Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1905-12-29
RECENT RESCRIPTS.
a Batch Handed Down This Week
From the Law Court.

l -.
| frederickSOn. Rescript by Smear. T.
| This case covers two sections, one
| involving a complaint for keeping 4
| tipping SHOP and the other an indict-
ment for maintaining a common nui-
| Sance. Both the complaint and the
| indictment are based upon the same
state of facts wherein it is admitted
| mat the respondent during the period
| covered by the complaint and the
| Indictment was n citizen of the. United
| States and a licensed victualler and
Kept restaurant on India street in
| Portland III the county of Cumberland
ana was accustomed to keep in his res
taurant cider, with intent to sell the
same as beverage ana for tipping
purposes and that frequently during
| That period, he there sold cider to be
| drank on the premises, and the same
50 there sold and drank, but said cider
| was unfermented Notwithstanding in
| fact.
| with respect to the complaint the
defendant requested the instruction
that section 40 of chapter 20 of the
| Revised Statutes did not apply to I'M
| fermented Notwithstanding cider and
| that the having of such cider on de-
| post with intent to sell the same as
Il beverage and for tipping purposes
| constituted no Ofense. Also if il
| should be found that section 40 did ap-
| ply to the keeping and sale of such
| cider, imposing penalties of fine and
| Imprisonment for the v;olatia5 thereof
| its provisions are contrary 20 :.ai in
violation of section one, article one
| of the Declaration of Right in the
Constitution of Maine, and of the 14th
| amendment of the Constitution of the
| United States, and to that extent are
| null and void.
With respect to the nuisance indict-
| ment, the defendant requested the in
struction that if the respondent kept
| ana maintained place used for the
| sale or keeping for sale for tippling
| purposes, or as Il beverage of cider,
| and where cider WAS kept and deposit
| ed with intent to sell the same for
| tipping purposes or as Il beverage.
| he would not be guilty of maintaining
4 nuisance under provision of section
one and two chapter - of the Revised
Statutes unless such cider was in fact
| Intoxicating, and that the keeping and
maintaining of such place used for
|
ing of unfermented n-intoxicating
cider only, would not constitute the
crime Of keeping and maintain nuis-
| ance. The other requested instruc-
| ton raised the same constitutional
questions involved in the instruction
| with reference to the complaint. The
| two cases can be construed together
inasmuch as if it is held that the
enumeration of intoxicating liquors
specified in section 40 of chapter 30
r. S. does not apply to the intoxicating
| liquors referred to in section one and
| two, chapter %, r. s., then the two
cases with respect to all the points
raised fall within precisely the same
| category.
| Our conclusion is that the PROPOSE
ton is well settled both by the de-
cisions and by the rules of statutory
construction that the enumeration of
liquors. declared to be Intoxicating,
contained in section 40 of chapter %
] of the Revised Statutes is referred to
, by and was intended to include the
| words intoxicating liquors as used in
section one of chapter % of the ReviS-
| ed Statutes.
| This brings us to the consideration
| of the second proposition. whether the
enumeration of the liquors declared to
be Intoxicating contained in section
40 of chapter %, was intended to in
clude cider which is kept and deposit
| ed with intent to sell the same for
| Tipping purposes or as beverage,
| which is unfermentcd and non-intoX-
icating in fact.
| Section 40 declares that wine. ale.
porter. strong beer, lager beer or other
malt liquors ana cider when kept ana
Ideposited with intent to sell the same
| for tipping purposes, or as Il beverage,
las well as distilled spirits, are declar-
ed intoxicating within the meaning of
this chapter. The liquors above eniim-
Grated are declared Intoxicating by
law. In determining whether or not
| , Iiouor is to be regarded as intOXicat-
ing under the ton. it is en-
tireIy immaterial whether il is intoX-
icating in fact.
| Irnfermented. notwithstanding cider
falls within the above rule unless we
read into the Statutes, enumerating
the kinds of prohibited liquors, some
adjective modifying the word cider
that shall have the effect of differ
|
! Notwithstanding cider.
| We do not fell authorized to modify
the statutes by the Interpolation OIL
any such adjective. 1t is not the pro-
vince of the court to legislate. "A mo-
ment's reflection will readily Suggest
that legislation has been withheld ad-
visedly. Cnfermented. non-lntoMcAt-
ing cider by the simple lapse OF Tune
becomes intoxicating. There is d.
viding line somewhere in the course OF
time in which the same cask OF clder
masses in the process of fermentation
from mountaineering to an intoSi-
| eating liquor But where? To locate
This line is to nullify the statues
Hence the absence of legislation. Ihis
view is sustained not only by reasoii
but by authority.
our conclusion is that the enulhei
alton of liquors declared to pc intoAi-
eating and contained in section ~
chapter %. Revised Statutes. was n
tended to include and does lhciuus
cider when it is kept and deposited
with the intent to sell the same lot
...,;,, n,rposeS or as DeNeidSo'