Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1872-12-18
LAGER BEER on SUNDAY.
Important Decision OF the supreme
Court.


The Union aud American Of the 18th
has the following excerpt Of the recent
Supreme Court decision;
Yesterday the Supreme Court Of Ten
nessee gave an opinion in the four con-
solidated cases Of Henry Fitz aud Dane
Kuhn and Fred Harsh and Robert Welt
mueller VS.. the State, the same being an
appeal from this county by the defen-
dants in error, who were onpresentment
indicted for the sale Of lager beer on
Sunday. We present the following, the
court stating the points involved to be:
l. "Is lager beer spirituous liquor
within the meaning of section 1861 OF
the Code, which enaets that no licensed
grocer or other person in this State shall
retail spirituous liquors on Sunday.
The punishment Of this otfense shall be
fine and imprisonment at the discretion
of the COURT and second, If lager beer
is to be regarded as spiri;aous liquor
within the meaning of that section, then
was it intended thereby to make the
buyer as well as the seller guilty OF
misdemeanor."
The court held, Nicholson, Judge, de-
liyering the opinion of the honorable
body, it to be altogether u question af-
fecting the intent Of the said section,
quoting from Chief Justice Turkeys
opinion, Wine is a firmented liquor,
spirits are distilled liquors, etc. We,
therefore, think that the words spiritu-
Gus liquors embrace all that which
are produced by distillation, but not
those produced by fermentation" The
court in this PRONUNCIATION construed the
meaning of the statute of 1878, and re-
ferred to the act of 1916 for the regula-
ton of tipping houses, etc, which was
held irrelevant to the points presented
for discussion. The Court stated that
Judge Milligan had decided that the
words "spirituous liquors employed in
this section were those used as such in
general acceptatioa and meaning, the
Legislature intending to restrain, as
desecrating the Sabbath, the vending Of
an article whose use was calculated to a
shameless disregard of all proprieties
and duties Of life.
1T was true Judge Milligan stated
correctly the object for which the act
was passed. But could it be discovered
by a liberal construction of section 486l
that it was the intention to include fer
mented liquors under the words spiritu-
GUS liquors, which used first in 1888 have
down to 1865 been construed in judi
cial and legislative proceedings as being
confined in their application to distilled
spirits2 These words being employed
with no alteration or amendment and
when the code was enacted in 1853, it is
legitimate to infer that as these words
had obtained at that time fixed and
definite meaning, judicially, legisla-
lively, and, in common parlance, the
Legislature intended to use them in the
same way" Otherwise the intention TO
use them in different sense would have
indicated by an amendment rather than
requiring the provisions to be literally
construed.
1t will be observed that the only
change made in the act of 1888 in trans
ferring to the Code, was to make its vio-
lation a more stringent misdemeanor.
Fine and Imprisonment constitute the
punishment under the section as it
stands in the Code. 1t is contrary tc,
the genius of our government that
criminal offense, which involves the i'm
prisonment of citizen, should be Gre
ated merely by judicial construction
and that, too, involving the necessity of
overriding the fixed construction Of the
same language, by the Courts and the
Legislature for thirty.seven years. That
the words "spirituous liquors we're
not employed in the act of 1888 to des.
ignate lager beer, is absolutely GER
tain from the historical fact that
at that day, the article of drink was
scarcely known in our State. The stat
ate was levelled at distilled spirits, and
not at fermented liquors, and this court
would be gully of judicial legislation if
we should by Bur construction so enlarge
the words Rsto make new criminal Of.
tense. As anxious as the court may be
to promote the object Of the statute, we
cannot do so by assuming legislative
power. We are therefore constrained
to override the case Of Sharrer VS.. the
State, and TO hold that under section
1861, the sale Of distilled, and not fer
mented liquors, on Sunday was prohib-