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

Holds That Malt Beverages Are
Even More Dangerous Than Beer
Decision Is One of the Most Impor-
Lant That Has Been Handed Down
i'm State for Some Time.
The following decision in the ia
nous malt cases argued before him
on Friday was handed down yester-
day morning by Judge Pollock in the
district court:
State of North Dakota, County OF
Cass-ss
State of North Dakota, plaintiff,
VS.. Fargo Bottling Works company,
and the American Bottling Works,
association, defendants
Both of the above cases have been
submitted at the same time, upon
informations exactly alike, and are
presented directly against the cor
porations named under the provis-
ions of article 4, chapter Is, Code OF
Criminal procedure, sections 1922 to
1O23O, inclusive The information
charges in substance the sale of one
quart bottle of a beverage labeled
Purity Malt" in one case, and
Export Malt" in the other, and
which is commonly called and known
throughout the state as malt, and
is a malt liquor, land that in the
manufacture and production no al
cohol was used as an ingredient
but in which, during such manufac-
ture, the alcohol hereinafter referr-
ed to was and is produced by chem
ical action in the beverage itself,
and which said beverage, therefore,
then and there had and retained the
alcoholic principle as a distinctive
force, and was then and there and is
sold and used throughout the state
as a substitute for beer. That it
contained LIS per cent of alcohol by
volume, and 140 per cent by weight. "
To these informations the defend
which, according to the legal rules
of procedure, means that they con-
cede to be true all the facts alleged,
but deny any legal liability under
the law growing out of such admit
ed facts. A W. Fowler, states at
torney, and w. S. Stambaugh, as
sistant states attorney, appearing
for the state, and V. r. Lowell and
Geo. A. Bangs as counsel for the de-
PENDANTS.
Counsel for the defendants state
that their clients believe they are
manufacturing and selling a liquor
which is not prohibited by the stat
ute, while the counsel for the state
insist that the sale of such liquor
is unlawful. The defendants claim
that the liquor sold is not an In
toxieating liquor. That the malt IL
quor containing less than 2 per cent
will not intoxicate any one.
Counsel for the state, while not
admitting as a matter of fact that
malt liquors containing less than 2
per cent, or, at least containing the
amount coneededly to be found in
the liquor in question in question,
will not intoxicate, yet for the pur-
poses of this test they say that it is
wholly immaterial whether it is in
toxicating Or not in the sense in
which the word Intoxicating is popu-
larly used. Basing their claim un-
der the new definition of intoxicat-
ing liquor as passed b. the legisla-
ture of 1909, the same being house
bill No. III, known as the McCrea
bill, and found at page ITO Of Hos
kins' Popular Edition Of the Laws
of North Dakota" Both the consti-
tuition and the statute prohibit the
sale of malt liquor, and If we were
to follow the decision of the supreme
court of Nebraska in the case OF
Luther VS.. the State, i20 ". W. 1926,
it would be unnecessary to enter in
to any discussion wnatevcr upon the
several sections Of our statute
Here is what the, court said in that
case:
cit is my opinion that the legis-
lature realized and appreciated the
fact that malt, spii'itueus and vim
GUS liquors; are equally largely used
as a beverage and are alike injur-
ious to the consumer, If not by pro-
ducing the same effect when more
is taken and at the same time Great
ing an abnormal appetite which
leads to dissipation and inebriety.
At any rate the law prohibits the
sale of malt liquors and we must
obey its plain mandate. :. . The
liquor sold by the defendant was
simply an effort to evade' the law:
-. Malt liquors are as much
within both the letter. and spirit of
the law dis either of the other class
es." -. && ~. 4, q 49, - =.
In view Of certain decisions of our
supreme court I deem It proper to 80
somewhat, into the history of the
legislation Of this state wjth refer
ence to this question. The legis!a-
ture either intended8to strike. down
such liquors as malt or itsacted With :
out intent. It would be- Illogical, If
not foolish In the extreme to sup
pose that q body OF men, claiming
to be clothed In their right minds,
would again, In view Of 20 years OF
evasion OF law by those who claimed
to- sell beverage containing less
than 3 per cent, by volume OF alec:
hol ). amend the definition ais TO, in
toxicating liquors and no. include
the very liquor which has caused
such havoc and ruin in our state. We