Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1909-07-27

!
parts, viz, of body and soul: the
letter CT the law is the body OF the
law, and the sense and reason of
the law are the soul of the law.
Doubtless the letter is first TO lie
considered in order to determine the
| intent of the legislature, for the
courts may not read law simply as
they wish it should read; but other
matters may also be considered, and
among them the evils sought TO be
remedied.' Then following this
canon of construction he defined IN
toXicating liquors under the Kansas
ptatute which statute we adopt: d
word for word as follows:
Intoxicating liquors, o. mixtures
! thereof, reasonably construed,
means liquors which Will iatoxicate,
and which are commonly used as
beverages for such purposes; and
also any mixtures of ,ucn liquors
as, retaining their intoxicating quail
tiles, it may fairly be presumed may
! be used as a beverage and becomes
substitute for the ordinary irtoNi-
eating drinks
| By this decision the courts in
North Dakota are bound just as
much as though rendered by our
own supreme court, having borrowed
the statute from sister are. We
tale also the decisions IL that state
III l. that statute.
In my judgement this decision set
ties the whole matter adversely to
the defendants, without even consld-
ering the recent amendment.
The Constitution.
To get back to the adoption of the
constitution. What did the people
intend when passing the prohibition
clause? Was it the object to COM
| pei beer drinkers to forego what to
them perhaps was a delightful bev-
erage, and substitute in lieu thereof
miserable slop containing less than
IL per cent of alcohol. or was it the
thought that the saloon should be
outlawed and with it all alcoholic
drinks, because experience had DEM
onstrated that these public drinking
places where malt is usually sold
were indeed as designated by the.
statute-common nuisances where
not only direct violations but also
the most fragrant evasions Of law
were practiced? From them cman-
ated the saloon brawls, the gamb-
ling, the drunkenness, the stahbing
ARRAYS, and the murders in the COM
| munity-hence, the direct command
of the people that they must not
exist. The constitution required the
Of
to put in force the clause relative to
prohibition. The legislature has
acted time and again. The time for
lhairsplitting refinements has passed,
and it is up to the courts to put the
DEGREES of the people and their chos-
en- representatives in force.
But considering the history of the
statute and its various amendments,
and the conditions among our people
for the past 20 years, of which the
court must take judicial notice, we
find a positive, certain and absolutely
conclusive sign of what was the leg
islative intent in making tht several
amendments and. especially the one in
1909. Not only the "body'-the let
ter of the law-but also the Soul
| the spirit of the law-conveys a posi-
tive condemnation of the traffic in in
toxicants like malt" -
After the first adoption of the law,
I'm 1889, it's friends thought less trou-
| BILE would be experienced in enforce
ment of 2 per cent limit was an
nounced, and so they secured an
amendment that any liquor containing
less than per cent of alcohol bv
volume should not be deemed intoxi'
eating (Chap. "a, Laws 1880, and
added that the putting into the bev-
erage of strychnine, caculus, indicus,
and other poisonous preservatives,
would he against the law This latter
clause was added, because to preserve
so-called malt containing less than 2
per cent of alcohol, it was thought
necessary by the brewers to put in a
preservative which would surely keep
it below the per cent limit, evidently
caring little what effect such rank
poison would have upon the consum-
ens of the liquors.
The Legislature at It's next session,
in1897, promptly repealed the 2 per
cent clause.
Two years of experience in the state
has demonstrated that this malt liquor
was worse han ordinary beer, which
only contains from to 6 per cent of
alcohol by volume, minus the poison
Gus preservatives.
It is claimed that liquor containing
less than ner cent of alcohol will not
make a man drunk-win not intoxi-
cate, so the manufacturers continu to
send out over the state this so-called
malt, which they insist always con-
tains less than per cent of alcohol by
volume (no claim being made by the
! state in this action that the malt man
ufactured by the defendants contains
a poisonous prese~vatives). Some OF
the district courts of the state falling
back on the definition of Judge Brew
er, have. sconstant'y instructed juries
tina" such liquors as malt were intoxi.
eating. Some, edoubt being expressed as
to such construction, the legislature
Of 1907 adopted and made statutory
the definition Of Judge Brewer above
| quoted.
I This court thought then, and still
1 L +