State v. Sandman

Defendant was charged with having in possession for sale, for nonbeverage purposes, without a permit from the proper federal authorities, certain intoxicating liquor, to wit, extract of Jamaica ginger, a medicated liquid containing more than one-half of 1 per cent, of alcohol by volume,, and fit for use for intoxicating beverage purposes.

Defendant is a druggist; and the liquid possessed by him was “tincture of Jamaica ginger,.double strength,” prepared in accordance with the formula prescribed on page 469 of the United States Pharmacopoeia, and .put up in packages (vials) of 2 fluid ounces each.

It contains 92 per cent, of alcohol, and the trial judge found as a fact that it was fit for use for intoxicating beverage purposes.

He also found as a fact that defendant had no permit thprefor from the proper federal authorities, and accordingly defendant was found guilty, and appeals.

I.

Section 1 of Act 39 of 1921, p. 43, provides, inter alia, that:

“No person shall manufacture, sell * * * or possess intoxicating liquors * * * for nonbeverage purposes, unless he shall be the holder of a legal permit therefor from proper federal authorities.”

And section 8 thereof (as amended by Act 57 of 1924, p. 93) defines intoxicating liquors as including,’ inter alia:-

“All .alcoholic liquids either medicated, proprietary or patented, containing one half of one per centum or more of alcohol by volume, which are fit for use as a beverage or for intoxicating beverage purposes.”

II.

In March, 1924, the Treasury Department of the United States government (bureau of Internal Revenue, Prohibition Unit), which is the proper federal authority in such matters, issued its (latest) Bulletin of Regulations (No. 60) “Relative to Intoxicating Liquor,” and sections 810, 811, pp. 82, 83 of those' Regulations, provide as follows:

“Sec. 810. Medicinal preparations. The U. S. P. (United States Pharmacopoeia) and N. F. (National Formulary) preparations named *453 below are held to be fit for beverage purposes (including inter alia tincture 'of ginger), * * * and may not be sold, * * * possessed or used for beverage purposes, but may be sold, etc. (for nonbeverage purposes) only as specifically authorized in thesé regulatións with respect to other intoxicating liquors. * * * [Italics ours.]

“Sec. 811. * * * An alcoholic extract or tincture of ginger made in accordance with the process described on page 469, Ninth Revision, of the U. S. P., will be classed as unfit for use for beverage purposes, provided the quantity of ginger root used is as follows: Jamaica ginger No. 30 powder, 400 grams to make 1,000 milliliters. [Italics ours.)

“The sale of double strength extract of Jamaica ginger, last described, in a quantity greater than 2 fluid ounces at one time to the ultimate consumer, shall be deemed ground for action under the National Prohibition Act (41 Stat. 305) or the Willis-Campbell Act. [Italics ours.]”

Prom which it will be seen that the “proper federal authorities” class simple tincture of ginger as fit for beverage purposes, and therefore to he sold or possessed only on permits issued in accordance with the aforesaid regulation; whilst, on the other hand, they class double strength tincture of ginger as unfit for beverage purposes, and hence requiring no permit for the use or possession thereof, although the sale of more than 2 fluid ounces at one time to the ultimate consumer will be deemed (in effect) a sale for beverage purposes.

III.

In so far as the trial judge found as a fact that double strength tincture of ginger is fit for use for beverage purposes, he was acting clearly within his province as the tribunal charged with the finding of facts; and the finding- of no federal authority, or other authority whatever, on that subject, is (or can be) of any weight against his finding. Por—

“Whether concoctions, tinctures, extracts, essences, etc., in drug store, be or be not fit for use as beverage or for intoxicating beverage purposes, is question of fact which the Supreme Court will not review.” Per St. Paul, J., in State v. Stewart, 157 La. 494, 102 So. 584, syllabus 7.

IV.

On the other hand, the question whether or not defendant has a permit from the proper federal authorities to sell or possess a liquid which those authorities class as unfit for beverage purposes, and therefore require no special permit in connection with the sale or possession thereof for nonbeverage purposes, is not one of fact, but one of lato.

And in our opinion the classification of a liquid by the proper federal authorities as being unfit for beverage purposes, and hence not subject to their regulations, - amounts to a general permit to sell and possess such liquid for nonbeverage purposes without further formality.

.V.

In State v. Stewart, supra, this court held (per Rogers, Land, and Thompson, JJ.) that:

“Mere possession by a druggist of well-known medical preparations containing alcohol does not make him liable under Act No. 39 of 1921, §§ 1, 3, for unlawful possession of intoxicating liquors for beverage purposes, but if he sells or deals in such a compound for use as a beverage, he is guilty of illegal possession for sale for beverage purposes.” Syllabus No. 1.

This is in accord with the views hold by the Supreme Court of Mississippi. See Young v. State, 102 So. 161, 36 A. L. R. 717, wherein that court quotes with approval from the illuminating opinion of the Supreme Court of Kansas, by Mr. Justice Brewer (afterwards Associate Justice of the Supreme Court of United States) in the Intoxicating Liquor Cases, 25 Kan. 751, 762, 37 Am. Rep. 284, and then concludes as follows:

“If it should now be held that Jamaica ginger prepared in accordance with the United States Pharmacopoeia is an intoxicating liquor per se, it would result in making every person who had manufactured drugs containing enough alcohol to intoxicate a felon. It would make every person who sold it guilty of *455 selling intoxicating liquors, and it w4uld make every person who had these medicines in his house or possession guilty of a misdemeanor. We cannot believe that the Legislature intended so drastic a situation. The evils intended to be prevented were the evils of intoxication. If a person sells a medicine as a beverage, he may be punished for so doing, but, as long as it is lawful to sell a medicine, it cannot be a crime to have possession of it.”

YI.

As pointed out by Mr. Justice Brewer in the Intoxicating Liquor Oases, supra", there is an infinity of medical, scientific, mechanical, 'toilet, culinary, and similar- preparations, containing' a high percentage of alcohol, and even capable of being taken to produce intoxication, and yet not generally so used, or considered fit to be so used. And hence the proper federal authorities require no special permit to sell' or possess such ■preparations, because they also consider them unfit for beverage purposes.

To hold -that one who deals in good faith in such preparations without a special federal permit is guilty of violating the stkte law would be to give to our prohibition statute a scope which the Legislature never intended, and put it in the power of a prosecuting officer to close every drug store, toilet shop, barber shop, grocery store, etc., which had not provided itself with a federal permit to sell wMslcy, etc., “for nonbeverage purposes.” And we are of opinion that the Legislature intended no such results.

In State y. Stewart, supra, this court went to the full extent of the law in holding that it would not, and could not, interfere. with 'a finding of fact by a trial judge that such-preparations had been sold for leverage purposes, and were fit for use as a leverage.

But when the state itself charges that a • defendant possesses such preparations for sale only for nonleverage purposes, and the proper federal authorities permit such possession and sale yfithout further formality, we cannot hold that our statute intended none the less that the possessor of such preparations should procure a permit, as though he were dealing in liquors which are admittedly fit, and widely used, for intoxicating purposes.

In other words, we cannot hold that our statute intends that one who means to deal only • in such preparations as the federal authorities consider unfit lor beverage purposes, and therefore require no permit in respect thereof, must nevertheless obtain from said authorities a permit to deal in something other and different, Or else find himself violating the law. ' That would not be common sense, and therefore cannot be sound law.

Our conclusion is that the defendant has violated no law of this state.

Decree.

The judgment appealed from is therefore reversed and set aside, and it is now ordered that the defendant be discharged.