic the Legislature may define as an intoxicant that which is far from intoxi- cating, in order to prevent the manufacture and sale of that which is intoxicating; that it may prevent the possession of liquor; that it may provide that the place where liquor is kept or manufactured may be declared a nuisance and closed ; that it may designate those who are to handle and dispense liquor and upon what terms ; that it may forbid advertisements of liquor; that it may provide what shall make a prima facie case of violation of the law. All of these provisions are properly connected with the purpose of the Legislature to prevent the traffic in intoxicating liquor as a beverage and are therefore within the title of the act." Schmitt v. Cook Brewing Co. (Ind.), 120 N. E. 19, 23. Nor does the clause, "or any alcoholic compound of malt 64 CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION or liquors whether intended for beverage purposes or not, but which can be diluted, and when so diluted may be used as a beverage and will produce intoxication," etc., render the act obnoxious to the paragraph of a state constitution which declares that protection to person and property is the paramount duty of government, and shall be impartial and complete. Nor does it render the act void because violative of the due process clause of that constitution. Jackson v. State, 148 Ga. 351, % S. E. 1001. While total prohibition of nonintoxicants is recognized as a valid means of suppressing the liquor traffic (Purity Extract, etc., Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184), yet it is a means which ought to appear plainly in the act. Such a suppression of a drink confess- edly harmless in itself cannot be implied from general lan- guage prohibiting intoxicating liquors. Hoffmann Brewing Co. v. McElligott (D. C.), 259 Fed. 321. Constitutional Provision Not an Implied Limitation on Legislative Power. A constitutional provision au- thorizing the prohibition of the sale of intoxicating liquor, is not an implied limitation on legislative power, and the Legislature has not only the authority, but must pass all laws necessary and appropriate to prevent illegal sales. Longmire v. State, 75 Tex. Cr. App. 616, 171 S. W. 1165, L. R. A. 1917A, 726. The Virginia Constitution, 1902, 62, providing that the General Assembly shall have full power to enact local op- tion laws, gives no new power to the Legislature, but is simply declaratory of the existing law, although it places no restriction whatever upon the legislative power. Pine v. Commonwealth, 121 Va. 812, 93 S. E. 652. See also, Ex parte Fulton (Tex. Cr. App.), 215 S. W. 331. Ex parte Davis (Tex. Cr. App.), 215 S. \V. 341. Gulf, etc., R. Co. v. State (Tex. Cr. App.), 212 S. W. 845. United States v. James (D. C.), 256 Fed. 102, as to effect of like provision of Texas Constitution. CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION 65 Prohibiting Importation. The state has plenary power to prohibit the importation of ardent spirits into the state for any purpose. Lucchesi v. Commonwealth, 122 Va. 872, 94 S. E. 925. Prohibition of All Shipments. A state may, consist- ently with the due process of law clause of U. S. Const. 14th Amend., forbid all shipments of intoxicating liquor, whether intended for personal use or otherwise. Clark Distilling Co. v. Western Maryland R. Co., 242 U. S. 311, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B, 1218n, Ann. Cas. 1917B, 845. Right to Regulate Other Liquors, Whether Intoxi- cating or Not, in Connection with Prohibited Liquors. The right of the Legislature to reasonably prohibit the manufacture, sale, or other disposition of other liquors, whether intoxicating or not, in connection with the prohib- ited liquors is well settled. Southern Pac. Co. v. Jensen, 244 U. S. 205, 217, 37 Sup. Ct. 524, 61 L. Ed. 1086, Ann. Cas. 1917E, 900. Wilson v. New, 243 U. S. 332, 346, 37 Sup. Ct. 298, 61 L. Ed. 755, L. R. A. 1917E, 938. Clark Distilling Co. v. Western Maryland R. Co., 242 U. S. 311, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B, 1218n, Ann. Cas. 1917B, 845. Purity Extract, etc., Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184. Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. 'Ed. 205. Butterfield v. United States, 154 C. C. A. 332, 241 Fed. 556. Southern Exp. Co. v. Whittle, 194 Ala. 406, 423, 69 So. 652, L. R. A. 1916C. 278. Black v. Delaye, 193 Ala. 500, 520, 68 So. 993, L. R. A. 1915E, 640. Ex parte Woodward, 181 Ala. 97, 106, 61 So. 295. Marks v. State, 159 Ala. 71, 80, 48 So. 864, 133 Am. St. Rep. 20. Lambie v. State. 151 Ala. 86, 91, 44 So. 51. Dinkins v. State, 149 Ala. 49, 43 So. 114. 5 66 CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION State v. Mattox Cigar, etc., Co. (Ala.), 77 So. 756. Louisville, etc., R. Co. v. State (Ala. App.), 76 So. 505, 512. Black v. Southern Exp. Co. (Ala.), 75 So. 343. Theatrical Club v. State (Ala.), 74 So. 969. State v. O'Connell, 99 Me. 61, 58 Atl. 59. State v. Jenkins, 64 N. H. 375, 10 Atl. 699. Luther v. State, 83 Neb. 455, 120 N. W. 125, 20 L. R. A., N. S., 1146n. State v. York, 74 N. H. 125, 127, 65 Atl. 685, 13 Ann. Cas. 116. Guilbert v. Kaufman, 68 Ohio St. 635, 67 N. E. 1062. Pennell v. State, 141 Wis. 35, 123 N. W. 115. A state may, in the exercise of its police power, prohibit the manufacture and sale of intoxicating liquor, and to the end of making the prohibition effectual may include in the prohibition nonintoxicating malt liquors. Purity Extract, etc., Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184. S. C., 100 Miss. 650, 56 So. 316. State v. George, 136 La. 906, 67 So. 953. Fine v. Moran (Fla.), 77 So. 533. See contra, Elder v. State, 162 Ala. 41, 50 So. 370. See also post, "Powers to Define under Sec. 1, Title II. "The manufacture and sale of drinks made in imitation of or intended as a substitute for intoxicating drinks as specified in the Act, although not intoxicating themselves, afford a cloak for clandestine manufacture, sale, etc., of intoxicants the evil which the legislation was designed to prevent. Under such circumstances, the power to prohibit the manufacture, sale, etc., of the beverages will include the power also to prohibit the manufacture and sale of substi- tutes and imitations." Purity Extract, etc., Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184. Kunsberg v. State, 147 Ga. 591, 95 S. E. 12. See also, State v. George, 136 La. 906, 67 So. 953. Claunch v. State (Tex. Cr. App.), 203 S. W. 981. State v. Labrecque, 78 N. H. 182, 97 Atl. 747. CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION 67 Prohibition of Manufacture. "There is no difference in constitutional principle between the prohibition of the sale of intoxicating liquor as a beverage and the prohibition of the manufacture in order to stop the sale. The thing aimed at is the traffic in liquor as a beverage. If the peo- ple of the state, in order to stop the traffic in the beverage, deem it necessary to stop the manufacture, they have a right to do this as far as any limitations in our Constitu- tion are concerned." Schmitt v. Cook Brewing Co. (Ind.), 120 N. E. 19, 21. See also, United States v. James (D. C.), 256 Fed. 102. A state law prohibiting manufacture for personal use solely does not violate the Fourteenth Amendment to the Federal Constitution, or the provisions of State Constitu- tions, declaring that no person shall be deprived of life, liberty, or property without due process of law, and that no person shall be disturbed in his private affairs or his home invaded without authority of law. State v. Fabbri, 98 Wash. 207, 167 Pac. 133. State v. Marastoni, 85 Ore. 37, 165 Pac. 1177. Prohibiting Action as Agent in Purchase or Sale. A statute prohibiting any person from acting as the agent of another in the purchase or sale of intoxicating liquors, does not abridge any privilege or immunity guaranteed to citizens of the United States by the fourteenth amendment to the federal Constitution. State v. Germain (N. D.), 170 N. W. 121. Under Interstate Commerce Clause of Federal Con- stitution. Act March 1, 1895, c. 145, 28 Stat. 693, for- bidding the introduction of intoxicating liquor into Indian Territory, as limited to interstate commerce by the Okla- homa Enabling Act, is not unconstitutional, as discriminat- ing between the States in respect of trade and commerce in intoxicating liquors. De Moss v. United States, 162 C. C. A. 259, 250 Fed. 87. Effect of Webb-Kenyon Act. The Acts 35th Leg. of Texas (Fourth Called Sess.) c. 24, 3, making it unlawful for any railroad to transport within or import into the state 68 CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION intoxicants, or for any person to receive the same or to de- liver the same, in so far as it interferes with interstate com- merce, is made valid by Webb-Kenyon Act (U. S. Comp. St. 845.) Gulf, etc., R. Co. v. State (Tex. Civ. App.), 212 S. W. 854. For other cases construing Reed Amendment, the Webb-Kenyon Act, and similar Acts of Congress, see post under Sec. 3, where transportation of liquor into or through dry territory is treated. Constitutionality of Reed Amendment and Webb- Kenyon Act. ''Whatever doubt may have existed as to the power of Congress to pass the Reed Amendment has been finally and fully set at rest by the decision of the Su- preme Court in the case of Clark Distilling Co. v. Western Maryland R. Co., 242 U. S. 311, 325, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B, 1218n, Ann. Cas. 1917B, 845, followed by Seaboard Air Line Railway v. North Carolina, 245 U. S. 298, 303, 38 Sup. Ct. 96, 62 L. Ed. 299. Though these cases are specific affirmations of the validity of the Webb-Kenyon Law (Act March 1, 1913, c. 90, 37 Stat. 699 [Comp. St. 8739]), they as certainly establish the valid- ity of the Reed Amendment, because they concern, not merely a specific legislative act, but the principle upon which it rests." United States v. James (D. C.), 256 Fed. 102, 103. Conflicting Laws and Constitutional Provisions. Congress having exercised its authority in a matter within its control, conflicting state laws must give way. United States v. Hill, 248 U. S. 420, 39 S. Ct. 143. The provision of Florida Laws 1918 (Sp. Sess.) c. 7736, making it unlawful for any person to have in his possession any intoxicating liquors, except that any person over 21 may possess for his personal use or that of himself and family four quarts of intoxicating liquors and 20 quarts in malt liq- uors, does not violate section 1, Declaration of Rights, pro- viding that all men have the right of enjoying life, liberty, and property; nor article 19 of state Constitution as CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION 69 amended (see Laws 1917, vol. 1, pp. 323, 324), forbidding manufacture and sale of intoxicating liquors. Marasso v. Van Pelt (Fla.), 81 So. 529. There is no such repugnance or doubt as to the meaning of the provisions of Texas Acts 35th Leg. (Fourth Called Sess.) c. 24, relating to transportation and receipt of intoxi- cating liquors as to render the same void. Gulf, etc., R. Co. v. State (Tex. Civ. App.), 212 S. W. 845. Acts 35th Leg. (Fourth Called Sess.) c. 24, 3, making it unlawful for any railroad to transport within or import into the state intoxicants, or for any person to receive the same or to deliver the same, is not in conflict with any ex- isting law. Gulf, etc., R. Co. v. State (Tex. Civ. App.), 212 S. W. 845. Right of Cities to Prohibit and Regulate. Even though the state has assumed jurisdiction of the subject of intoxicating liquors, this does not impliedly remove the right of cities to prohibit the sale and use of liquors within their limits. Zamata v. Browning (Utah), 170 Pac. 1057. South Carolina Civ. Code 1912, 2994, giving city coun- cils authority to make all ordinances necessary for preserv- ing health and good government within the city, authorized an ordinance prohibiting the sale of cider without a certifi- cate of a licensed physician that it is to be used for medi- cinal purposes. Dillon v. Saleeby (S. C.), 81 S. E. 153. When authorized by its charter, a municipal corporation may by ordinance duly enacted designate the localities with- in its corporate limits wherein the sale of intoxicating liq- uors licensed under the state law may be sold and make it unlawful to sell elsewhere within the bounds of the city. Terretto v. State (Tex. Cr. App.), 215 S. W. 329. When authorized by its charter, a municipal corporation may by ordinance duly enacted designate the localities with- 70 CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION in its corporate limits wherein the sale of intoxicating liq- uors licensed under the state law may be sold and make it unlawful to sell elsewhere within the bounds of the city, and the Constitution does not restrict the power of the Leg- islature to prescribe a penalty for refusal to observe such city regulations. Terretto v. State (Tex. Cr. App.), 215 S. W. 329. Repeal of Statutes and Amendment of Constitu- tions. The Zone Liquor Law, 3, was not repealed or superseded by Acts 35th Leg. 4th Called Sess. 1918, c. 24, 3, nor was the latter act repealed or superseded by chap- ter 31, relating to sales and transportation of intoxicating liquor. Ex parte Roya (Tex. Cr. App.), 215 S. W. 322. Any law which might be in conflict with Texas Acts 35th Leg. (Fourth Called Sess.) c. 24, 3, as to transportation or receipt of intoxicants, would be repealed thereby by im- plication, notwithstanding other sections of the chapter pro- vide that all other laws prohibiting or regulating sale of in- toxicants shall remain in full force and effect. Gulf, etc., R. Co. v. State (Tex. Civ. App.), 212 S. W. 845. Article 19 of the Florida state Constitution, providing for local option sales of intoxicating liquors, remained in force until January 1, 1919, when it was superseded by the amend- ment to article 19 forbidding the manufacture, sale, barter, or exchange of alcoholic or intoxicating liquors and bev- erages in this state; therefore a conviction for a violation in November and December, 1918, of the local option pro- visions of the statute, was authorized. Correlis v. State (Fla.), 82 So. 601. If Liquor Cannot Be Legally Acquired or Procured, It May Not Be Legally Used. "It necessarily follows that the very purpose and intent of the act was to preclude the right to use intoxicating liquor within the state except for the specific purposes in the act expressly mentioned and reserved. If liquor can not be legally acquired or procured, it may not be legally used. While the law is somewhat CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION 71 drastic in some of its provisions doubtless it was so in- tended to be yet in view of the tendency of present day legislative enactments, designed to protect the health, safety, morals and promote the general welfare of organized society, it is not the province of the courts to disregard the purpose and intent of the Legislature so long as the consti- tutional rights of the individual have not been invaded." State v. Certain Intoxicating Liquors (Utah), 172 Pac. 1050, 1052. Title of Act and Mode of Adoption. Where an act of the legislature has for its subject "traffic in intoxicating and nonintoxicating liquors," it is not void as being in vio- lation of the constitutional requirements regarding titles to statutes because it contains provisions prohibiting the manu- facture, sale, or keeping for sale intoxicating and nonin- toxicating liquors, as that term is defined by the act. Fine v. Moran (Fla.), 77 So. 533. A clause extending the prohibitory provisions of the act to any alcoholic compound or malt or liquors, whether in- tended for beverage purposes or not, but which can be di- luted, and when so diluted may be used as a beverage and will produce intoxication, does not render the act obnox- ious to the constitution, which inhibits the passage of any law containing matter different from what is expressed in the title thereof. Nor does that clause render the act vio- lative of the constitutional provision embraced in the para- graph of the constitution referred to, which declares that no law shall pass which refers to more than one subject mat- ter, although the law also contains a provision extending its prohibition to any spirituous, vinous malt, fermented or in- toxicating liquors, or any of the prohibited liquors or bev- erages, which are defined in an act entited: "An act to make clearer and more certain the prohibition laws." Jackson v. State, 148 Ga. 351, 96 S. E. 1001. The Virginia Prohibition Act, 39, is not unconstitu- tional under Const. 1902, 52 (Code 1904, p. ccxxi), in that the body of the act makes it a crime merely to "trans- port" liquor, and the title of the act relates to "transporta- 72 CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION tion for sale," because such regulation is germane to and in furtherance of the "enforcement" of the statute. Burton v. Commonwealth, 122 Va. 847, 94 S. E. 923. See also, People v. Humphrey, 194 Mich. 10, 160 N. W. 445, set out post under Sec. 8. As to validity of act passed at special session of state legislature, under form of proclamation of Govern- or calling the session, and its conformity thereto, see Ex parte Fulton (Tex. Cr. App.), 215 S. W. 331. Ex parte Davis (Tex. Cr. App.), 215 S. W. 341. Gulf, etc., Co. v. State (Tex. Civ. App.), 212 S. W. 845. Right to Complain. A statute, relating to intoxicating liquors, will not be declared invalid in certain of its sections at the instance of one convicted under another section, and not prejudiced by its enforcement, nor affected by it. Land v. State (Fla.), 81 So. 159. Construction Prohibited Liquors as Subject of Criminal Offense. An interstate shipment of whisky had a legal value in Alabama, and contention that defendant cannot be convicted of breaking into freight cars where liq- uor was being kept or under larceny count will be overruled. Wiley v. State (Ala.), 81 So. 343. Outlawed whisky may be the subject of grand larceny, where taken from one claiming ownership, although the law would not afford any one damages for its taking or give any one relief looking to its recovery. State v. Donovan (Wash.), 183 Pac. 127. It is not a defense to a prosecution for having obtained money under the false pretense that defendant had deliv- ered whisky, when in fact the bottles delivered contained only colored water, that the prosecuting witness parted with his money in an endeavor to get defendant to violate the law by selling liquor. Hicks v. State (Ark.), 215 S. W. 685. Though intoxicating liquor is contraband and without monetary value, a false representation concerning it can be CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION 73 made the basis of a prosecution for obtaining money through a false pretense. Hicks v. State (Ark.), 215 S. W. 685. Prohibited Liquors as Subject of Civil Contract. Contract of manufacturer, on selling to a soft drink mer- chant a new beverage, warranting it to be nonintoxicating, and agreeing to indemnify him against all damages for prosecution for violation of prohibition law by reason of retailing it, being entered into and acted on in good faith by retailer, is not against public policy. Owens v. Henderson Brewing Co. (Ky.), 215 S. W. 90. Despite statute prohibiting interest of wholesale liquor dealer in a saloon business, such a dealer or brewer may be concerned with a saloon business in a legitimate financial transaction by way of loan, mortgage, and lease; there be- ing no direct or indirect payment of the license fee of the retail saloon business. Greene v. Atwood (Wash.), 180 Pac. 399. But a contract made outside of the state for the sale of whisky to be resold by the purchaser within the state, con- trary to the law, is contrary to the public policy of the state, and will not be enforced, even though it was valid in the state where it was made. Bluthenthal v. Kennedy, 165 N. C. 372, 81 S. E. 337. And where defendant's intestate, either as agent or as a principal, acting with plaintiff, sold intoxicating liquors sup- plied by plaintiff in violation of the laws of a state, and collected and received the purchase price therefor, plaintiff could not sue for the balance of the amount so collected, after deducting credits due the intestate, since the test of recovery in such cases is whether there is a legal obligation in favor of the plaintiff separate from the illegal transac- tion, and requiring no aid from it, and the obligation of the estate could not be separated from the sales by the intes- tate, the debt resting upon such sales and the account aris- ing therefrom. Elder Harrison Co. v. Jervey, 97 S. C. 185, 81 S. E. 501. 74 CONSTITUTIONALITY AND PREUMINARY CONSIDERATION But where part of money loaned by wholesale liquor dealer or brewer to a saloon business is illegally applied in payment of a retal liquor license, the courts will recognize the divisibility of the loan into its legal and illegal parts. Greene v. Atwood (Wash.), 180 Pac. 399. Construction of Similar Statutes. In the interpre- tation of prohibition statutes, similar to those of other ju- risdictions, they may reasonably be given the construction applied by the courts of such jurisdiction, to such statutes previously enacted. Brown v. State, 17 Ariz. 314, 152 Pac. 578. Liberal Construction. See post, Sec. 3. TITLE I SECS. 1-7 [NOTE. As to decided cases applicable to this title, see post under Title II, where the corresponding sub- jects are treated.] Constitutionality and Validity of War- Time Prohi- bition. The War-Time Prohibition Act of November 21, 1918, is constitutional. United States v. Minery (D. C.), 259 Fed. 707. United States v. Ranier Brewing Co. (D. C.), 259 Fed. 359. And the provision of Act Nov. 21, 1918, 1, prohibiting the manufacture of beer, wine, or other intoxicating malt or vinous liquors for beverage purposes, whether construed to prohibit the manufacture of any beer or wine, or only such as is intoxicating, is constitutional. Hoffmann Brewing Co. v. McElligott (D. C.), 259 Fed. 321. The statute intended to conserve food, to increase the man power of the nation, and to protect the organization of the army, by prohibiting the sale of beer which has a tend- ency to intoxicate to such an extent as to interfere with the morals, the physical welfare, or the good order of the com- munity. Whether or not the mere sale of malt beer, even though it have not sufficient alcohol content to fully intoxi- cate, is of itself detrimental, whether the sale of such liquor (even though it would not fully intoxicate) is disadvanta- geous from the standpoint of the conservation of food, are things with which the court has nothing to do. That is a question for calm discretion of Congress, and it is evident that Congress intended by the act under consideration to prohibit the sale of such beer as it considered detrimental. United States v. Schmauder (D. C.), 258 Fed. 251. For Congress has constitutional power to prohibit the manufacture and sale of intoxicating liquors during war. United States v. Baumgartner (D. C.), 259 Fed. 722. 76 TITLE I Sees. 1-7 OF ACT Act Nov. 21, 1918 Constitutionality Power to En- act. It is evident if Congress, by making a tremendous drain upon the resources of the country for immediate war purposes, should thereby make it necessary to regulate the use of material immediately thereafter, in order to bring matters back to a normal base, the laws by which such res- toration would be had can properly be made a part of the military measures which must be adopted in order to carry on the war and are therefore justified under the powers of the United States in waging war, as has been decided in the case of United States v. Minery, in this district, in an opin- ion filed upon this day. 259 Fed. 707. United States v. Schmauder (D. C.), 258 Fed. 251. Does Not Infringe Xth Amendment. War-Time Pro- hibition Act Nov. 21, 1918, does not violate the Tenth Amendment to the Federal Constitution, which reserves to the states powers not delegated to Congress. United States v. Minery (D. C), 259 Fed. 707. Not Invalidated by XVHIth Amendment. The Eigh- teenth Amendment to the federal Constitution, providing for national prohibition in 1920, does not invalidate War- Time Prohibition Act Nov. 21, 1918, upon ground that pro- hibition legislation is precluded until 1920. United States v. Minery (D. C.), 259 Fed. 707. War- Time Prohibition Duration of Act. Act Nov. 21, 1918, prohibiting the manufacture and sale of intoxi- cating liquors "until the conclusion of the present war," is applicable to a sale on July 8, 1919, since no treaty had then been signed with Austria, and the army had not been entirely demobilized. United States v. Minery (D. C.), 259 Fed. 707. TITLE II SEC. 1 Definitions. Beverages Included under Terms "Liquor" or "Intoxicat- ing Liquor," etc. Other Definitions Powers of Agents and Assistants Filing Records. Alcohol, Brandy, etc. Spirituous, Vinous, Malt or Fer- mented Liquor, etc. Prohibition of Intoxicating Beverages. Containing One-Half of 1 Per Cent or More of Alcohol by Volume Fit for Use for Beverage Purposes. Exceptions as to Dealcoholized Wine, or Any Beverage or Liquid with Less Than One -Half of One Per Cent Al- cohol, etc. SEC. 1. When used in Title II and Title HI of this Act (1) the word "liquor" or the phrase "intoxicating liquor" shall be construed to include alcohol, brandy, whisky, rum, gin, beer, ale, porter, and wine, and in ad- dition thereto any spirituous, vinous, malt, or fermented liquor, liquids, and compounds, whether medicated, proprietary, patented, or not, and by whatever name called, containing one-half of 1 per centum or more of alcohol by volume which are fit for use for beverage purposes: Provided, That the foregoing definition shall not extend to dealcoholized wine nor to any beverage or liquid produced by the process by which beer, ale, por- ter or wine is produced, if it contains less than one-half of 1 per centum of alcohol by volume, and is made as prescribed in section 37 of this title, and is otherwise denominated than as beer, ale, or porter, and is con- tained and sold in, or from, such sealed and labeled bot- 78 TITLE II SEC. 1 OF ACT ties, casks, or containers as the commissioner may by regulation prescribe. Person Defined. (2) The word "person" shall mean and include nat- ural persons, associations, copartnerships, and corpora- tions. Commissioner. (3) The word "commissioner" shall mean Commis- sioner of Internal Revenue. Application. (4) The term "application" shall mean a formal written request supported by a verified statement of facts showing that the commissioner may grant the re- quest. Permit. (5) The term "permit" shall mean a formal written authorization by the commissioner setting forth specifi- cally therein the things that are authorized. Bond. (6) The term "bond" shall mean an obligation au- thorized or required by or under this Act or any regu- lation, executed in such form and for such a penal sum as may be required by a court, the commissioner or pre- scribed by regulation. Regulation. (7) The term "regulation" shall mean any regula- tion prescribed by the commissioner with the approval of the Secretary of the Treasury for carrying out the TITLE II SEC. 1 OF ACT 79 provisions of this Act, and the commissioner is author- ized to make such regulations. Assistant or Agent of Commissioner. Any act authorized to be done by the commissioner may be performed by any assistant or agent designated by him for that purpose. Records required to be filed with the commissioner may be filed with an assistant commissioner or other person designated by the com- missioner to recive such records. Dictionary Definitions. " 'Ardent spirits' and 'spirit- uous liquors' are terms of general use, and each has a well- defined, well-understood meaning. In Webster's Interna- tional Dictionary the term 'ardent' is defined as: 'Hot or burning; causing a sensation of burning; fiery, as ardent spirits that is, distilled liquors.' "Century Dictionary: Ardent spirits: 'Distilled alco- holic liquors, as brandy, whisky, gin, rum.' "Standard Dictionary: Ardent spirits: 'Alcoholic dis- tilled liquors.' "Worcester's Dictionary: Ardent spirits: 'A term ap- plied to liquors obtained by distillation, such as rum, whisky, brandy, and gin.' "Black's Law Dictionary: Ardent spirits: 'Spirituous or distilled liquors.' " 'Spirituous liquor means distilled liquor.' 1 Woolen & Thornton on the Law of Intoxicating Liquors, 7. "Spirituous: 'Containing much alcohol; distilled, whether pure or compound, as distinguished from fermented; ar- dent; applied to a liquor for drink.' Century Dictionary. "Spirituous liquors: 'Any intoxicating liquor produced by distillation or by rectifying, compounding or otherwise treating or using distilled alcoholic fluids in distinction from fermented or brewed intoxicating beverages.' Standard Dictionary. "Spirituous liquors: 'These are inflammable liquids pro- duced by distillation and forming an article of commerce/ Black's Law Dictionary; Cyclopedic Law Dictionary. 80 TITLE II SEC. 1 OF ACT "Spirituous liquor: 'Distilled liquor.' Anderson's Law Dictionary. "The term 'spirituous liquor' means distilled liquor. Black on Intoxicating Liquors, 3. " 'Spirituous liquor is that which is in whole or in part composed of alcohol extracted by distillation; whisky, brandy, and rum being examples.' 15 R. C. L. 249. "In Sarlls v. United States, 152 U. S. 570, 14 Sup. Ct. 720, 38 L. Ed. 556, the Supreme Court of the United States approved the definitions as given by Webster, Worcester, and Century Dictionaries. In United States v. Ellis (D. C.), 51 Fed. 808, the court, in speaking of these terms used in a prohibition statute, said : ' "Ardent" and "spirituous" are used indiscriminately as having the same meaning.' ' State v. Centennial Brewing Co. (Mont.), 179 Pac. 296, 297. Definition and Power to Define. In the exercise of the police power the legislature may conclusively define a beverage as intoxicating liquor whenever that course has any reasonable relation to the accomplishment of the domi- nating purpose of the act. State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A. 191 7B, 962n. Schmitt v. Cook Brewing Co. (Ind.), 120 N. E. 19. And so the statute may define what are prohibited, and what are not, and designate them by general or special terms. Marks v. State, 159 Ala. 71, 48 So. 864. Innocuous Beverages. If necessary to avoid subter- fuge and fraud, beverages which are in themselves innocu- ous may be included. State v. Centennial Brewing Co. (Mont.), 179 Pac. 296. Nor does a provision that "all malt or brewed drinks, whether intoxicating or not, shall be deemed malt liquors within the meaning of this act," contravene either state or federal Constitution. Thatcher v. Reno Brewing Co. (Nev.), 178 Pac. 902. TITLE II SEC. 1 OF ACT 81 See also ante, "Constitutionality and Preliminary Con- siderations." Properties Immaterial. If it clearly appears that a given article is within the scope of the forbidden enumera- tion, and is intoxicating, its properties become immaterial. Marks v. State, 159 Ala. 71, 48 So. 864. Percentage of Alcohol. A statute prohibiting all dis- tilled liquors, rectified spirits, vinous, fermented, brewed, and malt liquors and wines, and any beverage, by whatever name called, containing more than 1 per cent of alcohol by volume at 60 degrees Fahrenheit, includes any fermented liquor, regardless of whether such beverage is in fact in- toxicating. State v. Labrecque, 78 N. H. 182, 97 Atl. 747. Conclusive Presumption. All liquors, specifically men- tioned in a statute defining intoxicating liquors are conclu- sively presumed to be intoxicating liquors, without regard to their actual intoxicating properties. State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A. 1917B, 962n. Ejusdem Generis Rule. The rule of ejusdem generis has no application to the statutory definition of intoxicat- ing liquors. State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A. 1917B, 962n. Alcoholic Percentage Construction. The phrase, "any other intoxicating drink, mixture or preparation of like nature," which follows the specific enumeration of certain named liquors, is not controlled or qualified by the last clause of said section with reference to beverages contain- ing one-half per cent alcohol being spirituous liquors. Thatcher v. Reno Brewing Co. (Nev.), 178 Pac. 902. Enumerated Liquors Not Limited. The clause, "ev- 6 82 TITLE II SEC. 1 OF ACT ery other liquor," after specified liquors was not intended to limit or qualify the enumerated liquors. State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A. 1917B, 962n. The prohibition of ardent spirits, ale, beer, wine or in- toxicating liquor or liquors of whatever kind includes all forms of beer, whether intoxicating or not, since the words "intoxicating liquor or liquors of whatever kind" do not limit the specifically prohibited liquors to intoxicating forms, but those enumerated are absolutely prohibited in any form, and the limitation applies only to liquors not enumerated. Brown v. State, 17 Ariz. 314, 152 Pac. 578. The phrase, "any other intoxicating drink, mixture or preparation of like nature," which follows the specific enumeration of certain named liquors instead of limiting the class of liquor enumerated, described another merely by their intoxicating quality. Thatcher v. Reno Brewing Co. (Nev.), 178 Pac. 902. See also, United States v. Schmauder (D. C.), 258 Fed. 251. "In People v. Strickler, 25 Cal. App. 60, 142 Pac. 1121, the court was called upon to construe a section of the local option law which reads as follows: 'The term "alcoholic liquors" as used in this act shall include spirituous, vinous and malt liquors, and any other liquor or mixture of liq- uors which contain one per cent by volume, or more, of alcohol, and which is not so mixed with other drugs as to prevent its use as a beverage.' The rule of the last ante- cedent was disregarded, and it was held that the clause, 'which contain one per cent by volume, or more, of alcohol,' modifies the term 'spirituous, vinous and malt liquors,' as well as the terms 'liquor' or 'mixture of liquors.' In State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A. 1917B, 962n, the Washington Supreme Court construed a section of the prohibition law which provides : 'The phrase "in- toxicating liquor," wherever used in this Act, shall be held and construed to include whisky, brandy, gin, rum, wine, ale, beer and any spirituous, vinous, fermented or malt liq- II SEC. 1 OF ACT 83 uor, and every other liquor or liquid containing intoxicat- ing properties.' The doctrine of the last antecedent was applied, and it was held that the phrase 'containing intoxi- cating properties' modifies the terms 'other liquor or liquid,' and does not modify any of the other preceding terms. The strained construction given to the statute considered in Ex parte Hunnicutt, 7 Okl. Cr. 213, 123 Pac. 179, may have been justified under the circumstances, but the reasoning by which the conclusion was reached does not commend it to our judgment. None of the decisions is particularly per- suasive here." State v. Centennial Brewing Co. (Mont.), 179 Pac. 296, 299. Liquor Synonymous with Liquid. The meaning of the word "liquor" is not restricted to alcoholic or intoxi- cating liquids, but the word is to be given its original mean- ing as synonymous or inclusive of the word "liquid." State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A. 1917B, 962n. Unspecified Liquor or Liquors Test of Unspecified Liquors. The test to be applied in determining whether or not the sale and keeping for sale of liquors other than those specifically mentioned in the statute is prohibited is this: If the liquor in question be of such a kind that the distinctive character and effect of intoxicating liquor be absent, it is outside the statute; if the distinctive character and effect of intoxicating liquor be present, it ;s Avithin the statute. State .v. Miller, 92 Kan. 994, 142 Pac. 979, L. R. A. 1917F, 238, Ann. Cas. 1916B, 365. "Liquor" "Spirituous Fluid" "Intoxicating." The term "liquor," in its limited sense and in its more com- mon application implies spirituous fluids, whether fer- mented or distilled, such as brandy, whisky, gin, beer, and wine. Mullins v. Commonwealth, 115 Va. 945, 79 S. E. 324. " 'Generally the word "liquor"' implies intoxicating liq- uor, and therefore proof that a defendant sold "liquor" is 84 TITLE II SEC. 1 OF ACT sufficient to show, in the absence of adverse testimony, that he sold intoxicating liquor.' Carswell v. State, 7 Ga. App. 198, 66 S. E. 488; Howard v. State, 7 Ga. App. 61, 65 S. E. 1076; Lewis v. State, 6 Ga. App. 779, 65 S. E. 842; Tomp- kins i). State, 2 Ga. App. 639, 58 S. E. 1111; Wilburn v. State, 8 Ga. App. 28, 68 S. E. 460." Smith v. State, 17 Ga. App. 118, 86 S. E. 283. Intoxicating Decoctions. The term liquor or liquors includes all kinds of intoxicating decoctions, whether spirit- ous, vinous, malt, or alcoholic. Marks w. State, 159 Ala. 71, 48 So. 864. "Intoxicating Liquor" What Is and What Is Not Statutory Signification. The words "intoxicating liq- uors," wherever used in the intoxicating liquor laws, be- came impressed with the signification given them by that statute. State v. Miller, 92 Kari. 994, 142 Pac. 979, L. R. A. 1917F, 238, Ann. Cas. 1916B, 365. "Intoxicant" Defined. "Any liquor intended for use as a beverage, or capable of being used, which contains al- cohol, either obtained by fermentation or by the additional process of distillation, in such proportion as it will produce intoxication when taken in such quantities as may practi- cally be drunk, is an intoxicant. This has been recognized by the authorities and elementary writers as a proper defi- nition of what is an intoxicant." Weinberg v. State, 81 Tex. Cr. App. 306, 194 S. W. 1116. Under the law of some states the test is whether the liq- uor, when taken in reasonable quantities, will intoxicate. Salvador v. State, 79 Tex. Cr. App. 343, 185 S. W. 12. In order to come under the ban of some state laws, liq- uor must either contain more than one half of 1 per cent of alcohol, or a sufficient quantity of it in a liquor or com- pound, capable of being used as a beverage to intoxicate a human being. Estes v. State (Okla. Cr. App.), 166 Pac. 77. TITLE II SEC. 1 OF ACT 85 The term "intoxicating liquor," as used in War-Time Pro- hibition Act Nov. 21, 1918, means any liquor, intended or capable of being used as a beverage, containing a proportioo of alcohol which will produce intoxication when the bever- age is taken in such quantities as it is practically possible for a man to drink. United States v. Baumgartner (D. C), 259 Fed. 722. A law prohibiting the sale of, or keeping for sale, intox- icating liquors, includes intoxicating liquors of every kind and character which are now in use, or which in the future may come into use as a beverage, no matter by what name they may be named or called, and no matter how small a percentage of alcohol they may contain, and no matter what other ingredients may be in them. McLean v. People, Ala. , 180 P. 676. "Intoxicating Bitters." Intoxicating bitters includes those bitters, beverages, or decoctions in which the distinc- tive character and effect of intoxicating liquors are present, so that it may be used as a beverage notwithstanding the other ingredients it may contain ; and if it can be used as a beverage, though the other ingredients are medicinal and predominate, and alcohol is used to preserve these medicinal ingredients and serve as a vehicle therefor, then it may or may not be included, depending on the evidence in each particular case, it being without the province of any court to declare as a matter of law that a particular bitters or bev- erage is or is not intoxicating, unless the statute or law so declares, or it be one the effect of which every one is pre- sumed to know. Marks v. State, 159 Ala. 71, 48 So. 864. Whisky, Porter and Ale. \Yhisky, porter, and ale are taken to be intoxicating liquors. State v. Barr (Vt.). 77 All. 914. State v. Killeen (N. H.), 107 Atl. 601. Coats v. State (Tex. Cr. App.), 215 S. W. 856. Landers v. State (Tex. Cr. App.), 210 S. W. 694. Jamaica Ginger. Jamaica ginger, containing more than 1 per cent of alcohol, is intoxicating liquor. State v. Intoxicating Liquors and Vessels (Me.), 106 Atl. 711. 86 TITLE II SEC. 1 OF ACT It is a matter of common knowledge that for years Ja- maica ginger, whatever its merits may be, has been used as a substitute for other intoxicants. State v. Intoxicating Liquors and Vessels (Me.), 106 Atl. 711. Jamaica ginger containing 92 per cent alcohol and kept for sale as a beverage was "intoxicating liquor" within the meaning of Laws 1917, c. 147, 19, and a prosecution could be had under such section, notwithstanding section 21, re- lating to Jamaica ginger. State v. Agalos (N. H.), 107 Atl. 314. Peach Brandy. It may be inferred that a liquor denom- inated by the seller as peach brandy, and for which payment is received as such, is brandy, and therefore an intoxicating liquor. Howard v. State, 7 Ga. App. 61, 65 S. E. 1076. Alcohol. It is a matter of common knowledge that al- cohol is an intoxicant and an intoxicating liquor. State v. Klein (la.), 174 N. \V. 481. McLean v. People (Colo.), 180 Pac. 676. State v. Nicolay (Mo. App.), 184 S. W. 1183. Pure alcohol is without the term "spirituous and intoxi- cating" liquors. Marks v. State, 159 Ala. 71, 48 So. 864. And a sale of alcohol as a beverage, however, diluted or disguised, violates a law specifically prohibiting the sale of alcohol. Feagin v. Andalousia, 12 Ala. App. 611, 67 So. 630. "Alcoholic or Spirituous." "Alcoholic means contain- ing or pertaining to alcohol, which is a volatile organic body, a limpid colorless liquid, hot and pungent to the taste, having a slight, but not offensive, scent. It has but one source, namely, fermentation, and is extracted from its by- products by distillation ; its purity and strength depending on the degree of perfection or completeness of distillation. While it is the intoxicating principle of all intoxicating TITLE II SEC. 1 OF ACT 87 drinks, within the meaning of ordinary prohibition stat- utes, it is rarely in its pure state used as a beverage." Marks v. State, 159 Ala. 71, 48 So. 864. The phrase, "alcoholic or spirituous liquors," necessarily means intoxicating liquors. Marks v. State, 159 Ala. 71, 48 So. 864. Near Beer. But the expression, "near beer," does not import an intoxicating liquor. Stoner v. State, 5 Ga. App. 716, 63 S. E. 602. Campbell v. Thomasville, 6 Ga. App. 212, 64 S. E. 815. Abbott v. State, 11 Ga. App. 43, 74 S. E. 621. "Potability" or Beverage Character. "The sale of spirituous, vinous, fermented, or malt liquor, not capable of being used as a beverage, is not prohibited. The word 'beverage' means a drink or liquor for drinking. Century Dictionary. Every one of the terms 'spirituous liquor,' 'vinous liquor,' 'fermented or malt liquor' has a well-un- derstood meaning. Every one of those liquors is not merely capable of being used as a beverage, but it is in fact a bev- erage, and it is a contradiction of terms to speak of spirit- uous, vinous, fermented, or malt liquor, not capable of be- ing used as a beverage." State v. Centennial Brewing Co. (Mont.), 179 Pac. 296, 297. Nonpotable Intoxicant. Liquor which will not intoxi- cate by immoderate use because one using it "would become sick long before he becomes intoxicated" is not "intoxicat- ing liquor." Geer Drug Co. v. Atlantic Coast Line R. Co., 104 S. C. 207, 88 S. E. 448, Ann. Cas. 191 7C, 908. "Still Beer." A substance made of corn meal and mo- lasses, designed to be used for distilling whisky, and com- monly called "still beer," or "beer," which is alcoholic, and intoxicating when drunk to excess, and in such a physical state that it can be and actually is drunk as a beverage, is a "beverage," as used in a statute making it an offense to dis- 88 TITLK II SEC. 1 OF ACT till or manufacture any alcoholic liquor or beverage, any part of which is alcoholic. Patterson v. State (Ga. App.), 100 S. E. 641. Beer, and Its Varieties. Judicial notice will be taken that "beer" without any qualifying term is a malt liquor containing sufficient alcohol to produce intoxication. Lyon v. City Club, 83 S. C. 509, 65 S. E. 730. Mild Beer. Though not containing sufficient alcohol to require an internal revenue license for its sale, beer may be intoxicating within the prohibition amendment. Hall v. State, 19 Ariz. 12, 165 Pac. 300. Under the internal revenue laws and all standards by which Congress could have viewed the matter, beer described in an information as a malt product, commonly known as lager beer, and containing as much as one-half of one per cent of alcohol, is of the class known as intoxicating liquor, and as such its sale is prohibited. United States v. Schmauder (D. C.), 258 Fed. 251. "Not every liquid called beer is judicially known to be intoxicating. Gripe v. State, 4 Ga. App. 832, 62 S. E. 567; Snider v. State, 81 Ga. 753, 7 S. E. 613, 12 Am. St. Rep. 350. Some beers are known to be nonintoxicating. In or- der to show that the sale of a liquid denominated as beer is unlawful and consequently that the keeping of the liquid for sale is likewise unlawful it must be shown that the beer in question comes within one of those classes whose sale is regulated by law. Persimmon, locust, corn, and other brewed liquor may be called by the most innocent name and yet the proof may show that the name is but a disguise, and that the sale of the fluid in question is prohibited by law." Lumpkin v. Atlanta, 9 Ga. App. 470, 71 S. E. 755. Under War Prohibition Act. Congress extended at the time of passing this law to prohibit lager beer with an amount of alcoholic content sufficient to make it taxable by the revenue department, sufficient to bring it within the gen- eral definition of lager beer, as known from past experience, and sufficient to bring the act within the prohibition of the TITLE II SEC. 1 OF ACT 89 Selective Service Law, which prohibited the sale of- "any in- toxicating liquors including wine and beer." United States v. Schmauder (D. C.), 258 Fed. 251. Act Nov. 21, 1918, providing that no beer, wine, or other intoxicating liquors shall be manufactured or sold during continuance of the war, etc., refers only to intoxicating beer and wine. United States v. Baumgartner (D. C.), 259 Fed. 722. The War-Time Prohibition Act of November 21, 1918, prevents only the manufacture and sale of beer, wine, etc., which is in fact intoxicating. Hoffman Brewing Co. v. McElligott (C. C. A.), 259 Fed. 525. The War-Time Prohibition Act of November 21, 1918, preventing the sale of beer, wine, and other intoxicating liquors, etc., refers only to beer and wine which is in fact intoxicating. United States v. Ranier Brewing Co. (D. C.), 259 Fed. 350. In the provision of Act Nov. 21, 1918, 1, that "no grains, cereals, fruit or other food product shall be used in the manufacture or production of beer, wine or other intoxi- cating malt or vinous liquors for beverage purposes," the words "beer" and "wine" are qualified by "intoxicating," and the act does not prohibit the manufacture of beer which is not in fact intoxicating. Hoffmann Brewing Co. v. McElligott (D. C.), 259 Fed. 321. Act Nov. 21, 1918. "Congress had it in mind to say 'beer or any other product of malt of an intoxicating na- ture.' The thought was that expressed in the Selective Serv- ice Law (Act May 18, 1917, c. 15, 40 Stat. 76 [Comp. St. 1918, 2019a]), which says: 'Any intoxicating liquor, in- cluding beer, ale or wine.' But either statement would sug- gest that Congress classified, and intended to classify, beer as intoxicating, and merely made sure that it was covered by the law in case dispute arose. The law included beer, and snowed that Congress understood it to be intoxicating." United States r. Schmauder (D. C.), 258 Fed. 251. 90 TITLE II SEC. 1 OF ACT Beer. It is apparent that the intent of the Congress was to prohibit the sale of those malt products which were com- monly known as beer, which were also commonly supposed to be intoxicating, which had always been classified as in- toxicating liquor, and which because of their alcoholic con- tent had some effect upon the production and man power of the nation, while at the same time using in their manufac- ture some of the food products of the nation, which were needed for the purposes of the war and for the purposes of restoring conditions at the termination of hostilities, so far as Congress had power to regulate conditions after the war as a part of its military operation and conduct. United States v. Schmauder (D. C.), 258 Fed. 251. That the Treasury Department should have interpreted the act as only applying to what it considers intoxicating beer is persuasive and entitled to great weight. United States v. Cerecedo Hermanos Y. Compania, 209 U. S. 337, 339, 28 Sup. Ct. 532, 52 L. Ed. 821. Komada & Co. v. United States, 215 U. S. 392, 396, 30 Sup. Ct. 136, 54 L. Ed. 249. Adams Exp. Co. v. New York, 232 U. S. 14, 30, 34 Sup. Ct. 203, 58 L. Ed. 483. Hoffmann Brewing Co. v. McElligott (D. C.), 259 Fed. 321. Mixtures. Mixtures of intoxicating liquors retaining their alcoholic qualities, which will intoxicate and may be used as a beverage and become a substitute for the ordinary intoxicating drinks are intoxicating liquors. Roberts v. State (Ga. App.), 60 S. E. 1082. "The fact that ardent spirits are mixed with other in- gredients, and, as thus compounded, labeled Jamaica ginger and sometimes used for medicinal purposes, does not change the situation, for as we said in Brown v. State, 17 Ariz. 314, 152 Pac. 578: 'Of course, the name by which it was called cannot affect its kind or quality. It is the stuff of which it is made, and not its name, that gives it place among the prohibited liquors named in the Constitution.' " Cooper v. State, 19 Ariz. 486, 172 Pac. 276. TITLE II SEC. 1 OF ACT 91 Substitutes. A beverage containing an enzyme, which is an unorganized ferment, and containing either maltose or glucose or a substitute therefor, is prohibited as a device or substitute. State v. Mattox Cigar, etc., Co. (Ala.), 77 So. 755. Beer Substitutes. It is the process and material, and not the name which classifies the product; and so a liquor made by the usual process of making beer, is beer, regard- less of its name, although fermentation is arrested to re- duce the percentage of alcohol and it is nonintoxicating. Brown v. State, 17 Ariz. 314, 152 Pac. 578. Beer Characteristics. A liquor that foams like beer, smells, looks, and tastes like it, and is put up in bottles like it and has a name suggesting it, is a "substitute or device" under a statute prohibiting any device or substitute for any intoxicating liquor. Dees v. State (Ala. App.), 75 So. 645. Near Beer. "Near Beer" is a beverage intended as a substitute for beer, and is a malt liquor. Howard v. Acme Brewing Co., 143 Ga. 1, 83 S. E. 1096, L. R. A. 1917A, 91. Whisky Defined. Whisky is alcohol, diluted with wa- ter and mixed with other elements or ingredients. Marks v. State, 159 Ala. 71, 48 So. 864. "Cider" Defined. The word "cider" includes the pressed juice of apples whether fermented or unfermented. The terms "sweet cider" and "hard cider" are in popular use to distinguish between the juice of the apple before and after fermentation. "Hard cider" is fermented cider. People v. Emmons, 178 Mich. 126, 144 N. W. 479, Ann. Cas. 1915D, 425. "Vinous Liquor" Defined. Vinous liquor means liq- uor made from the juice of grapes, and it may also include 92 TITLE II SEC. 1 OF ACT wines made from fruits or berries by process of fermenta- tion, by addition of sugar and alcohol. Marks v. State, 159 Ala. 71, 48 So. 864. State v. Coverdale, 1 Boyce's (24 Del.) 555, 77 Atl. 754. Judicial Notice of Percentage of Alcohol. In a pros- ecution for the sale of wine under a statute which defines alcoholic liquors as including vinous liquors which contain more than 1 per cent of alcohol, and which are not so mixed with other products as to prevent their use as a beverage, the court will take judicial notice that wine is a drinkable vinous liquor containing more than 1 per cent of alcohol. People v. Mueller, 168 Cal. 526, 143 Pac. 750. Spirituous Liquor. Spirituous liquor is that which is in whole or in part composed of alcohol, extracted by dis- tillation, such as whisky, brandy, or rum. Marks v. State, 159 Ala. 71, 48 So. 864. Intoxicating Distinguished from Spirituous Liquor. Intoxicating liquors are any liquors intended for use as a beverage, or capable of being so used, which contain al- cohol, regardless of how obtained, in such per cent that they will produce intoxication when imbibed in such quan- tities as may practically be drunk; but the term, however, is not synonymous with spirituous liquors, since, while all spirituous liquors are intoxicating, all intoxicating liquors are not spirituous. Marks v. State, 159 Ala. 71, 48 So. 864. Whisky. Any and all kinds of whisky are included in the terms spirituous and intoxicating liquors. Donaldson v. State, 3 Ga. App. 451, 60 S. E. 115. Shaneyfelt v. State, 8 Ala. App. 370, 62 So. 331. Malt Liquor Defined. "Malt liquor, or beer, as is com- monly known, is a brewed liquor made of grain, especially barley, flavored with hops, and is a liquor which has under- gone fermentation, and contains alcohol. 5 Cyc. 678." State v. Lynch, 5 Boyce's (28 Del.) 569, 96 Atl. 32. TITLE II SEC. 1 OF ACT 93 The words "malt liquor," in the law are construed to mean a fermented or alcoholic liquor and not to include a liquor containing malt, but neither fermented nor contain- ing alcohol. State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A. 1917B, 962n. Malt liquors include nonintoxicating, as well as intoxi- cating liquors. Commonwealth v. Goodwin, 109 Va. 828, 64 S. E. 54. Bradley v. State, 3 Ala. App. 212, 58 So. 95. State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A. 1917B, 962n. A beverage containing 5.73 per cent malt is a malt liquor though it contains no alcohol, preservatives, or saccharine, and was nonintoxicating. Purity Extract, etc., Co. v. Lynch, 100 Miss. 650, 56 So. 316. The phrase "malt liquors and liquor or liquid * * * which contains as much as two per centum alcohol," includes malt liquor containing less than two per centum of alcohol, the words "malt liquor" meaning any malt beverage, the per- centage of alcohol being immaterial. State v. Centennial Brewing Co. (Mont.), 179 Pac. 296. But under a statute providing that the term alcoholic liq- uors shall include spirituous, vinous, and malt liquors and any other liquor which shall contain 1 per cent or more of alcohol, the sale of malt beverages which do not contain 1 per cent of alcohol is not prohibited. People v. Strickler, 25 Cal. App. 60, 142 Pac. 1121. Nonintoxicating malt liquor is a fermented malt liquor containing alcohol in quantities insufficient to produce in- toxication when used as a beverage. Claunch v. State (Tex. Cr. App.), 203 S. W. 891. Process. Malt liquors are the product of a process by which grain is steeped in water to the point of germination, the starch being thus converted into saccharine matter, which is kilm dried then mixed with hops, and by a fur- 94 TITLE II SEC. 1 OF ACT ther process of brewing made into a beverage; porter, ale, beer, etc., being embraced within the expression. Marks v. State, 159 Ala. 71, 48 So. 864. Potentially Alcoholic. A malt beverage of such com- position that it will generate alcohol of itself, under certain conditions, is potentially a malt liquor. State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A. 1917B, 962n. TITLE II SEC. 3 Acts Prohibited. "Manufacture" "Sell" "Barter" "Transport" "Import" - "Export" - "Deliver" - - "Furnish" - "Possess" - Liberal Construction General Excep- tions Liquor for Nonbeverage Purposes and Wine for Sacramental Purposes Permits Spirits in Bond Warehouse Receipts Tax Liability. SEC. 3. No person shall on or after the date when the eighteenth amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, trans- port, import, export, deliver, furnish, or possess any in- toxicating liquor except as authorized in this Act, and all the provisions of this Act shall be liberally con- strued to the end that the use of intoxicating liquor as a beverage may be prevented. Liquor for nonbeverage purposes and wine for sacra- mental purposes may be manufactured, purchased, sold, bartered, transported, imported, exported, delivered, fur- nished, and possessed, but only as herein provided, and the commissioner may, upon application, issue permits therefor: Provided, That nothing in this Act shall pro- hibit the purchase and sale of warehouse receipts cov- ering distilled spirits on deposit in Government bonded warehouses, and no special tax liability shall attach to the business of purchasing and selling such warehouse receipts. Liberal Construction, Reason and Spirit. The prohibition laws must be liberally construed to ac- complish the purposes of their enactment, which is to sup- press the evils of intemperance and secure obedience to, and the enforcement of, the laws of the state for the suppres- 96 TITLE II SEC. 3 OF ACT sion of illegal manufacture of and traffic in prohibited liq- uors, and to prevent evasions and subterfuges by which the law may be violated. Carson v. State, 3 Ala. App. 206, 58 So. 88. State v. Philips, 109 Miss. 22, 67 So. 651. The end sought for is the prevention or at least the dimi- nution of the drinking of intoxicating liquors by the peo- ple of the state. The legislation upon the subject, including the statute in question, should be construed to further that end, so far as the language, without bending either way, fairly allows. State v. Bass Pub. Co., 104 Me. 288, 71 Atl. 894, 20 L. R. A., N. S., 495. State v. Jones-Hansen-Cadillac Co. (Neb.), 172 N. W. 36. As said in one case : "But, as we have attempted to show in this opinion, we are perfectly clear that the Legislature in enacting the prohibition statute was aiming to prevent the evil of intemperance caused by the use of intoxicating liquors as a beverage. To accomplish this beneficent pur- pose, the law should receive a reasonable construction, equally removed on the one hand from a harsh literal in- terpretation which would render it unpopular and difficult of enforcement, and, on the other hand, from a latitude that would tend to fritter away its beneficial purpose and cause it to become a mere bmtum fulmen." Roberts v. State, 4 Ga. App. 207, 60 S. E. 1082. And in another: "Incidentally it may be said in this connection, that while the statute, of which this section is a part, prescribes a penalty for its violation, and that penal statutes are, as a general rule, strictly construed, it has been held here and elsewhere that laws in regard to the sale of intoxicating liquors ought to be so construed as to carry out the true purpose of their enactment. State v. Walker, 221 Mo. 511, 120 S. W. 1198, affirming 129 Mo. App. 371, 108 S. E. 615. And in accomplishing this purpose they should be liberally construed. Seattle v. Foster, 47 Wash. 172, 91 Pac. 642; Cox v. Burnham, 120 la. 43, 94 N. W. 265; People v. Craig. 128 App. Div. 908, 112 N. Y. Supp. 1142. Probably the rule in regard to the construction of TITLE II SEC. 3 OF ACT 97 this case of statute is best stated in a New York case plead v. Stratton, 87 N. Y. 493, 41 Am. Rep. 386) in which it is said: "While a statute of this character should not be enlarged, it should be interpreted, where the language is clear and explicit, according to its true intent and meaning, having in view the evil to be remedied and the object to be attained." State v. Missouri Athletic Club (Mo.), 170 S. W. 904, 905. Statutory Signification. The sentence, "and all malt or brewed drinks, whether intoxicating or not, shall be deemed malt liquors within the meaning of this act," can- not be adjudged out of the act, or restricted or enlarged in its plain signification, unless, after exhausting every legiti- mate method of construction, it is found irreconcilable with the scope and purpose of the act or void for constitutional reasons. State v. Reno Brewing Co. (Neb.), 178 Pac. 902. An act making it unlawful for any railroad to transport within or import into the state intoxicants, or for any person to receive the same or to deliver the same, is not indefinitely framed or of such doubtful construction that it cannot be understood from the language in which it is expressed. Gulf. etc.. R. Co. v. State (Tex. Civ. App.), 212 S. W. 845. Public Policy. In determining the public policy of a state with reference to guilt in question of the sale with pur- chase of intoxicating liquor the court must accept the statute as fixing the public policy, and have no concern with the reasons of the lawmakers in failing to condemn the buyer. Anderson v. Fant (S. C.), 79 S. E. 640, 641. When Strictly Construed. But it has been held that the Reed- Jones Amendment. 5 (U. S. Comp. St. 1918, 8739a), declaring that whoever shall cause intoxicants to be transported in interstate commerce except for certain pur- poses into any state whose laws prohibit the sale and manu- facture of such liquors shall be punished, is highly penal in its nature, therefore to be strictly construed, so that a case 7 98 TITLE II SEC. 3 OF ACT to come within its purview must come both within the spirit and letter. Sickel v. Commonwealth (Va.), 99 S. E. 678. And an act prohibiting the transportation of intoxicating liquor for another, is a criminal statute, and must be strictly construed, so that all persons must be excluded from its operation who are not expressly included within its provi- sions. Edwards v. State (Ark.), 213 S. W. 11. Permit. In a statute making it unlawful to sell or permit to be sold without a license certain specified liquors, the word "permit" must be construed as meaning "assent," in view of the strict construction given criminal statutes. State v. Waxman (N. G. Sup.), 107 Atl. 150. Prospective Operation of Statute. In the view of the North Carolina Revisal, 1905, 2832, 5455, 5456, de- fendant who sold spirituous liquors in a county December 20, 1918, could be convicted of the offense as a misdemeanor under the act previous to Public Local Laws 1919, c. 2, ratified January 23, 1919, making the retailing of spirituous liquors in the county a felony, made prospective only in its operation by its provision that it should take effect from its ratification, more particularly in view of the intention of the Legislature as shown by the title of the act. State v. Mull (N. C.), 101 S. E. 89. Manufacture. Manufacture "or" Sale Conjunctive. "As will be noted by reference to the Reed Amendment, it is applicable to any state the laws of which prohibit 'the manufacture or sale therein of intoxicating liquors for beverage pur- poses.' Thus it is sufficient if either the manufacture or the sale is prohibited. Attention is called to a line of deci- sions in which the disjunctive 'or' is sometimes construed as 'and,' but such a construction is not applicable in this case. Congress had the authority to prohibit the shipment of intoxicating liquors into states which prohibit the manu- facture of liquors, or which prohibit the sale of liquors, TITLE II SEC. 3 OF ACT 99 either one or the other, or both, and there is no good reason to conclude that Congress did not intend exactly what it said." United States v. Collins (D. C.), 254 Fed. Rep. 869, 870. Manufacture. "Manufacture," as used in the statute, means to make, irrespective of quantity produced or use to which it is to be put. State v. Marastoni (Ore.), 165 Pac. 1177. The word "manufacture" means the process of making by art, or reducing materials into form fit for use, by hand or machinery. State v. Raven, 91 S. C. 265, 74 S. E. 500. One who converts raw material out of which alcoholic liquors can be made into alcohol is guilty of "manufactur- ing" alcoholic liquors. Patterson v. State (Ark.), 215 S. W. 629. Attempt to Manufacture. Under the Alabama Prohi- bition Law of 1915 a mere ineffectual attempt to manufac- ture whisky was not an offense. Cochran v. State (Ala. App.), 82 So. 560. For Personal Use Only. Under a law providing that it shall be unlawful for any person to manufacture, sell, barter, exchange, give away, furnish, or otherwise dispose of any intoxicating liquors, or to keep any intoxicating liq- uor, with intent to sell, barter, exchange, give away, etc., one who manufactures intoxicating liquor solely for his own personal use, and without intent to sell, is guilty, since the words "intent to sell," in the statute refer only to that which immediately precedes, to wit, "keep any intoxicating liquor." State v. Fabbri, 98 Wash. 207, 167 Pac. 133. Distillation. To run beer or singlings composed of corn, meal, sugar or molasses, and water through the proc- ess of distillation once is a violation of the manufacturing provision of the statute. Lowery v. State, 135 Ark. 159, 203 S. W. 838. 100 TITLE II SEC. 3 OF ACT Aiding and Abetting Manufacture. Under North Carolina Revisal 1905, 3269, providing that on trial of any indictment the prisoner may be convicted of the crime charged or of a less degree of the same crime, defendant could be convicted of a violation of Pub. Laws 1917, c. 157, prohibiting the manufacture of liquor, whether he was a principal in the first degree or in the second degree as an aider and abetter, the latter being but a lower grade of the principal offense. State v. Homer, 174 N. C. 788, 94 S. E. 291. One who fired a gun in the air when he saw an officer approaching a blockade distillery to aid and abet the dis- tillers and to enable them to escape was an accessory to the distillers and was equally guilty with the principals. State r. Killian (N. C.), 101 S. E. 109. Participating in Manufacture. Where defendant not only permitted the illegal business of manufacturing liquor to be done in his house, but furnished the still and the place for using it, he was a participant in the crime of manufac- turing liquor. State v. Jones, 174 N. C. 709, 95 S. E. 576. One who is present at a distillery when whisky is being manufactured and personally assists in the manufacture of the same is guilty of manufacturing whisky, and it is imma- terial whether or not he owns the distillery, and whether or not he is hired to work there. Thomas v. State (Ga. App.), 100 S. E. 760. But to constitute a violation of the law prohibiting the manufacture of liquor, it is not necessary that the process of manufacturing should be complete, and hence a person letting the water out of a still and scraping the still is en- gaged in the manufacture of liquor and is guilty of a viola- tion. State v. Raven, 91 S. C. 265, 74 S. E. 500. "In the light of the rule that in misdemeanors all who aid or abet are principals, one who, at a place where a still is being unlawfully operated, participates in any act nec- essary or usual in the manufacture of whisky, such as stir- II SEC. 3 OF ACT 101 ring the meal, keeping up the fire, or carrying water to be used in mixing the meal, is so connected with the manufac- ture prohibited by law as to authorize his conviction upon an indictment charging him with manufacturing liquor, when it appears that any act done by him was necessarily a contribution to the success of the unlawful undertaking." White v. State, 18 Ga. App. 214, 89 S. E. 175. Or participates by such acts as helping barrel the liquor and leveling the still worm when it is about to get out of proper adjustment. Strickland v. State, 9 Ga. App. 201, 70 S. E. 990. But if defendant went to a still where other persons had manufactured liquor or had been frustrated in so doing, merely to haul away the remnants and without intention to take part in the manufacture of liquor, and hauled away beer as an act disconnected with the manufacture of liquor, he did not violate a law prohibiting the manufacture of liq- uor. State v. Homer, 174 N. C. 788, 94 S. E. 291. Wine Making. Extracting the juice of grapes and al- lowing it to ferment, and thereby letting it become intoxi- cating liquor, is "manufacturing" intoxicating liquor. State v. Fabbri, 98 Wash. 207, 167 Pac. 133. One who presses juice from grapes, puts it in a vat and permits it to ferment by natural process, with intent to use part of it in the state, manufactures wine in violation of law. State v. Marastoni (Ore.), 165 Pac. 1177. See also post, under Sec. 19. Sale. What Constitutes. "Where one person delivers to an- other certain intoxicating liquors in exchange and consid- eration for a sum of money then and there paid, the trans- action constitutes a sale of intoxicating liquors, and it is immaterial whether the purchaser subsequently delivers a portion of such liquors to other persons who had thereto- fore contributed to a purse with which such liquors were 102 TITLE II SEC. 3 OF ACT purchased, where it appears that the person making such a sale was ignorant of the fact that such liquors were to be subsequently delivered to parties other than the one pro- ducing and paying the money." Darneal v. State (Okla. Cr. App.), 171 Pac. 737. See Deal v. State, 14 Ga. App. 121, 80 S. E. 537, 541. A "sale" is a contract for the transfer of property from one person to another for a valuable consideration, and to constitute a sale of whisky there must be the assent of two parties. Scroggins v. United States (C. C. A.), 255 Fed. 825, Where a witness went to defendant, and paid cash for a barrel of wine, which was delivered to the witness' place of business on the same day, the transaction was a sale, and not a contract for the sale of the liquor. D'Amico v. State (Del.), 102 Atl. 78. "Delivery." If defendant told the alleged purchaser where the liquor might be found, and he found it at such a place and took possession, there was a sufficient delivery to constitute the transaction a sale. State v. Sullivan, 97 Wash. 639, 166 Pac. 1123. Where accused took money from another undertaking to procure whisky for him, and gave the money to a third per- son who advised accused he put some whisky under a cer- tain box, of which accused informed the purchaser, this constituted a "delivery" of the whisky by accused to the purchaser; the whisky placed under the box being under accused's exclusive control until surrendered to the pur- chaser. State v. Elmore (Mo. App.), 189 S. W. 612. Place of Delivery. A sale of intoxicating liquor oc- curs at the place of delivery, where the seller actually parts with the property. Blackburn v. State, 79 Tex. Cr. App. 446, 185 S. W. 581. Where the seller of intoxicating liquors delivers them in person or by his agent to the purchaser, without the inter- TITLE II SEC. 3 OF ACT 103 vention of a common carrier, the place of delivery is the place of sale. Lochinar v. State, 111 Md. 660, 76 Atl. 586, 19 Ann. Cas. 579. Ownership of Liquor Sold Immaterial. "The state's witness approached the defendant and told him that he wanted a quart of liquor. The defendant replied that he had none for sale, but that a third person had left a quart in his (defendant's) house for which he (the third person) desired a named amount of money. The witness paid the money to the defendant, and went and got the liquor from the place designated. Held: (1) The case does not rest on circumstantial evidence alone. (2) Under the doctrine that, in misdemeanors, all who participate are principals, it is immaterial whether the liquor belonged to the defendant or not." Loeb v. State, 6 Ga. App. 23, 64 S. E. 338. Roberts v. State, 8 Ga. App. 476, 69 S. E. 585. Scott v. State, 3 Ala. App. 142, 57 So. 413. Under a statute prohibiting any person from selling spir- itous liquor in any quantity, a servant or agent may be guilty of unlawfully selling liquor, the property of his prin- cipal, though the agent have no property in the liquor so sold. State v. Gross, 76 N. H. 304, 82 Atl. 533. Lochinar v. State, 111 Md. 660, 76 Atl. 586, 19 Ann. Cas. 579. Defendant who at the request of one who had ordered whisky made affidavit that it was his and was not intended for any illegal purpose, paying the notary with money fur- nished by the party ordering the whisky, took the affidavit to the express office, signed for and received the liquor and delivered it to the party who had ordered it, was guilty of a sale. Coleman v. State, 74 Tex. Cr. App. 36, 166 S. W. 164. Where beer is illegally sold, it is immaterial as to who is the proprietor of place of sale, or that the person making sale is not interested therein. Files v. State (Okla. Cr. App.), 182 Pac. 911. 104 TITLE II SEC. 3 OF ACT Place of Sale. The sale of liquor is made at the place where the minds of the parties meet and where the purposes of each party become understood. Huddleston v. Commonwealth, 171 Ky. 310, 188 S. W. 398. Where accused, owning whisky which was either in the state or in a sister state, made a contract of sale, received the price, and through an express company delivered the whisky in the state, there was an illegal sale in the state. State v. Cardwell, 166 N. C. 309, 81 S. E. 628. Where a seller in one state, pursuant to a written order from a buyer in another shipped the latter two carloads of beer, the sale took place before arrival of the beer at its destination and its delivery to buyer. Monumental Brewing Co. v. Whitlock (S. C.), 97 S. E. 56. Where a brewing company located in Illinois gave to the bankrupt the exclusive right to sell its beer at wholesale, the same to be delivered f. o. b. at Omaha, Neb., the sales must be deemed to have occurred in Illinois, where the brewing company was licensed, so the company was entitled to have allowed its claim against the bankrupt, based on sales made under the contract, though it was not licensed in Nebraska to sell intoxicating liquors. Belden & Co. v. Leisy Brewing Co., 161 C. C. A. 420, 249 Fed. 462. One who ordered whisky from a liquor house in a sister state at the request of a third person and solely for his ac- commodation was not guilty of illegally selling liquor in the county of delivery. State v. Cardwell, 166 N. C. 309, 81 S. E. 628. Shams to Evade Law. Where the ordering of the liq- uor by defendant from a firm outside of the state, and a shipment by it to the purchasers in local option territory were shams, defendant was guilty of selling. State v. Jamison (Mo. App.), 199 S. W. 713. TITLE II SEC. 3 OF ACT 105 Contributors to Pool. Where accused and a third per- son contributed to a pool to buy whisky, and accused took the money and brought a bottle of whisky, which he and the third person consumed, he was guilty of selling liquor. Horton v. State, 105 Miss. 333, 62 So. 360. But an accused who ordered a keg of beer, to be drunk by a number of persons, including himself, the expense be- ing prorated between them, was not guilty of an unlawful sale of intoxicants ; it appearing all the money collected was expended in the purchase of the beer and payment for icing and transportation. Dantzler v. State, KM Miss. 233, 61 So. 305. Sales with Meals. A boarding house keeper, who as a part of the dinner, serves beer or wine to his boarders who pay a specified sum per day for board, is guilty of sell- ing liquor. Skermetta v. State, 107 Miss. 429, 65 So. 502, 52 L. R. A., N. S., 722n. Purchaser Helping Himself. Where an accused told a person desiring whisky that he had some in his trunk and the purchaser paid him money and went to accused's home, where another member of accused's family showed him the trunk containing the whisky from which he took it, the ac- cused is guilty of a sale. Whitten v. State, 75 Tex. Cr. App. 225, 170 S. W. 718. Devices Representing Money. Where a person pur- chases from one person ticket or other such device to be punched or exchanged for intoxicating liquors, and another person, having charge of such liquors recognizes the pur- chasing value of such ticket and exchanges liquors therefor by taking up the ticket or punching it, the transaction is a sale, and both the person selling the ticket and the person dispensing the liquors are equally guilty. State v. Zehnder, 182 Mo. App. 161, 168 S. W. 661. Sale by Coupons. W'here a number of persons each contribute money to an agent, who purchases a stock of intoxicating liquors and thereafter dispenses, upon the or- 106 TITLE II SEC. 3 OF ACT der of one of such persons a quantity of the liquor in ex- change for a book of coupons which had been purchased, either by such person or by the person to whom the liquor was delivered, the transaction is a sale in violation of the prohibition law, notwithstanding the persons for whose ben- efit the liquor was purchased composed a bona fide club, organized for social and intellectual welfare, and the use of the liquor was only an incident to the main purpose of the club and although no profit is made on the sale. And this is true whether the persons have become incorporated as a social club or whether they constitute a voluntary associa- tion of persons for mutual pleasure and benefit. Deal v. State, 14 Ga. App. 121, 80 S. E. 537. Sale on Credit. The fact that a sale of liquor was void because on credit, does not exempt the seller from criminal liability where sale was illegal. State v. Yocum (Mo. App.), 205 S. W. 232. "A sale on credit is a complete sale. Therefore a sale of whisky, whether cash or on credit or whether subsequently paid for or not, constitutes a violation of law." Lupo v. State, 118 Ga. 759, 45 S. E. 602. Cook v. State, 124 Ga. 653, 53 S. E. 104. Finch v. State, 6 Ga. App. 338, 64 S. E. 1007. Single Sale as "Engaging in Business." A statute providing that "retail dealers of * * * intoxicating liq- uors * * * shall be * * * deemed to include all per- sons who sell any such liquors by the drink or by the bottle," and that "each violation * * * shall be construed to con- stitute a separate and complete offense," was intended to make a single sale constitute "engaging in business." State v. Hays, 38 S. D. 546, 162 N. W. 311. "Bootlegger" Defined. In prohibition territory a "bootlegger" means a seller of whisky. Medlock v. State, 79 Tex. Cr. App. 322, 185 S. W. 566. "Under section 10144, Complied Laws of 1913 (North Dakota), which provides that 'the crime of bootlegging * is committed by any person who sells * * TITLE II SEC. 3 OF ACT 107 intoxicating liquors * * in the buildings of any per- son, * * * without the permission of the owner, or of the person entitled to the possession of such * * * build- ings,' no such ownership or right of possession exists in one who merely has an agreement with a livery stable keeper that he may keep a horse in a barn which may be rented out, and, in lieu of charging for the stabling and hay, the liv- ery stable owner may keep one-half of the proceeds of such renting, the owner of such horse being held to be a licensee merely." State v. Stanley, 38 N. D. 311, 164 N. W. 702. "Blind Tiger" Construed. "A blind tiger is a place where intoxicants are sold on the sly and contrary to the law." Standard Dictionary Words and Phrases. Ruston v. Fountain, 118 La. 53, 42 So. 644. Shreveport v. Maroun, 134 La. 490, 64 So. 388. "Barroom" Construed. Under a law forbidding the sale of intoxicating liquors in less quantities than one-half pint and the consumption of such liquors on premises where sold, a barroom is such place, and the operation of barrooms is prohibited. Christopher v. Charles Blum Co. (Fla.), 82 So. 765. Sale to "Intoxicated" Person. The word "intoxi- cated" in an indictment charging a violation, a law, provid- ing that no person shall knowingly sell intoxicating liquor to any intoxicated person, means a materially changed condi- tion produced by the immoderate or excessive use of intoxi- cants, as contrasted with normal condition and conduct O'Donnell v. Commonwealth, 108 Va. 882, 62 S. E. 373. Liability for Sale by Agent. Where intoxicants be- longing to the master are sold illegally by the servant with the master's knowledge or consent, the master is liable as if he made the sale himself. Rash v. State, 13 Ala. App. 262, 69 So. 239. Commonwealth r. Stone (Ky.), 176 S. W. 1138. Clerk. Where a clerk, acting as agent for accused, sells spirituous liquor with the authority of or consent or under 108 TITLE II SEC. 3 OF ACT the direction of the accused, his act is the act of the accused, and the accused is as criminally liable as though he himself made the sale. State v. Hastings, 2 Boyce (Del.) 482, 81 Atl. 403. Express or Implied Authority. The proprietor of a soft drink place was not liable for the unlawful sale of in- toxicating liquors by his employee, although committed in his place of business, unless such unlawful act was directed or knowingly assented to, acquiesced in, or permitted by the employer. Elliott v. State, 19 Ariz. 1, 164 Pac. 1179. "The fact alone that appellant was engaged in selling beer at wholesale from the stock there stored is not enough to support a finding that he had possession of the stock, or that he had the control, management, or supervision of the same, or that he was keeping or operating a place where in- toxicating liquor was being sold, bartered, or given away in violation of law. [4] It is clear that, unless appellant oc- cupied the position of owner or manager of the business, or one having authority to control the doings in and about the place, he cannot be held amenable for another's acts, al- though he may have known of the illegal sales." Boos v. State, 181 Ind. 562, 105 N. E. 117. Walters v. State, 174 Ind. 545, 92 N. E. 537. Gable v. State (Ind.), 121 N. E. 113. To "permit the unlawful use of intoxicating liquor" by the proprietor of a business implies his knowledge and con- sent and acquiescence. Elliott v. State, 19 Ariz. 1, 164 Pac. 1179. Scope of Authority. Where the attempt is made to convict a person and to hold him criminally responsible for the acts of his employee, it must be clearly shown that such act was reasonably within the scope of the agent's employ- ment, or was an act done within the course of the princi- pal's business. One employed to do the ordinary work in and around a feed and wagon yard is not ordinarily em- ployed, nor is it within the scope of the employer's business, to sell whisky in such yard, and the employer of such per- TITLE II SEC. 3 OP ACT 109 son would not be criminally responsible for the acts of such employee in selling whisky in said yard, unless he was then engaged in such unlawful business at that place, or had hired such employee to sell whisky in addition to his general du- ties as helper in the feed and wagon yard. Simpson v. State (Okla. Cr. App.), 173 Pac. 529. Liability for Sale to Agent. If one desiring intoxicat- ing liquor gave money to another, who gave it to defendant, and defendant bought liquor, and gave it to person who furnished money, it was sale by defendant within contem- plation of local option law. Lopez v. State (Tex. Cr. App.), 208 S. W. 167. Presumption of Agency. Agency may be presumed from the conduct of the parties, and may be implied from a single transaction, and need not be proved as an independ- ent fact, but may be inferred from a variety of facts. State v. Legendre, 89 Vt. 526, 96 Atl. 9. And the authority of an agent may be by parol and col- lected from the circumstances. State v. Legendre, 89 Vt. 526, 96 Atl. 9. Agency a Subterfuge. Evidence that defendant told a witness that he had no whisky, but pointed out a negro from whom he thought it could be obtained, and that witness gave defendant money to obtain whisky from negro, and defend- ant returned, told witness that whisky could be found in a certain place where witness found it, authorized an infer- ence that defense of agency for purchaser was a subterfuge and justified conviction of selling intoxicating liquors. Bragg v. State (Ga. App.), 99 S. E. 310. Purchase for Resale at Profit, Not as Agent. Where accused asked the witness whether he desired whisky, and- being answered in the affirmative, informed the witness that he would charge him a quarter a quart more than it cost in another town, and being given the money shortly returned, saying that he had procured the whisky from a third per- son, accused was not the agent of the witness, for, had he been an agent, he would not have been entitled to make the 110 TITLE II SEC. 3 OF ACT profits, and, it appearing that he bought the whisky at one price and resold it at another, the sale took place in the county where it was made. Blackburn v. State, 79 Tex. Cr. App. 466, 185 S. W. 581. Sale of Homemade Cider by Agent. Where the law relating to sales of intoxicating liquors and other liquors, excepts from its prohibition sales of "cider in any quantity by the manufacturer from fruits grown on his own land within the state," and the right of sale by agent or employee is an incident of ownership, such a manufacturer could sell through his agent, and neither would be amenable to the penalty for illegal sale. State v. Williams, 172 N. C. 973, 90 S. E. 905. [NOTE. This decision was under an express exception from the North Carolina prohibition law, common heretofore in most such laws, but no counterpart to which is found in the Volstead Act.] Aiding and Abetting an Unlawful Sale. W r here de- fendant aided and abetted in an unlawful sale of liquor on his premises, such offense being made a misdemeanor by law, defendant was guilty as a principal. State v. Winner, 153 N. C. 602, 69 S. E. 9. State v. Denton, 154 N. C. 641, 70 S. E. 839. Crawley v. State (Ala. App.), 73 So. 222, 223. Wrongful sale of intoxicating liquor being a misdemeanor, all who participated therein knowingly, would be separately liable as principals in the offense. State v. Gross, 76 N. H. 304, 82 Atl. 533. "The sale of intoxicating liquor in the state of Georgia is a misdemeanor. All who procure, counsel, command, aid, or abet the commission of a misdemeanor are regarded by the law as principal offenders, and may be indicted as such; and any one charged in an indictment with the sale of in- toxicating liquors may be convicted by proof, either that he directly and personally enacted the criminal transaction, or that he procured, counseled, commanded, aided, or abetted the criminal transaction of another, who was the direct and TITLE II SEC. 3 OF ACT 111 immediate actor. Loeb v. State, 6 Ga. App. 23, 64 S. E. 338." Littlefield v. State, 22 Ga. App. 783, 97 S. E. 259. And where defendant knowingly permitted another to use his home for the illicit sale of whisky on one occasion, he was an aider and abettor on that occasion ; that it is as much a violation of law as if he habitually permitted it. State v. Denton, 154 N. C. 641, 70 S. E. 839. And under a statute providing that all persons concerned in the commission of a crime, whether felony or misde- meanor, and whether they directly commit the act consti- tuting the offense, or aid and abet, in its commission are principals, where restaurant patrons gave a waiter a dollar, with the request that he secure whisky for them, and the waiter went to an illegal seller of whisky, who gave him a pint for the dollar, the waiter returning the bottle to the restaurant patrons is guilty. Moyean v. State, 18 Ariz. 491, 62 Pac. 135, L. R. A. 1917D, 1014n. And a person who acts as go-between in purchasing in- toxicating liquor at an illegal sale thereof, and who thereby aids and abets in the consummation of the sale is punishable under the statute. Kendrick v. State, 11 Okla. Cr. App. 380, 146 Pac. 727. See also post, under Sec. 19, Title II. Advising or Encouraging Sale. A prosecution for selling intoxicating liquors brought against the president of a corporation and its manager, where the president actually sold the liquor and the manager, although not present at the sale, prepared the invoice therefor in the usual course of business on information received from the buyer, and left the invoice on the desk of the shipping clerk for his at- tention, such acts did not constitute advising or encourag- ing the commission of the offense. Hill v. State, 19 Ariz. 78, 165 Pac. 326. Participating in Sale. \Yhere one asked to get liquor for another takes the other to a house where, on receiving 112 TITLE II SEC. 3 OF ACT the other's money, he goes in and returns with a pint of whisky and gives it to the other without disclosing the name of the person from whom he procured it, he is guilty of selling whisky being a necessary factor and active partici- pant in the sale. Williams v. State, 129 Ark. 344, 196 S. W. 125. Where a defendant, to be guilty of aiding a liquor law violation must contribute to the result, it is sufficient if by prearrangement with the principal he is present to render assistance if it should become necessary. Bridgeforth v. State, 15 Ala. App. 502, 74 So. 402. See also post, under Sec. 19. Aiding and Abetting Unlawful Keeping for Sale. Under a statute, providing that a clerk who violates or aids in violating any provision of law relating to intoxicating liquors is equally guilty with the principal, a clerk who aids another keeping intoxicating liquors with intent unlawfully to sell the same is guilty. State v. Stickney 111 Me. 590, 90 Atl. 705. Aiding and Abetting Sale for Purpose of Procuring Evidence to Convict. "The defendant intended to com- mit the act which the law prohibits. He knew the law, and brought the whisky into Thomas county for the express pur- pose of inducing others to violate the law, for the purpose of assigning them in the violation of the law. He was en- meshed in the net spread by himself. The law does not countenance the commission of a crime, even though the purpose be the apprehension of others engaged in the same criminal conduct. There is crime enough already, and it is no part of the duty of an officer of the law to aid or abet an- other in the commission of crime. If, to accomplish a great good, it is ever permissible to do a wrong, certainly the min- isters of the law are not to be encouraged in their efforts to induce others to commit crime, even though they must in- tend the arrest and punishment of their unsuspecting victims. The sheriff of the county washed his hands of the whole transaction, and he is to be commended for his act." Mitchell v. State, 20 Ga. App. 778, 93 S. E. 709, 710. TITLE II SEC. 3 OF ACT 113 Acting as Intermediary or Agent in Sale Purchase. Where the intermediary between the purchaser and the sell- er is a necessary factor, without whose assistance the sale of liquor could not have been consummated, he is interested in the sale, in the sense of the law, whether he has any pecuniary interest or not. Condit v. State, 130 Ark. 341, 197 S. W. 579. One who acts as intermediary in a sale of liquor for both the seller and the buyer, and except, for whom the sales would not have been made, is guilty of an illegal sale; but it is different where one buys liquor for a third party as a mat- ter of accommodation and not as a subterfuge and was not interested in the sale. Dean v. State, 130 Ark. 322, 197 S. W. 684. Hamilton v. State, 80 Tex. Cr. App. 516, 191 S. W. 1160. And if defendant had no interest in and did not reap any profit from whisky, but procured it as an accommodation, it would not constitute a "sale." (Per Gaines, special Judge.) Alexander v. State (Tex. Cr. App.), 204 S. W. 644, 645. But one who, to accommodate a friend, purchased whisky for him, receiving half of the purchase price from his friend, and paying the other half himself and keeping part of the whisky, acted as an intermediary for both parties in render- ing a service which made the sale possible and was there- fore guilty as a principal of unlawfully selling whisky. Wilson v. State, 114 Ark. 574, 169 S. W. 795. See also post, under Sec. 18. Validity of Provision of Statute. The prohibition against any sale of intoxicating liquor applies to a sale which passes the title, regardless of the seller's ownership; and so a statute providing that any person who shall act as agent or assisting friend of the buyer or seller of intoxicating liq- nor shall be guilty, is valid. Scott v. State, 3 Ala. App. 142, 57 So. 413. 8 114 TITLE II SEC. 3 OF ACT Purchasing Liquor for Another. Accused, who, on request of a third person to obtain for him some whisky, pur- chased it from one selling in violation of law, cannot escape liability for acting as the agent of the purchaser by showing that he had been employed to obtain evidence against those unlawfully selling intoxicants, and had obtained the assur- ance of the deputy sheriff before making the purchase that he would not incur any risk for his offense, was wholly un- necessary to obtain evidence against the seller, and was en- tirely distinct from that of unlawful selling. Brantley v. State, 107 Miss. 466, 65 So. 512. Under a statute making it an offense to act as agent or as- sistant to either the seller or purchaser in effecting the sale of any liquor a sale of which is unlawful under the act, the defendant's purchase of whisky outside of the state with money given to him in the state and his act in bringing it back into the state for delivery, was not unlawful. Anderson v. State, 109 Miss. 521, 68 So. 770. Where accused procured the liquor, which he delivered to a third person, in a town where the sale of liquor was pro- hibited, he is guilty of the unlawful retailing of intoxicants, though he purchased the liquor as agent for such third per- son. Pope v. State, 108 Miss. 706, 67 So. 177. Accused, who informed the prosecuting witness, who fur- nished him with money to buy whisky, that he knew where it could be purchased, is guilty of an unlawful sale in pro- curing whisky for the witness. Woods v. State, 114 Ark. 391, 170 S. W. 79. Attempt to Procure Liquor for Another. A person, who upon the solicitation of another, attempts to procure in- toxicating liquors for him, but does not himself solicit the giving of an order therefor, is not guilty of a violation of the law against soliciting or taking orders. Bain v. State, 76 Tex. Cr. App. 519, 176 S. W. 563. Accomplices and Accessories. A person who know- ingly takes part in the unlawful sale of spirituous liquor TITLE II SEC. 3 OF ACT 115 thereby aids and assists the seller in committing a crime, and hence is an accomplice. State v. Ryan, 1 Boyce's (Del.) 23, 75 Atl. 869. But one who purchased intoxicating liquor is not an ac- complice with the seller, since to aid or abet requires an ap- proach to the crime from the same angle as the principal, whereas a purchaser of liquor approaches from a different angle than that of the seller. Baumgartner v. State (Ariz.), 178 Pac. 30. And one employed to make purchase of intoxicants for purpose of appearing as witness against defendant was not an "accomplice," within the law, so that conviction could be had on his uncorroborated testimony; the crime being the sale and not the purchase. State v. Busick, 90 Ore. 466, 177 Pac. 64. See also, State v. Gosell, 137 Minn. 41, 162 N. W. 683. Landlord as Accessory. One who rents a house to an- other with the knowledge that the latter intends to use it for the illegal sale or storage of intoxicating liquors, is an ac- cessory, aiding and abetting in the commission of this offense, and therefore may be convicted of this misdemeanor as a principal ; but it is for the jury alone, and not the court, to determine whether certain facts constitute criminal negli- gence, and for that reason it was error to charge the jury that, if the defendant, when he rented hjs home, had an op- portunity to know that the person to whom he rented it in- tended to use it for the illegal sale or keeping of liquors, he Avould fie guilty. Moody v. State, 14 Ga. App. 523, 81 S. E. 588. Procurer as Aider and Abettor. Alabama Acts, Sp. Sess. 1907, p. 71, makes it unlawful for any person to sell, barter, exchange, give away, or otherwise dispose of spirit- uous liquors, and Code 1907, 7363, makes it a crime to aid, abet, counsel, or procure any unlawful sale, purchase, or gift or other unlawful disposition, of such liquors. Held, that since one who procures prohibited liquors for another, who receives the same, necessarily also aids and abets the sale or unlawful disposition thereof by the dispenser, the 116 TITLE II SEC. 3 OP ACT one so procuring is guilty of aiding and abetting though the purchaser or receiver may not be punishable. Johnson v. State, 172 Ala. 424, 55 So. 226, Ann. Cas. 1913E, 296. And one who procured liquor from an illicit dealer in the state by purchase and delivered it to another, both the pur- chase and the delivery being made at a place where the sale of liquor is prohibited, is deemed a principal, and liable crim- inally as the seller of the liquor is liable, since in misde- meanors all who participated in the offense are principals. State v. Burchfield, 149 N. C. 537, 63 S. E. 89, 16 Ann. Cas. 555. But where the penalties of the statute are directed against the seller and not against the buyer, one who purchases in- toxicating liquor in a dry county at the solicitation of an- other, and with his money and for his use and as his agent, in good faith, and not as a subterfuge or for purposes of evasion, does not commit an offense. State v. Provencher, 135 Minn. 214, 160 N. W. 673, Ann. Cas. 1917E, 598. The law, however, does not countenance an evasion or subterfuge. The claimed agency must be exercised in good faith and not to hide a participation in an illegal traffic. The evidence in this case was such as to make the defense of agency in good faith for the jury, and the court by charging that there was no defense of agency in good faith errone- ously deprived the defendant of the right to have the ques- tion determined by the jury. State v. Provencher, 135 Minn. 214, 160 N. W. 673, Ann. Cas. 1917E, 598. Using Name of Another in Ordering or Receiving Liquor. "Where it would appear to have been the intention of the lawmaker to make it an offense for a person to use the name of another in ordering or receiving, either person- ally or through an agent authorized in writing, shipments of intoxicating liquors in prohibited territory ; in either case the offense consists, not in ordering the liquor, whether for le- gal or illegal purposes, but in using the name of another in TITLE II SEC. 3 OF ACT 117 the ordering and receiving; and section 8, in declaring that 'it shall be unlawful for any person to use the name of an- other in ordering or receiving,' etc., is to be interpreted as meaning that it shall be unlawful for any person to use a name other than his own for the purpose stated, and it is therefore immaterial in a prosecution under that section whether the name which the defendant is charged with hav- ing used is that of a real or a fictitious person." State v. Ferris, 142 La. 198, 76 So. 608. Requesting Another to Bring in Liquor. Under the first Arizona constitutional amendment, prohibiting the in- troduction of intoxicating liquors into the state, one who re- quested another to bring liquor into the state was punish- able as a principal, although he purchased it from such per- son within the state, under Pen. Code 1913, 27, relating to parties to crimes. Stover v. State, 19 Ariz. 308, 170 Pac. 788. Permitting Sales on Leased Premises. Under a law defining the crime of permitting liquor to be sold on leased premises in local option territory, it must be shown that the leasing was with intent or with knowledge that liquors were to be sold on the premises. Elkhorn Min. Corp. v. Commonwealth, 173 Ky. 417, 191 S. W. 256. Aiding in Preparing for Business. The mere fact that a manufacturer or wholesaler furnishes to a retailer money and fixtures for the purpose of enabling the retailer him- self to conduct a retail liquor business does not violate the law. Baxter v. Chattanooga Brewing Co. (Ala.), 82 So. 16. The invalidating effect of the law prohibiting one engaged in the manufacture or sale of intoxicants from conducting business for the retail of such liquors, cannot be visited upon an agreement not made for the purpose of conducting a re- tail liquor business, either in the name of the manufacturer or wholesaler or in the name of another. Baxter v. Chattanooga Brewing Co. (Ala.), 8 So. 16. 118 TITLE II SEC. 3 OF ACT Purchase. In some states it is not unlawful for one to buy intoxicating liquor, for his own use and bring it into the state, or to have liquor so purchased in his possession for personal use. Adams Exp. Co. v. Commonwealth, 154 Ky. 462, 157 S. E. 908, 48 L. R. A., N. S., 342. Commonwealth v. White (Ky.), 179 S. E. 469. A person aiding the buyer, but not the seller, is not guilty of selling intoxicating liquors since the statute does not make the purchase, but only the sale, unlawful. Wilson v. State, 130 Ark. 204, 1% S. W. 921. And it being no violation of law for a person to purchase intoxicating liquor; it was not a violation of law for ac- cused to aid the purchaser in buying liquor at his instance; it not appearing that accused was in any wise agent for the seller. Harris v. State, 113 Miss. 457, 74 So. 323, L. R. A. 1917D, 1013n. Hightower v. State, 73 Tex. Cr. App. 258, 165 S. W. 184. Loan. A loan of beer is a violation of the Alabama prohibition law. . Sanders v. State (Ala. App.), 79 So. 312. One who as an accommodation, loaned to another whisky with the understanding that a similar amount was to be re- turned cannot be convicted for the sale or barter of intoxi- cating liquors, since in a loan goods are transferred to an- other to be returned by the latter to the lender in kind, while a sale is a transfer of property in consideration of the pay- ment of money, and a barter is an exchange of goods for other goods. Jones v. State, 108 Miss. 530, 66 So. 987. Evidence that whisky was loaned by defendant to another will not sustain a conviction for illegal sale of intoxicating liquor. Garfield v. State. 114 Miss. 710, 75 So. 548. TITLE II SEC. 3 OF ACT 119 Gift of Liquor. Giving a friend a drink of whisky, though in a place where no one could see what was being done, is a violation of the Alabama law. Haynes v. State, 5 Ala. App. 167, 59 So. 325. Grace v. State, 1 Ala. App. 211, 56 So. 25. Furnishing. The word "furnish," as used in a statute, prohibiting a furnishing of alcoholic liquors in certain terrritory, means to supply, to offer for use, to give, or to hand. People v. Joy, 30 Cal. App. 36, 157 Pac. 507. Furnishing to Soldier. If certain bottles in defendant's possession contained wine which would intoxicate, and de- fendant left a bottle where his brother-in-law, a marine in the military forces of the United States, could get it by ar- rangement, defendant violated Acts 35th Leg. (4th Called Sess.) c. 7, punishing the procuring or furnishing of intox- icating liquors for or to any person in the military service of the United States. Gardner v. State (Tex. Cr. App.), 212 S. W. 169. Barter or Exchange for Other Property. Under a state statute making it unlawful for any person to sell, barter, exchange, give away, or otherwise dispose of, spirituous liquors; and another statute making it a crime to aid, abet, counsel, or procure any unlawful sale, purchase, or gift, or other unlawful disposition of such liquors, with the further provision that a conviction for violation thereof may be had under an indictment for selling such liquor contrary to law, a conviction may be had on proof of a barter or ex- change of liquor for other property. Johnson v. State, 172 Ala. 424, 55 So. 226, Ann. Cas. 1913E. 296. Exchange for Stolen Property. "Under the prohibi- tion law, making it unlawful to sell or barter for a valuable consideration intoxicating liquors, the exchange of intoxi- cating liquors for stolen property constitutes a violation." Turner v. State, 18 Ga. App. 393, 89 S. E. 538. 120 TITLE II SEC. 3 OF ACT Transporting Liquor. See also post, Sees. 10, 13, 14, and 15. Receiving from Carrier Construed. A statute making it unlawful to receive intoxicating liquors from a common or other carrier, or to possess liquors so received, is not confined to carriers for hire, but was intended to cover ev- ery phase of the handling of intoxicants except as other- wise indicated in the statute. Liquor Transp. Cases v. State, 140 Tenn. (13 Thomp- son) 582, 205 S. W. 423. As to receiving altar wine from carrier and transporta- tion thereof, see ante, under Sec. 6. On Person. Under a section providing that "no person, except as provided in this chapter shall bring into this state or transport from place to place within this state, by wagon, cart, or other vehicle, or by any other means or mode of carriage, any liquor or liquids containing alcohol," * * * transport means to carry or convey from one place to an- other, and carrying liquor on the person is a means or mode of carriage. State v. Pope, 79 S. C. 87, 60 S. E. 234. A defendant, who asked a witness against him whether he wanted some whisky, and who, on an affirmative answer, went away to some hidden store and returned carrying a quart of whisky in his hand, which he handed to the witness for a price, was guilty of carrying around on his person in- toxicating liquor with intent to sell it. State v. Alderman (la.), 174 N. W. 30. Accessory to Transportation. Under the constitu- tional amendment prohibiting the introduction of whisky in- to the state for sale, one aiding and assisting the principal in the commission of the offense by driving an automobile hired by the principal, if knowing that he was assisting the prin- cipal in bringing the whisky into the state or if having rea- son to know and making no investigation or inquiry, would be guilty of an offense, as, though it might be impossible for him to definitely ascertain the purpose for which the prin- TITLE II SEC. 3 OF ACT 121 cipal was bringing liquor into the state, he should at least have made some inquiry into such purpose. Aaron v. State, 18 Ariz. 378, 161 Pac. 881. Conspiracy. There may be a conspiracy to violate the Reed Amendment (Comp. St. 1918, 8739a, 10387a- 10387c) by transporting liquor into a prohibition state, in- dictable under Criminal Code, 37 (Comp. St. 10201). Laughter v. United States (C. C. A.), 259 Fed. 94. To create such relation, between a conspiracy and the substantive offense which was its purpose, as ought to pre- vent a double prosecution, there must be a complete identity between those acts which are the overt acts essential to make the conspiracy punishable and those acts which are neces- sary to make out the substantive offense. Laughter v. United States (C. C. A.), 259 Fed. 94. For Unlawful Use. Under the Federal law prohibit- ing the transportation of intoxicating liquors from one state to another, for unlawful use in the latter state, and state law prohibiting the sale or keeping for sale of intoxicating liquors, etc., an interstate carrier is not prohibited from bringing into the state intoxicating liquors, except only such as are intended for unlawful use in the state, and a carrier in possession of liquors for delivery to a person who intends to use the same in violation of law, or a carrier delivering in the state liquor to a person in the state intending to use the same illegally, violates the state law, unless it has no knowledge of the unlawful purpose. Southern Exp. Co. v. State, 188 Ala. 454, 66 So. 115. "Shipment." "To deliver for shipment and to ship mean the same thing." State v. Lieber, 143 La. 158, 78 So. 431. Private Carrier. A private carrier could, under the South Carolina statute, for hire or as a favor, bring into the state not more than one gallon of liquor for another per- son's personal use during one calendar month without in- 122 TITLE II SEC. 3 OF ACT tent to violate the law, having the same privilege of trans- porting liquor as a common carrier for hire. State v. Gens, 107 S. C. 448, 93 S. E. 139. A person ordering liquor, not exceeding a gallon a month, to be brought into the state for his personal consumption, had the choice of bringing it in by a private carrier for hire or a common carrier. State v. Allston, 107 S. C. 485, 93 S. E. 177. But a law prohibiting transporting liquor into the state, for another does not apply to one who carries liquor into the state for himself for purpose of resale. Rivard v. State, 133 Ark. 1, 202 S. W. 39. Possession for Transportation to Druggist. Under the Georgia statute, it is not illegal for a common carrier to have possession of pure alcohol to transport from a wholesale druggist to a practicing physician at another point in the state, keeping drugs in his office to compound his own medicine and using alcohol for medicinal purposes only, where all conditions of act were complied with. Southern Exp. Co. v. State (Ga. App.), 100 S. E. 791; S. C., 100 S. E. 109. Automobile as a Common Carrier. An automobile may be so used as to become a "common carrier'' in inter- state commerce. United States v. Simpson (D. C.), 257 Fed. 860. Within State. "In Munn v. State, 5 Okl. Cr. App. 245, 114 Pac. 272, it is held: 'When a person is charged with conveying intoxicating liquor from a point unknown to some definite point named, and the proof shows that the person so charged, when first discovered, was conveying whisky, and fails to show from what definite point he started with it, it is sufficient.' In Rupard v. State, 7 Okl. Cr. App. 201, 122 Pac. 1108, it is held: 'In prosecutions for unlawfully conveying intoxicating liquors from one place in this state to another place therein, the state is only required to estab- lish by the proof, beyond a reasonable doubt, that the liq- uor charged to have been conveyed, or some portion of it, TITLE II SEC. 3 OF ACT 123 was conveyed as alleged in the information.' In Watkins v. State, 13 Okl. Cr. App. 507, 165 Pac. 621, it is held: 'It is unlawful for any person to convey from place to place with- in this state intoxicating liquors which said person has pre- viously purchased within this state, and it is immaterial whether the person so purchasing such liquor and convey- ing the same intended to use such liquor lawfully or unlaw- fully. Intent is not a material ingredient of the offense of conveying intoxicating liquors.' Maynes v. State, 6 Okla. Cr. App. 487, 119 Pac. 644." McNeal v. State (Okl. Cr. App.), 179 Pac. 943, 944. From Train to Depot. A carrying of intoxicating liq- uors from a train to the depot platform is a "transportation." Liquor Transp. Cases v. State, 140 Tenn. (13 Thomp- son) 582, 205 S. W. 423, 424. Delivery by Carrier to Transfer Company. In view of Rem. Code Wash. 1915, 6262 15, authorizing a person to bring into the state two quarts of whisky or a dozen quarts of beer, first obtaining a permit giving his name, which shall be affixed to the package, and requiring the Carrier before de- livering the package to cancel the permit, and section 6262- 18, making it unlawful for a carrier to bring liquor into the state otherwise than permitted by the statute, it would be a crime, both under such statute and Criminal Code, 240 (Comp. St. 10410), for a carrier to deliver to a transfer company named as consignee in the bill of lading, a carload of liquor made up of packages bearing permits so issued to individuals. Great Northern Pac. S. S. Co. v. Rainier Brewing Co. (C. C. A.), 255 Fed. 762. Shipment into Indian Reservation. Where a state law forbids manufacture and sale of intoxicating liquors therein, interstate shipments of intoxicating liquors into a portion which formerly was an Indian reservation are not authorized, because Indian titles have been extinguished, the Webb-Kenyon Act having deprived such shipments of pro- tection arising out of their interstate character. Missouri, etc., R. Co. v. Danciger, 160 C. C. A. 176, 248 Fed. 36. 124 TITLE II SEC. 3 OF ACT The provision of Act March 1, 1895, 8 (Comp. St. 4136b), making it an offense to carry or have carried intoxi- cating liquors into Indian Territory, held not repealed by implication by Act March 3, 1917, 5 (Comp. St. 1918, 8739a, 10387a-10387c), and to be still in force in that part of Oklahoma then comprising Indian Territory. United States v. Luther (D. C.), 260 Fed. 579. Intent Immaterial. Where it is unlawful for any per- son to convey from place to place within a state intoxicating liquors which said person has previously purchased within this state, it is immaterial whether the person so purchas- ing such liquor, and conveying the same intended to use such liquor lawfully or unlawfully. Intent is not a material ingredient of the offense of conveying intoxicating liquors. Watkins v. State, 13 Okla. Cr. App. 507, 165 Pac. 621. But to render a carrier liable to a penalty under Ky. St. 2569b, of knowingly transporting and delivering intoxicating liquor intended for sale, it is necessary that the agent of the carrier making the delivery knew of the purpose or use to which such liquor was to be put, and knowledge of the agent at other points is insufficient. American Exp. Co. v. Commonwealth, 171 Ky. 1, 186 S. \Y. 887. And a person who conveys a package from one place in this state to another place therein, which package contains intoxicating liquor of which he has no knowledge and no in- formation sufficient to put a reasonable man on inquiry, is not subject to the punishment imposed by the statute for un- lawfully conveying intoxicating liquor from one place in this state to another place therein. Golpi v. State, 14 Okla. Cr. App. 564, 174 Pac. 288. Movement on Own Premises. A law forbidding the transportation of intoxicating liquor into the state or from one point to another within the state, contemplates nothing less than the transporting from one premises to another and does not forbid a movement of liquors by a person within the limits of his own premises or in his own house. Liquor Transp. Cases v. State, 140 Tenn. (13 Thomp- son) 582, 205 S. W. 423. TITLE II SEC. 3 OF ACT 125 Delivery as Distinguished from Transportation. A mere delivery of liquor by one person to another, entirely disconnected with the act of transporting liquor into the state, does not constitute an offense under a law denouncing the shipment, transportation, or delivery of liquors from an- other state or territory or foreign country to another person, firm, or corporation in the state. Winfrey v. State, 133 Ark. 357, 202 S. W. 23. Transporting by Agent. Where one convicted of trans- porting intoxicating liquors within the limits of a town in violation of an ordinance, had not entered the corporate limits but had the liquor transported by his agent, he was guilty under the rule that one may commit a crime through the agency of another. Hartsville v. McCall, 101 S. C. 277, 85 S. E. 599. Though a statute makes it unlawful "to convey or trans- port over or along any public street or highway any of said liquors, bitters or drinks for another," yet as the party for whom they are transported could lawfully transport them for himself, he is not guilty of the offense as aiding and assisting those unlawfully transporting them for him. Edwards v. State (Ark.), 213 S. W. 11. Carrying away liquor bought on prescription, see ante, under Sec. 8. Interstate Commerce. Transportation of intoxicants by automobile from one state to another is "interstate com- merce." Ex parte Westbrook (D. C.), 250 Fed. 636. Extraterritorial Effect. An act making it a misde- meanor to transport intoxicating liquor into the state, can have no extraterritorial effect, and so cannot make guilty as an aider one who outside the state delivers the liquor to the carrier. Burton v. State (Ark.), 206 S. W. 51. Liability of Consignor. The words declaring it an of- fense "to ship" or to "transport," intoxicating liquor into the 126 TITLE II SEC. 3 OF ACT state, are synonymous, and apply to the carrier, and not the consignor. Burton v. State (Ark.), 206 S. W. 51. Destination Determines Interstate Character. So far as original carrier of intoxicating liquors is concerned, the character of the shipment as to being interstate is de- termined by the destination named in the bill of lading. State v. Great Northern R. Co., 98 Wash. 197, 167 Pac. 103. A shipment of liquor from a point without the state to a point within it cannot be regarded as an intrastate shipment though, before the shipment reaches its destination, it passes .after crossing the boundary line of the state, from one point in it to another. Robertson v. State, 130 Ark. 158, 197 S. W. 31. When State Jurisdiction Attaches Draying Liquor from Depot. "Defendant's admission that he was convey- ing beer, and his contention that the three barrels belonged to three different named individuals, to whom he was merely taking the shipments from a depot as a drayman, and that beer was a part of an interstate shipment into part of state formerly Oklahoma Territory, which consignees had a right to have conveyed to them from depot, did not bring defend- ant within protection of interstate commerce clause (Const. U. S. art. 1, 8)." Smith v. State (Okla. Cr. App.), 181 Pac. 942. Reed Amendment What Constitutes Violation. The Reed amendment to postal appropriation made by Act March 3, 1917 (Comp. St. 1918, 8739a), is not violated unless there is actual transportation of intoxicating liquors from point without to point within state, which has prohib- ited their manufacture or sale; "into," as used, conveying idea of entrance, passage, or motion. United States v. Collins (D. C.), 254 Fed. 869. Relative to transporting liquor into a prohibition state in violation of Act March 3, 1917, 5 (Comp. St. 1918, 8739a), defendant having actually transported whisky in his TITLE II SEC. 3 OF ACT 127 boat across the state line in the Mississippi into Tennessee, and with intent that it should finally remain in that state, it was immaterial that he had incidentally gone out again with his boat and cargo, or that he was outside it when ar- rested. Bishop v. United States (C. C. A.), 259 Fed. 195. Proof that defendant loaded liquor into an automobile in Mississippi and had carried it across into Tennessee along the highway to Memphis when arrested, held sufficient to sustain a conviction for violation of the Reed amendment, although in following the road they were about to cross the line again into Mississippi; there being evidence to warrant a finding that their intended destination was Memphis. Jones v. United States (C. C. A.), 259 Fed. 104. If one transports intoxicating liquors into a state whose laws prohibit their sale and manufacture, but in doing so employs no instrumentality of interstate commerce, he does not violate the Reed- Jones Amendment, 5 (U. S. Comp. St. 1918, 8739a). Sickel v. Commonwealth (Va.), 99 S. E. 678. Employees on an interstate train passing through the state were passengers, and could not be convicted under the State Prohibition Law by proof that more than one quart of liq- uor was found in their possession, in the absence of evidence that they intended to dispose of the same while in the state; such employees being protected by the Commerce Clause of the federal Constitution, and the Reed Amendment (U. S. Comp. St. 1918, 8739a) to the Webb-Kenyon Act March 1, 1913 (U. S. Comp. St. 8739), not prohibiting the trans- portation of liquor through a state. Martin v. Commonwealth (Va.), 100 S. E. 836. The Va. Acts 1916, c. 146, do not prohibit the transpor- tation of liquor through the state, nor a passenger passing through the state from having liquor in his possession while on the train of an interstate carrier passing through the state. Martin v. Commonwealth (Va.), 100 S. E. 836. 128 TITLE II SEC. 3 OF ACT Distance of Transportation. Under the Reed Amend- ment persons who procured liquor in Florida, loaded it into a motorcar, and started to carry the same into Georgia, are guilty of violation of some of the provisions of the act, the transportation of the liquor being interstate commerce, even though defendants were arrested before they had driven two miles. Ex parte Westbrook (D. C.), 250 Fed. 636. Reed Amendment Applies Only to State -Wide Dry States. The Reed Amendment (Comp. St. 1918, 8739a), prohibiting transportation of intoxicating liquors in inter- state commerce into any state whose laws prohibit manufac- ture or sale, applies only to states that have prohibited man- ufacture or sale within entire territory, not merely in parts under local option. United States v. Collins (D. C.), 254 Fed. 869. But it is held to be unlawful under this statute for an in- terstate carrier to transport for beverage purposes intoxicat- ing liquors from without the state into a county which had adopted prohibition, Rev. St. Tex. 1911, art. 5727, declaring the sale, etc., within prohibition territory of intoxicating liq- uors with intent to violate the law, to be an offense. McAdams v. Wells Fargo & Co. Exp. (D. C.), 249 Fed. 175. To render the Reed Amendment (Act March 3, 1917, 5 [Comp. St. 1918, 8739a, 10387a-10387c]), prohibiting the transportation of liquor in interstate commerce, except for certain purposes, into any state "the laws of which prohibit the manufacture or sale therein," of liquors for beverage purposes, applicable to a state, it must have adopted a gen- eral policy of prohibition throughout its territory; but it is not essential that such prohibition should be literally without exception. Laughter v. United States (C. C. A.), 259 Fed. 94. Transportation under Reed Amendment Where Con- stitutionality of State Law Undecided. "Transporta- tion of intoxicating liquors into Texas, which has prohibited their manufacture for beverage purposes, is violation of Reed TITLE II SEC. 3 OF ACT 129 Amendment of postal appropriation made by Act March 3, 1917 (Comp. St. 1918, 8739a), though there is some ground to believe court of last resort in Texas will hold state pro- hibitory law unconstitutional, as the federal court will not anticipate and be guided by what the state court might there- after hold." United States v. Collins (D. C.), 254 Fed. 869. Importation for Importer's Consumption as Allowed by State Law. Reed Amendment (part of section 5 of Act March 3, 1917 [Comp. St. 1918, 8739a, 10387a- 10387c]), declaring a punishment for one causing liquor to be transported in interstate commerce, except for certain pur- poses, into a state whose laws prohibit its manufacture or sale there for beverage purposes, providing that nothing therein shall authorize shipment of liquor into a state con- trary to its laws, held, in view of the prior Wilson and Webb- Kenyon Acts (Comp. St. 8738, 8739), not intended merely to aid the state law, but to apply to liquor which a person was bringing in for his own consumption, as allowed by the state law. United States v. Hill, 248 U. S. 420, 39 S. Ct. 143. Transporting through Dry State to Wet State. It is not a violation of the Reed Amendment (Comp. St. 8739a) to carry intoxicating liquors from a state in which sale was allowed across a state in which sale was prohibited, where the liquor was destined for a third state in which sale was permitted. Berryman v. United States (C. C. A.), 259 Fed. 208. United States v. Gudger, 249 U. S. 373, 39 Sup. Ct. 323, 63 L. Ed. . Preyer v. United States (C. C. A.), 260 Fed. 157. Delivery to Minor Webb-Kenyon Act. An express company is guilty of a crime in delivering shipments of liq- uor from another state to a minor in Alabama, under Gen. Acts 1915, p. 43, 10, and the Webb-Kenyon Act (U. S. Comp. St. 8739). Perry v. Southern Exp. Co. (Ala.), 81 So. 619. 130 TITLE II SEC. 3 OF ACT As Question for Jury. Under Ky. St. 2569a and the Webb-Kenyon Act (Act March 1, 1913, c. 90, 37 Stat. 699) relative to the transportation of intoxicating liquor, where a carrier transported whisky in the usual course of business, without knowing or believing that the consignee who re- ceived it in territory where its sales was forbidden intended to sell it, but believing that it was for his personal use, its guilt was for the jury, since if it acted upon reasonable grounds in good faith after such investigation as ordinary care required and was misled, it was not liable. Adams Exp. Co. v. Commonwealth, 160 Ky. 66, 169 S. W. 603. Unbroken Packages Burden of Proof. Regardless of a provision casting the burden upon the person claiming the article seized in a proceeding to confiscate an interstate shipment of liquor side-tracked within this state, the burden was on the state to prove that the shipment was in fact not interstate, under a section, providing that the prohibitory pro- visions "shall not apply to shipments transported by any com- mon carrier of unbroken packages of intoxicating liquor in continuous transit through this gate from a point outside of the state to another point outside of the state." State v. Great Northern R. Co., 98 Wash. 197, 167 Pac. 103. Burden of Proof. An employee on a train of an inter- state carrier passing through the state did not have the bur- den, under Va. Acts 1916, c. 146, to prove that he was on an interstate journey through the state; although ardent spirits in excess of one quart were found in his possession, the evi- dence for the state showing that the liquor was found upon the train itself. Martin v. Commonwealth (Va.), 100 S. E. 836. Transportation of Wines for Sacramental Purposes. Under the law making it lawful for any common carrier or other carrier to transport wines for sacramental purposes to any priest or minister, a sexton of a church or communi- cant may convey either for or without hire wine to the priest or minister. Liquor Transp. Cases v. State, 140 Tenn. (13 Thomp- son) 582, 205 S. W. 423. TITLE II SEC. 3 OF ACT 131 Possession. As to possession as evidence of crime, see post, Sec- tion 33. Constitutionality. That part of the "prohibition law," which declares it to be a misdemeanor for one to have, con- trol, or possess any alcoholic, spirituous, malt, or intoxicat- ing liquors, or other liquors which, if drunk to excess, will produce intoxication, is not unconstitutional. Cureton v. State, 135 Ga. 660, 70 S. E. 332, 49 L. R. A., N. S., 182n. Delaney v. Plunkett, 146 Ga. 547, 550, 91 S. E. 561, L. R. A. 1917D, 926n, Ann. Cas. 1917E, 685. Barbour v. State, 146 Ga. 667, 668, 92 S. E. 70. Jackson v. State, 148 Ga. 351, 96 S. E. 1001, decided September 10, 1918. Saddler v. State, 148 Ga. 462, 97 S. E. 79. Time of Acquiring. Under a statute making it unlawful to have in possession liquor of more than a certain amount, it is immaterial that it was lawfully acquired before the act went into effect. O'Rear v. State, 15 Ala. App. 17, 72 So. 505. In Residence. A person, who stores liquors in a garage disconnected from his dwelling house, violates a law pro- hibiting the storing of liquors, except in a "private residence," which means actual dwelling house, and not all buildings within curtilage. People v. Labbe (Mich.), 168 N. W. 451. Storing or Keeping Liquor at Other than Private House or Room. One who, receiving whisky from an ex- press office, placed the liquor temporarily in a room in house of his employer until he could get off at dinner and carry it to his own house in another part of town did not thereby violate an ordinance forbidding "storing" or "keeping" of liquor at another place than his house or private room al- though when leaving the liquor he opened the package and took a drink. Newberry v. Dorrah, 105 S. C. 28, 89 S. E. 402. 132 TITLE II SEC. 3 OF ACT In a prosecution for unlawfully keeping ardent spirits in a place other than a bona fide home for personal use where it appeared that defendant lived above a store in which he sold soft drinks and had stored spirits in a vacant store building owned by him fronting on the next street, and also in a gro- cery store adjacent to the building wherein he lived, connect- ing by a hallway across an alley, the place wherein the liquor was stored, was not within the curtilage of his bona fide residence. Pettus v. Commonwealth, 123 Va. 806, 96 S. E. 161, 162. Temporary Possession. One who received from an- other, though only for temporary keeping, a grip containing whisky, with knowledge that it contained more than a quart, violated a law prohibiting the having in possession at one time of more than one quart of spirituous liquor. State v. Willey (Del.), 108 Atl. 79. But if accused had liquor in her restaurant, merely keeping it there until she should go home in order to give it to her sick mother, she was not guilty of storing liquor since "stor- ing" is the act of laying away against a future time, and in- volves the idea of continuity or habit. State v. Bradley, 109 S. C. 411, 96 S. E. 142. "Under the ruling of the majority of the court in Cohen v. State, 7 Ga. App. 5, 65 S. E. 1096, one who intentionally carries whisky to his place of business, and keeps it there for any length of time, no matter for what reason or for what purpose, may be convicted of the offense of keeping intoxi- cating liquors on hand at his place of business." Nowell v. State, 18 Ga. App. 143, 88 S. E. 909. Liquor Placed on Premises by Third Person. The fact that whisky was placed on the premises of a soft drink establishment by a third party, with the owner's knowledge, is not a violation of a statute, condemning the keeping or storing of prohibited liquors on the premises of a person en- gaged in selling beverages. Brown v. State (Ala. App.), 81 So. 366. Physical Possession Unnecessary. Where liquors were found in defendant's residence, it was not necessarily TITLE II SEC. 3 OF ACT 133 a complete defense that he was not at his residence when liquors were found, or since they were put in residence, as one may unlawfully have, control, or possess liquor without being present at place of storage, or having it in his physi- cal possession. Hendrix v. State (Ga. App.), 100 S. E. 55. Keeping under Joint Ownership. Where defendant, who with his son-in-law and their respective families was going on a fishing trip, purchased liquor for use of the party, the son-in-law furnishing half the money, held that, though defendant be considered the agent of the son-in-law, and that title to half the liquor passed to him on the purchase, yet defendant was guilty of unlawfully keeping intoxicating liq- uor with intent to barter, exchange, give away, furnish, and otherwise dispose of the same, in violation of law, for the delivery of the liquor to the son-in-law would be a "disposal," etc. Banks v. State (Ind.), 123 N. E. 691. Possession of Apparatus for Distilling or Manufac- ture. Under a provision making it an offense to knowingly permit or allow any one to have, possess, or locate on his premises any apparatus for the distilling or manufacturing of the liquors and beverages specified in the act, neither "mash" nor "mobby" is a part of the "apparatus for the dis- tilling or manufacturing" of the liquors, etc. Davis v. State (Ga. App.), 100 S. E. 782. Without Knowledge. That a lard can found in defend- ant's house is an apparatus for distilling and manufacturing whisky does not justify a conviction, where the undisputed evidence showed that such lard can had been brought to the house and left there only a few hours before, without de- fendant's knowledge. Parker v. State (Ga. App.), 100 S. E. 38. Keeping Liquor Stored for Sale. To keep liquor stored for sale is to keep liquors with intent to sell same. People v. Bullock, 173 Mich. 397, 139 N. W. 43. 134 TITLE II SEC. 3 OF ACT General Application of Prohibition. Burns' Ann. St. of Indiana Supp. 1918, 8356d (Acts 1917, c. 4, 4), pro- hibiting the keeping of intoxicating liquor with intent to sell, is not intended to apply only to those having bonded liquor, but is general in its application. State v. Sarlin (Ind.), 123 N. E. 800. If a person has liquor in his possession for the purposes of sale he is guilty of the crime of having possession of liq- uor with intent to sell it, whether he makes a sale or not. State v. Simons (N. C.), 100 S. E. 239. Combs v. Commonwealth, 162 Ky. 86, 172 S. W. 101. Amount Immaterial. "In a prosecution for having in possession spirituous liquor for purposes of sale, the amount kept on hand by defendant is immaterial as far as his guilt is concerned ; the gist of the offense being to have intoxicat- ing liquor on hand for the purpose of sale." State v. Simmerson (N. C.), 98 S. E. 784. Keeping or Maintaining Club Room or Place Where Liquor Is Received or Kept for Use, Gift, or Sale. A provision prohibiting keeping or maintaining any club- room or other place in which liquors are received or kept for use, gift, or sale does not refer alone to a clubroom, but in- cludes any other "place" such as a place walled off by a can- vas tent in a street ; and a corporation organized for a legiti- mate purpose, which maintains a canvas tent in a street and there dispenses intoxicating liquor, is within the statute. Shideler v. Tribe of the Sioux, 158 la. 417, 139 N. W. 897. Nor is it necessary that there shall be any permanent keep- ing; and a corporation organized for a legitimate purpose, which distributes liquors as a part of an entertainment to visitors in the city, violates the statute. Shideler v. Tribe of the Sioux, 158 la. 417, 139 N. \V. 897. But under a Texas statute, a club dispensing intoxicating liquors to members and guests in good faith is not engaged in the business of selling intoxicating liquors. Country Club v. State (Tex.), 214 S. W. 296. TITLE II SEC. 3 OF ACT 135 Liability of Member of Social Club. A member of a bona fide social club which has paid the tax required by law as a condition precedent to keeping on hand intoxicating liq- uors for the use of its members, and which dispenses such liquors in a manner prohibited by law, is not, by reason of his membership, guilty of either selling intoxicating liquors or keeping them on hand at his place of business. A mem- ber of such a club would not be guilty of either offense un- less it be shown that he participated in some way in the crim- inal act. Mere knowledge on his part that sales of liquor were being made, and his failure to object thereto, would not amount to a crime. Wright v. State, 14 Ga. App. 185, 80 S. E. 544. "Any one or more of its members who engaged in the sale of liquors are as amenable to the law as if one of them had, while in the clubrooms, committed murder or larceny or any other criminal offense. Nor does it make any difference that no profit was received from the sale of the liquor." Deal v. State, 14 Ga. App. 121, 80 S. E. 537, 541. Liability of Manager of Social Club. The manager of a social club, who orders intoxicating liquor for the use of its members and who either directly or indirectly procures, counsels, commands, aids or abets in the making of a sale of such liquors, is guilty as a principal. This is true even though such manager may not have been present when the particular sale was made, nor had knowledge of such sale until after it was consummated. Deal v. State, 14 Ga. App. 121, 80 S. E. 537. Sale by Employee of Social Club. On the trial of an indictment for selling liquor, it was held no defense that the accused sold the liquor as an employee of the social club to the members thereof. Intoxicating liquor cannot be sold in Georgia by an individual or a corporation as a beverage, and where a steward of a social club sells to the members of the club intoxicating liquor, he is guilty of a violation of what is known as the prohibition law, although in making the sale he is acting solely for the benefit of the club. Rothschild v. State, 12 Ga. App. 728, 78 S. E. 201. 136 TITLE II SEC. 3 OF ACT One employed by such a club as secretary and treasurer and whose only duties are to collect the dues and fees from the members, keep the books, and look after the correspond- ence for the club, and who does not in any other way par- ticipate in the illegal sale of intoxicating liquor by the club, is not guilty either of selling intoxicating liquors or of keep- ing them on hand at his place of business. Wright v. State, 14 Ga. App. 185, 80 S. E. 544. Use and Property Rights in Alcoholic Liquors. "No exceptions being made in the act other than those ex- pressed, it was the legislative intent to not only forbid the possession but to abolish property rights in alcoholic liquors within the confines of the state after August 1, 1917, aside from the exceptions expressly provided for in the act, no matter when or how acquired, for w r hat use intended, or in what place kept or possessed." State v. Certain Intoxicating Liquors (Utah), 172 Pac. 1050, 1051. "It necessarily follows that the very purpose and intent of the act was to preclude the right to use intoxicating liq- uor within the state except for the specific purposes in the act expressly mentioned and reserved. If liquor cannot be legally acquired or procured, it may not be legally used. While the law is somewhat drastic in some of its provisions doubtless it was so intended to be yet in view of the tend- ency of present day legislative enactments designed to pro- tect the health, safety, morals and promote the general wel- fare of organized society, it is not the province of the courts to disregard the purpose and intent of the legislative so long as the constitutional rights of the individual have not been invaded." State v. Certain Intoxicating Liquors (Utah), 172 Pac. 1050, 1052. Intent and Knowledge of Intoxicating Character. Intent to Do Prohibited Act Sufficient. The only in- tent necessary to constitute a violation of a statute prohibit- ing the sale of intoxicating liquors without a license, is an TITLE II SEC. 3 OF ACT 137 intent to do the prohibited act, though the seller believes in good faith that the sale is not prohibited by the statute. State v. Country Club (Tex. Civ. App.), 173 S. W. 570. Nor does a statute exempting from punishments persons acting in ignorance or mistake of fact without criminal in- tent, relieves a person selling a prohibited beverage. Hill v. State, 19 Ariz. 78, 165 Pac. 326. But, as said in another case : ''The old rule that original intent must accompany a crime is still the law, even as to liquors, so far as we have been able to ascertain. There must be actual or constructive intent to do the thing which constitutes the crime ; otherwise there is no criminal act. If it can be said that the liquor in this case was in the posses- sion of the defendant merely because it was in his shop, when he did not know it, still such possession, not being con- scious, was not actual and intentional possession, as con- templated by the statute." Jackson v. Gordon (Miss.), 80 So. 785. Reliance on Brewer's Guaranty of Nonintoxicating Character. It is no defense to sale in violation of prohi- bition, that defendants relied on a guaranty of the brewer that the beer was nonintoxicating, and investigation showing it did not contain enough alcohol to require an internal rev- enue license. Hall v. State (Ariz.), 165 Pac. 300. Intent is not an ingredient of the offense of selling intox- icating liquors in violation of statute and hence defendant's testimony that the liquor which he sold had been sold to him as cider under a guaranty that it did not have any alcohol in it was properly excluded. Beiser v. State, 9 Ala. App. 72, 63 So. 685. "Knowingly" Construed. "Knowingly," as used in a statute making it unlawful for any person to knowingly de- liver in dry territory a package of liquor intended for sale, means only such information as would cause a person of or- 138 TITLE II Ssc. 3 OF ACT dinary prudence to believe that the liquor was intended for sale contrary to law. American Exp. Co. v. Commonwealth, 171 Ky. 1, 186 S. W. 887. But knowledge that the statement required on the package is false is an essential of the crime. Goodman v. Commonwealth, 169 Ky. 542, 184 S. W. 876. "It is entirely immaterial with what intention an unlawful purchase of prohibited liquors is transported from one to another place in this state, and it is not a defense to a prose- cution for transporting such liquors that the party trans- porting them intends to use such liquors for a lawful pur- pose." Gilliland v. State (Okla. Cr. App.), 179 Pac. 786. An ordinance, making it a misdemeanor to transport in- toxicating liquors to certain prohibited places, construed to apply only where there is evidence of a wrongful intent not where the act is merely inadvertent. Ex parte Ahart, 172 Cal. 762, 159 Pac. 160. Imputed Knowledge. Under a statute making it an of- fense to deliver liquor in prohibition territory, "knowing that the required statement of personal use is false," such knowledge may be imputed to one who has not obtained of the consignee a statement that the liquor is for personal use, or who has not in good faith relied on such statement. Goodman v. Commonwealth, 169 Ky. 542, 184 S. W. 876. Intended Use as a Beverage. To convict one of a sale of spirituous liquor, it is necessary for the jury to find that accused sold the liquor with intention that it be used as a beverage, irrespective of the subsequent uses to which the purchaser put it. State v, Hastings, 2 Boyce's (25 Del.) 482, 81 Atl. 403. Intent to Use as Medicine. Jamaica ginger, contain- ing more than 1 per cent of alcohol, is intoxicating liquor within the meaning of Rev. St. c. 127, 21, 22, and the one having it in possession for sale violates the law, regardless of TITLE II SEC. 3 OF ACT 139 an intent of such person that it should be used only as a medi- cine or for household purposes, and not as a beverage. State v. Intoxicating Liquors and .Vessels (Me.), 106 Atl. 711. Scienter Not Element of Offense. Scienter is not an element of the offenses created by the prohibition law of most states. So in a prosecution for the illegal sale of malt liquor, the defendant may successfully defend by showing that the liquor he sold was not intoxicating, but not by showing merely that in good faith he thought it was not intoxicating. Battle v. State, 6 Ga. App. 578, 65 S. E. 333. In a prosecution possessing intoxicating liquor, it is not sufficient that the defendant hotel porter received as baggage of an incoming guest a suit case, which he had no right to in- spect and which contained liquor, but he must have had guilty knowledge or intent. State v. Cox, 91 Ore. 518, 179 Pac. 575. As Question of Fact. In a prosecution for being in con- trol or possession of intoxicating liquor, where defense is that defendant had no knowledge of the presence of the liquor found in his possession, it raises a question of fact, and it will be reasonably presumed that he had knowledge thereof. Jackson v. Gordon (Miss.), 80 So. 785. Alcoholic Medicines, Extracts, Sacramental Wine. In only a few instances have the courts had occasion to construe provisions of state laws, expressly except- ing certain articles. But so far as bearing on Sec. 4 of Title II of the Federal Act, the decisions of the state courts are digested here, without setting out again the statutory section. Intoxicating Medicines Dilution by Purchaser Ex- cessive Use by Him. The lawful act of compounding essence of Jamaica ginger in form which could not be used as a beverage, and selling it in due course of business, could not be rendered unlawful by the conduct of a purchaser in 140 TITLE II SEC. 3 OF ACT diluting the medicine and taking it in excessive quantities and with excessive frequency whether as a medicine or as a beverage. Humphrey v. State (Ala. App.), 77 So. 82. Sale as Medicine and as Beverage Distinguished. Where a person has the right to sell Jamaica ginger, the same being a medicine for medicinal purposes; he has no right to sell Jamaica ginger, a spirituous liquor, even if it be a medicine, to be used as a beverage. State v. Hastings, 2 Boyce's (25 Del.), 482, 81 Atl. 403. Absolute Prohibition Knows No Unexpressed Ex- ceptions. Where the constitution forbids the sale and dis- position of ardent spirits, ale, beer, and wine and intoxicat- ing liquor of any kind to any person, as in the state of Ari- zona (Article 23, constitution), and it contains no excep- tions, as that it may be prescribed and sold as a medicine, or for medicinal purposes, neither doctors nor druggists nor any one else may sell or dispose of any of the named or described liquors as such, or when compounded as a medicine. It is not a regulatory provision, but one of out- lawry. It is one of suppression and not one of supervision. The fact that ardent spirits are mixed with other ingredi- ents and, as thus compounded, labeled Jamaica ginger and sometimes used for medicinal purposes, does not change the situation. Cooper v. State, 19 Ariz. 486, 172 Pac. 276, citing Brown v. State, 17 Ariz. 314, 152 Pac. 578. Troutner v. State, 17 Ariz. 506, 154 Pac. 1048, L. R. A. 1916D, 262. Hall v. State (Ariz.), 165 Pac. 300. "Quart a Month" Law Construed. Under a state law permitting receipt of only one quart of distilled liquor "not oftener than once a month," one who received a quart November 29th, and another December 23rd following would be guilty, in view of Code 1904, 5, providing that, unless otherwise expressed, the word "month" shall mean calendar month. Cochran v. Commonwealth, 122 Va. 801, 94 S. E. 329. TITLE II SEC. 3 OP ACT 141 Sale of Flavoring Extracts for Beverages. A grocer who sold for beverage purposes flavoring extracts contain- ing from 30 to 90 per cent alcohol, claimed to be legitimate food products, violated the law though the sales were in quantities less than required to produce drunkenness. Wine for Sacramental Purposes. Receiving "Altar Wine" from Carrier. A state law prohibiting the receiving of liquors, the sale of which is prohibited by the laws of this state, from a common car- rier, does not make it an offense for a Roman Catholic priest to receive altar wine to be used solely for sacramental purposes in divine worship. De Hasque v. Atchison, etc., R. Co. (Okla.), 173 Pac. 73. The provisions of section 46, art. 25, of the Constitution of Oklahoma (section 410, Wms. Anno.), prohibiting the sale and transportation of intoxicating liquors, does not ap- ply to altar wine to be used solely for sacramental purposes in divine worship, although such wine be capable of use as a beverage, and, if drunk in sufficient quantities, will pro- duce intoxication. De Hasque v. Atchison, etc., R. Co. (Okla.), 173 Pac. 73. TITLE II SECS. 7-8 Physicians' Prescriptions Permits Physical Examina- tion Medical Necessity Limit of Amounts Cancel- lation by Pharmacist Records of Pharmacists and Physicians. SEC. 7. No one but a physician holding a permit to prescribe liquor shall issue any prescription for liquor. And no physician shall prescribe liquor unless after careful physical examination of the person for whose use such prescription is sought, or if such examination is found impracticable, then upon the best information obtainable, he in good faith believes that the use of such liquor as a medicine by such person is necessary and will afford relief to him from some known ailment. Not more than a pint of spirituous liquor to be taken in- ternally shall be prescribed for use by the same person within any period of ten days and no prescription shall be filled more than once. Any pharmacist filling a pre- scription shall at the time indorse upon it over his own signature the word "canceled," together with the date when the liquor was delivered, and then make the same a part of the record that he is required to keep as here- in provided. Every physician who issues a prescription for liquor shall keep a record, alphabetically arranged in a book prescribed by the commissioner, which shall show the date of issue, amount prescribed, to whom issued, the purpose or ailment for which it is to be used and direc- tions for use, stating the amount and frequency of the dose. TITLE II Sees. 7-8 OF ACT 143 Prescription Blanks Form Furnished by Commissioner Return of Stubs and Unused Blanks Emergency Cases Record and Report. SEC. 8. The commissioner shall cause to be printed blanks for the prescriptions herein required, and he shall furnish the same, free of cost, to physicians hold- ing permits to prescribe. The prescription blanks shall be printed in book form and shall be numbered con- secutively from one to one hundred, and each book shall be given a number, and the stubs in each book shall carry the same numbers as and be copies of the pre- scriptions. The books containing such stubs shall be returned to the commissioner when the prescription blanks have been used, or sooner, if directed by the commissioner. All unused, mutilated, or defaced blanks shall be returned with the book. No physician shall prescribe and no pharmacist shall fill any prescription for liquor except on blanks so provided, except in cases of emergency, in which event a record and report shall be made and kept as in other cases. Constitutionality of Provision. The Alabama law regulating the issuance of prescriptions for intoxicating liq- uors, is not objectionable as interfering with the personal liberty of a physician since it embraces all of his class; it being competent for the Legislature, in the interest of reg- ulating and prohibiting the liquor traffic, to pass such bill. McAllister v. State, 156 Ala. 122, 47 So. 161. "Nor is the Michigan law invalid because the original act, while prohibiting liquor to be sold by merchants, permitted it to be sold by druggists for medicinal, mechanical, or scien- tific purpose. The contention that this was an unlawful discrimination is answered by Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. 6, 32 L. Ed. 346, 2 Inters. Com. Rep. 232 ; Rippey v. Texas, 193 U. S. 504, 24 Sup. Ct. 516, 48 L. Ed. 767 ; Loyd v. Dollison, 194 U. S. 445, 24 Sup. Ct. 703, 48 L. Ed. 1065. Those cases show that the state may prohibit the sale of 144 TITLE II Sees. 7-8 OF ACT liquor absolutely or conditionally ; may prohibit the sale as a beverage, and permit the sale for medicinal and like pur- pose ; that it may prohibit the sale by merchants and permit the sale by licensed druggists." Eberle v. Michigan, 232 U. S. 700, 34 Sup. Ct. 464. The Indiana Prohibition Law (Acts 1917, c. 4) is not un- constitutional in giving the right to registered pharmacists to deal in intoxicants under certain restrictions, and because those who have liquors manufactured in the state which are in bond may have possession, pay tax, and dispose of such liquors outside of the state, since the "privileges and immu- nities" section of the state Constitution (article 1, 23), the "class" section (article 1, 23), and the "general law" sec- tion (article 4, 22), are not violated if an act is reason- ably designed to protect the health, morals, or welfare of the public. Schmitt v. Cook Brewing Co. (Ind.), 120 N. E. 19, 20. Validity of Provision Title of Act. Michigan Pub. Acts 1889, No. 207, entitled "An act to prohibit the manu- facture, sale, keeping for sale, giving away, or furnishing of vinous, malt, brewed, fermented, spirituous or intoxicat- ing liquors," etc., amended by Pub. Acts 1911, No. 261, with- out altering the title to provide that any physician who pre- scribes any intoxicating liquors for any person whom he knows, or has good reason to believe, intends to use them in whole or in part as a beverage, or contrary to the provi- sions of the act, or without a diagnosis showing that liquor is indicated, shall be guilty, is not invalid as attempting to regulate the practice of medicine, and as subjecting physi- cians to a penalty, without giving notice in the title. People v. Humphrey, 194 Mich. 10, 160 N. W. 445, 446. Revocation of Authority for Violations of Law, Initiative Measure No. 3 (Laws 1915, p. 6) 8, providing, among other things, that it shall be unlawful for a physician, after he has been convicted a second time of a violation of any of the provisions of the act, to thereafter write any pre- II SECS. 7-8 OF Aci 145 scriptions for furnishing, delivery, or sale of intoxicating liquor, is valid. State v. Emonds (Wash.), 182 Pac. 584. Disqualification for Permit Ex Post Facto Laws. A state law providing that a county auditor shall not is- sue a permit to any druggist who has been convicted of violating any of the liquor laws of the state, and requiring applicant to state in his application that he has not been convicted of violating any of the liquor laws, although ap- plied so as to prohibit issuing of permits to druggists who have violated prior laws, are not ex post facto in their na- ture; the disqualification not being an additional punish- ment for past offenses. Rosenoff v. Cross, 95 Wash. 525, 164 Pac. 236. "Pharmacist" or Druggist Defined. The words druggist or pharmacist, as used in a statute permitting the sale of intoxicating liquors by druggists or pharmacists only, mean such druggists or pharmacists as are actively engaged in business, and the possession of an excess quan- tity of liquor by a registered pharmacist not engaged in business is unlawful even though acquired before such law became effective. State v. Martin, 92 Wash. 366, 159 Pac. 88. "Patient" Construed. A statute making it unlawful for any physician to furnish any person a prescription for any kind of intoxicating liquors except to patients of such physician, where the patient is afflicted with some disease and his condition is such that in the opinion of the physi- cian, the taking of intoxicating liquors would be beneficial, applies where a person himself seeks the advice of the physician and states his ailments, and such person is a "pa- tient" within the meaning of the act. State v. Morton, 38 S. D. 504, 162 N. W. 155. But a state law providing that it shall be unlawful for any physician to furnish a prescription for any kind of in- toxicating liquors to be used as a beverage or for any pur- 10 146 TITLE II Sees. 7-8 OF ACT pose except for medicinal purposes in case of actual sick- ness, applies only to case where the application for the prescription is made by some one other than the person alleged to be ill. State v. Morton, 38 S. D. 504, 162 N. W. 155. Sale by Physician Not a Druggist. Where a physi- cian who was not a druggist or a registered pharmacist and had not filed bond as such, sold intoxicating liquors in local option territory, he was guilty of violating the law, though the liquor was needed, intended and used for medicinal purposes. People v. Bell, 170 Mich. 675, 137 N. W. 107. By Person Not Authorized to Sell Medicine. It is no defense in a prosecution for unlawfully selling spirit- uous liquor, that the liquor was sold as a medicine, where accused was not authorized to sell medicine. State v. Buckman, 2 Boyce's (25 Del.) 591, 83 Atl. 938. Prosecution of Druggist. A druggist who makes a sale of intoxicating liquors not in compliance with the terms of the exception in his favor to the general prohibition against sales without a state license, may be prosecuted un- der the ordinary and general indictment for selling with- out a state license. State v. Wills, 73 W. Va. 446, 80 S. E. 783. Offense of Unlawfully Issuing Prescription Covers Invalid Prescription. Where a statute declares that any physician who shall make any prescription to any person for intoxicating liquors to be used other than for medicinal purposes shall be deemed guilty of a misdemeanor, and provides the character of prescription which will protect a druggist in making sales of intoxicants, a physician who unlawfully issued a prescription for intoxicating liquor though he wrote the prescription in such a manner that the druggist who filled it was not protected, is neverthe- less guilty; the word prescription meaning a direction of remedy or remedies for a disease and the manner of using TITLE II Sees. 7-8 OF ACT 147 them, and not necessarily a valid prescription which would protect the druggist who filled it. State v. Nicolay (Mo. App.), 184 S. W. 1183. Good Faith Essential. A person selling spirituous liquor as medicine must make the sale in good faith as such and he must use reasonable care and prudence to ascertain for what purpose it is to be used. State v. Hastings, 2 Boyce's (25 Del.) 482, 81 Atl. 403. The question of good faith enters into every sale of al- cohol by a registered druggist or pharmacist, notwithstand- ing the formal sufficiency of his record, the record of sales not being conclusive under a statute providing that it shall be unlawful to sell intoxicating liquors except as provided, and requiring druggist to keep a "true" and "exact" record of sales. State v. Holland, 99 Wash. 645, 170 Pac. 332. Good Faith of the Essence. In prosecution of physi- cian for furnishing prescription for intoxicating liquors, the essence is whether or not a physician acted in good faith in giving the prescription to his patient. State v. Morton, 38 S. D. 504, 162 N. W. 155. Physician Cannot Keep for Sale or Engage in Traf- fic. Though a physician is entitled to keep intoxicating liquors on his premises for use in his practice, he does not have the right to keep liquors for sale and engage in that traffic. State v. Chamberlain, 180 la. 685, 163 N. W. 428, 429. Sale of Liquor in Stock with Business. If a drug- gist, in the legitimate pursuit of his business, had a right to purchase from the dispensary such liquors as were needed in compounding medicines, to keep them as a part of his stock of drugs, and when so compounded in good faith, to sell them without liability; it necessarily follows that, if having them, he desires to sell out his entire busi- ness to another, he might do so without violating the law; 148 TITLE II Sees. 7-8 OF ACT and the mere fact that such liquors were a part of the stock of goods for which the note was given did not render the note illegal and void. Long v. Holley, 177 Ala. 508, 58 So. 264. Necessity for Prescription in All Cases. A licensed druggist cannot sell intoxicating liquor to a practicing phy- sician, except upon the written prescription of a practicing physician in good standing in his profession and not of in- temperate habits. State v. Davis, 68 W. Va. 142, 69 S. E. 639, Ann. Cas. 1912A, 996, 32 L. R. A., N. S., 501. State v. Tullos, 135 La. 640, 65 So. 870. What Prescription Should Contain. In West Vir- ginia a prescription must state substantially the following, viz. : (1) The name of the person for whom prescribed; (2) the kind and quantity of liquor; (3) that it is absolutely necessary as a medicine for such person ; and that it is not to be used as a beverage. State v. Davis, 68 W. Va. 142, 69 S. E. 639, Ann Cas. 1912A, 996, 32 L. R. A., N. S., 501. A written order addressed to a licensed druggist and signed by a practicing physician, in the following words, viz. "Send me OJ spts. whisky and oblige. 12-12-09" is not a lawful prescription for intoxicating liquor, and a sale made thereon is unlawful. State v. Davis, 68 W. Va. 142, 69 S. E. 639, Ann. Cas. 1912A, 9%, 32 L. R. A., N. S., 501. Failure to Attest Prescription. Where a druggist in making sales of liquors under permits, omitted to attest two of them, as required by law, the sales were thereby rendered illegal, though made in good faith, and though the permit holder falsely tested at the date shown thereon as required by law, and hence such sales rendered defendant's business subject to injunction as a liquor nuisance. Wachal v. Davis, 145 N. W. 867. Failure to Take Affidavit of Purchaser. A druggist who keeps alcohol for no other purpose than for medicinal TITLE II Sees. 7-8 OF ACT 149 and external uses, and in selling it on a prescription and for medicinal purposes, has failed to take the required affidavit from the purchaser, may be guilty of violating the statute, and may have committed a crime, but he has not committed the specific crime of keeping intoxicating liquors for sale as a beverage. State i>. Lesh, 27 N. D. 165, 145 N. W. 829. False Statement by Purchaser. A druggist who has complied with statute in making sale of alcohol commits no offense against the law because person to whom he sold it made false statement in violation of statute for purpose of procuring it. State v. McCasky, 97 Wash. 401, 166 Pac. 1163. Identification of Prescription. Where, on the trial of a physician for prescribing intoxicating liquors with in- tent to evade the prohibition law, the testimony identified a prescription as one that the physician had given to prosecut- ing witness in a fictitious name, the prescription was prop- erly received in evidence, though there was no allegation in the information of a prescription in the fictitious name. State v. Terry, 128 La. 680, 55 So. 15. Production of Prescription in Evidence. A phy- sician on trial for prescribing intoxicating liquors with in- tent to evade the prohibition law may not complain of the court's refusal to require the production of the prescrip- tions relied on by the state to establish its case. State v. Terry, 128 La. 680, 55 So. 15. Written Prescriptions Not Privileged. The written prescriptions of practicing physicians on which a licensed druggist has made sales of intoxicating liquors, and which he has preserved in his possession, as the statute directs, are not his private papers and documents within the mean- ing of the constitutional guaranty against compulsory self- crimination. State v. Davis, 68 W. Va. 142, 69 S. E. 639, Ann. Cas. 1912A, 996, 32 L. R. A., N. S., 501. 150 TITLE II Sees. 7-8 OF ACT Such prescriptions are quasi public documents and the constitutional privilege is not violated by compelling a drug- gist who stands for unlawfully selling spirituous liquors, to produce them in court in order that they may be used as evidence against him on his trial. State v. Davis, 68 W. Va. 142, 69 S. E. 639, Ann. Cas. 1912A, 996, 32 L. R. A., N. S., 501. Sale to Be Drunk on Premises as Beverage. Where the law provides that it shall be unlawful for any registered pharmacist to sell or give away any intoxicating liquor whatever to be used as a beverage or drank on the prem- ises, and that no registered pharmacist who shall allow in- toxicating liquors to be drank on the premises or in any room adjoining the premises, the selling or giving of in- toxicating liquor to be drank as a beverage anywhere by a registered pharmacist, is unlawful and also the selling or giving of such liquors to be drank on the premises as a beverage or otherwise. State v. Julius, 29 S. D. 638, 137 N. W. 590. Whisky Lawfully Purchased on Prescription May Be Carried Away. One who secures whisky from a drug- gist upon a lawful prescription may carry it on his person for a reasonable time and until in the natural course of events and conveniently he reaches his private residence, notwithstanding a provision prohibiting keeping liquor in any place except private residences. Where accused se- cured liquor on physician's prescription, his keeping it on his person from 6 o'clock in the evening until 8 o'clock did not exceed a reasonable time, although he had it on his per- son in a temperance bar in a hotel in which he had his room. People v. Harris (Mich.), 168 N. W. 447. Law Allowing Shipment to Physician Does Not Al- low Sale by Him. A provision excepting from the pro- hibition law the shipment or delivery to physicians of liq- uors in unbroken packages not exceeding five gallons at any one time, does not permit liquor to be sold by physicians. Van Winkle v. State, 4 Boyce's (27 Del.) 578, 91 Atl. 385. TITLE II SECS. 7-8 OF ACT 151 Unlawful Seizure Return. Where a druggist ob- tained liquors to be sold in compliance with the law, and such liquors were unlawfully seized, he had a right to their return, though he had in the meantime sold his drug busi- ness. State v. Snell, 99 Wash. 195, 169 Pac. 320. Reclaiming Property Seized. Under a law regulat- ing the sale and use of intoxicating liquor, a registered pharmacist not actually engaged in business, failing to re- claim an excess quantity of liquors seized by showing that he intends to engage in the druggist business, cannot re- claim them on the ground that he intends to keep them for private consumption. State v. Martin, 92 Wash. 366, 159 Pac. 88. Presumption of Unlawful Sale. When a sale of in- toxicating liquors is proven to have been made by a li- censed druggist, it is presumed to have been unlawfully made, and the burden is then cast upon him to rebut such presumption. State v. Davis, 68 W. Va. 142, 69 S. E. 639, Ann. Cas. 1912A, 9%, 32 L. R. A., N. S., 501. Intent to Break Law Not Essential. The law relat- ing to the sale of intoxicants by a pharmacist being prohib- itory and authorizing the sale only under certain conditions, an intent to disobey the law is not essential to violation, and a pharmacist who sells intoxicants is bound at his peril to see that all provisions relating to the sale are complied with. Milhiser v. Gandrup (la.), 146 N. W. 843. See also, Cooper v. State, 19 Ariz. 486, 172 Pac. 276. Necessity That Pharmacist Be Licensed by State. Two partners engaged in the drug business neither of whom possessed a pharmacist's license, and who had no li- censed pharmacist in their employ, were not druggists with- in the statute, and had no right to sell whisky on a prescrip- tion, or without it. State v. O'Kelley, 258 Mo. 345, 167 S. W. 980, 52 L. R. A., N. S., 860n. See ante, Sec. 6. 152 TITLE II Sees. 7-8 OF ACT Assigned License. No assignment of a druggist's li- cense will protect the assignee thereof in making sale of spirituous liquors unless first assented to on proper appli- cation by the authorities, authorized to grant the original license. These statutes are mandatory and strict compli- ance therewith is required. State v. Ross, 70 W. Va. 549, 74 S. E. 670, 39 L. R. A., N. S., 814n. Expired Permit Void. Under a law providing that druggists desiring to ship intoxicating liquors into the state shall first secure a permit therefor which shall be void 30 days from the date of issue, a permit to a druggist to ship intoxicating liquors into the state was absolutely void after 30 days and liquor was contraband, although permit was good when shipment started. State v. Great Northern R. Co., 101 Wash. 464, 172 Pac. 546. Destroying Character of Intoxicating Liquor. Un- der a statute, providing that druggists holding permits may sell and dispense intoxicating liquors, but forbidding the sale of any preparation or compound under any name, form, or device which may be used as a beverage and which is intoxicating in its character, if the character of an in- toxicating liquor is so destroyed that it could not be used for a beverage, and it becomes in fact a medicine to be used for disease and of such a character that it could not be used as an intoxicating drink, its sale would not be an offense. Berner v. McHenry, 169 la. 483, 151 N. W. 450. Frequency of Applications for Prescriptions. In a prosecution of a physician for having prescribed whisky with good reason to believe that the patient intended to use it as a beverage, it was competent to prove, not only the frequency of the applications for prescriptions made by the patient, but the ease with which another had, by telephone, secured a prescription for a like amount of liquor, which he directed be given the first patient. People v. Humphrey, 194 Mich. 10, 160 N. W. 445, 446. TITLE II Sees. 7-8 OF ACT 153 Liability of Partner for Illegal Sale by Copartner. A member of a partnership, which is engaged in the drug business, although neither of the partners nor any of their employees are licensed pharmacists, is liable for a sale of intoxicating liquor made by his copartner, although he was not present at the time. State v. O'Kelley, 258 Mo. 345, 167 S. W. 980, 52 L. R. A., N. S., 860n. Search Warrant against Druggist. That persons ac- cused of illegal sales of intoxicating liquors are druggists, does not exempt them from operation of a law providing for issuance of search warrant on affidavit of probable cause to believe illegal sales are being made. State v. Gordon (Wash.), 163 Pac. 772. TITLE II SEC. 13 Carriers Records of Shipments Permit of Consignee- Record of Delivery Oath of Consignee Identifica- tion Name and Address. SEC. 13. It shall be the duty of every carrier to make a record at the place of shipment of the receipt of any liquor transported, and he shall deliver liquor only to persons who present to the carrier a verified copy of a permit to purchase, which shall be made a part of the carrier's permanent record at the office from which de- livery is made. The agent of the common carrier is hereby authorized to administer the oath to the consignee in verification of the copy of the permit presented, who, if not person- ally known to the agent, shall be identified before the delivery of the liquor to him. The name and address of the person identifying the consignee shall be included in the record. Validity of Requirement. A provision requiring a rec- ord to be kept of the receipt and delivery of shipments of intoxicating liquor to be open for inspection by any officer or citizen during business hours does not violate Const. U. S. Amend. 14, as that amendment does not impair the exer- cise of the police power. State v. Seaboard Air Line R. Co., 169 N. C. 295, 84 S. E. 283. ' Care of Records. Requiring a carrier to keep a book showing deliveries of intoxicating liquors, though requiring ordinary care to preserve record, does not require that rec- ord be kept in burglar or fireproof safe. Commonwealth v. Southern Exp. Co., 182 Ky. 132, 206 S. W. 167. TITLE II SEC. 13 OF ACT 155 Liability of Carrier for Default of Agent. Under a state statute requiring carriers to keep a book showing all receipts and deliveries of liquor, with various particulars, open to inspection, and declaring "that any railroad, ex- press or other transportation company, or any employee or agent who fails," neglects, or refuses to comply with the provision of the section or who makes or causes to be made any false entry in such book, shall be deemed guilty of mis- demeanor, an express company which provided an appro- priate book for the insertion of such entries, but its local agent delivered intoxicating liquors without requiring the consignee to sign his name, it was held, that, as the purpose of the statute is to provide a check upon the shipment of intoxicating liquors into territory where their sale as a bev- erage is prohibited, the express company cannot avoid lia- bility on the ground that its duty was fulfilled when it pro- vided the book for the required entries and signature of the consignee, and that the offense, if any, was committed only by its agent; the use of the disjunctive "or" in the penal provision not showing any intent to relieve transpor- tation companies, and cast all burdens on their agents. Commonwealth v. Adams Exp., 179 Ky. 394, 200 S. W. 648. Delivery in Good Faith after Proper Investigation. A carrier who in good faith, and after proper investiga- tion, delivers liquor to a consignee without any knowledge that the same is intended for illegal use in the state, is not guilty. Southern Exp. Co. v. State, 188 Ala. 454, 66 So. 115. "When alcohol is shipped from a point out of this state to a point in the state and delivered by a common carrier to a person in this state, the duty devolves upon the car- rier to use reasonable care to learn for what purpose it is to be used, and it can only deliver the alcohol when in the exercise of such reasonable care it is convinced that the al- cohol is to be used for strictly medicinal or mechanical pur- poses. As stated in Adams Exp. Co. v. Commonwealth, 160 Ky. 66, 169 S. W. 603, if the express company acts upon reasonable grounds in good faith after such investi- gation as ordinary care requires, and is misled, it is not lia- 156 TITLE II SEC. 13 OF ACT ble ; otherwise it is liable. So too in the case of Southern Exp. Co. v. State, 188 Ala. 454, 66 So. 115. In discussing this question, the Supreme Court of Alabama said : 'If in good faith and after proper investigation a common car- rier of interstate commerce delivered liquors to a consignee without any knowledge on its part that such liquors are in- tended by the consignee for illegal use, then such carrier cannot, we think, be held to have violated any law of this State.' In the case of Clark Distilling Co. v. Western Mary- land R. Co. (D. C.), 219 Fed. 333, the court held: 'Where intoxicating liquors are offered to a carrier for transporta- tion from Maryland into West Virginia, for the alleged personal use of the consignee, the carrier is not bound at his peril to make sure that the liquors are not intended to be used contrary to the laws of such state, but is only re- quired to act in good faith in a bona fide effort to prevent its instrumentalities being used to aid a violation of the law. The court said : "In this case nothing need be decided other than that the defendant as a common carrier is bound to receive for shipment and to transport and deliver in West Virginia, such liquors as are intended solely for the per- sonal use of the consignee even though the orders for them had been solicited by letters mailed at points outside the state. It has no right to accept for shipment, or to deliver in West Virginia liquors which are intended by any person interested therein to be used in any way forbidden by the law of that state. It is not bound at its peril to make sure that no liquor transported by it is intended to be used con- trary to the state law. It need not create or maintain any special staff of investigators or detectives to aid it in deter- mining such questions. It must, however, act in good faith. Its agent and employees who handle such shipments for it must keep their eyes open, and must exercise common sense to prevent it and its instrumentalities being used as aids in violation of the law. The question of the good faith of the express company in delivering the alcohol to Wilson was a question of fact for the jury in this case, and the court should have instructed the jury as above indicated." : Quinn v. Reed, 130 Ark. 116, 197 S. W. 15. Under an act prohibiting the delivery in prohibition ter- ritory of interstate shipments of intoxicating liquor, where TITLE II SEC. 13 OF ACT 157 such liquor is intended to be used contrary to law, persons delivering intoxicants within local option territory are bound to exercise proper care, which is the use of such diligence as the circumstances require to see that the liq- uor is not used contrary to law, and only a mistake of fact will excuse a delivery of liquors used or intended to be used contrary to law. Ex parte Peede, 75 Tex. Cr. App. 247, 170 S. W. 749. Conspiracy to Effect Unlawful Delivery. A defend- ant, indicted with another for conspiring with employees of a carrier to have the employees deliver intoxicants to them under a fictitious name, may be convicted of con- spiracy, notwithstanding delivery to the other alone. McKnight v. United States, 164 C. C. A. 527, 252 Fed. 687. Connecting Carrier's Agency. "A common carrier over whose lines a shipment of intoxicating liquors has not been consigned, but merely in cars it has been consigned over other lines to a destination point, cannot act as the agent of the consignee in receipting for and accepting de- livery of the shipment." Hudgens v. Southern Exp. Co., 74 W. Va. 760, 83 S. E. 63. See also, as to transportation of liquor as a crime, ante under Sec. 3. TITLE II SEC. 14 Notice to Carrier of Nature of Shipment Information Required on Outside of Package. SEC. 14. It shall be unlawful for a person to use or induce any carrier, or any agent or employee thereof, to carry or ship any package or receptacle containing liq- uor without notifying the carrier of the true nature and character of the shipment. No carrier shall transport nor shall any person receive liquor from a carrier un- less there appears on the outside of the package con- taining such liquor the following information: Name and address of the consignor or seller, name and address of the consignee, kind and quantity of liq- uor contained therein, and number of the permit to pur- chase or ship the same, together with the name and ad- dress of the person using the permit. "Consignee" Construed. "Consignee." in a statute declaring it an offense to ship into a state a package of liq- uors unless labeled to show the name of the consignee, not being defined, must be assumed to be used in its ordinary commercial and legal significance, and so to mean the one to whom the carrier may lawfully make delivery in accord- ance with its contract of carriage. Great Northern Pac. S. S. Co. v. Rainier Brewing Co. (C. C. A.), 255 Fed. 762. Any Evasion Illegal. Under a law requiring interstate shipments of intoxicating liquor to be so labeled as to plainly show the nature of their contents, any attempt to evade the law, by failing to set forth the particulars truth- fully, or to disclose them plainly, or any attempt to cover up with advertising matter the facts which the law requires TITLE II SEC. 14 OF ACT 159 the label to reveal, so as to readily catch the eye, violates the law. United States v. Hillsdale Distillery Co. (D C ) 242 Fed. 536. Marks Must Be Clear and Plain. "The act of Con- gress says that the nature of the contents of the package shall be plainly shown and shown on the outside cover. The requirement is a definite one, very easily complied with. It means that the marks must be of manifest, self-evident im- port, and must appear at the place indicated. It clearly excludes the idea of reference elsewhere for information, or of a general knowledge of the trade-names or brands adopted by particular merchants for their business, which have not gained a place in the common vocabulary of the country. What has been said also precludes resort to bills of lading issued by the carrier." Schmidt Brewing Co. v. United States (C. C. A.), 254 Fed. 695, 696. Thus, where defendant made interstate shipments of beer, and the only external marks indicating the nature of the packages were the name of the defendant brewing com- pany, the trade-name, "Select/* and a serial number, he was guilty of violation of a provision prohibiting the in- terstate shipment of liquors, unless the package have its contents plainly labeled on the outside, the fact that the na- ture of the contents might have been inferred or learned from other sources being immaterial. Schmidt Brewing Co. v. United States (C. C. A.), 254 Fed. 695. Duty of Carrier to Inform Itself of Purpose of Con- signee. Under federal Penal Code 240 (Acts March 4, 1910, c. 321, 35 Stat. 1137 U. S. Comp. St. Supp. 1911, p. 1662) prohibiting interstate shipments of intoxicating liq- uors unless each package containing the same is so labeled as to plainly show the name of the consignee, the nature of the contents, and the quantity, a carrier of interstate com- merce is apprised of the character of the shipment when intoxicating liquor is received by it, and under the Webb law (Act March 1, 1913, c. 90, 37 Stat. 699), before it de- 160 TITLE II SEC. 14 OF ACT livers the liquor to the consignee in the state it should in- form itself of the purpose of the consignee, and where it has liquor in its possession for delivery for a person in- tending to use it in violation of the law, or actually deliver- ing it in the state to such person, it is presumptively guilty of a violation of the law of the state. Southern Exp. Co. v. State, 188 Ala. 454, 66 So. 115. Right of Carrier to Rely on Absence of Label. Un- less otherwise advised, either of the fact that an unlabeled package contains liquors within the description of the stat- ute, or of circumstances reasonably calculated to arouse suspicion or inquiry with respect to that fact, the carrier to whom a shipment for transportation and delivery in Ala- bama is offered without the state, may rely on the absence from a package of the label required by such section as negativing the presence therein of forbidden liquors in re- ceptacles of prohibited capacities. State v. Southern Exp. Co. (Ala.), 75 So. 343. And a carrier will not be held to receive at peril of of- fending the prohibitory and regulatory laws of Alabama consignments of intoxicating liquor destined for transpor- tation into and for delivery in Alabama, where they were free from cause of suspicion that they contained prohibited liquors in receptacles of forbidden capacities. State v. Southern Exp. Co. (Ala.), 75 So. 343. Failure to Inspect Statute Forbidding Opening. An Act prohibiting the delivering carrier from opening on the premises in Alabama an original package, does not ex- cuse an interstate carrier's failure to inspect liquors ten- dered for shipment from without the state to a point with- in the state; the operation of such section being restricted to its purpose to prevent the apportionment of or distribu- tion of the contents of a shipment of liquor at destination on the premises of the carrier. State v. Southern Exp. Co. (Ala.), 75 So. 343. See also ante, under Sec. 3, Title II. TITLE II SEC. 15 False Statements of Liquor Shipments Receipt, Ship- ment or Delivery Unlawful. SEC. 15. It shall be unlawful for any consignee to ac- cept or receive any package containing any liquor upon which appears a statement known to him to be false, or for any carrier or other person to consign, ship, trans- port, or deliver any such package, knowing such state- ment to be false. Application to Carrier. The Ky. St. 2569b, subd. 1, prohibiting in dry territory delivery of intoxicating liquor to any person intending to sell it and subsection 2, prohibit- ing consignment, transportation, or shipment of such liquor or any package of intoxicating liquors upon which appears a false statement, was held applicable to carrier as well as to consignor or consignee. American Exp. Co. v. Commonwealth, 171 Ky. 1, 186 S. W. 887. But the carrier is liable only if its agent knew the package to be falsely marked or the purpose for which such liquor was to be used, and is not required to use reasonable care to ascertain the purpose for which such liquors are to be used. American Exp. Co. v. Commonwealth, 171 Ky. 1, 186 S. W. 887. See also ante, under Sec. 3, Title II. 11 TITLE II SEC. 17 Advertisements Unlawful Signs and Bill Boards Ex- ceptions Price Lists, etc. Advertisements of Alco- hol Newspapers Published Abroad. SEC. 17. It shall be unlawful to advertise anywhere, or by any means or method, liquor, or the manufacture, sale, keeping for sale or furnishing of the same, or where, how, from whom, or at what price the same may be obtained. No one shall permit any sign or billboard containing such advertisement to remain upon one's premises. But nothing herein shall prohibit manufac- turers and wholesale druggists holding permits to sell liquor from furnishing price lists, with description of liquor for sale, to persons permitted to purchase liquor, or from advertising alcohol in business publications or trade journals circulating generally among manufac- turers of lawful alcoholic perfumes, toilet preparations, flavoring extracts, medicinal preparations, and like ar- ticles: Provided, however, That nothing in this Act or in the Act making appropriations for the Post Office De- partment, approved March 3, 1917 (Thirty-ninth Stat- utes at Large, Part 1, page 1058, et seq.), shall apply to newspapers published in foreign countries when mailed to this country. Authority of State to Prohibit. As the state has au- thority under its police power to regulate the sale of intox- icants, and as contracts relating to such sales are subject to such power, a statute prohibiting newspapers and maga- zines in the state from advertising for the sale of intoxi- cants, does not work an impairment of contracts, even though publishers already had contracts for the publication of liquor advertisement, such contracts being also subject to the police power. Advertiser Co. v. State, 193 Ala. 418, 69 So. 501. TITLE II SEC. 17 OF ACT 163 The power to prohibit or regulate the sale of intoxicat- ing liquors includes also the power to prohibit solicitations for such sales by agent or advertisement. Black v. Delaye, 193 Ala. 500, 68 So. 993. See State v. Ross (N. D.), 170 N. W. 121. Circulation by Mail. "A liquor dealer residing and doing business in another state, who, by the agency of the United States mails sends into one state unsolicited and there circulates or distributes to prospective customers price lists, circulars and order blanks advertising his liq- uors for sale and which he proposes to ship into this state to them, and which advertising matter by such agency is actually delivered to a citizen of this state, is guilty of a violation of section 8, chapter 13 Acts of the legislature of 1913 known as the Yost Law (Code 1913, c. 32A. 8. 287) and so construed, said act, by virtue of the acts of con- gress known as the Wilson act (Act Aug. 8, 1890, c. 728 Stat. 313, U. S. Comp. St. 1913, 8738) and the Webb- Kenyon Act (Act March 1, 1913, c. 90, 37 Stat. 699, U. S. Comp. St. 8739) does not infringe the commerce clause of section 8 of article 1 of the Federal constitution. Nor does the provision of section 8 of said act 1913, so con- strued and applied, violate the 'privileges and immunities' clause of the Fourteenth Amendment to the Federal consti- tution." State v. Davis, 77 W. Va. 271, 87 S. E. 262, L. R. A. 1917C, 639. Newspapers Published without State. The law pro- hibiting the sale of newspapers and magazines containing liquor advertisements, does not, when applied to a news- paper published out of the state, and containing an adver- tisement of liquor manufactured out of the state and to be shipped into the state to individuals ordering it, violate Const. U. S. art. 1, 8, vesting in Congress the exclusive power to regulate interstate commerce. Black v. Delaye, 193 Ala. 500, 68 So. 993. See also, State v. Davis, 77 W. Va. 271, 87 S. W. 262, L. R. A. 191 7C, 639, set out supra. 164 TITLE; II SEC. 17 OF ACT Scope of Prohibition. The Georgia statute (Rev. St. 1903, c. 29, 45), forbidding the publication of advertise- ments of the sale or keeping for sale of intoxicating liq- uors, includes advertisements of intoxicating liquors sold or kept for sale without the state. State v. Bass Pub. Co., 104 Me. 288, 71 Atl. 894, 20 L. R. A., N. S., 495. Advertisement Must Give Information Where to Be Obtained. It is not a violation of a statute prohibiting the advertisement of intoxicating liquors, or of any per- son from whom, or the price at which, or the method by which, intoxicating liquors may be obtained, for a news- paper to publish an advertisement signed by the United States Brewers' Association, setting forth that the Federal government had recognized the distinction between beer and spirituous liquors, and attempting to popularize beers and light wines as temperance beverages at the expense of dis- tilled liquors, the advertisement not giving any information as to where beer or light wines could be obtained. State v. Advertiser Co. (Ala.), 77 So. 758. Giving Away Samples in Connection with Circulars, etc. Where an agent of a nonresident dealer in intoxi- cating liquors distributes circulars and price lists of such liquors, and in connection therewith, personally gives away samples of such intoxicating liquors in this state, he is guilty of soliciting. Kirkpatrick v. State, 12 Ga. App. 252, 77 S. E. 104. TITLE II SEC. 19 Soliciting or Receiving Orders Giving Information as to Obtaining Liquor. SEC. 19. No person shall solicit or receive, nor know- ingly permit his employee to solicit or receive, from any person any order for liquor or give any information of how liquor may be obtained in violation of this Act. Constitutionality. A law which prohibits the solicit- ing or taking of orders for the sale of intoxicating liquors in counties where such sales are, by law, prohibited, is a police regulation, necessary for the effective enforcement of the State's prohibitory regulations. The act forbidding soliciting orders for intoxicating liquor, is not affected by the extension of the scope of its operations caused by the passage of the general prohibition act. Rose v. State, 4 Ga. App. 588, 62 S. E. 117. Receiving "or" Soliciting. Where a statute makes the receiving of orders for spirituous liquors, as well as the soliciting of them, an offense, and the two terms are connected by the disjunctive "or" not the conjunctive "and," it is not necessary that there be a soliciting, but the receiving of them alone is a violation of the statute. State v. Decker, 75 W. Va. 565, 84 S. E. 376. Taking Order for Liquor Place of Sale. Taking an order for liquor to be furnished from a wholesale house located elsewhere for subsequent shipment to the party giv- ing the order does not amount to a sale in the county, where the order was taken. People v. Meloche, 186 Mich. 536, 152 N. W. 918. Solicitation by Letter. Where the solicitation or tak- ing orders for the sale of intoxicating liquor is forbidden, whether the solicitation is by the seller personally, or whether the solicitor is only an agent of the seller, to solicit 166 TITLE II SEC. 19 OF ACT the sale of intoxicating liquor by letter or circular is a crime, if the letter is intended to be delivered and is in fact delivered as intended. The term solicit personally includes any act done by the seller himself which may tend to effect a sale, as contrasted with any like act by an agent of the seller, tending to a similar result. Whether a solicitation is personal or by an agent, is not dependent upon the per- sonal presence of the solicitor, but upon whether the means of solicitation, whether oral or in writing, are used by an agent or by the principal himself. The solicitation of or- ders by mail for the sale of intoxicating liquors is personal solicitation if the seller himself in person writes or mails the letter received by the prospective buyer. Rose v. State, 4 Ga. App. 588, 62 S. E. 117. Delivery Unnecessary. Defendant, as agent of a firm of liquor dealers, solicited a person to purchase one gallon of liquor, for which he received payment in full, giving an order on the firm of liquor dealers, setting forth the goods sold, price paid, the mode of shipment and directing the dealers to express the same at once. Defendant admitted that his orders to the firm of liquor dealers were always filled. Held, to constitute a sale of liquor, without evidence of a delivery of the same. State v. Small, 82 S. C. 93, 63 S. E. 4. TITLE II SEC. 21 Liquor Nuisance as Crime. SEC. 21. Any room, house, building, boat, vehicle, structure, or place where intoxicating liquor is manu- factured, sold, kept, or bartered in violation of this ti- tle, and all intoxicating liquor and property kept and used in maintaining the same, is hereby declared to be a common nuisance, and any person who maintains such a common nuisance shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than $1,000 or be imprisoned for not more than one year, or both. If a person has knowledge or reason to believe that his room, house, building, boat, vehicle, structure, or place is occupied or used for the manufacture or sale of liquor contrary to the provision of this title, and suffers the same to be so occupied or used, such room, house, building, boat, vehicle, structure, or place shall be subject to a lien for and may be sold to pay all fines and costs assessed against the person guilty of such nuisance for such violation, and any such lien may be enforced by action in any court having jurisdiction. Whoever establishes, continues, or uses any building for the purpose of selling therein intoxicating liquor, or for the purpose of keeping intoxicating liquor therein with in- tent to sell the same, is guilty of keeping a liquor nuisance. State v. Jarvis (la.), 165 N. W. 61. As Continuing Offense. The crime of maintaining a liquor nuisance is a "continuing offense." State v. Maguire, 31 Idaho 24, 169 Pac. 175. Single Sale. A single sale will warrant a conviction under an information for keeping and maintaining a com- 168 TITLE II SEC. 21 OF ACT mon nuisance by keeping a place where intoxicating liquors are sold as a beverage. Scott v. State, 37 N. D. 90, 163 N. W. 813. Time Not a Material Ingredient. Time is not a ma- terial ingredient of the crime of keeping and maintaining a common nuisance contrary to the provisions of the pro- hibition law. State v. Webb, 36 N. D. 235, 162 N. W. 358. Knowledge of Accused Intent. Proof of sale of liquor on defendant's premises, without proof that it was done with the knowledge, consent, acquiescence, or conni- vance of defendant, does not establish that he kept the liq- uor sold /with intent to sell it in violation of law. State v. Jarvis (la.), 165 N. W. 61. Maintenance for One Day Sufficient. "It was not incumbent upon the state to show that the place was used for such unlawful purposes during the entire period named in the indictment. Proof that the defendant kept and main- tained a tenement for any one of such purposes during any part of the time comprised within the days named in the indictment would warrant a conviction. It is the nature of the acts done, not the length of time during which they are committed, that constitutes the offense. The case is made out, the offense is committed, if for a single day between those dates that place was so used. If for a single hour in the day it was so used, for that hour it was a common nui- sance, and whoever for that hour maintained the place was guilty of keeping and maintaining a common nuisance." State v. Kapicsky, 105 Me. 127, 73 Atl. 830, 23 L. R. A., N. S., 737. Legal Title Unnecessary Possession and Control. "Upon an indictment charging maintenance of a public nuisance by knowingly permitting unlawful sales of intox- icating liquors in a building therein described as 'owned and occupied' by defendant, proof of legal title by her is not essential. Possession and control of the premises are all the statute requires." State v. Rogers, 80 W. Va. 680, 93 S. E. 757. TITLE II SEC. 21 OF ACT 169 Intoxicating Character of Liquor. In a prosecution for maintenance of a liquor nuisance the state must show, either directly or by fair inference, that the liquors con- tained some alcohol, and therefore were intoxicating, when taken from the accused. State v. Knapp, 177 la. 278, 158 N. W. 517. Procurement by State Agent as Defense. Under a state law making it the duty of state agents to aid in the capture and prosecution of persons committing crime or violating the laws of the state, the fact that such an agent, without improper solicitation, and while endeavoring to as- certain whether defendant was violating the law, asked for a pint of whisky and received and paid for it, was no de- fense to prosecution for maintaining a liquor nuisance. State v. See, 177 la. 316, 158 N. W. 667. Immaterial Whether Lessee or Agent. And it was not material whether one prosecuted for maintaining a liq- uor nuisance, and who sold intoxicating liquors to persons acting as state agents, was renting the place or was acting as clerk or employee for his mother. State v. See, 177 la. 316, 158 N. W. 667. Jurors Challenge for Prejudice. In a nuisance prosecution for selling intoxicating liquor the state cannot question prospective jurors regarding their prejudice against the testimony of witnesses obtaining information solely for purposes of prosecution. State v. Hoffman (Ore.), 166 Pac. 765. Abatement Appeal of Search and Seizure Pro- ceedings. A prosecution for maintenance of a liquor nui- sance does not abate by the pendency on appeal of search and seizure proceedings against the same parties. State v. Knapp, 177 la. 278, 158 N. W. 517. Evidence and Question for Jury. See post, "Evidence," under Section 33. 170 TITLE II SEC. 21 OF ACT Abatement of Nuisance. An automobile or other ve- hicle used in the unlawful transportation of intoxicating liquor which is, by statute declared to be a common nui- sance, may be abated as in the act provided. State v. Jones-Hansen-Cadillac Co. (Neb.), 172 N. W. 36. See also post, under Sec. 23. TITLE II SEC. 23 INJUNCTION. Nature of Proceeding Jurisdiction and Scope. Nuisance to Traffic in Liquor Keeping, Carrying About or Dealing in Injunction Showing as to Intention to Continue Fees of Officer Forfeiture of Lease. SEC. 23. That any person who shall, with intent to effect a sale of liquor, by himself, his employee, servant, or agent, for himself or any person, company, or corpo- ration, keep or carry around on his person, or in a ve- hicle, or other conveyance whatever, or leave in a place for another to secure, any liquor, or who shall travel to solicit, or solicit, or take, or accept orders for the sale, shipment, or delivery of liquor in violation of this title is guilty of a nuisance and may be restrained by injunc- tion, temporary and permanent, from doing or continu- ing to do any of said acts or things. In such proceedings it shall not be necessary to show any intention on the part of the accused to continue such violations if the action is brought within sixty days following any such violation of the law. For removing and selling property in enforcing this Act the officer shall be entitled to charge and receive the same fee as the sheriff of the county would receive for levying upon and selling property under execution, and for closing the premises and keeping them closed a rea- sonable sum shall be allowed by the court. Any violation of this title upon any leased premises by the lessee or occupant thereof shall, at the option of the lessor, work a forfeiture of the lease. 172 TIIXE II SEC. 23 OF ACT Nature of Proceeding. An action to enjoin the main- tenance of a liquor nuisance is not criminal, but civil, and a preponderance of evidence is sufficient to warrant an in- junction. State v. Cipra, 92 Kan. 591, 141 Pac. 1133. A law which imposes a penalty upon persons unlawfully selling or giving away intoxicating liquors, and gives the chancery court jurisdiction concurrent with courts of law to entertain suits for penalties and to suppress the business as a nuisance, and to further punish the persons engaged therein, is not a criminal statute, and does not authorize criminal prosecutions. State v. Marshall, 100 Miss. 626, 56 So. 729, Ann. Cas. 1914A, 434. No Criminal Conviction Necessary. The remedy by action in equity to enjoin a public nuisance may be invoked against a place for the sale of intoxicating liquors, though there has been no criminal conviction of the keeper of the place. State v. Reisen, 165 Wis. 258, 161 N. W. 747, 748. Equitable Jurisdiction. The equitable jurisdiction of the court to enjoin a public nuisance is not affected by the fact that a criminal prosecution may also be instituted for the acts which constitute the nuisance. State v. Lyon, 83 S. C. 509, 65 S. E. 730. Power of Chancery Court. A constitutional provision which declares that the chancery court shall have full jurisdiction in all matters of equity, means that in whatever is a matter of equity, the court's power to adjudge is full, and that, when the court takes hold of a subject, it ought to dispose of it fully and finally, the word "full" implying that nothing is reserved, and, as thus construed, the provision is broadly declaratory of the rule that, where equity has jurisdiction for one purpose, it acquires jurisdiction for all purposes, and a court of chancery, having statutory juris- diction under a statute to abate a liquor nuisance, may not TITLE II SEC. 23 OF ACT 173 only abate nuisance, but may also render judgment for the statutory penalties. State v. Marshall, 100 Miss. 626, 56 So. 792, Ann. Cas. 1914A, 434. But under the authority to abate nuisance conferred by a state law, the injunction goes primarily against places in which the prohibition laws are habitually violated and inci- dentally against persons who maintain such places. Such authority does not extend to violations of the prohibition laws generally or in ways other than those designated in said sections. Neither said section nor any other laws con- fers upon courts of equity general power to govern the state by injunction, in so far as its laws pertain to the sub- ject of intoxicating liquors. State v. Baltimore, etc., R. Co., 78 W. Va. 526, 89 S.. E. 288, L. R. A. 1916F, 1001. Blanket Injunction. A person maintaining a nuisance by selling liquor at a certain place cannot be enjoined from selling liquor independently of the place where nuisance ex- ists; and hence a blanket injunction against defendants, re- straining them from selling alcoholic liquors within the state was properly refused. State v. Lyon, 83 S. C. 509, 65 S. E. 730. Statutory Authority Essential. "In the absence of a statute conferring it, equity has no jurisdiction to abate a public nuisance, either civil or criminal, at the instance of an individual or the state, not affecting or injuring the en- joyment of property or other personal rights. Injunction is not a remedy for the enforcement of criminal laws gen- erally." State v. Baltimore, etc., R. Co., 78 W. Va. 526, 89 S. E. 288, L. R. A. 1916F, 1001. Alton v. Salley (Mo.), 215 S. W. 241. The general rule is that, in absence of specific statute, injunction will not lie to abate a nuisance where the acts complained of are an offense against the criminal laws, but where a place or particular business is declared to be a pub- lic nuisance, as is a liquor nuisance, by statute, such a nui- 174 TITLE II SEC. 23 OF ACT sance, notwithstanding it violates the criminal laws, may be abated by injunction pursuant to the statute authorizing a civil action to abate a public nuisance. State v. Bossingham, 35 S. D. 355, 152 N. \V. 285. Thus, unless made so by statute, the crime of aiding in the delivery and distribution of intoxicating liquors is not a nuisance, for such acts were not a nuisance at common law. Hathaway v. Benton, 172 la. 299, 154 N. W. 474. And a court of chancery, at the instance of the common- wealth, will not enjoin the use of a building for the mere sale of intoxicating liquors on Sunday, in the absence of the statute authorizing the action, although the sale of liq- uor on Sunday is prohibited by law. Commonwealth v. Ruh, 173 Ky. 771, 191 S. W. 498, L. R. A. 1917D, 283. And the shipment of liquor into a local option county by a common carrier cannot be enjoined by a court of eq- uity, regardless of the criminality of the act, where such shipment did not result in the maintenance of a public nui- sance, it not appearing that such shipment resulted in drunk- enness, the remedy being to proceed under the criminal stat- utes, for a court of equity has no jurisdiction to enjoin an act merely because it is criminal. State v. Chicago, etc., R. Co. (Mo. App.), 191 S. W. 1051. Sale of Liquor Alone. The illegal sale of intoxicating liquor cannot be enjoined when unaccompanied by circum- stances making a nuisance. State v. Kirkwood Leisure Hours' Social, etc., Club (Mo. App.), 187 S. W. 819. See also, Alton v. Salley (Mo.), 215 S. W. 241. Law in Force When Suit Brought Governs. The li- ability of one, alleged to maintain a liquor nuisance, to in- junction, must be governed under the law as it stood when TITLE II SEC. 23 OF ACT 175 the suit was brought, unaffected by a statute which became effective three months thereafter. Civic Improv. League v. Hanson, 181 la. 327 164 N W. 752. Case Must Come within Statute. Under a state stat- ute authorizing an injunction against persons who may sell or give away any vinous or spirituous liquors unlawfully, defendants, who sold beer, cannot be enjoined, though the beer contained alcohol; for beer is a malt liquor, and is neither a vinous nor a spirituous liquor. Collotta v. State, 110 Miss. 448, 70 So. 460. And a manufacturing plant where only nonintoxicating malt liquor is made and sold, is not a nuisance which may be abated under the "blind tiger" statute which declares that "any place spirituous, malt, or intoxicating liquors are sold in violation of law, shall be deemed a nuisance, and the same may be abated or enjoined as such," etc. Howard v. Acme Brewing Co., 143 Ga. 1, 83 S. E. 1096. Delivery Alone. And where the statute made offenses relating to intoxicating liquor a nuisance only when car- ried on in or in connection with building or places, the crime of aiding in delivering intoxicants is not a nuisance. Nor is such crime made a nuisance by virtue of a statute declaring that, if any common carrier or person shall trans- port or convey intoxicating liquors without first having been furnished with a certificate by the clerk of the court, he shall upon conviction be fined. Hathaway v. Benton, 127 la. 299, 193 N. W. 474. What Constitutes a Nuisance. The generally accepted doctrine is that the keeping of a place where intoxicating liquors are sold contrary to law does not constitute such place a nuisance per se that courts of equity will abate by injunction. Territory v. Robertson, 19 Okla. 149, 92 Pac. 144. Joyce on Nuisance, 415. Commonwealth v. Ruh, 173 Ky. 771, 191 S. W. 498, L. R. A. 1917D, 283. 176 TITLE II SEC. 23 OF ACT And under a statute providing that all places used for the illegal sale or keeping of intoxicants are common nui- sances, the premises involved must have been habitually and customarily used for the purposes mentioned. State v. Gastonguay (Me.), 105 Atl. 402. And the mere assembling of idle and turbulent citizens at a given place where liquor is sold does not constitute a public or private nuisance unless it appears that they have been guilty of some misbehavior which is sufficient under the law to produce such result. State v. Dick & Bros. -Quincy Brewing Co., 270 Mo. 100, 192 S. W. 1022, L. R. A. 1917D, 1023n. But it has been held that one who sells liquor in violation of law and has the reputation of so doing maintains a liq- uor nuisance. State v. Kiefer, 172 la. 306, 151 N. W. 440. "The sale of liquor in violation of law is a crime, but equity will not enjoin the sale. This will be left to the courts of law. But unlawful sales of liquor may be made at such places and under such facts and circumstances as to make the whole thing a public nuisance. It is then, and only then, that equity will intervene and abate the nuisance. But the evidence must show such surrounding circumstances and facts as will constitute the maintenance of the place of sale a public nuisance. Merely showing that there are vio- lations of law in the sales by selling less than the license to sell authorized does not make a public nuisance." State v. Jones (Mo.), 209 S. W. 876, 877. Clubhouse. One is engaged in the illegal traffic in in- toxicating liquors, in violation of the law and an injunction will lie, where the building in which liquor is kept is not a dwelling house, but a public place, and is used by him and others as a clubhouse, or for distribution of the liquor, or if the liquor is received or kept in his place of business, though it is for their personal use. Dutton v. Anderson (la.), 145 N. W. 321. Places Where Persons Are "Permitted" to Resort, etc. The word "permit" construed in connection with a TITLE II SEC. 23 OF ACT 177 statute, providing that "all places where * * * persons are permitted to resort for the purpose of drinking intoxi- cating liquors as a beverage * * * are hereby declared to be common nuisance," means the same as "consent," and consent implies knowledge. State v. Wheeler, 38 N. D. 456, 165 N. W. 574, 575. Place Where "Intoxicating" Liquors Are Manufac- tured, Stored, Sold, etc. The term "intoxicating liq- uors," as used in Nevada Prohibition Law, 14, making place where such liquors are manufactured, stored, sold, etc., public nuisances, is, when said section is considered together with sections 6 and 17, to be taken as used inter- changeably with the word "liquors" in section 1, and dis- trict court had jurisdiction to enjoin defendant brewing company from manufacturing and selling "Sierra Bever- age," although said beverage is not intoxicating. State v. Reno Brewing Co. (Nev.), 178 Pac. 902. Vehicle as "Place." A vehicle moving about from one place in the city to another while engaged in selling in- toxicating liquors in violation of law and of the ordinance of the city, is a place within the meaning of a statute and city ordinance which prohibit nuisances as defined in that statute. Kansas City Breweries Co. v. Kansas City, 96 Kan. 731, 153 Pac. 523. "Bootlegging." A statute declaring that any person who shall keep or carry around his person, or in any ve- hicle, or leave in a place, intoxicating liquors with intent to dispose of same, in violation of law, shall be termed a "bootlegger," and that every bootlegger may be restrained by injunction from doing any of the acts prohibited by law, does not apply to the case of an expressman aiding in de- livering and distributing intoxicating liquors ordered by others ; for a bootlegger is one who disposes of or sells liquor in violation of law. Hathaway v. Benton, 172 la. 299, 154 N. W. 474. Social Club. Under a statute providing that the con- ducting, maintaining, carrying on or engaging in the sale 12 178 TITLE II SEC. 23 of ACT of intoxicating liquors, and all means, appliance, fixtures, etc., are declared public nuisance, an incorporated social club which had been in existence for 25 years with a limited membership, and dispensed intoxicating beverages to its members at cost of material and service without overhead charges, as a mere incident to the main purpose of the club, the social intercourse of its members, no person not a mem- ber of the club, being permitted to obtain anything from the club at his own expense, was not guilty of conducting a nui- sance; the sale of intoxicating liquors as a business and for profit, being the nuisance contemplated by the Legislature. State v. Mountain City Club, 136 Tenn. (9 Thompson) 102, 188 S. W. 579. But it has also been held that a place of resort is a nui- sance if used by a club either to sell intoxicating liquors to its members, or to distribute among its members intoxicat- ing liquors owned by them in common, or to procure for and dispense to its members intoxicating liquors which are bought for and belong to them individually. State v. Kapicsky, 105 Me. 127, 73 Atl. 830, 23 L. R. A., N. S., 737. And if a club, by its agent, purchase and stores intoxi- cating liquor for its members and deals out in portions to each member upon his order the liquors belonging to and kept for him and keeps a place for that purpose, such place is a common nuisance under the statute. State v. Kapicsky, 105 Me. 127, 73 Atl. 830, 23 L. R. A., N. S., 737. Voluntary Abatement. And where a fraternal organ- ization periodically permits intoxicating liquors to be brought upon its premises and permits its members to gather there for the purpose of drinking such liquors, its premises thereby become a nuisance which may be enjoined and abated; but where the officers and members of such organization are notified by the responsible public officers to quit such practices under threat of prosecution and they do quit in apparent good faith and remove all liquor para- phernalia from their premises, the lodge and its property cannot be subjected to an injunction as an existing nuisance TITLE II SEC. 23 OF ACT 179 in a suit commenced after offensive practices have been definitely and permanently abandoned. State v. Midland Aerie No. 412, Fraternal Order of Eagles, 98 Kan. 793, 161 Pac. 903. Clubhouse as "Place of Resort." Where a statute provides that all places of resort where intoxicating liquors are kept, sold, or given away, drank, or dispensed in any way not provided by law are common nuisances, held, that a "place of resort" does not mean a place to which the pub- lic generally may resort, but includes places to which resort is had by a limited class, and hence included a clubhouse to which members and their guests were admitted, and who drank their own liquor there, kept in lockers which were their own property. State v. Cumberland Club, 112 Me. 196, 91 Atl. 911. Injunction against Transportation Company. Under the Texas statute injunction will lie to restrain a railroad from using its transportation facilities in the state for re- ceiving, transporting, or delivering intoxicants except for medicinal, scientific, mechanical, or sacramental purposes. Gulf, etc., R. Co. v. State (Tex. Civ. App.), 212 S. W. 845. Injunction against Illegal Sale of Extracts. In- junction lies against illegal sale of flavoring extracts by grocer for beverage purposes, under the Iowa statute. State v. Klein (la.), 174 N. W. 481. Acts to Be Restrained Must Be Unlawful. "In those instances in which injunction lies to prevent conduct amounting to a nuisance abatable by such remedy, it is lim- ited to unlawful acts and is not available as a means of pre- vention of lawful acts. Only so much of such conduct as is unlawful can be restrained." State v. Baltimore, etc., R. Co., 78 W. Va. 526, 89 S. E. 288, L. R. A. 1916F, 1001. Thus, where a club might lawfully dispense liquor to its members and guests, the state was not entitled to restrain 180 TITLE II SEC. 23 OF ACT it from so dispensing the same on the ground that such was not within its corporate powers. Country Club v. State (Tex.), 214 S. W. 296. Constitutionality. A statute, making the conducting, maintaining, carrying on, or engaging in the sale of intoxicating liquors, and all building nuisances, subject to abatement thereunder, and authorizing injunction restraining the continuance of such nuisances and closing the building or place where it is con- ducted is constitutional. State v. Ragghianti, 129 Tenn. (2 Thompson) 560, 167 ,S. W. 689. And such a statute providing that all places in a prohi- bition district where intoxicating liquors are sold in viola- tion of law, etc., are common nuisances and may be abated and enjoined, when construed to permit a temporary in- junction closing a hotel which had been used for the un- lawful sale of intoxicating liquors, does not deprive the hotel keeper of his property without due process of law, though a permanent injunction against operating the hotel would have that effect. State v. Kasiska, 27 Idaho 548, 150 Pac. 17. A statute providing for the issuance of an injunction against liquor nuisances, and authorizing the seizure and destruction of property used in maintaining the nuisance, is a valid exercise of the power to enact laws for seizure of property attempted to be used for an unlawful purpose or in an unlawful manner. In re State, 179 Ala. 639, 60 So. 285. Such statute gives a cumulative remedy in equity and the power of the legislature to provide such cumulative equi- table remedy cannot be successfully questioned. It was in- voked, and, sub silentia, sanctioned in Marvin v. Larson, 153 Wis. 488, 140 N. W. 285. State v. Stoughton Club, 163 Wis. 362, 158 N. W. 93. Essential Elements. It is essential to an injunction to restrain a nuisance that TITLE II SEC. 23 OF ACT 181 the nuisance should exist at the filing of the petition, but it is not essential that the nuisance should continue up to the final hearing; and while the abandonment of a nuisance in good faith before the final hearing should have weight with the court in the .exercise of its discretion, a mere moving to other quarters after a preliminary restraining order, and on the eve of a final hearing, with nothing to show a com- plete and bona fide abandonment of the design to violate the law, is not sufficient to stay injunction. State v. Lyon, 83 S. C. 509, 65 S. E. 730. Showing of Special Injury. A statute authorizing in- junctions restraining the continuance of a nuisance consist- ing of the carrying on of the sale of intoxicating liquors on a bill filed by citizens and freeholders or by the attorney- general or district attorney, changes, with respect to the nuisance to which it relates, the rule that parties seeking to enjoin a nuisance must show special injury. State v. Ragghianti, 129 Tenn. (2 Thompson) 560, 167 S. W. 689. Good Faith Immaterial. Where one accused of main- taining a liquor nuisance had no permit, and any sale by him to any person under any circumstances was unlawful, his good faith or reasonable effort to avoid imposition can- not affect the question of his unlawful sales. Fisher v. Skoglund, 155 la. 440, 136 N. W. 231. Procedure. Notice and Its Necessity. Assuming that under a statute relating to injunction against nuisance consisting of the conducting, maintaining or engaging in the sale of in- toxicating liquors, a temporary injunction should not have been issued without notice to the defendant, an injunction issued without notice was merely erroneous, as a matter of procedure, and was not void, or in excess of jurisdiction, and a violation thereof was punishable as a contempt. State v. Ragghianti, 129 Tenn. (2 Thompson) 560, 167 S. W. 689. Who May Prosecute. Under a state statute, author- izing a citizen of the county to institute and maintain a 182 TITLE II SEC. 23 OF ACT suit to enjoin a liquor nuisance, an action instituted and maintained by a citizen of the county will not be abated merely because his attorney employed detectives, who were paid by Anti-Saloon League not incorporated in the county, to obtain evidence for the prosecution, and the attorney, a nonresident, received the fees, notwithstanding section 3459, provided that action must be prosecuted by the real party in interest, except where the party is expressly au- thorized by statute to sue. Reusch v. Loserth, 158 la. 227, 139 N. W. 454. Trial by Jury. A constitutional provision for trial by jury is not violated by a law which imposes a penalty for the illegal sale of liquor, and gives the chancery court con- current jurisdiction of suits for penalties and power to suppress as a nuisance any place of business where the statute is violated, and to punish and restrain the violators thereof, since a jury trial therein is no more a matter of right than in any other chancery case, and since the chan- cellor is empowered by law to award a jury trial when needed. State v. Marshall, 100 Miss. 626, 56 So. 792, Ann. Cas. 1914A, 434. Persons dealing in intoxicating liquors have no vested right in a jury trial in order to determine whether or not their place of business is a public nuisance. For such pur- pose an action in equity constitutes due process of law. State v. Stoughton Club, 163 Wis. 362, 158 N. W. 93. Petition. In an action to abate a liquor nuisance, a cause of action was stated in a petition which alleged that at the place described a nuisance, as defined in the statute, was maintained with the knowledge, permission and con- sent of the defendants, who owned the property. State v. Glass, 99 Kan. 159, 160 Pac. 1145. Where a bill for injunction against a liquor nuisance al- leged that the solicitor was informed and had probable cause for believing and did believe that the accused had in his possession, or operated a room or place of business, wherein he kept for sale and sold prohibited liquors; that TITLE II SEC. 23 OF ACT 183 he had within the past 12 months offered and sold quanti- ties of said liquors and allowed some of it to be drunk on the premises, creating and maintaining a common liquor nui- sance in violation of law, and that the accused was not a druggist and did not keep a drug store at his place of busi- ness, and that his place of business was not exclusively used for a dwelling house, it averred no facts and was insufficient and could not be supported by the rule that a bill will be given every reasonable intendment. Woodward v. State, 173 Ala. 7, 55 So. 506. Alleging Details of Violation of Law. A petition in a suit to enjoin a liquor nuisance, which alleges that de- fendant occupied the premises described, and owned and kept thereon intoxicating liquors with intent to sell the same as a beverage in violation of law, is sufficiently spe- cific as against a motion to require averments stating spe- cifically how, and in what manner, if any, the provisions of the mulct law have been violated by defendant. Fisher v. Stoevenor & Co., 155 la. 548, 136 N. W. 673. Alleging Intent. A petition praying an injunction, and alleging that defendant kept intoxicating liquor with in- tent to sell in violation of the law, is sufficiently specific : the allegation of keeping with intent to sell 'in violation of law being one of ultimate fact. Bowers v. Maas, 154 la. 640, 135 N. W. 25. Description of Premises. In a prosecution to restrain a liquor nuisance described as maintained at 83 and 85 Market Street in a certain city, such description would be construed to include premises designated as 83^ Market Street, which was a stairway entrance to the second story of the building described, in which respondent and his fam- ily lived. State v. Chicco, 82 S. C. 122, 63 S. E. 306. Description of Defendant. An allegation that one "did keep and maintain" a liquor nuisance applies either to one who occupies or who controls the occupation and pro- cures or permits the illegal use of the place. State v. Fogg, 107 Me. 177, 77 Atl. 714. 184 TITLE II SEC. 23 OF ACT Alleging Unlawful Transportation by Carrier. "A bill praying an injunction against transportation of persons so carrying intoxicating liquors, by common carrier, un- less such carrier through its agents, servants and employees, has first ascertained by due diligence and caution and in good faith that such liquors are not intended for use or dis- position by such persons contrary to law, and not charging the rendition of aid and assistance to any particular person in his violations of the prohibition laws, by the carrier so proceeded against, raises no question as to right in the state to enjoin such transportation as to particular indi- viduals." State v. Baltimore, etc., R. Co., 78 W. Va. 526, 89 S. E. 288, L. R. A. 1916F, 1001. The allegation of a petition substantially averring the violation of three sections of the criminal law which for- bade the receiving, storing, keeping, or delivering of intox- icating liquors without a license as a dramshop keeper or a wholesaler, the petition wholly failing to set forth any facts showing that the things done by the road were the proximate and efficient cause of the creation of a public nuisance, were insufficient to give the equity court juris- diction, since to connect the railroad with the public nui- sance alleged to have resulted from the drunkenness and disorder consequent upon the illicit sale of liquor it was in- dispensable that plaintiff show that such drunkenness and disorder were caused directly by the mere act of the road in transporting and delivering liquor in the county, or that such act participated in bringing about the condition. State v. Woolfolk (Mo.), 190 S. W. 877. A bill by the state, by its solicitor, against an interstate carrier to enjoin the maintenance of a liquor nuisance, which alleges that the carrier has a warehouse, where goods received are stored to await delivery to the consign- ees; that prohibited liquors are received at the warehouse in large quantities and at frequent intervals for delivery to individuals for illegal purposes; that prohibited liquors are received by the carrier for distribution or delivery, con- trary to the laws of the state, and that it is maintaining a "liquor nuisance" charges a violation of the law by the car- rier and authorizes injunctive relief, the words "prohibited TITLE II SEC. 23 OF ACT 185 liquor" meaning intoxicating liquors which under the law the carrier has not the legal right to have in its possession. Southern Exp. Co. v. State, 188 Ala. 454, 66 So. 115. Bill for Injunction against Breach of Anti-Adver- tizing Law. A bill for injunction against violations of the anti-advertising liquor law need not negative the appli- cation of the rule concerning original packages in interstate shipments, since that is a matter of defense. Black v. Delaye, 193 Ala. 500, 68 So. 993. Cross Petition. A cross petition filed by a defendant city, which cross petition states that the plaintiff is doing certain specific acts which are in violation of the intoxicat- ing liquor laws of this state and the ordinance of the de- fendant city, and which constitute a common nuisance as defined by the law of the state and the ordinances of the city, and asks for an injunction against the doing of these acts, states a cause of action. Kansas City Breweries Co. v. Kansas City, 96 Kan. 731, 153 Pac. 523. Prayer for Greater Relief Than Allowable. Where a complaint in a proceeding to abate and enjoin illegal deal- ing in intoxicating liquors states a good cause of action, it is not bad because the complaint seeks greater relief than is allowable, by praying for the imposition of the punishment provided by the criminal laws for the illegal sale of liquor, but he is still entitled to have all the relief to which he shows a right, and which is in whole or in part appropriate to the prayer. State v. Marshall, 100 Miss. 626, 56 So. 792, Ann. Cas. 1914A, 434. Plea and Defenses. Plea of Abatement of Nuisance. In an action for an injunction to abate a liquor nuisance, the plea that defend- ant had already abated the nuisance himself is addressed largely to the discretion of the trial court, and the issu- ance of an injunction is no abuse of the court's discretion, 186 TITLE II SEC. 23 OF ACT where the defendant abated the nuisance only the night before the trial. Bowers v. Maas, 154 la. 640, 135 N. W. 25. Plea of Pending Appeal in Search Warrant Case. In a civil suit to enjoin a liquor nuisance in a bowling alley, an order for the destruction of the liquors made by a jus- tice and an appeal to the district court in a search warrant proceeding, being a quasi criminal proceeding not between the same parties nor involving the same issues and seeking a different and more limited relief, cannot be pleaded in abatement and is not a bar. State v. Knapp, 178 la. 25, 158 N. W. 515. Plea That Acts Were in Open Violation of Law. It is no defense to a proceeding brought to abate and en- join a blind tiger as a nuisance that the sale of spirituous, malt, or intoxicating liquor was in open violation of law. Thompson v. Simmons & Co., 139 Ga. 845, 78 S. E. 419. Death of Defendant Abates Proceeding. Where the defendant in an action to enjoin a liquor nuisance dies pend- ing appeal, the action abates, and the liquor on defendant's premises cannot be adjudged a nuisance, since there can be no intent by defendant to keep and sell liquor in violation of law, which is a necessary element. Babbitt v. Corrigan, 157 la. 382, 138 N. W. 466. Evidence. Admissibility Acts Not Alleged. Under a petition praying an injunction and alleging that defendant was keeping intoxicating liquor with intent to sell in violation of the law, evidence of unlawful sales, or other unlawful acts or omission, not specifically alleged, is admissible, for the keeping with intent is the ultimate fact which can only be proven by the unlawful acts. Bowers v. Maas, 154 la. 640, 135 N. \Y. 25. Proof of Other Dates. Where the defendant is charged with maintaining a liquor nuisance on the 20th day TITLE II SEC. 23 OF ACT 187 of January, 1915, and evidence is introduced to sustain the information as to that date, and further evidence is intro- duced to show that the defendant was maintaining a liq- uor nuisance on the 8th day of September 1914, the latter evidence is admissible, where evidence is also introduced tending to show a continuation of the nuisance between the two dates. State v. Maguire, 31 Idaho 24, 169 Pac. 175. Surrounding Circumstances. In a trial for maintain- ing a liquor nuisance testimony as to what was found on the place, indicating the presence of intoxicating liquors, sounds of disturbance at night on the Fourth of July, and acts of an intoxicated man who was neither a boarder nor visitor at the place, was properly received to connect ac- cused with control of the place and the acts done and con- ditions found there, as was evidence of shipments from a particular city of liquors to him up to the time when whisky bottles with labels bearing the name of that city were found at the place. State v. Fogg, 107 Me. 177, 77 Atl. 714. Sold as Beverage Use Immaterial. In a suit to en- join the sale of intoxicating liquors, if the liquor in ques- tion was sold as a beverage and contained alcohol, it would not be material whether it was actually used as a beverage or not. State v. Silka, 179 la. 663, 161 N. W. 703. Weight and Sufficiency. In an action to enjoin a liq- uor nuisance, evidence that defendant was the agent of the corporation owning the building, and that he purchased and placed the liquor in the building for sale, was suffi- cient to sustain a judgment for plaintiff. Barber v. Dapolonia (la.), 171 N. W. 586. Under statutes respectively providing that, in action to enjoin liquor nuisances evidence of the general reputation of the place described shall be admissible to establish the existence of the nuisance, and that the finding of intoxi- cating liquors in the possession of one not authorized to sell shall be presumptive evidence of a violation of law, 188 TITLE II SEC. 23 OF ACT the finding of several cases of beer, and of empty bottles coupled with the general reputation that the place in ques- tion was one where intoxicants were unlawfully sold, is sufficient to establish prima facie the existence of the liq- uor nuisance. Shideler v. Naughton, 163 la. 616, 145 N. W. 280. State v. Silka, 179 la. 663, 161 N. W. 703. McMillan v. Metcalfe (la.), 174 N. W. 481. Burden of Rebutting Prima Facie Case. In a suit to enjoin a liquor nuisance, where the evidence prima facie established its existence, the burden is on defendant to re- but the prima facie case. Shideler v. Naughton, 163 la. 616, 145 N. W. 280. Questions for Jury. In a proceeding for an injunc- tion against the use of premises for the illegal sale of in- toxicating liquors, authorized by statute whether the prem- ises are used for the illegal sale of liquors must be deter- mined by a jury unless a jury trial is waived. State v. Leary, 75 N. H. 459, 76 Atl. 192, 44 L. R. A., N. S., 457n. Hearing. Despite a statute providing that an applica- tion for a temporary injunction to abate a liquor nuisance may be supported by evidence in the form of affidavit, dep- ositions, oral testimony, or otherwise, the final hearing on the merits is on evidence in conformity with the practice obtaining in the trial of equity causes generally, and plain- tiff is entitled to have the cause set down for trial and hearing on evidence adduced according to the usual prac- tice notwithstanding defendant's affidavit in opposition to the motion for a temporary injunction denied the conten- tion of plaintiff. Batten v. Snearly, 168 la. 362, 150 N. W. 583. Costs. Though an injunction in a suit to enjoin a liq- uor nuisance be denied, because defendants in good faith, before commencement of the action, abandoned the prac- tice of handling liquor, yet this having been done after the petition was sworn to and plaintiff not appearing to have TITLE II Sec. 23 OF ACT 189 known thereof when he filed his petition, or to have been actuated by motive other than to secure enforcement of the law, costs should be taxed against defendant. Davidson v. Benevolent and Protective Order of Elks, No. 374, 174 la. 1, 156 N. W. 187. In a suit for the abatement of a liquor nuisance in a bowl- ing alley, brought against the tenant and the owner of the building, there being no testimony that the landlord had any knowledge of her codefendant's use of the property, it was improper to tax costs to the landlord. State v. Knapp, 178 la. 25. 158 N. W. 515. In a suit to enjoin the sale of intoxicating liquors, on trial in vacation as to one of the defendants on application for a temporary injunction, a decree, granting a temporary injunction, providing that the costs upon the hearing for temporary writ of injunction be taxed against a defendant, was not a judgment against defendant for costs, but sim- ply a provision that the costs on the temporary injunction be so taxed because they were made in the contest by this defendant, and that as between him and the other defend- ants they should be taxed to him, and that the cause be heard, later as to other defendants. State v. Silka, 179 la. 663, 161 N. W. 703. Issuance of Injunction. \Yhere a corporation organ- ized for a legitimate purpose dispensed intoxicating liquors in violation of law, and the evidence warranted the infer- ence that it would continue to do so unless restrained, and it claimed the right to do so, the court will enjoin the cor- poration and the persons actually participating in the ille- gal dispensing of liquor. Shideler v. Tribe of the Sioux, 158 la. 417, 139 N. W. 897. In an action to enjoin alleged liquor nuisance, injunction should be promptly granted and without any evasion, where the evidence is sufficient to show a violation of law, not- withstanding interest or motive of attorneys and witnesses. Barber v. Buonanni Co., 179 la. 642, 161 N. W. 688, 689. 190 TITLE II SEC. 23 OF ACT On a petition to enjoin one styling himself J. W. Lang, from violating the liquor laws, making C. W. Nies, a party, and charging that defendant Nies, "alias J. W. Lang," was maintaining the nuisance to abate which the injunction was sought, where the trial court found that Lang was an alias, Nies might be punished in his own proper person. Nies v. Jepson, 174 la. 188, 156 N. W. 292. Proof that several illegal sales of intoxicants were made from defendant's drug store within a limited time war- rants the issuance of an injunction to restrain the nuisance, under the rule that knowledge may be shown by the doing of like acts; such evidence warranting a finding that de- fendant has knowledge of the sales. Barber v. City Drug Store, 173 la. 651, 155 N. W. 992. Discretion of Court. The discretion of the trial court in refusing permanent injunction of an alleged liquor nui- sance, where it appears satisfactorily to it that it has been in good faith abated, is not unlimited, and where the exist- ence of the nuisance is conclusively shown, a writ for in- junction is justified. Fisher v. Skoglund, 155 la. 440, 136 N. W. 231. Where the evidence is conflicting, the court below did not abuse its discretion in granting an interlocutory injunc- tion restraining the defendant from maintaining a "blind tiger" and selling intoxicating beers and intoxicating liq- uors at the place. Loh v. Howard, 141 Ga. 509, 81 S. E. 198. Breadth of Injunction. An injunction against main- taining a liquor nuisance should be broad enough to pre- clude every possibility of the continuation or reopening of the nuisance by the persons enjoined or by any one acting for, by, through or under them or either of them or with their permission. State v. Glass, 99 Kan. 159, 160 Pac. 1145. \\ here the allegations of a petition were that the de- fendants were operating and maintaining a blind tiger, or liquor nuisance at a particular place, by there selling spirit- TITLE II SEC. 23 OF ACT 191 uous malt, and intoxicating liquors in violation of law, and there was no contention that the defendants were main- taining elsewhere a similar nuisance, either in connection with, or independently of, the one alleged to exist at the place designated in the petition, nor even that the defend- ants were contemplating or intending to elsewhere create and maintain such nuisance, the judge was not authorized to grant an interlocutory order enjoining the defendants from maintaining a nuisance, not noly at the place desig- nated in the petition, but elsewhere. Watkins v. Wilkerson, 141 Ga. 163, 80 S. E. 718, Ann. Cas. 1915C, 1124. Injunction against Automobile after Destruction of Liquor Seized. Where intoxicating liquors were being sold from an automobile, and the automobile and liquor were seized, and the liquor destroyed, the destruction of the liquor was not necessarily an abatement of the nui- sance and there still might be grounds for proceedings in injunction against the automobile. State v. Raph (la.), 168 N. W. 259. Denial of Injunction. Where, in an action to enjoin liquor nuisances because the statements of consent filed by defendants were insufficient, it appeared that defendants had been out of business 10 days before their case came on for trial in the district court, and it was not claimed that they intended to resume the business, the injunction was properly denied. State v. Harrison, 159 la. 67, 140 N. W. 223. An injunction, restraining the maintenance of a liquor nuisance, cannot be issued as to a defendant without proof that he was in control of the drug store where the sales were made at that time, it appearing that he had subse- quently purchased the same. Barber v. City Drug Store, 173 la. 651, 155 N. W. 992. In a prosecution to abate and enjoin a blind tiger, the de- fendant cannot be adjudged to be disqualified from doing business under a near beer license which he holds and from ever doing business for himself under any such license, and 192 TITLE II SEC. 23 OF ACT from being employed by another engaged in business under such a license, and, by reason of such disqualification, be enjoined from doing business under such license until the further order of the court. Cassidy v. Howard, 140 Ga. 844, 80 S. E. 1. Injunction Unnecessary after Abatement. Where officers found a barrel of whisky under defendant's stable and two other barrels buried near by, and it was their duty to seize the same to be forfeited to the state, and it will be presumed that they discharged such duty, and, tb? nuisance being abated, it was error to enjoin the defendant from thenceforth receiving liquor and having it in his pos- session ; there being no evidence that he intended so to do. Thornton v. Skelton (Ga. App.), 99 S. E. 299. The court in a suit to enjoin a liquor nuisance may deny an injunction, defendants in good faith, before the action was commenced, though to avoid being enjoined, having abandoned the practice of handling liquors in their club- rooms. Davidson v. Benevolent and Protective Order of Elks, No. 374, 174 la. 1, 156 N. W. 187. Abatement. See also ante, under Sec. 21. In a suit to enjoin a liquor nuisance in a bowling alley, where the defendant did hot know that the liquor he was selling was intoxicating, abandoned the sale, and volun- tarily abated the nuisance before commencement of the suit, a decree and order of abatement may be entered to insure complete repentance. State v. Knapp, 178 la. 25, 158 N. W. 515. Under statute declaring the building in which a liquor nuisance is maintained a nuisance and providing that an order of abatement shall direct the effectual closing of the building, in a suit to abate a liquor nuisance in a bowling alley for illegal sales by a tenant, an order of abatement and for the closing of the building were proper, although TITLE II SEC. 23 OF ACT 193 the owner, made defendant, had no notice or knowledge of the illegal sales. State v. Knapp, 178 la. 25, 158 N. W. 515. Blind tigers are public nuisances, affecting the whdle community, and, as such, they may be abated. Ruston v. Fountain, 118 La. 53, 42 So. 644. Legg v. Anderson, 116 Ga. 401, 42 S. E. 720. Lofton v. Collins, 117 Ga. 434, 43 S. E. 780, 61 L. R. A. 150. Rush v. Commonwealth (Ky.), 47 S. W. 586. Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205. Purity Extract, etc., Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184. Shreveport v. Maroun, 134 La. 490, 64 So. 388. Relief on Giving Bond by Defendant. Under direct provisions of a statute, the owner of a building, in which a liquor nuisance has been maintained without his knowl- edge and an order of abatement entered closing the build- ing, may upon establishing his good faith, paying costs, and filing bond to full value of the property to prevent the nuisance being established, recover possession, and have the order of abatement canceled so far as it relates to the property. State v. Knapp, 178 la. 25, 158 N. W. 515. Appeal or Certiorari. On certiorari by one found guilty of contempt in being concerned in the liquor traffic in violation of an injunction, weight is given the finding of the trial court. Button v. Anderson (la.), 145 N. W. 321. On certiorari to review order finding accused guilty of contempt by violating injunction against illegal sale of intoxicating liquors, while evidence to sustain the finding must amount to more than the mere preponderance which sustains recovery of the law side, violation need not be proved beyond a reasonable doubt. Nies v. District Court (la.), 161 N. W. 316. 13 194 TITLE II SEC. 23 o* ACT On certiorari to review order adjudging accused guilty of contempt in violating an injunction restraining illegal sale of intoxicating liquors, the review is not de novo, but the finding below does not have as much weight as a ver- dict. Nies v. District Court (la.), 161 N. W. 316. Reversal. Where an injunction against maintaining a liquor nuisance in a building was issued against the owner and others, the reversal of the decree, as against one not shown to have been in control of the business or building at the time of the nuisance will not carry with it the decree against the owner. Barber v. City Drug Store, 173 la. 651, 155 N. W. 992. TITLE II SEC. 24 Contempt of Court for Violation of Injunction Proceed- ings Punishment. * SEC. 24. In the case of the violation of any injunc- tion, temporary or permanent, granted pursuant to the provisions of this title, the court, or in vacation a judge thereof, may summarily try and punish the defendant. The proceedings for punishment for contempt shall be commenced by filing with the clerk of the court from which such injunction issued information under oath setting out the alleged facts constituting the violation, whereupon the court or judge shall forthwith cause a warrant to issue under which the defendant shall be arrested. The trial may be had upon affidavits, or ei- ther party may demand the production and oral exam- ination of the witnesses. Any person found guilty of contempt under the provisions of this section shall be punished by a fine of not less than $500 nor more than $1,000, or by imprisonment of not less than thirty days nor more than twelve months, or by both fine and im- prisonment. Violation by Tenant Presumption. Statutory pro- hibition against violating liquor laws by servant, agent, em- ployee, or tenants, and commands in injunctions against sale by servant, agent, tenant, or employee, mean, so far as contempt proceedings are concerned, that the landlord cannot shield himself by having his tenant sell the liquor; that the finding of liquor in a hotel raises a presumption that the owner has violated the law through his tenants; but that such presumption is not conclusive, and the doc- trine of landlord and tenant or respondent superior does not apply. Nies v. District Court (la.), 161 N. W. 316. 196 TITLE II SEC. 24 OF ACT Good Faith of Defendant Immaterial. The test whether liquor is intoxicating, and whether the seller has violated injunction restraining sale of intoxicating liquor, is the character of the liquor, and not the good faith of the defendant, so that evidence that the defendant did not know of the intoxicating character of the liquor is incom- petent. Nies v. District Court (la.), 161 N. W. 316. Effect Not Avoided by Removal to Place in Same County. Injunction against an incorporated club and its officers from using the premises of the club, or any part, for selling spirituous, vinous, or malt liquors, etc., related to the business or occupation in which the club and its of- ficers were engaged, and could not be avoided by removal to another town in the same county. Ex parte Alderete (Tex. Cr. App.), 203 S. W. 763. Nature of Proceeding. A charge of contempt of court for violating an injunction inhibiting the sale of intoxicat- ing liquors as a nuisance, is a criminal contempt which is punitive in character to vindicate the authority of the law and of the court as, an organ of society, and which, though it may arise in private litigation, raises an issue between the public and the accused, not a civil contempt, which is a proceeding in furtherance of the right of a private person which the court has determined he as a litigant is entitled to. Anderson v. Daugherty, 137 Tenn. (10 Thompson) 125, 191 S. W. 974. Governed by Special Statute. The procedure in con- tempt cases arising under the prohibitory law is governed by the special provisions found in such law, and the pro- visions of the law relating to contempts in general do not govern in contempt cases arising under the prohibitory law. State v. Finlayson (N. D.), 170 N. W. 910. "All contempt proceedings, whether for violation of a liquor injunction or any other decree or order of the court, are special and sui generis and the general procedural rules do not apply thereto, save as expressly provided. In their TITLE II SEC. 24 OF ACT 197 nature they are both criminal and civil, and by some courts they are held to partake more of nature of criminal than civil proceedings. See Wells v. District Court, 126 la. 340, 102 N. W. 106; Grier r. Johnson, 88 la. 99, 55 N. W. 80; Black v. State, 75 Neb. 603, 106 N. W. 787; State v. Dis- trict Court, 24 Mont. 33, 60 Pac. 493 ; Raymert v. Smith, 5 Cal App. 380, 90 Pac. 470; Ex parte Kearney, 7 Wheat (U. S.) 38, 5 L. Ed. 391; Gompers v. Bucks Stove Co., 221 U S. 418, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A., N. S., 874n." Tuttle v. Hutchison, 173 la. 503, 151 N. W. 845, 851. Where either of two injunctions prohibiting defendants from selling, etc., intoxicating liquors, is good, and its provi- sions broad enough to cover the act charged against him on an information for violation of such injunction, he is guilty of contempt for the violation of either. State v. District Court, 176 la. 178, 157 N. W. 737. In contempt proceedings for violation of two decrees of injunction prohibiting defendant from selling, etc., intoxi- cating liquors, where the provisions of the two decrees are the same, they should be treated as one decree. State v. District Court, 176 la. 178, 157 N. W. 737. Knowledge or Intent. If landlord of hotel knew that soft drinks were to be served and did not know that intoxi- cating liquors were to be served, she was not criminally lia- ble for contempt by violating injunction against sales of in- toxcating liquors; but, if she knew that a drink called "malta" was to be sold and it was in fact intoxicating, she was criminally liable, though she thought it was a soft drink. Nies v. District Court (la.), 161 N. W. 316. Trial by Jury. In a contempt proceeding under the North Dakota Prohibitory Law, the party charged with con- tempt is not entitled to a trial by jury. State v. Markuson, 5 N. D. 147, 64 N. W. 934. S. C., 7 N. D. 155, 73 N. W. 82, reaffirmed. State v. Finlayson (N. D.), 170 N. W. 910. 198 TITLE II SEC. 24 OF ACT Allegations of Petition. Where, upon a bill alleging that defendant was engaged in the sale of intoxicating liq- uors, a temporary injunction was issued enjoining defend- ant from further engaging in the sale of liquors, from mov- ing or disturbing his stock of liquors and bar fixtures, or from entering the barroom of his building and interfering therewith, a petition for an attachment for contempt, charg- ing that he had continued the sales of intoxicating liquor in willful disobedience of the injunction showed a viola- tion of the injunction; it not being pretended that defend- ant supposed himself to be charged with selling liquors at any place other than his barroom. State v. Ragghianti, 129 Tenn. (2 Thompson) 560, 167 S. W. 689. Dismissal. In contempt proceedings for violation of two injunctions against the sale, etc., of intoxicants, where the court sustained the motion to strike the first count of the information setting out the first injunction, and the other injunction was void and not sufficient to cover the acts charged, the entire case must be dismissed. State v. District Court, 176 la. 178, 157 N. W. 737. Evidence Grand Jury Minutes. Where the defend- ant was enjoined from selling, or keeping for sale, intoxi- cating liquor contrary to law and was later indicted by the grand jury for keeping a liquor nuisance for a period, seven months of which antedated the injunctional decree, on an information for contempt of the injunctional decree, the minutes of the testimony taken before the grand jury could be considered in order to fix the time of the contempt when it was claimed offense was committed to which the defend- ant had pleaded guilty. Orr v. Cornell (la.), 156 N. W. 296. Kind of Beverage. In a prosecution for contempt by violation of injunction against illegal sale of intoxicating liquors, evidence that a beverage called "malta," and sold by defendant contained a very small percentage of alcohol, is immaterial, since under the statute it is "intoxicating liquor" if it contains any alcohol. Nies v. District Court (la.), 161 N. W. 316. TITLE II SEC. 24 OF ACT 199 Sufficiency of Showing of Contempt. On informa- tion for contempt of an injunction decree against selling and keeping for sale intoxicating liquors contrary to law, an indictment by the grand jury for keeping a liquor nui- sance for a period, seven months of which antedated the decree, would not alone be sufficient to justify a commit- ment for contempt of court for violating the decree. Orr v. Cornett (la.), 156 N. W. 296. Where a druggist was enjoined from illegally selling in- toxicating liquors, and his place of business was described in the injunction, and the druggist sold his business, but re- mained as a clerk, a personal selling of intoxicant is a vio- lation of the injunction, rendering him liable for contempt. Rust v. District Court, 162 la. 244, 143 N. W. 1086. State v. Kurent (Kan.), 184 Pac. 721. Liability of Husband of Owner of Premises. In prosecution for contempt by violating injunction against illegal sale of liquors, the husband of the owner of the premises, indicted with her, who merely assisted in install- ing apparatus for vending soft drinks, but who further re- sisted raiding officers and denied them entrance, is in no essentially different position than had he himself secured the intoxicating liquors and was keeping them with intent to sell them. Nies v. District Court (la.), 161 N. W. 316. Liability of Servant. A servant is not presumed to know of an injunction which affects his master's title in and to his master's property or which affects his master's right to the use and occupancy of his property for the sale of liq- uor so as to be liable for a violation of the injunction. Harris v. Hutchison, 160 la. 149, 140 N. W. 830, 44 L. R. A., N. S., 1035. Servant Not a Party to Suit. One not a party to a suit resulting in an injunction restraining third person from maintaining a liquor nuisance on premises and perpetually restraining the use of the premises for the traffic in intoxi- cating liquors, and without knowledge of its issuance, is not 200 TITLE II SEC. 24 OF ACT guilty of contempt for a violation of the injunction for sell- ing liquor on the premises as a servant of the third person. Harris v. Hutchison, 160 la. 149, 140 N. W. 830, 44 L. R. A., N. S., 1035. Same Acts as Contempt and Subject of Criminal Prosecution. In a contempt proceeding for the violation of a decree enjoining the sale of intoxicating liquors and the maintenance of a nuisance at a certain place, the de- fendant may be punished for sales of liquor and for acts done in maintaining a nuisance, although a criminal pros- ecution is pending against him for the same sales and acts. State v. Kurent (Kan.), 184 Pac. 721. Defenses. Where one accused of violating injunction restraining illegal sale of liquors had previously been en- joined under a permanent writ, his interposing to a charge of contempt the fact that the injunction should not have been granted, is a purely collateral attack upon the injunc- tion and of no avail. Nies v. District Court (la.), 161 N. W. 316. Appeal or Certiorari. In contempt proceedings for violation of an injunction pendente lite against a liquor nuisance, issued ex parte on an allegation in the complaint, on which issue has not been joined, that defendant was the owner or manager of the place, the order for injunction cannot be taken on certiorari, as adjudication of the fact alleged. State v. District Court, 54 Mont. 580, 172 Pac. 539. TITLE II SEC. 25 Unlawful Possession Search and Seizure Warrants- Property Subject to Seizure "Private Dwelling." SEC. 25. It shall be unlawful to have or possess any liquor or property designed for the manufacture of liq- uor intended for use in violating this title or which has been so used, and no property rights shall exist in any such liquor or property. A search warrant may issue as provided in Title XI of public law numbered 24 of the Sixty-fifth Congress, approved June 15, 1917, and such liquor, the containers thereof, and such property so seized shall be subject to such disposition as the court may make thereof. If it is found that such liq- uor or property was so unlawfully held or possessed, or had been so unlawfully used, the liquor and all prop- erty designed for the unlawful manufacture of liquor shall be destroyed unless the court shall otherwise or- der. No search warrant shall issue to search any pri- vate dwelling occupied as such unless it is being used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose such as a store, shop, saloon, restaurant, hotel, or boarding house. The term " private dwelling" shall be construed to in- clude the room or rooms used and occupied not tran- siently but solely as a residence in an apartment house, hotel, or boarding house. The property seized on any such warrant shall not be taken from the officer seizing the same on any writ of replevin or other like process. Ex Post Facto Legislation. A statute making it un- lawful to have possession of intoxicating liquors for sale in force from and after April 1, 1913, and ratified March 3, 1913, is not objection as ex post facto when applied to 202 TITLE II SEC. 25 OF ACT the findings of liquor in the possession of accused April 17, 1913, in the absence of anything to show that the liquor was acquired prior to the ratification of the act. State v. Denton, 164 N. C. 530, 80 S. E. 401. Intent. "The old rule that criminal intent must accom- pany a crime is still the law, even as to liquors, so far as we have been able to ascertain. There must be actual or constructive intent to do the thing which constitutes the crime; otherwise there is no criminal act. If it can be said that the liquor in this case was in the possession of the de- fendant merely because it was in his shop, when he did not know it, stilj such possession, not being conscious, was not actual and intentional possession, as contemplated by the statute." Jackson v. Gordon (Miss.), 80 So. 785. The chief element in the offense of storing alcoholic liq- uors is the unlawfulness of the storing the intent of him who has the liquor. State v. Tooley, 107 S. C. 408, 93 S. E. 132. Presumptions and Inferences of Law. The pre- sumption raised by statute that intoxicants found in one's possession are held by him for an illegal purpose, applies to hotel keeper who kept liquors in his private room in hotel ; exceptions as to private dwelling house contained in such section not applying. State v. Marquardt (la.), 169 N. W. 338. In a prosecution for storing alcoholic liquors, the court may not infer as matter of law that the discovery of a very small quantity of liquor in defendant's safe on three sep- arate occasions within a period of six months did not amount to storing. State v. Tooley, 107 S. C. 408, 93 S. E. 132. Ownership of Premises. Under a statute providing that the keeping of prohibited liquors or beverages in a building not used exclusively for a dwelling shall be prima facie evidence that they are kept for sale etc., it is not es- sential in order to raise the statutory presumption to prove, TITLE II SEC. 25 OF ACT 203 in prosecution for violation of the prohibition law, that the accused owned, or even had legal possession of, the build- ing in which liquors were kept. Stout t-. State, 15 Ala. App. 206, 72 So. 762. There is a presumption against any one whose property is found employed in violation of liquor laws that such prop- erty was engaged with owner's knowledge. State v. Southern Exp. Co. (Ala.), 75 So. 343. Quantity Immaterial. If defendant's act in storing liquors be unlawful, a court will not measure with nicety the quantity defendant had in his safe. State v. Tooley, 107 S. C. 408, 93 S. E. 132. Possession What Constitutes. Where defendant gave a public drayman a check for a trunk and instructed him to get it, and take it to a certain place, and paid him therefor, and it was seized while in the drayman's posses- sion and found to contain more than one gallon of whisky there was such a possession by defendant as to make out a prima facie case against him. State v. Lee, 164 iN. C. 533, 80 S. E. 405. Where a statute makes it unlawful for any person, other than licensed druggists and medical depositories, to have in possession for purposes of sale any liquors, and makes the having in possession of more than one gallon at a time prima facie evidence of violation of the section, and three barrels, each containing 40 pint bottles of whisky, con- cealed with potatoes, addressed to defendant, were seized while in the care and custody of the railroad carrying them to him by his consent and procurement, it was held that he was in "possession" of such whisky within the statute. State v. Blauntic, 170 N. C. 749, 87 S. E. 101. Possession by Agent. Under statute of possession of liquor by defendant's agent is a possession by defendant. Hoskins v. Commonwealth, 171 Ky. 204. 188 S. \V. 348. 204 TITLE II SEC. 25 OF ACT Where defendant receipted for whisky, and directed the express agent how to dispose of it, the expressman became his agent, so that, for the purpose of a prosecution for having possession of whisky for sale in local option terri- tory, the whisky came into defendant's possession. Combs v. Commonwealth, 162 Ky. 86, 172 S. W. 101. "In Own Home." In a statute providing that nothing in the act shall prevent one "in his own home" from hav- ing and giving to another ardent spirits, the words "at his home," mean anywhere within the curtilage, the cluster of dwelling houses used by the family as a habitation, as de^ fined from time immemorial, and the words "in his own home," "in his home," and "permanent residence of the person and his family," have substantially the same mean- ing. Bare v. Commonwealth, 122 Va. 783, 94 S. E. 168, 169. Locked Boom in Public Building. The keeping of liquor in a room on the first floor of a building used as a public resort, surrounded by rooms open to the public, is prohibited by a statute making it unlawful to keep any liquor in any room, building, or structure other than a pri- vate residence, not used as a place of public resort, though the room in question was locked. People v. Wheeler, 185 Mich. 164, 151 N. W. 710. Mere Possession Not Illegal unless So Declared. Under a statute providing that after November 1, 1916, it shall be unlawful for any person to manufacture, trans- port, sell, keep, or store for sale more than a gallon of in- toxicating liquor, the mere keeping of liquor is not illegal, but to constitute the offense it must be kept for sale. Pine v. Commonwealth, 121 Va. 812, 93 S. E. 652, 654. Mere Possession at Private Residence Not Unlaw- ful. Under a statute which in Sec. 1 provides that it shall be unlawful for any person to sell, keep for sale, give away, or furnish any intoxicating liquors, etc., or to keep any place where such liquors are sold, stored for sale, given away, or furnished, and Sec. 38 thereof, providing that TITLE II SEC. 25 OF ACT 205 the keeping or having in any house or building, except a private residence occupied as such, of any intoxicating liq- uors, for the purpose of selling, giving away, or furnishing to those frequenting the place, or others, shall be held to be the keeping of a place where intoxicating liquors are sold, furnished, or given away, it is held, that section 38 does not make it impossible to commit the offense of keep- ing a place where intoxicating liquors are stored, given away, and furnished in a private residence, since the two sections should be read together, and, when so read, if the offense is shown to have been in a private residence, some- thing more must be shown than the keeping or having any of the liquors mentioned in section 1. People v. Lester, 195 Mich. 477, 162 N. W. 72. "Keeping" Construed. Liquor Law, rendering ille- gal the "keeping" of intoxicants, uses the word "keeping" as synonymous with having in possession, being in control, though the term as sometimes used implies a continued possession. Balfe v. People (Colo.), 179 Pac. 137. "Place of Business" Construed. A place of business within the prohibition law, is a jpublic place of business, not in the sense that it belongs to the public nor that there is any great degree of publicity, but that it must be a place to which the public is invited either expressly or t>y implication to transact business ; and by "public" is meant that the pub- lic is invited to come to it and has access to it for a purpose within the scope of the business that is carried 'on. Brocks v. State, 19 Ga. App. 3, 90 S. E. 989. "Presumptively, a 'pressing club,' where clothes are pressed for a monetary consideration, is a 'place of busi- ness,' where the public are invited, at least impliedly, to come and transact business with the owner or manager, and ac- cordingly it is such a public place of business as is con- templated in the statute, which forbids the keeping on hand at one's place of business intoxicating liquors. Roberts v. State, 4 Ga. App. 207, 60 S. E. 1082 ; Jenkins v. State, 4 206 TITLE II SEC. 25 OF ACT Ga. App. 859, 62 S. E. 574; Land v. State, 5 Ga. App. 98, 62 S. E. 665." Jones v. State, 17 Ga. App. 118, 86 S. E. 284. Pool Room as Public Place. "A poolroom frequented and used by the public is a 'public place,' within the mean- ing of the prohibition statute. The phrase 'public place,' as used in the prohibition law, by a broad, general, and not wholly exhaustive definition, includes any place which, from its public character, members of the general public frequent, or where they may be expected to congregate at any time as a matter of common right; also any place at which, even though it is privately owned or controlled, a number of per- sons have assembled, through common usage or by general or indiscriminate invitation, express or implied. Tooke v. State, 4 Ga. App. 495, 61 S. E. 917, 918." Griffin