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

lOtOXlCdClOu OF any ucSIcS, vi oily LILA
lures of such, or any kind Of bever-
age whatsoever which, retaining the
alcoholic principle or other intoXicat
ing qualities as the distinctive force
may be used as beverage and De-
come substitute of the ordinary in
! toXicating drinks shall be con
sidered ard held to be Intoxicating
liquors within the meaning of the
chapter
The defendants by their demurrer
concede that the liquor in question
contains the alcoholic principle as a
distinctive force, to-wit: 1.75 per cent
of alcohol by volume, and lao per
| cent by weight, and that it may be
used as beverage and become sub
stituta for beer. When such conii-
tions are found to xist, the law says
! the liquor shall be presumed intoXi-
:, eating.
Counsel for the defendants con'end
| the in every such case the question Of
{ the intoxicating quality must be sub
| n,itteed to a jury upon the question
| whether it will produce intoxication
of any degree" the last three words
appearing for he first time in the law
| of 1902. l cannot agree with conn
sci in this contention.
l. The law means certain liquors
whose intoxicating quality shall be
! presumed, such as whisky and beer,
and then adds:
2. And also all liquors by whatso-
ever name called, which will produce
| intoxication in any degree, in which
case the jury will have 10 determine
whether i. will so produce intoxica-
ton, and if so found, the court would
instruct the jury that such come with
i'm the definition of the statute.
3. Also any mixture of such q. e.
such as whiskey, beer, etc. or an :
kind of beverage whai soever. w'at'h
retaing the alcoholic principle or
other intoxicating qualities as a dis
tinctive force, may be used as. a bev-
erage and become a substitute for the
ordinary intoxicating drinks.
The facts charged in these informa-
tfons and which are admitted to be
true, bring the liquor clearly within
the third subdivision above and CON
sequently are presumed to be 1ntox-
icating. The same may be said
equally of large quantity of 'bever-
ages similar to malt. such as "Non-
tox," "Sea-Foam," Hop Tea" and the
new name given in Georgia-"Neer-
beer" mot an improper name for
malt). 1t is urged that the word
malt" was stricken from section of
the McCree bill by the senate showing
a legislative intent to permit the sale
of malt. The history of this 4egisla-
ton negatives this position and simply
signifies the intent to put malt, NEAR
beer" and other such liquors in a gen
eral class by themselves, and without
specifically naming them ian almost
impossible task) make one sweeping
clause paragraph above) which
should cover them all, thus setting at
rest the legal status of all such lio-
uors in this state as being intoxicat-
Ing.
The objection made upon the title of
the action that it does not comply
with the constitutional requirement,
III do not consider to be well taken
Neither do I think that the legislature
has exceeded its authority under the
police power of the state in passing
| such a. statute. The demurrers to The
information are therefore overruled.
and the defendants are reauira1 to
plead to the charge made against them
at the next term of this court To
which order counsel for defendants
except. .n
Dated this 23d day of July, 1909.
Chas. A. Pollock, Judge.