The Fargo forum and daily republican., 1909-07-24

4 statute from sister state we take
also the decisions OF that state upon
that statute.
In my Judgment this decision set
ties the whole matter adversely to the
defendants, without even considering
the recent amendment.
The Constitution.
i To get back to the adoption of the
constitution. What did the people in
tend when passing the prohibition
clause2 Was 1t the object to compel
beer drinkers to forego what to them
perhaps was delightful beverage, and
substitute in lieu thereof miserable
slop containing less than two per cent
| of alcohol, or was it the thought that
the saloon should be outlawed and
with 1t all alcoholic drinks, because
experience had demonstrated that
these public drinking places where
malt is usually sold were indeed as
designated by the statute--common
nuisances where not only direct vio-
lations but also the most flagrant eva
sions OF law were practiced? From
them emanated the saloon brawls, the
| gambling, the drunkenness, the stab
| bing affrays, and the murders in the
community: hence, the direct COM
mand of the people that they must
not exist. The constitution required
the legislature to pass all acts need
/ full to put in force the clause relative
to prohibition. The legislature has
acted time and again. The time for
hair splitting refinements has passed.
| and it Is up to the courts to put the
| DEGREES OF the people and their cnos-
4 en- representatives in force.
| But considering the history of the
statute and it's various amendments,
and the conditions among our people
| for the past twenty years, of which
| the court must take judicial notice,
we find a positive, certain and abso-
| Lutte conclusive sign Of what was the
legislative intent in making the sew
| eral amendments and especially the
one in 1909. Not only the body
| the letter OF the law-but also the
"souF--the spirit Of the law-conveys
a positive condemnation Of the traffic
| in intoxicants like malt" ..
/ After the first adoption of the law
| in 1889, it's friends thought less trouble
would be experienced in enforcement
| If a Q per cent limit was announced
| and so they secured an amendment
that any liquor containing less tnan 2
| per cent Of alcohol by volume should
not be deemed intoxicating (Chap. a.
Laws 1880, and added that the put
| ting into the beverage OF strychnine,
| cacuIus indicus, and other poisonous
| preservatives would be against the
| law. This latter clause was added,
because to preserve so-called malt
! containing less than 2 per cent of al
1 cohol, it was thought necessary by the
brewers to put in a preservative which
| would surely keep it below the 2 per
| cent limit, evidently caring little what
/ effect such rank poison would have
upon the consumers Of the liquor.
The legislature at its next session, in
1897, promptly repealed the per cent
clause.
Two years Of experience in the state
had demonstrated that this malt liquor
was worse than ordinary beer, which
/ only contains from to per cent of
| alcohol by volume, minus the poison
Gus preservatives.
Adopt Brewers Definitions.
1t is claimed that liquor containing
less than per cent Of alcohol will not
| make a man drunk-will not intoxicate,
| so the manufacturers continue to send
| out over the state this so-called malt,
| which they insist always contains less
than per cent Of alcohol by volume,
| (no claim being made by the state in
/ this action that the malt manufactur-
ed by the defendants contains a pois-
onous preservative. Some of the dis
| trict courts of the state, falling back
on the definition of Judge Brewer, have
constantly instructed juries that such
| liquors as malt were Intoxicating. Some
| doubt being expressed as to such con-
struction, the legislature of 1907 adopt
ed and made statutory the definition
of Judge Brewer above quoted
This court thought then, and still
| thinks, that such act was unnecessary,
| but its passage stands as another evil
dence that the people have been de-
manding and that the legislature has
said that malt and like liquors must
go.
1t was still claimed by some lawyers
that the definition was inadequate to
prevent the sale Of liquors containing
| less than per cent-again the people
asked the legislature to act, and at
/ the recent session another amendment
was passed so that the definition SO
far as the question at bar is concerned
reads as follows.
| Last Amendments.