Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1872-12-15
IMPORTANT SUPREME COURT De
CESEON.
Lager Beer Allowed rs o Sunday
beverage.

Yesterday the Supreme Court Of Ten
Hcssce gave an opinion in the four sOlidated
cases Of Henry Fitz and Dane Kuhn and
Fred Harsh and Robert Weitmueiler VS..
the Sszta, the same being an appeal from
IL S county by the defendants in error, who
were GA presentment indicted for the sale
cf l. rer beer on Sunday and found guilty
thereof by the Criminal Court, the argu-
Iaent Of whose counsel ia which cases has
already been given our readers. We pre-
sent 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 enacts that mo licensed grocer
or ohsr person in this State shall retail
spirituous liquors on Sunday. The punish
inent of this offense shall be fine and inn
prisoament as the discretion Of the COURT"
ana second, If lager beer is to be
regarded IS a spiritu0us liquor within the
nearing of that section, then was it in
tended thereby TO make the buyer as well
as the seller guilty If a misdemeanor."
TIE court held, Nicholson, Judge, deliver
ing be opinion of the honorable body, it to
be altogether question affecting the intent
Of the said section, quoting from Chief
Justice Turkeys opinion, Swine is fir
mented liquor, spirits are distilled liquors,
etc. We therefore, think that the words,
'spirituous liquors embrace all that which
are produced by distiliation, but not those
produced by fermentation" The court in
this p.omulga construed the meaning of
the S atute 1878, and referred to the act OF
1876 for the regulation Of tipping houses
etc, which was held irrelevant to the points
presented for discussion. The Court stated
10 laI ~
words "spirituOus liquors" employed in
this section were those used as such in
general acceptaGon and meaning, the Leg
islature intending TO restrain,as desecrating
the Sabbath, the vending ola article whose
use was calculated to a shameless disre-
gard Of all prophecies and duties Of life.
81. was true Judge Milligan stated cor
recly the object for which the
act was PISSED. But could it be discover
81 by a liberal construction of section SCI
that it was the intention to iacluds fe7nse1tt-
ed LIQUORS under the words spurious
LIQUORS. which used first in 1888 have down
to 1865 sbeen COZ strned on judicial and leg
'-!etiye proceedings as being confined in
iheir application to distilled spirits" 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 OBJ
tanned at that time a fixed and
definite meaning, j0dicialiy, lesislstively,
and, IN common parlance, the Legisla-
ture Intended TO use them in The same
way 80 herwise the intention to use
them in q different serss would have indi-
Gated by an amendment rather than requir-
ing the provisions 70 be literally con-
strued"
It will Be observed that the only change
made il the act of 1888 in transferring TO
the Code, was, 10 make is violation more
stringent misdemesnor. Fine and impris
onment constitute the punishment under
the section IS il stands 10 the Code. 1t is
contrary 10 the genius Of our government
that a criminal Offause, which involves the
imprisonment Of q citizen, should be created
merely by judicial Consru 3ti0n-and
that, too, involving the necessity Of over
riding The fixed construction Of the same
language. by the courts and the Legislature,
fort ri-ty-seven years, That the words 'spiT-
ituons LIQUORS. were not employed, in the
ac5 Of 1888, to designate lager beer is abso-
lutely celt ain from the historical fact, that
at that day, that article ofdrink was scarce
" known in our State. The statute was
levelled 1t distilled spirits, ard not at fer
m-Dted liquors, and this court would be
guilty of judicial legislation if we should By
our construction so enlarge the meaning Of
the words as to make : nsw criminal Of
Tense. As anxious as the court may be to
promote the object of the statute, We can
not do so by assuming legislative power.
Ne are Therefore constrained to override
the case of SharTer VS.. the State, and TO
hold that under section 4861, the sale Of
distilled, and not ftraented liquors on Sun
day was PROHIBITED. This result disposes
of the other question in the case and rem
der sits decision unnecessary.