Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1910-08-06
SALE OF NEAR BEER
FORBIDDEN IN IDAHO
Supreme Court Hands Down Opinion
Placing II Under the Ban of
Prohibition Law.

BOISE Ida. Aug. S.-ln an opinion
handed down this afternoon by the SUI
preme court, near beer is held to be
an intoxicating liquor. and cannot be
sold i'm a prohibition district in other
words. near beer is too near beer to
be classed as a mild or soft drink. The
decision was rendered in the case OF
the state Va. Jacob Lockman, the
Nampa brewer The syllabus OF the
courts opinion II as follows;
Section 81 OF the local option statute
IgO9 Sessions Laws, page lS), denhes
Intoxicating liquors as Including spirit
mons. yinous. malt and fermented
liauors. and all mixtures and prepare
tions thereof, including bitters ana oth-
er drinks that may be used as a oeNer-
age and produce intoxication.
Under the definition given by the
legislature In section 81 of the local
option statute all 'spirituous, Nnous'
malt and fermented liquors are de-
clared as a matter Of law TO be IN
toxlcating, and IL is unnecessary Tor
the state to prove that any liquor OF
beverage falling within the enurnerat-
ed class will In fact produce intoNca-
tion. -,
"tfr,der the provisions OF the local
ontlon statute, (section 81, IT Is neces-
sary for the state to prove the ihtoA
icaiine quality of ali mixtures and
prcparatio used or intended 10 De
used as beverages which DO not ial,
within the enumerated class designated
as spirltuous, venous' mart anu ie
mented liquors.
"1'he legislature in the enactment OF
the local option statute evidently had
in mind a two fold object, nrst that
OF discouragng and as FAR as poSslple
preventing, intoXication, ana lhtempeI
ance i'm the use OF intoXicants' ana
secondly, and equally important ma
OF protecting the youtn Oh VIC 49,
from acquiring taste Tor ihtoNicauts
and the habit of INDUCING In drinks
and beverages that contain the IN
toxiCating clemc Mt.
ON June %. Mr.. Lockman was ar
rested for violation of the local oplioh
law, aud a preliminary hearing gwen
in The probate court at Caldwell. at
urbich IL was proven that he had been
selling "ncar beer" He was oounu
over to the district court In the sum
~ 1900 In default of which he was re-
manded to the custody of the sherin OF
Canyon county. An Application TOT
writ OF habeas corpus was made 70 the
supreme court. through his attorneys
HaWl.v. Packet Hawleyi on the
ground that he had not violated the
local option law, as IL Is question
whether or not near beer" Ia an IN
toxicating beverage, and whether no
was. therefore, illegally detained
II was decided. however under TINS
opinion, that the petitioner Is properly
held.
The following Is the courts comment
,,not, rho evident intent Of the leg1sla-
ture in passing the local option law
.Thc legislature likewise recognized
the fact that venous, malt, ana ter-
mented LIQUORS all contain to some OK
- oil "a
IL may not be to such degree as 10
produce intoxication. They, therefore,
concluded when writing this statute
defining the words Intoxicating liquors
to declare as matter OF law that all
spirituous, venous, malt and fermeht-
ed liquors are Intoxicating, irrespec-
tive OF the amount Of alcohol Which
they contain. and whether or not the
particular kind OF drink Will in fact
produce intoxication. They must have
had in mind the difficulty that would
rise In the enforcement of such a law
as they were enacting II they LETT II
To he proven IN every case OF the sale
Of vlnous, malt or fermented liquor
whether or not the same was in fact.
such as would produce intoxication. IL
IL were a question OF fact In each case,
one man might be convicted for the
sale OF a certain brand OF malt or fer
mented liquor, while another man
might De Acqultt'u l"l hh' S"'s u
Identical brand of liquor Under thar
view OF the statute. near beer might
be sold i'm one prohibition district with
afetv and In another the sale prove to
be a violation OF the statute. This Is
drink that furnishes great opportuni-
ties for violation OF the statute. II was
said by the supreme court Of North
Carolina, who evidently spoke from
record in the case OF state VS. Danen-
berg. that although near beer properly
made IL a Notwithstanding beverage,
the sale OF IL furnishes extraordinary
opportunities for violation OF the state
prohibition law; that IL IL made by
those who make beer. sold by those
who sell beer. and drunk by those who
drink beer; and that II looks like beer,
smells Ike beer and tastes like beer