808
FEnERAL REPORtllR, vol. 51.
rather a notification than a threat such as is intended by the statute. This is not the case of a 'collecting agency that has its cards or envelopes l>rinted in such a way as to make a display to attract attention, and thus proclaim that their correspondents are delinquent debtors, as in the case of U. 8. v. Brown, 43 Fed. Rep. 135. Neither is the present case eX7 that of U. 8. v. Bayle, 40 Fed. Rep. 664. In that case the amoautdue was only $1.80, and on the 18thof April, 1889, the debtor, Greh;'wtls sent a postal card, in which he was reminded· of the debt being Plu:i't due, and that he had been called up'on several 'times for payment, and the statement then made, "If not paid at once, we shall place with our law agency for collection;" and dl:J.Ys afterwards, May 1, 1889, another postal was, i.n substantially the same language, sent. The smallness of the debt, and the sending a second time substantially the same card, may have induced the leax;qed court to believe the mail was being used for the mere purpose of publishing d!l\>tor's delinquency. The case is not, therefore, quite in point to ,the ope at the bar. I, however, cannot concur in the reasoning or the conclusion of the able court in that case. The demurrer should be sustaiped, and it is so ordered. '
(Dfstrlct:CoUrt, W. D.Arkansa8. July 8,1892.). _:.. Section 2189, Rev. St" prpv,ldes that "every person who * * * introduces, or at, tempts to introduce. any sPIrit'uous liquors or wine into the Indian country shall be " 'punishable," etc. According to the true sense ofthewords "spirituous liquor," as used in this statute,lllgel1,peer is comprehended by its terms, and it is spirituous liquor, and its introduction into the Indian country was intended by the statute to be prohibited, and the ,words "spirituous liquor" are comprehensive enough to embrace lager beer. , It is true there can h'e constructive"ot'fenses, and penal laws are to be con",': struad strictly; yet they are not to be construed so strictly as to defeat the obvious intention of the leg-islature. The true rule in the construction of all statutes is to search 'out and follow the true intent of the legislature, and to adopt the' sense of the words which harmonizes best with the context, and. promotes in the fullest manner the apparent policy and objects of the legislature. Courts, in the construction of penal statutes. will give them a fair and reasonable construction, according to the legislative intent expressed in the enactment.. Tl:tey will, upon the one hand, refuse to extend the punishment to cases which are not clearly embraced in them, and, on the otber. will' equally refuse, by any mere verbal nicety, forced constructions, or equitable interpretation, to exonerate parties plainly within their scope. (SytlabU$ by the Oourt.)
··lo.· IN'-'RODUOING
LIQUOR IN.'I!O JNPIAN COUNTRy-LAGEIt BEEIt.
2·. CONS'fRUOTION
Oll'STAT1l1ES-PENAL LAWS,
no
At Law. John Ellis was innicted for introducing liquor into the )l,dian country. .' . '. , 'Wm. H. H. Clayton, U. S. Dist; 4\.UY. Frederick & Rutheiford and J. B; Forrester, for defendant
UNITED STATES
'I).
ELLIS.
809
PARKER, District Judge, (orally charging the jury.) The indictment in this case that the defendant on the 1st day of January, A. D! 1892, in the Choctaw Nation, Indian country, within the western district of Arkansas, did then and there unlawfully introduce into the Indian country, in aaid district, spirituous and intoxicating liquors, to wit, 10 gallons of lager beer, contrary to the form of the statutes, etc. The indictment was drawn under section 2139 of the General Statutes of the United States, which provides, first, "that no ardent spirits shall be introduced under any pretense into the Indian country;" "that every son who sells, exchanges, gives, barters, or disposes of any spirituou:;l liquors or wine to any Indian under the charge of any Indian superinr tendent .01' agent, or introduces or attempts to introduce any spirituou3 liquor or wine into the Indian country, shall be punishable by onment," etc. This statute was enacted on the 9th day of July, 1832, -60 years ago day after to-morrow, if I am not mistaken. It is a seer tion of the law that, in my judgment, is to be construed in the light of contemporaneous history,.in the light of the condition of things th611 and the condition of things now. In order that we may get at the pose,oL,tbe congress of the United States in enacting this statute,an<l that we may interpret-not construe-the words used, (because Ido not think there is any grQund for construction, but that it is simply question of interpretation that arises out of the statute,) we have the right to apply the rules that are prescribed by the highest court of the country to be used in the interpretation, or construction, if you please; of statutes. In the first place, as I said to the grand jury, (and I have a right to tell you this, because it is a matter of public history, and therefore.a matter that the court takes judicial notice of,) one of the great objections on the part of these people to being removed from their homes in the older states, where there was a higher civilization surrounding them than there would be out in this then wild country, was that it was a frontier country,-a country that had to be settled by the pioneer,-where police regulations were not so effective as they would be in older states; and that caused them to ask that the gov. ernment of the United States should pledge them security and protection in their new homes, if they consented to go. Intoxicating liquor was one of the things that they recognized as the greatest evil to them and their people; and that this court takes judicial notice of, because it is 11 part of public history; one of the greatest evils, I say, be.. cause it has swept whole tribes out of existence. There are a few left of the Delaware tribe up in this Indian country. That tribe was at one time one of the most powerful people of that race upon the continent, and they have been swept out of existence to a great extent owing to the use of intoxicants brought to them and given to them in order to stell,l from them their rights by the white men. There is now left of that powerful tribe of people ouly about 400. The wise and good men who were the leaders of these Indian people knew the baneful influence of this destructive power of drink, and they asked that the government of the United States should not only say in its treaties that they should, be
SIb
FEDlll:RAL REPOR'rER.
vol. 51.
pfdtected;'..:-they and' tbeiryoungmen, and their thatlaws'should beebacted making it a penalty upon the part of the white, Dian,' or the' Indian man, or any other man, to introduce into that country 'that which wOidd'destroy them. And my Brother KNOWLES is right'wh"en;ihe says itlthij Montana case, In re McDonough, 49 Fed. Rep. 3BO, thlit the manifest purpose of this sfatute was to prevent intoxication.' <Uthat position be correct, wahave the key which opens the way to' theleorrect interpretation of thislaw. Wherever we may find that whicb.produces intoxication, if that substance comes within the definitilln'Hf'spirituous liquors, we have that which has been prohibited, and been said by the'statute shallnotbeintroouced. The words ICatderit"and "spiritlious!> are used indiscriminately as having the same If not, the section becomes nonsense. Wh)' would' the congresS of ,the United Stlites'expressly prohibit for any purpose the introardent spirits 'into this Indian. country, and fail-to provide a penalty lIS ,to any other 'class of liquors that did not comprehend ardent spirits? "That would be foolish. We are never to construe a law as it ca:nbifavoided, but we are, ratber, to construe all of having foMe. There is 'bo trouble about the rule for the of statutes,: The supreme court of the United States, almost every year of its existence, !has badtbat question before it. and very recentlyif has given us rnIes for the interpretation not only of ordinary statutes,but penal statutes as well. Then, manifestly,if the object inby this statute wMto prevent tbe destruction of Indians by drunkwell as to prevent tbe commission ofcrimes which invariably folJow consequence of drunkenness and debauchery ina country where the}Jolieeregulations are limited, it should be construed so as to give effect to the object designed, and to that end all its provisions must be examined in the light of surrounding circumstanceB. This has been declared to be the correct rule of construction laid down very in the case of In re ROBa, 140 U. S. 453, 11 Slip. Ct. Rep. 897. This whole doctrine with regard to the construetion of statutes, and especially penal statutes, has been laid down by the supreme court of the United in the ease of U. S. v. Lach(Jf', 134 U. S. 624, 10 Sup. Ct. Rep. 625, wherein it is' said: .. As contenrled on behalf ot the defendant. there can be no constructive oft'enses, and; before a man can be punished. his case tnustbe plainly and un· mistakably within the statute. But though penal laWs are to be construed strictly. yet the intentwn of the legislaturtl must govern in the ('onstruction of penal as well as other statutes, and they are not to be construed so strictly as to defeat. the Qbviou!l intention of the It'gislatllre. U. B. v. Wiltbe1·ger. 5 Wheat. 76j U. B. V.'Mo1Ti"'. 14 Pet. 464j Ame1'ican Fur Co. v. U. B.· 2 Pet. 358; 367. 'It appeilrs to me,' said Mr. Justice STORY. in U. B. v. Wi1tn.3 Sumn. 209. 211.' that the proper course in all these cases is to search ,out and follow the trlletntient of the legislature. and to adopt that sense of the words, whichhal'mouizes best with, the context, and promotes in the policy and objects of the legislature.' .. fullest manner the The object of the :statlltecertainly was to prevent drunkenness, and to protect these }Jeopleagainstdrunkenness and debauchery, such as you
v, ELLIS.
811
have heard described by the witnesses in this case·. and such as come to the knowledge of this court and this jury as having produced death in that country within the last 10 days in more than one case. The manifest purpose of the legislature was to prevent this. "To the same effect is the statement of Mr. Sedgwick. in his work on Statutoryam! Constitutional Law, (2L1 Ed.) 282: · The rule that statutes of this class are to be construed strictly is fal' from being a rigid or unbending one; or. rather. it has in modern times been so modified and explained away as to mean liltle more than that penal provisions, like all otherR. are to be fairly construed according to the legislative intent as expressed in the enactment; the courts refusing, on the one hanll. to extpnd the punishment to cases which are not clt'arly elll hracl·d in them. and. on the other, equally refusi ng, by any mere verbal nicety, forced construction; or equitahle interpretation, to exonerate parties plainly within.their seope.' This is quoted by Baron BRAMWELL in Attomey Genel'al v.l$illem. 2 Hurl. & C. 532, as one · in which good s..nst'. force, and propriety of language are equally conspicuous. and which is aluply borne out by the authoril iell. English and Aml'l'ican, which he cites.' Folell v. Fletcher, 28 Law .J. Exch. 100. 106; Nicholson v. Fleld!;, 31 Law J. Exch. 233; Hardc. 8t. Law. p.251. And the reason fill' the less rigorous application of tht' rule is well given in MaXWell on tht' lllterpretation of ::;tatuteR. (2d Ed.) p. 318. thus: · The rule which requires that penal and sOllie other statutes shall be con!ltrned strktly was more rh,:orously applied in former times, whE'n the number of capital otfpns..s was one hundred lind sixty or mor!'. when it was still punishalJlt' with death til cut down a cherry tree in an orchal'll, or t.) be set'll for a mOllth in the cOlIJpany of Ilypsies. But It has lost muc'h of its force and importance in rpct'nt timps. sillce it hall become morl' anti more re!'o/(nizedthatthe paraillollnt duty of the judicial interpreter is to Pllt upon the lauguagt' of the legislature, hOlll'stly and faithfully. its plaill and l'atioll;il nwaning', aud to prolllnte its object. It was founded, hllwever. nn the tenclemess nf the heW fill' the rights of indivi.luals, and on the sound principle that it is for the legislacnre. uot the cllurt, to define a crime and ordain its pun.shment,''' U. S. v. Lacher. Sltpra. These are the rules. and the COrrE'et rules, that bear on the subject of tbe construction of statutes, or their interpretation. The queJOtion now comes up whether or not this statute is capable, reasonahly and rationally, of such interpretation as to make the words "any spirituous liquors" include thnt which produces intoxication, called "lager Leer." The evi,lence in this case which is not contradicted shows certain elementary things that I1re necpssury to nlake out an offense, The prool shows that the defendantrecoived large quantities of this lager beer; that from the eddl'llce he was apparently an u!!,ent for its reception. Under the law requiring certain thin s to exist to makea man guilty of violating this statute against the introduetion of liquor it is contemplate!] that. if a part)' goes out llnd gets spirituous liquors, and takes them into that country, that is a violation of the law by his direct act; if he sends out and gets them, and they are sent in to him on his order, that is a ease where he is a party to the direct act of introduction, and is as much responsible liS though he had done every act connected with the introduction; as much responsible as though he had gone out lind got it and cllrried it in with his own hands. If he is the agent there for the reception of it, and knowingly receives. it when it is sent in by 8ome-
812
FEDERAL REPORTER,
I
body else, he iSethen a particeps criminis to the act ofintroduction; he is responsible for consequences attach under the law to an act of tha.t kind. If the evidence in this case shows that this defendant received beer in quantities there from the outside, it was sent to'him, and he received it from the,car shipped in, yon have the right to presume that he did it knowingly; that he received it because he made the order for it. ;'You have a right to presume, further, from that state of facts, men, that the,act of introduction was his actas well as the nc.tof the shipper on the (jutside, and as well as the act of the rltilroad which took it in there. They are all responsible under the 'rbe cars that carried this beer into that country, under the laws of the United States, are811bject to confiscation, and the m:an who managed that car which brought in this beer in question'is subject to the statute, and the man ,in St. whoe,:er he may be, under the .law, as anmtr9puGer, If the word ",beer" be of this statute. Then ,the defendant, jfhe occupies that"rll!l:ltion to lager beer, and it is a su batance that com,es within this sta,t:iltllj is a party who has introduced, and he would be a party who has the law. ' The;quesHon comes up as to whether or not this' article is embraced expression. There is a difference of opinion among the Gourts-rand respectable courts, too-as to the meaning of these words, that'otiginated, in my judgment, from considering the kind ofspiriti; wi:thfreference to the method of making these different intoxicants rather than#Hbelr qualities.. This statute, if it means anything' that was inten4ed ,to.effectuate any purpose that was good in its tendencies, cer,intended to prohibit that which wouldbe which to be a preparation made by fermentawould intoxicate. Beer .is tion, which contains alcohol. Alcohol, by the definition of :Mr. Webster; ia that which may be called a "spirituous quality." It is the spirituous quality of whatever s\il'bstance it is in; Beer is thus defined: "An alcoholic liquor made from any farinaceous grain, but generally from barley,whichis first malted and ground,and its fermentable substance extracted by hot water.'" 'Cent. Diet. 503. It is defined as an article that contains alcohol. Lager beer is so called because it is contemplated that it has been stored sometime after bein!1.: made. The material questionunder the statute is whether or not it is intoxicating. If it produces that result, according to my construction of this law, taking into I!ontemplation its purpose, the reason for its enactment, the condition to which it was intended to apply , it comes within the definition of the which Mr. Webster says means having an active word power or property; and, as used in this statute, I think it means having an active power or principle of intoxication. This court has always held tlhat whisky, brandy, beer i and wine, or anything that had the spiror intoxicating principle in it, or any substance of which it was a Ibart, so that when it was used in that country as a beverage it would produce that result, came within the provision of this statute; and the position of the court in the construction of this statute is borne. out by
UNITED STATES 'V. ELLIS.
813
the opinion of the very able jilrist who delivered the opinion in the North Carolina case, where a statute of like words was construed, where the words of the statute were precisely similar to the words used in this statute,where that court, after deliberation, after reasoning on the case, ancI after comprehending the condition that was in existence where this beer was attempted to be sold, the people of North Carolina having the power to establish prohibition if they saw proper, as we have in this state, and it seems that they did establish it, and the language of the statute giving them the power to establish prohibition was exactly the language of this statute in question. It prohibited the sale, without the consent of the people, of any spirituous liquor. This statute does the same thing; it prohibits the introduction into the Indian country of any spirituous liquor; and I say that court in North Carolina took into consideration the condition there that was sought to be changed, and construed or interpreted the meaning of this statute, arriving exactly at the same conclusion this court does. It is a case that is well reasoned. It is a case that shows where these gentlemen who have arrived at an oppositeconclusion have fallen into an error; and the error arises from the fact thlltthey conclude that to make a spirituous liquor you must distill it, when the word "spirituous" does not mean,any such thing as that. It is defined as a liquor that is ardent; that is, active in its principles,that will produce intoxication. That is the definition given by Mr. Wabater, and that has reference to the quality of the liquor; but when you come to the origin of it, when you come to the method by which it is made, you find that spirituous liquors-liquors having the ardent principle }n them, having the intoxicating principle in them-are sometimes made by distillation, and sometimes by fermentation. The intoxicating principle called "alcohol" is also made, as this judge clearly shows, by fermentation, and it is only separated by distillation from the other qualities or properties. If it be true, then, that the intoxicating principle, or the alcoholic principle, is that which makes it a spirituous liquor, and that it can be made by fermentation, and it exists in lager beer, and the court tells you judicially that it does,-it is a fact, the law says, that may be taken notice of by the. court, that the alcoholic principle is in lager beer,-I say, if it be true that it is produced by fermentation, and that is. the case, then why is it necessary that we should look any further when the article is complete as a spirituous liquor when it contains alcohol? It is not distillation that gives it the spirituous quality. Spirituous means active; it means lively; it means something that will produce active or lively results. It does not mean, necessarily, something that has been run through the worm of a still. To my mind, a definition of that kind is simply ridiculous and absurd, when you consider that fermentation is the process which extracts from the grain-from the malt, from the barley, from the corn, or from what. ever is used-the principle that gives it a spirituous quality,-the prin. ciple that makes it alcohol, the principle that produces intoxication. It is fermentation that does it, and whenever you have a fermented liquor producing alcohol, you have a spirituous liquor, in the sense of that
'I'"
','
."1
statute, an4.,you'have a liquor that is prohibited by this statute, be.cause it produces it produces vices, because it produces crime,and,because, iflet alone, and not rest1"icted" itwill drown out these ,peopiewhom the"gQvernment have sQlemnlytime and again and support 'as against this evil, and all others. promised to I. will now, read to vou in full the North Carolina,'case to which I hava called your '. . '
!'State v. Gier8ch.· [48. E. Rep. 193.J "The defendant, Giersch, wa.s indicted for selling wine l\Oil beer In Raleigh towil8hlp. Wake county. North Cal'olina, when hy'the thtlsale of spirituous,I!'! UOI'S was prohi I.'ited. Giersch had been granted a. license by the county commissioners to st'll vinous and malt liquors.. On the tl'lal th..., court in. struett'd the jury toretllrn a ve1'llid of not gnilty. on thegrounu that wine beer Wt'I'e not spiritllousliquors. The state appealed. , .. J. It appear:l that the sal..., ot spirituous liqnors waq prohihitf'd within HaleiRh township, Within the ('ollnty of Wakt', as pl'oviUed andaUowedby the statllte, (Code, §§ 3110-3116;) that, while th..., slIle of suchliq,uol'$.was so prohibi1t>d, the d,·fendllnt for a price, to a c·'rtain township, onll glass of lager beeI', and also lIue glass of Wine. hoth b..ing intoxi('ating· I1q1lors, an:1 containing alcohol produced hy ft'rmentation.nut by distillati'JD. ,and neither contll,ning any foreign, admixtU1'll of spirltuoI\sllquors; thatat tlte time of such sale the defentlilut had a liCt'ilse granterl to him by the shel'ilf of the coullty nallled, ill pursuauce of an order Dil&deby the cuun1t eummissi"llers of the same county While th..., sal(> of HpiritulluS liquors wa.OJ S(I. prohibited, purportiug 10 allow him to sell vinoJlsand malt liquors within tIle townShip named,. at: the place where the sa!esullmtiont'd were made. The def.. ndant was indicted for so seLing the Iagt'r lIt'el' and wihe mt'nLioned. and plt'ad,'d nut gUilty·. On the trial the jury reudered aspedal verdict, the material facts of which art' ahove set forth. The COllrt, beillg of' the opinion that the salt' of lllg'er heel' and wi ne was Ilot aviolatiun Of tllElstllt lIie MO'l'ruh,biting th sale of spirituous Within ,the towulOhipnarnt'd. directed a verdict of not gullLy to b... t'ntereu, which was entt'red fur tbe defen,laut, 1'1'0111 which done. m/ll :tlte S'!liciloi', for the stalei\p!lealt'd to this cUllrt. Tbe statute. (Cotl... §§ 3110-3116.) liS applit'd in tilis ('lise. prohibits the saIl' of spil':tllou< liqllol'sany spll'itllous 'Wlnot's-within Ral..igh lownship. in the county of Wal,p; and the '(lIlt'Sl Hili preselttt'd fur our-clt'cis on by tht' assignillent of PITOI' in the I'ec01'11 .i:!, what iSuU'ant by tile wOl'ds · spirituous liqnors,' · any spirii 110US liq-·UOI'Rj'/lllllSt'd alld, appli. d in the statute to ht' in terpret..d. anti particularly. does the in hill, tjoll pxtelld to tlit> sale of WI ne ami beerl' It is contended by Ow ('ullnst;ll,or the d,'fenclant that tliese words exterll! to and elllbral'e only distilled spirits.,. On tile other lland. tlie 1Ill0rney gent'ral insists for the state thllt tht'y are. uSl'din a Colli pr"'1t'11si VI.' aud rt'medial st'nse, alld ('mlll'llce 1111 kin()s of illloxicatiog liquors, inclUding wine and lager bt't'r, except in so far wlne'is ,'xpl'essly excepled. 'fhe term 'liquor',' in its most com.p.'eheus, vl"signillcation, impltes till,!') substances. gent:lRil.v, such as wat..r" mW{,. hl(l()il. l!ap, jUice; bllt ill a ulOre lim,tt'd sens.., aud its 1IJ0re common llPIlJirlltion. it implies spirituQl!S fluids. wliether fermenll'd Ill' such as 'brandy, whisky, rum, goin. heel', anti wint'. and a,sod..coctiolls, solutions, tillctlJrell, and th...,llke liuitls, in 'j!reat variety. The term' spirit' or · spirits' 'hiis,a' )lelwral m"Hniilg as applied toliuitls, mostly' ()f a Iightt'r charllct..1' than ordi nary w3ter"ubtailletl but not1 pro.hl,ced hy,distillation, but, as applied p:'r. to liq uors, Lhey sign ify the, the extract. the ,purest sol Ul'i\:lll, spirits, thepU1'1l l/.lcob.ol in them. The spirjt u
UNITED STATES ',' . " '0 . . ' '.
V. ",.'
1:LLrs; ,
815
is really the alcohol in them. ,It is this characteristic, this essential, elpment, thi\t makes Ule!D spirituous, that gi ves to all liquors of what· ever' kind their intoxicating quality and l'ffect. Alcohol-this essentialelement in all spirituous liquors-is a limpid, colorless liquid. To the taste it is hot and pungent, and it has a slight, and not disagreeable, scent. It has but one source. the fel;mentation of sugar and saccharine matter. It comes through fermentation of substances that contam sugar prop!'r, or that con· tain starch, which rna)' be turneu into sugar. .All substances that cHntain eitherstigar start'h, or both, will produce it by fermentation. It is a mistake tQ suppose, as many persons do, that it is really prudueeu by distillation. It is protluced only by fermentation, and the process of distillatlOll simply serves to spparate the spirit-the alcohol-from the mixture, whatever it may be, in whiCh it exists." "
I repeat again that you do not have to have distillation to make ituous liquors. The fact, then, that distillation does not exist in the preparation of this lager beer, is not a material condition to the existence of it as a spirituous liquor. It is not distillation that determines its spirituous character; in other words, it is the quality of the article which is the evjdence of whether it has in it the ardent principle called "alcohol," the spirituous quality that gives it the name of uor. , "That what we have thus said is, in suhstance, true and correct, everyone kn<>ws who is familial' with the terms defined. the nature of alcohol. the method of its production, and who has accurate knOWledge of the esst'ntial elements and qualities of spirituous liquors. ·Spirituous' means containing, partaking of, spirit; having the refined, strong, ardl'nt, quality of alcohol in greater or less degree. Hence spirituous Hquors imply such liqltOrs as above delined,-'as contain alcohol. and thus have spirit,-no matter by what particular name denominated. or in what liqUid form or combination they may appear." What use would it be for the courts of the United States to enforce the' statutes enacted by congress prohibiting that brandy and whisky be introduced into that country, and permit tons and car loads of this material that makes men drunk? It never was intended, never wascontemplated, and there is no forced construction abGut it. When you take the definition of the word "spirituous" liquor as given by this eminent court I have referred' to, you have exactly that which applies sensibly and rationally to the interpretation of that section of the statute in question, taking into consideration the purpose sought to be accomplished by the congress which passed it. "Hence, also, distilled liquors, fermented liquors, and vinous liquors are all alike spirituous liquors. 'l'hpse liquors. respectively, lllay have different degrees of spirit in point of fineness and strength. Distilled liquors be stronger 01' weaker according to the quantity and quality of the alcohol ill them, and so of the other Idnds mentioned. We know from common observation and knOWledge, and it is a generally admitted physical fact. not denied in this case. that lager beer and Wine contain alcohol, and generally in such quautityand degree as to produce intoxication. '1'hese liquors are therefore spirituous, al'ldobviously come within the meaning and are embraced by tlJewords ·spirituous liquors,' as used in ,the statute, unless there is something in the latter that shows that these words were intended to have a more
816
FEDERAL REl'ORT;lj:R,
limited application, and to exclude such beer and wine. The closest reasonable scrtitinyof the statute, its terms. phraseology, connections, and purposes, shows no such narrow application of the words' spirituous liquors' employed in it as t,o .exclude such beer and wine. But we tbink the contrary plainly appears.. 'fbe terms used are, severally and taken together, broad and sweeping, n.otexceptive or limitIng but in a single respect, presently to be mentioned : and the manifest purpose is to prevent and suppress drunkenness, and the attendant evils produced by the free use of intoxicating spirituous liquors. The. terms are J;]ot 'any distilled spirituous liquors,' not' any fermented spirituous but they are' spirituous liquors,' and · any spirituous liquors.' The purpose being obvious, the language of the statute. its wllole, must receive such reasonable interpretation as will effectuate the purpose." obviously the purpose of this statute to keep out of the Indian cOl;mtryliquors which would cause intoxication in that country, and Blroy thfl.·people. It was.to suppress it, to prohibit its being taken in there. Then we are to interpret or construe the statute by that rule of interpi'ehit'ion or construction which would enable us to effectuate the Of those who passed that law. , i;ThisI,s ·the rule of interpretation of constant application to all statutes, wbatefer their nature or pUrpose. Hines v. RaUl'oad 00.,95 N. C. 434. Here there is no need of strained interpretation of terms or phraseology or pUl:p.ose., These. are plai11. easily seen, and, .As we have seen· ·spillituou!lliquors ' embrlliC!llager beer and reaSOll of their nature, and thll effects produced by them. If the purpose of the statute is to prevent prohibiting the sale of spirituous liquors, is it not plain to the mlndof the simplest observer that such purpose would only lJepartiaIly served 1;Iy preventing the sale. of only distilled liquors? Fermented lj.nd vinousliquors..,..lager beer and spirituous,liquorll, and produce intoxication and drunkenneRs as certainly as distilled liquors produce the like effect. It simply requires the greater quantity of them to do so. Can it be said with any show of reason that the legislature would have i_ntended to cripple, pre, vent, and hinder its purpose cbyprohibiting the sale of one ki nd of intoxicatingspil'ituotls liquors. and·. not another? Can any just and fail' mind reach the absurd thatit iI;ltended to prevent drunkenness by prohibiting the sale of djsttlled spirituoul:1 Jiquors. and to allow, antl,in practical effect, by tile toleration of the sale of fermented and vinOlls spirituous liquors?" That languagemayapplyJo this Can it be said, without absprdity, that it .was the purpose of the congress of the United to stupup the spigot oLthe barrel that contained this principle of drunkenness, and to leave the head epen? "4.nd if. for any reason, it had such mixed. contradictory purpose, would it not llave said so,-so provided as to leave D4;> doubt asto such partial purpose,?, 'flje presumption is it ,intended to further and accomplish. lIot hinder and defeat, its plain purpose.Aud this is made the more manifest by an exceptive provision. in rl'SpeCt to domestic wines manufactnred .in this state from certain frllitS· mentioned. It is. expressly provided in section 3110 of the statute abOve thll,t .SllCh domestic :-vines may be sold, 'in bottles, cork!¥!· up, and not to be drunk on tile premises,' etc. But it .is further providl!d .that no perspn shall' sell any of said wines to any person a, winoI',' and, moreover, this exception does not extend.· 'to wines which cpntain,any foreign admixture of spirituous liquors, andsllall only ap-
UNITED STATES V. ELLIS.
817
ply to' such wines as derive their ardent spirit from vinous fermentation.' This exceptive provision is very significant in various aspects of it. It points by necessary.implication to the purpose of the statute to prevent drunkenness, in that such wines-domestic wine that has DO foreign admixture of spirituoos liquors-shall not be sold to a minor at all. It shall not be drunk on the premises when it is sold. And to prevent this, it must be corked or sealed in bottles. Now, why these cantionary regulations. if not intended to prevent excessive drinking-drunkennells-arising from the use of any spirituous liquor; even domestic wines? If it was intended that fermented spirituous liquors ienerally might be sold, why were they not excepted? Why were not lager beer and light wines generally excepted? Why except only domestic wines,. the sale of which is so cautiously guarded? Further. if the term · spirituous liquors,' as used in the statute. em Lraces only distilled liquors, thenJhis cautious exceptive provision is Wholly meaningless and nugatory. In that case it serves no purpose at aJl, because without it all fermented liquors might be sold. Can any intelligent mind belIeve that the legislature intended .this provision should be thus meaningless i' SUl'ely not. And treating it as serving the intelligent purpose plainly specified, does it not show beyond serious question that the terms' spirituous liquors' so used in the statute 'were not intended to embrace only distilled liquors? It cannot be said that this .exception is part of the statute in question by mistake, as suggested. It was t'nactt'd at the session of the general assembly of 1874-75, and it has been a part: of the statute in its present connection since 1883, and the legislature has not repealed or modified it, although it has repeatedly amended the statute in other respects. We may advert, in this connection, to the general fact ofcdrinnon knowledge that the legislature, the legal profession, and the people gerieraUy who took note of the subject undt'rstood that the inhibition of the statute .in question extended to fermented as well as distilled liquors. The contr,ll'Y has not been insisted upon, so far as we know. by any oue, until the dellisionof this court in State v. Nash, 97 N. C. 514, 2 S. E. Rep. 645. in which the chief justice simply suggested a doubt in respect to the extent of the inhibition in a connection not at all material. He expressly declared that any qnestion in that respect was not decided. What he said Was scarcely said obiter; It Was not. nor was it intended to be, authority, and so every intelligent lawyer must have understood. Attorney General v. Bank, 5 Ired. Eq. 71, and cases there citt'd. "What we have said finds strong support in the decision of this court in State v. Lowry. 74 N. C. 121, in which it was expressly held. in construing the statute (Code, § 1076) forbidding the sale of spirituous liquors by a measure less than a quart, that the inhibition extended to and embraced fermented liquors, and upon the ground that they are spirituous liquors. It interpreted a statute the purpose of which was to regulate the saleof spirituous liquors and raise revenue. The purpose of the statute before us is to prohibit such saIl'S, 11l1d it therefore has the greater weight and point. The learned counsel for the defendant. on thf' argument before us, seeing the force of this case. contended that it is not satisfactory. and ought to be disl·l'garded.. We cannot hesitate to think otherwise, because of the brief, cogent reasons stated in the opinion, as well as the reasons stated above. The ueCision is authorfor light, or even plausible. reasons. It was made ity not to by a very able court. and the able judge who wrote the opinion W1U1 a learned lawyer, familiar with the legislation and statutory law of this state; and he was as well a scholar familiar with the nature, meaning, power, and compass of words. whether applied instatutt>s or otherwise. "It was likewise contended on the argument that the inhibition surely could not be treated as extending to all liquors that contained spirit. because very many liquors contain so small a percentage of alchohol as that it is \T .51F.no.12--52
8iS' uors,sl14
FEDERAl. REPORT1l:R, vol. 51. n.
[th"e,I.nhlbl,tfO, "lO'n"IY applie,d to strong, not ,to lager beer or wine. This argument· 1sJwithout 48 we purpose)6f'the statute is to p,feveIit and sup,drunkenness, and 'prolJlote sobriety:: ,The 'inhibition', th&l'efOre, extends to, sU!Jhsp'rittious liquors, Whether' or distilled; as hytll'eir free use Hence,:when itis of'C'0rnmon knowledge'atldobservation that of spl1;'it,uous II) question ,produces' then the so decli1re, 'but If It 1$ tloubtful whetber ot/not the lIquor hesue'b, then .a,question of raised ror the jury, as Wlis deOlded in state v.!-inJ?f'y.87tpra,. l;)ee, also,St'zte'l. Packer, l:!O 'N.' C. 43U;, The inhibition ot thtr statute u,nder consideraliori, ,and w,e' may add other,lik'i! inhi bi tllljl statutell, unlellsotheJ:wise provided illthem, extend and apply to such spir, tuous li<i.u,t,!,fs, lwwever denominated',. \l'hether fermented or distilled, by the free produge intm(icatidn. ,,'fhis appears from the nature, 8,ticil,l andllhe causes of c.ummon knowledge t6't\uiir 'enli¢t'tlieht;' Itml,tY be added that the general as, 8l'rnb1y. lltlt8 of 11:$87, the statutory proviBIon untler conas having the meanIng weattdbute to it, and acted upon it." " " ,",,', ,.:. ,11,1 ': " " . '
The court "fully addpfil,!the language used by that' <lOUl't. The court takes. ipto consider4tion the purpose tQe legislature in' passing that act, just !loS' we are ,h)to co'nsideraHoh the purpose of congress in enacting,!this s,tatute. ,It . . When we come to apply,the,words, we find ,thatwe mean,il1g ..that is rational, thatissensible,tbatconstlmmates fully,the purpose of the statute, and 'by:the .authors .of, lexicons defining the term "spirit)l,dUs liquo:r(!." to jiO\.1, in ,this case, that if; you find tha,t the deien,dtl,nt lroi:n theevi'dence was tl).e party w,ho rece\yed that liquor there thathll<l been, to had recejv!'ld it I1S one interested in it, going to show hadknowlellge of the fact, -and I think 'that is IVirtuallyadmitted by his counsel in this case,""" it is yout.clllty ,to If you find that lager beer, such' as waS introduced iiI evidence in this case, was introduced either directly .l;Jy .this goiug out and getting it, or' by his receiving it liS agent, YClUr ,dutY;1sto convict him, because the court charges! you that in the light of this law this is spirituous liquor, and thatas'suoh the introduction of it would be a violation of the statute,l!.ndYQurduty wOl1ldbe to convict the defendal1t,--to say that" we, the gullty as charged in the indictment. II This ilia veryin'Iportant statute., Its rigid enfQfc,emel1t ,tends largely to prevent thecommiilsion of the. that country, as every one knows who is at'all conversant with the condition of that country. You take the law fl'omthecourtj,yod see what the facts are, and you apply the law as you find them, and in that way you arrive a1'your verdict. ','the facttbat the of the United States may havei ligep/3ed tbis,! tl'1\169io thereb:w. to do wi'thyour or 111Y enforcement ,ofthis ,statu teo That,comes under the revenue law. There is no provision of the revenue law prohibiting the issuing of license for the sale of whisky in that country, but the fact that that may have been cannot th,e iritrod uction' Of it into that country. It has noth. ing to do with' It is not connected with it in any way, and
to
or
STRAIT,
v.
NATIONAL HARROW
pO.
819
the construction of the revenue law by the revenue department of the gov.. ernment is not to be taken as a construction ofthis statute. It does not look to this statute when it issues license, and its construction of it has no binding force upon this court, even as being advisory, because it is not a f:ltatute that that depllrtment of the government is called upon to administer. I ask you t/) take these facts into consideration, and, if you find that the defendant in anyone of these ways I have named was connected with this beer, I charge you that it is spirituous liquor, and that it comes within the menning of this statute, and y/)ur duty would be to fiI,ld the defendant guilty, because such a state of case makes a case that is conclusive in the law; certainly it makes a case that carries it beyond a reasonable doubt. Deff'ndllnt excepted to charge of conrt, and also excepted to the court fusing to charge as rtlqutstt:d to by defendant.
STRAIT
et al.
11. NATIONAL HARROW
Co.
CCircuU CO'lIIrt, N. D. New York.
August 10, 1892.)
PATENTSPOR INVENTIONS-EiiJOINING SUITS FOR INFRINGEMRNT-MoNOPOUE8.
The {act that a corporation owning letters pl1tent upon a particular kind of ma..chlnerv has entered into a comblnat,ion with other manufacturers thereof to secUre amonopoly in its manufactu"re and IIale. and to that end has acquired all the rights of o. bel' manufacturers for the exclusive sale and manufa..ture of su,"h machines UDder pattlnts, will not entitle a stranger to the combination to enjoin the corporation from bringing any suits for infringement against him or his customers.
In Equity. Suit by William Strait and others against the National Harrow CODll1any for an injunction to restrain actions and suits tor infringement of patents. On demurrer to the lJiIl. Sustained. Frederick Collin, for plaintiffs. Edward 11. Risley, Jar deJenrJant. WAU,ACE, Circuit Judge. This is a suit wherein the relief demanded is a permnlleut injunction to restrain the defendant from instituting or prosecllting any action in any court of law or equity the plaintifis fur the infringement of l1ny letters patent oWlJed by the defendant covering improvements in sprin!!-tooth harrows, or from instituting or prosecuting any such suits against any person using the spring-tooth harrows manulactured by the plaintiffs. The defendant has demurred to the complaint. In substance, the complaint shows that the defendant has entered into a combination with \'arious other manufacturers of spring-tooth harrows for the purpose of a monopoly in this country in the manufacture and sale of the E:ame, nnd, as an incident thereto, acquired all the rights of the otber manufacturers Jor the manufacture of such harrows under patents, interestsin patents, owned bytbem respectively. Such a com Linatioll way ',',I':' _ ,. ,