The Washburn leader., 1909-07-30

.
and 1t is up to the courts to put Che
DEGREES Of the people and their chos-
EN- representatives in force.
/ But considering the history OF the
statute and iss 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 y''--the let,
ter of the law-but also the Soul
the spirit Of the law-conveys q posi-.
tive condemnation of the traf1c In in
toxicants like malt"
After the first adoption of the law,
in 1889, it's friends thought less trou-
BILE would be experienced In enforce
ment of 2 per cent limit was an
nounced, and 80 they secured an
amendment that any liquor containing
less than 2 per cent Of alcohol by
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 be against the law. This latter
clause was adde'. because to preserve
so-called malt containing less than 2
per cent of alcohol, 1t was thought
necessary by the brewers to put In a
preservative which would surely keep
it below the yer cent limit, evidently
caring little what effect such rank
poison would have upon the CONSULT
ers of the liquors.
The legislature at It's next session,
in1S97, promptly repealed the 2 per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.
1t is claimed that liquor containing
less than ner cent of alcohol will not
make man drunk-will not intoxi-
cate, so the manufacturers continu to
send out over the state this so-called
malt, which they insis.. 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
hack on the definition of Judge Brew
er, have constant'y instructed juries
tha+ such liquors as malt were intoxi-
eating. Some doub.. being expressed as
TO such construction, the legislature
of 1907 adopted 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-
nanding and that the legislature has
said that matt and like liquors. must
go.
1t was claimed by some lawyers
that the definition was Inadequate to
prevent the sale Of liquors containing
less than 2 per cent-again the peo-
pie asked the legislature to act, and
at the recent session another amend
ment was passed so that the definition
so far as thu question at~bar is CON
cerred reeds as follows:
"section 1885, The following liq-d
iors ere hereby declared to be intox- 4
ica+ NJ md iheir intoxicating quality
shall, by all co1rts be presumed, Wis.,
alcohol whisky. rum, brandy, beer
ale, !or'cr, wire and hard cider ALSO
all SD ritaous, malt. vinous, fermented,
or other ntoxicating liquors or mix
tures hereof by whatsoever name,l
called. 81. ',..ether mentioned in section
1 of this act or not, that will produce
fntoxication of any degree, or any mix-.j
lures of such, or anv kind Of beverr
age whatsoever which, retaining theI
alcoholic principle or other in-oxicat-
Ing qualities as the distinctive force
may be used as beverage and be-
come a substitute Of the ordinary in
toxjcating 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 al
distinctive force, to-wit: 1.75 per cent
of alcohol by volume, and 1.4O per
cent by weight, and that it may bel
used as beverage and become SUBJ
stitute for beer. When such condi-
tions are found to xist, the Law says
the liquor shall be presumed intoxi.
eating. "A
Counsel for the defendants contend
the in every such case the question Of
the intoxicating quality must be sub.
mdtted to a jury upon the question
whether it will produce intoxicationl
of any degree" the last three words
appearing for the first time In the law
Of 1909.). I cannot agree with couns
sci in this contention.
1. The law means certain liquors
whose intoxicating quality shall Bel
presumed, such as whisky land beer,d
and then adds:
2. And also all liquors by whatsbss
ever name called, which win produces
intoxication In any degree, in which
case the jury will have to determine
whether /. Will SO produce intoxica,
tion, and II so found, the court would
instruct the Jury chat such come with
in the definition Of the statute.
8. Also any mixture Of such Il. ell
such as whiskey, beer, etc.) or any
kind Of beverage whatsoever, which;
retaings the alcoholic principle or1
other Intoxicating nlIa1AtiAa aa a dia@