{ "id": 8721150, "name": "McKeown v. State", "name_abbreviation": "McKeown v. State", "decision_date": "1939-01-09", "docket_number": "4105", "first_page": "454", "last_page": "472", "citations": [ { "type": "official", "cite": "197 Ark. 454" }, { "type": "parallel", "cite": "124 S.W.2d 19" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "261 S. W. 654", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "164 Ark. 211", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1382214 ], "opinion_index": 0, "case_paths": [ "/ark/164/0211-01" ] }, { "cite": "203 S. W. 1023", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "135 Ark. 164", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1571560 ], "opinion_index": 0, "case_paths": [ "/ark/135/0164-01" ] }, { "cite": "203 S. W. 703", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "134 Ark. 303", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1573310 ], "opinion_index": 0, "case_paths": [ "/ark/134/0303-01" ] }, { "cite": "197 S. W. 283", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "130 Ark. 234", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719134 ], "opinion_index": 0, "case_paths": [ "/ark/130/0234-01" ] }, { "cite": "199 S. W. 905", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "131 Ark. 572", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1578603 ], "opinion_index": 0, "case_paths": [ "/ark/131/0572-01" ] }, { "cite": "106 S. W. 952", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "84 Ark. 564", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1524392 ], "opinion_index": 0, "case_paths": [ "/ark/84/0564-01" ] }, { "cite": "36 S. W. 2d 75", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "183 Ark. 425", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1441814 ], "opinion_index": 0, "case_paths": [ "/ark/183/0425-01" ] }, { "cite": "110 S. W. 2d 7", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "194 Ark. 1057", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726001 ], "opinion_index": 0, "case_paths": [ "/ark/194/1057-01" ] }, { "cite": "20 Ark. 290", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "22 S. W. 654", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "58 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329194 ], "opinion_index": 0, "case_paths": [ "/ark/58/0001-01" ] }, { "cite": "47 A. L. R. 1104", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "286 S. W. 877", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "171 Ark. 754", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1369392 ], "opinion_index": 0, "case_paths": [ "/ark/171/0754-01" ] }, { "cite": "199 S. W. 388", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "131 Ark. 251", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1578677 ], "opinion_index": 0, "case_paths": [ "/ark/131/0251-01" ] }, { "cite": "58 Am. Rep. 768", "category": "reporters:state_regional", "reporter": "Am. Rep.", "opinion_index": 0 }, { "cite": "1 S. W. 769", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "47 Ark. 476", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888691 ], "opinion_index": 0, "case_paths": [ "/ark/47/0476-01" ] }, { "cite": "21 Fed. 299", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3774639 ], "opinion_index": 0, "case_paths": [ "/f/21/0299-01" ] }, { "cite": "43 Ark. 96", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1894527 ], "opinion_index": 0, "case_paths": [ "/ark/43/0096-01" ] }, { "cite": "37 Ark. 224", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1870970 ], "opinion_index": 0, "case_paths": [ "/ark/37/0224-01" ] }, { "cite": "282 S. W. 9", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "170 Ark. 895", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1371620 ], "opinion_index": 1, "case_paths": [ "/ark/170/0895-01" ] }, { "cite": "45 L. R. A. 348", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 1 }, { "cite": "51 S. W. 633", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "66 Ark. 466", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1909793 ], "opinion_index": 1, "case_paths": [ "/ark/66/0466-01" ] }, { "cite": "15 Ark. 664", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728601 ], "opinion_index": 1, "case_paths": [ "/ark/15/0664-01" ] }, { "cite": "80 L. Ed. 1401", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 1 }, { "cite": "56 S. Ct. 948", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 1 }, { "cite": "298 U. S. 680", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1486412, 1486317, 1486126, 1486358, 1486397 ], "opinion_index": 1, "case_paths": [ "/us/298/0680-04", "/us/298/0680-02", "/us/298/0680-05", "/us/298/0680-01", "/us/298/0680-03" ] }, { "cite": "110 S. W. 2d 7", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "194 Ark. 1057", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726001 ], "opinion_index": 1, "case_paths": [ "/ark/194/1057-01" ] } ], "analysis": { "cardinality": 1309, "char_count": 38934, "ocr_confidence": 0.503, "pagerank": { "raw": 2.331348876095049e-07, "percentile": 0.7911281700207232 }, "sha256": "2305e864fb4f4868c881ee349aa859de5efdd03ccc00623fe67b0f6586da036b", "simhash": "1:c9c3b546b86ed91b", "word_count": 6882 }, "last_updated": "2023-07-14T22:44:13.530812+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Smith, J., concurs.", "McHaNey and Baker, JJ., dissent.", "I would reverse and dismiss both charges and am authorized to say that Mr. Justice Baker concurs in this dissent." ], "parties": [ "McKeown v. State." ], "opinions": [ { "text": "GrifpiN Smith, C. J.\nThis appeal is from judgments rendered on directed verdicts finding the defendant guilty (1) of selling liquor on Sunday, and (2) of selling, in dry territory, be\u00e9r containing alcohol in excess of 3.2 per cent, .by weight.\nAppellant owned and operated the Elite cafe in Mal-vern. On Sunday in August, 1938, the prosecuting attorney purchased 'Budweiser beer. Chemical analysis showed an alcoholic content of 3.76 per cent, by weight, and 4.70 per cent, by volume. The chemist testified that, in his opinion, the beer could be used as an intoxicating liquid. Testimony of other witnesses that Budweiser beer had made them drunk was admitted over defendant\u2019s objections. Grounds of objections were that the witnesses had not bought the beer from defendant, and that they did not know the alcoholic content.\nExceptions were saved to the court\u2019s action in holding that instructions received from the State Revenue Department, and a letter written by the Attorney General construing the law, were not admissible.\nEvidence that the beer was sold on Sunday is not contradicted; nor is the chemist\u2019s testimony as to alcoholic content denied.\nA fine of $25 for violating the Sunday law was assessed, this being tbe lowest penalty permitted by \u00a7 3421 of Pope\u2019s Digest.\nOne of tbe early cases involving violation of a similar law was Bridges v. State, 37 Ark. 224. Tbe indictment was nnder \u00a7 1618 of Gantt\u2019s Digest, and tbe opinion was banded down in 1881. Tbe court held that \u201cAleo-bol is embraced in one of tbe terms, goods, wares, or merchandise,\u201d and affirmed the judgment of conviction. In dealing with tbe same section of Gantt\u2019s Digest the court said, in Seelig v. State, 43 Ark. 96: \u201cWhere an act is in itself indifferent and only becomes criminal when done with a particular intent, there the intent must be proved. But if tbe act be unlawful, as to keep open a store on Sunday, tbe law implies tbe criminal intent, and proof of justification or excuse must come from tbe defendant. \u201d This opinion was in 1884. In March, 1885, tbe statute now appearing as \u00a7 3421 of Pope\u2019s Digest was enacted.\n' The section appearing in Gantt\u2019s Digest as 1618 seems to have been taken from Cb. XLIY, Revised Statutes, where it appears as \u00a7 5. There is a slight, but unimportant, variation in phraseology between Gantt\u2019s \u00a7 1618 and \u00a7 5 of Oh. XLIY, Revised Statutes, but with respect to each a section immediately following is: \u2018 \u2018 Charity or necessity on tbe part of tbe customer may be shown in justification of tbe violation of tbe last preceding section.\u201d The quoted provision now appears as \u00a7 3422, Pope\u2019s Digest.\nIn appellant\u2019s brief it is urged that tbe law\u2019s intent was \u201cto keep closed on Sunday all stores and general mereh\u00e1ndise establishments, including dram shops and saloons. It does prohibit the sale of \u2018spirits or wine.\u2019 \u201d A summation of appellant\u2019s position appears in a footnote.\nWe do not agree that the act of 1885 is to he regarded as \u201can old Sunday OBlue Law\u201d; nor is.it a regulation based exclusively upon religious considerations. The contrary has been held.\nAn interesting discussion of the subject is to be found in Swann v. Swann, 21 Fed. 299. The opinion was written by Judge Caldwell in a controversy involving validity of a note executed in Tennessee on Sunday, enforcement of which was sought in Arkansas in 1884. Judge Caldwell quoted the Arkansas' statute (now appearing as \u00a7 3418 of Pope\u2019s Digest) and \u00a7 1617 of Gantt\u2019s Digest. The latter section was repealed, but a new law was passed in 1887 covering the same subject-matter. The 1887 enactment appears in \u00a7 3420 of Pope\u2019s Digest.\nReferring to these provisions, Jndge Caldwell said:\n\u25a0 \u201cIt'is - obvious the statute does not atteinpt to com-' pel the observance of the first day of the week, as a day of rest, as a religions duty. It would be a nullity if it did so. ' In this' country legislative authority is limited strictly to temporal affairs by written constitutions. Under these constitutions there can be no mingling of the affairs of church and state by legislative authority. No citizen can be required by law to do, or refrain from doing, any act upon the sole ground that it is a religious duty. The old idea that.religious -faith, and practice\u2019 can be, and should be, propagated by physical force and penal statutes has no place in the American doctrine of government. Force can only affect external observance; whereas, religion consists in a temper of heart and conscious faith which force can neither implant nor efface. . . . The statute, then, is not a religious regulation, but is the result of a legitimate exercise of the police power, and is itself a police regulation.\n\u201cExperience has shown the wisdom and necessity of having, at stated intervals, a day of rest from customary toil and labor for man and beast. It renews flagging energies, prevents 'premature decay, promotes the social virtues, tends to repress vice, aids and encourages religious teachings and practice, and affords an opportunity for innocent and healthful amusement' and recreation.\n. . \u201cWhile the law does not enforce religious- duties and. obligations as such, it has a tender regard for the conscience and convenience of every citizen in all matters relating to his religious faith and practice. The statute is catholic in its spirit, and accommodates itself to the varying religious faiths and practices.of .the people.\u201d\nIn Scales v. State, 47 Ark. 476, 1 S. W. 769, 58 Am. Rep. 768, 'Chief Justice Cockkill said: '\u201c\u2018The principle which upholds these regulations underlies, the right- of -the state to prescribe a penalty for the violation of the Sunday law. The law which imposes the penalty operates' upon all' alike, and interferes with no man\u2019s religious belief, for in limiting the prohibition to secular pursuits it leaves religious professon and worship free.\u201d\nIn Rosenbaum v. State, 131 Ark. 251, 199 S. W. 388, L. R. A. 1918B, 1109, Mr. Justice Wood traced the origin of compulsory Sabbath observance. In the Bosenbaum Case the undisputed evidence showed that the defendant operated a moving picture show in violation of the statute, and a directed verdict of guilty was upheld.\nA more recent case (1926) is Rhodes v. Hope, 171 Ark. 754, 286 S. W. 877, 47 A. L. R. 1104. Upon undisputed proof that the defendant had sold gasoline on Sunday, in violation of a city ordinance patterned from the state law, the court directed a verdict of guilty. On appeal the judgment was affirmed. The opinion cites Petty v. State, 58 Ark. 1, 22 S. W. 654, and Goff v. State, 20 Ark. 290.\nTrial courts are empowered to direct verdicts of guilty in misdemeanor cases where the punishment is by fine only if the facts are- undisputed, and where from all the evidence the only inference to be drawn is that the alleged crime has been committed by the defendant in circumstances which do not disclose legal justification.\nIt may be urged .that social intercourse, and personal, professional, and business relationships, have so changed within the past 53 years that the law promulgated in 1885 has become obsolete; that it should be treated as a dead letter decreed by custom and modern convenience to be a relic of other days. Answer to this argument is that courts are interpreters, and not the makers, of laws. As Chief Justice Cockeill said in the Scales Case, \u201cIf the law operates harshly, as laws sometimes do, the remedy is in the hands of the Legislature. It is not the province of the judiciary to- pass upon the wisdom and policy of legislation \u2014 that is \u25a0 for the members of the legislative department, \u2014 and the only appeal from their determination is to their constituency. \u2019 \u2019\nThe defendant in the instant case was guilty of violating \u00a7 3421 of Pope\u2019s Digest; and, since the statute imposes a fine only, and not less than $25 could be assessed, it was not error for the court to direct a verdict. We are not willing to say that beer, in the circumstances in which it was being sold, was a necessity. Obviously, the defendant understood that the prosecuting attorney was making the purchase in order to test the law. The conclusion is inescapable that the defendant was keeping his place of business open for general commercial purposes, and that beer was being sold regularly and generally.\nThe next question is whether the sale of beer of the alcoholic content reflected by the record was unlawful in Malvern at the time in question.\nAct No. 7 of the Extraordinary Session of 1933, p. 20,. \u00a7 2, defines beer as \u201cany fermented liquor made from malt or any substance thereof and having an alcoholic content of not in excess of 3.2 per cent, by weight.\u201d Such beer was legalized under terms of the act.\nBy \u00a7 27-A, provision was made for special elections in the several counties, upon petition of 51 per cent, of the qualified electors of any county presented to the county court within sixty days from the effective date of act 7. If a majority of the qualified voters opposed the sale of beer, such sale was prohibited. At the succeeding regular election the question might be submitted under the initiative and. referendum amendment to the Constitution (which permits 15 per cent, of the electors to initiate a law).\nAct No. 108 was approved March 16,1935. It authorizes the manufacture, sale, transportation, possession, or other disposition of spirituous, vinous, and malt liquors. By \u00a7 6 of Art. 1 the word \u201cmalt\u201d is defined as \u201cliquor brewed from the fermented juice of grain and containing more than five per centum of alcohol by weight.\u201d There is this further provision: \u201cBeer containing not more than five per centum of alcohol by weight and all other malt beverages containing not more than five per centum. of alcohol by weight are not defined as malt liquors, and are excepted from each and every provision of this act. It is further provided that malt and vinous beverages containing more than 3.2 per cent, of alcohol by weight and not more than 5 per cent, of alcohol by weight shall be taxed and regulated as provided for malt and vinous beverages containing not more than 3.2 per cent, alcohol by weight under the provisions of act 7 [of 1933].\u201d\nIt will be observed that after defining the word \u2018malt\u201d to mean liquor containing more than 5 per cent, alcohol, beer containing not more than 5 per cent, alcohol is excluded from the provisions of act 108 and \u2018 \u2018 malt and vinous beverages\u201d containing more than 3.2 per cent, of alcohol, and not more than 5 per cent, of alcohol, \u201cshall be taxed and regulated as\u2019provided for malt and vinous beverages containing not more than 3.2 per cent, alcohol. \u201d\nThe intent, as expressed by the language used, is to classify beer having an alcoholic content \u2022 of not more than 5 per cent, as a malt beverage, as distinguished from malt liquor.\nSection 1 of art. 7 of act 108 permits 35 per cent, of the voters of any county, city, town, district, or precinct, to petition the county court for an election upon the proposition whether'\u201cspirituous, vinous or malt liquors shall be sold, bartered, or loaned therein.\u201d Section 4 of art. 7, with respect to such election, directs that if a majority * \u2018 shall be in favor of prohibiting the sale of liquor in the territory in which the election shall have been held, the law prohibiting such sale shall be in full force and effect at the expiration of sixty days from the date of the entry of the certificate of the canvassing board.\u201d Penalty for violation is a fine of not less than $60 nor more than $100, and confinement in the county jail for not less than 20 days nor more than 40 days.\nAn election was held in Malvern in 1935 on petition of 218 of the 492 qualified electors of the city \u2014 218 being more than 35 per cent, of 492. The county court order recites that such election was held under authority of act 108 to determine whether \u201cintoxicating liquors shall be 'sold, loaned, bartered in any hotel, dispensary, club, restaurant, or any other place or thing within the city of .Malvern.\u201d By a vote of 179 to 118 such liquor traffic was prohibited.\nIt is contended by appellant that because the Malvern \u00ablection was under authority of act 108, and because the \u25a0election had for its purpose the sounding of public sentiment, on the question of selling liquor as defined in the .act, beer of an alcoholic content of. not more than 5 per cent, was not\u2019within the purview, and could not be, since act 108 by express terms declares siich beer to be a beverage and not a liqnor. Therefore, it is insisted, control of sale of the beverage is referable to act 7 of 1933. It is further argued that act 7 contemplates the county as a unit, and under such act a city may not prohibit the sale of beer.\nIt must be conceded that the language of acts 7 and 108 in so far as, it has been quoted by appellant justifies the result contended for. Act 7, by its terms, contemplates a county-wide vote, and sections one to four, inclusive, of art. 7 of act 108, deal with a drink having an alcoholic content of more than five per cent. If act 108 ended where appellant has terminated his citation of its terms, clearly his position would be sound.\nBut we must consider all of the act, rather than its partial recitals, to determine the legislative intent.\nSection 5, art. 7, act 108, contradicts appellant\u2019s theory that the beer in question may be legally sold until, in a county-wide election conducted under authority of act 7 (on petition of 51 per cent, of the electors) the voters have expressed opposition to the traffic.\n\u25a0 Section 5 is: \u201cIt shall be unlawful for anyone to sell, barter or loan, directly or indirectly, any beverage containing any alcohol; or any liquid mixture or decoction of any kind which produces or causes intoxication in any county, city, town, district or precinct in which the sale, barter or loan of spirituous, vinous or malt liquors is or shall be prohibited in accordance with the local option law.\u201d\nThis section permits prohibition of the sale of malt liquors, etc., and it contemplates procedure as set out in the act \u2014 not procedure under authority of act 7. The first six words on page 260 of the printed acts of 1935 are: \u2018 The word \u2018 malt \u2019 shall mean liquor. \u2019 \u2019 The optional vote authorized by \u00a7 1 of art. 7 relates to the sale of \u201cspirituous, vinous or malt liquors,\u201d and. the sale of such may be prohibited in the manner set out in act 108.\nThe election in Malvern was in conformity with act 108. The only vice urged against it is that authority to prohibit the sale of beer of not more than 5 per cent, alcoholic content is not within the act.\nArticle 9 of act 108 repeals all conflicting laws or parts of laws\u2014\n\u201cProvided, however, that this act is not intended to repeal or conflict in any way . . . with the taxing provisions of act No. 7 of the Extraordinary Session of the Forty-Ninth General Assembly of the state of Arkansas, approved August 24, 1933.\u201d\nSpecifically, the Legislature, by the language of art. 9, has said that it did not intend to repeal the taxing provisions of act 7. It did intend, as we have seen, to substitute a permissive and increased alcoholic content for beer; and it is our view that it intended to provide new local option machinery.\nIt will be observed that' the mandate of \u00a7 5 of act 108 applies only to areas where the \u201csale or loan of spirituous, vinous, or malt liquors shall be prohibited in accordance ivith the local option law.\u201d .\nIf it be said that the only local option law applicable to beer of not more than 5 per cent, alcoholic content is act 7 of 1933, we are met with the contradiction that the 1933 enactment does not apply to cities, towns, precincts, or districts. It is inconceivable that the framers of act 108, and the Legislature that passed it, could have intended, by \u00a7 5, to require proponents of prohibition to proceed under a statute which could afford them no relief in any subdivision less than a county. Article 9 dispels snob, theory. It will not be assumed that the lawmakers, in one sentence, extended an option, and in another sentence withdrew it.\nIt is not necessary, in this opinion, to determine whether the language in \u00a7 5 of act 108 prohibits the sale in dry territory of a beverage containing \u201cany alcohol,\u201d or whether it merely prohibits sale of \u2018 \u2018 a liquid mixture or decoction of any kind which produces or causes intoxication.\u201d Following the word \u201calcohol\u201d in \u00a7 5 a semicolon is used, followed by \u201cor,\u201d a co-ordinating particle that marks an alternative. However, proof in the case at bar is sufficient to show that the beer sold by appellant contained enough alcohol to cause intoxication in certain circumstances, and with respect to certain people. Dr. Manglesdorf, the chemist, testified that 3.2 beer is intoxicating \u201cif you drink enough of it.\u201d He also testified: \u201cIt is generally conceded by medical men that you can get stimulation and sufficient disorganization of the mental equilibrium to become intoxicated [by drinking 3.2 beer].\u201d\nIn State v. Hutchinson, 194 Ark. 1057, 110 S. W. 2d 7, the defendant below was charged with selling intoxicating liquors in a pool room. The question was whether 5 per cent, beer (as distinguished from beer having an alcoholic content of \u201cmore than 5 per cent.\u201d) was intoxicating. In discussing act 108 of 1935 the opinion says: \u201c[The act] says in the latter part of \u00a7 6 [of art. 1] that \u2018beer containing not more than 5 per cent, of alcohol by weight and all other malt beverages containing not more than 5 per cent, of alcohol by weight are not defined as malt liquors, and are exempt from each and every provision of this act.\u2019 This is far from saying that 5 per cent, beer is not an intoxicating liquor. The effect of the words quoted above are that said act 108 excludes from its taxation and regulation malt and vinous beverages containing more than 3.2 per cent, of alcohol and not more than 5 per cent, of alcohol.\u201d\nThe opinion then mentions certain provisions of act 7 of 1933, and continues: \u201cWe are not willing to construe these acts as saying that the Legislature passing them intended to say that 5 per cent, beer was nonintoxicating liqnor. Such a declaration on the part of the Legislature would be arbitrary and contrary to what everybody knows.\u201d\nOther authority is to the same effect.\nThe judgment of conviction for violating the Sunday law is affirmed. .\nViolation of \u00a7 5 of art. 7 of act 108 is punishable by a fine of not less than $20 nor more than $100. No jail sentence is -imposed. The trial court directed a verdict calling' for a fine of $60 and imprisonment in the county jail for a period of twenty days. This was error. The judgment rendered on this verdict is reversed and the cause is remanded with directions that the provisions of \u00a7 5 of art. 7 are applicable. However, a new trial on this charge must be had. It is so ordered.\nSmith, J., concurs.\nMcHaNey and Baker, JJ., dissent.\nGantt\u2019s Digest, \u00a7 1618: \u201cEvery person who shall, on Sunday, keep open any store, or retail any goods, wares, or merchandise, or keep open any dram-shop or grocery, or sell or retail any spirits or wine, shall, on conviction thereof, he fined in any sum not less than ten dollars nor more than twenty.\u201d\nCounsel says: \u201cThe appellant . . . has engaged in [the cafe] business for a number of years. Beer of the alcoholic content testified to with respect to the bottle sold to the Prosecuting Attorney is a part of the regular stock of provisions and refreshments regu-\u00bb larly served to customers of his restaurant business. The sale of such beer is now legal in this state and in the city of Malvern, and unless the prosecution and the lower court can invoke this old Sunday Blue Law to sustain a penalty against the appellant, he did not commit an illegal act. Therefore, under the law, the bottle of beer must-be regarded and treated as any other beverage or refreshments generally and customarily served in restaurants and cafes. Since its sale is not illegal per se, it must be classed along with coffee, milk, tea, coca-cola, or other bottle beverages usually served at restaurants with food and meals. The beer sold is not wine, and neither is it \u2018spirits\u2019 as now defined by act 108.\u201d\nGantt\u2019s Digest, \u00a7 1617: \u201cPersons who are members of any religious society, who .observe as Sabbath any other day of the'week, than the Christian Sabbath or Sunday, shall not be subject to the penalties of this act, so that they observe one day in seven, agreeably to the faith and practice of their church or society.\u201d\nPope\u2019s Digest, \u00a7 3420: \u201cNo person who from religious belief keeps any other day than the-first day of the week as the Sabbath shall be required to observe the first day of the week, usually called the Christian Sabbath, and shall not be liable to the penalties enacted against Sabbath breaking. Provided, no store or saloon shall be kept open or business carried on there on the Christian Sabbath; and provided further, no person so observing any other day shall disturb any religious congregation by its avocation or employment.\u201d\nIn the Rosenbaum Case Mr. Justice Wood said: \u201cThe Frank emperors had Sunday .observed; the Code of Napoleon ordered it, and the observance of the Lord\u2019s day has been enjoined by statutes in England from the earliest times. Coming on down to the legislation in the mother country, which forms the basis of such legislation in practically all of the states of the Union, we find that in the reign of Charles II an act entitled, \u2018An act f\u00f3r the better observation of the Lord\u2019s day, commonly called Sunday,\u2019 was passed, which, among other things,, provides: \u2018That no tradesman, artificer, workman, laborer, or other person whatsoever shall do or exercise any worldly labor, business, or work of their ordinary callings upon the Lord\u2019s day, or any part thereof (work of necessity and charity only excepted).\u2019 Stat. at Large, 29 Chas. II, Ch. 7, p. 412, (12 Chas. 3, p. 412).\u201d\nIn Collins v. State, 183 Ark. 425, 36 S. W. 2d 75, it\" was-held that in the circumstances there shown the trial court did not have the right to direct a verdict of guilty. \u201cWhere the punishment may be imprisonment, or where the law provides that it may be fine or imprisonment, the trial judge has no power to direct a verdict.\u201d Citing Roberts v. State, 84 Ark. 564, 106 S. W. 952; Wylie v. State, 131 Ark. 572, 199 S. W. 905; Parker v. State, 130 Ark. 234, 197 S. W. 283; Snead V. State, 134 Ark. 303, 203 S. W. 703; Burton v. State, 135 Ark. 164, 203 S. W. 1023; Huff v. State, 164 Ark. 211, 261 S. W. 654. But in the Collins Case it was held that an instructed verdict may be given where the punishment is by fine only, etc.\nSection 27-9 of act 7 of 1933, in part, is: \u201cAt each general election for state and county offices after the passage of this act, or at a special election called by the county court upon a petition of 51 per cent, of the qualified electors of the county presented within sixty days next after the passage of this act, there may be submitted to the qualified electors of any county in the state of Arkansas so. desiring in the manner provided for the submission in a county of the question under the initiative and referendum provision of the Constitution and laws of the state of Arkansas the question as to whether the sale of beer and light wine containing alcohol not in excess of 3.2 per cent, by weight shall or shall not be permitted within said county for two years in ease the matter is voted on at a general election and in the case of a special election the question shall be voted on as to whether the sale of beer and light wine containing alcohol not in excess of 3.2 per cent by weight shall or shall not be permitted until the day of the next general election.\u201d ,\nSection 5 of art. 7 of act 108 of 1935, in addition to that part quoted iu the opinion, also provides. \u201cAny person who shall sell, barter or loan, directly or indirectly, any such beverage, liquid mixture or decoction in any such county, city, town or precinct, shall, upon conviction, he fined the sum of not less than $20 nor more than $100 for each offense or any sale, barter or loan of any article with the agreement expressed or imposed that the right or title to or possession of any such beverage, liquid, mixture or decoction, shall also pass, shall be considered a sale, barter or loan within the terms of this act.\u201d\nWe pretermit a discussion of Amendment No. 7 to the Constitution, commonly referred to as the Initiative and Referendum Amendment. One of its provisions is: \u201cFifteen per cent, of the legal voters of any municipality or county may . . . invoke the initiative upon any local measures.\u201d Under \u201cDefinition,\u201d the word \u201cmeasure\u201d is construed to be \u201cany bill, law, resolution, ordinance, charter, constitutional amendment or legislative proposal or enactment of any character.\u201d", "type": "majority", "author": "GrifpiN Smith, C. J." }, { "text": "McHaNey, J.\n(dissenting). Appellant was charged by information with two alleged offenses; 1. with selling liquor on Sunday; and 2, with selling beer containing alcohol in excess of 3.2 per cent, in dry territory. He was convicted by instruction of the court on both charges, fined in the first and fined and ordered imprisoned in the second. The majority have affirmed on the first and reversed and remanded on the second because the court cannot instruct a verdict of guilty where the punishment involves imprisonment. I concur in the judgment of reversal, but go further and would hold that appellant should be discharged on both charges.\nDiscussing the second charge first, I am of the opinion that appellant did not violate the law and that the information did not state a public offense. The facts are that the city of Malvern held a referendum election under the provisions of act 108 of 1935, and voted dry as to the liquors covered by that act. Such an election requires a petition equal to 35 per cent, of the qualified voters before the county judge shall order such election, and the question submitted to the voters is \u201cwhether or not spirituous, vinous or malt liquors, shall be sold, bartered or loaned\u201d in any \u201ccounty, city, town, district, or precinct.\u201d But, as heretofore stated, the result of such election applies only to such liquors' as are covered by said act. Section 6 defines the words \u201c spirituous, \u201d \u201c vinous\u201d and \u201cmalt\u201d and as to the last says: \u201cThe word \u2018malt\u2019 shall mean liquor brewed from the fermented juices of grain and containing more than five (5%) per centum of alcohol by weight. Beer containing not more than five (5%) per centum of alcohol by weight and all other malt beverages containing not more than five .(5%) per centum of alcohol by weight are not defined as malt liquors, and are excepted from each and every provision of this act.\n\u201cIt is further provided that malt and vinous beverages containing mo,re than 3.2% of alcohol by weight and not more than 5% of alcohol by weight shall be taxed and regulated as provided for malt and vinous beverages containing not more than 3.2% of alcohol by weight under the provisions of act No. 7 of the Acts of the Extraordinary Session of the General Assembly of 1933, approved August 24, 1933.\u201d The repealing section of said act 108 is very significant and is as follows: \u201cAll laws or parts of laws in conflict herewith are hereby repealed; provided, however, that this act is not.intended to repeal or conflict in any way with the taxing provisions of act No. 4 of the Second Extraordinary Session of the Forty-ninth General Assembly of the State of Arkansas, approved .January 12, 1934; nor with the taxing provisions of act No. 7 of the Extraordinary Session of the Forty-ninth General Assembly of the .State of Arkansas, approved August 24, 1933, nor with act No. 9 of the Second Extraordinary Session of the Forty-ninth General Assembly of the State of Arkansas, approved January 26, 1934, and in case there is any conflict between the taxing provisions of this act and either of the former acts here-inbefore mentioned, the provisions of the former act or acts shall be the law and govern the case.\u201d\nAct No. 4 and act No. 9, mentioned above, are not material to this inquiry, but act No; 7 is and will now be discussed. It is entitled \u201cAn Act to Permit the Manufacture, Sale and Distribution Within the State of Arkansas, of Light Wines and Beer, and to Provide for Taxing the Manufacture, Sale and Distribution of Such- Products, and for Other Purposes.\u201d It was the first step in the repeal of prohibition made in this state. It legalized the manufacture and sale of light wines and beer. It defined these terms as follows: \u201cThe term \u2018Beer\u2019 means any fermented liquor made from malt or any substitute therefor and having an alcoholic content of not in excess of 3.2 per cent, by weight. \u2019 \u2019\n\u201cThe term \u2018light wine\u2019 means the fermented liquor made from malt or any substitute therefor and having, an alcoholic content of not in excess of 3.2 per cent, by weight.\u201d This definition is erroneous as shown by the original bill and should read: \u201cThe term \u2018light wine\u2019 means the fermented juice of grapes or other small fruit including berries and having,\u201d etc., as above. Also intoxicating liquor is defined to \u201cmean vinous, ardent, malt fermented liquor or distilled spirits with an alcoholic content in excess of 3.2 per cent, by weight.\u201d\nIt appears to me that the necessary effect of said act 108 is to repeal these definitions in said act 7 and to substitute the definitions in act 108 for those in act 7. They are most certainly in conflict and the repealing section of 108 specifically says it repeals all laws or parts of laws in conflict with it, except as to the taxing provisions of the acts mentioned therein. The conclusion is irresistible to me that beer containing 5 per cent, or less of alcohol by weight is not now, nor has it been since the passage of act 108 of 1935, classed by the legislature as intoxicating liquor and that such beer can be lawfully sold in all parts of the state, except where it has been voted out under the provisions of said act 7 of the Special Session of 1933, which provides the precedure in \u00a7 27-A. There the question may be submitted to the whole county and not to a part thereof and, if by a petition, it must contain 51 per cent, of the qualified electors of the county. \u25a0\nIt is undisputed in this case the beer for which appellant is convicted of selling contains more than 3.2 per cent., but less than 5 per cent, of alcohol by weight. Therefore, the provisions of said act 108 have no application and a referendum election held under the provisions thereof could only bar the liquors covered by that act \u2014 in the case of beer/ of an alcoholic content of more than 5 per cent., and since appellant is not selling beer of more than 5 per cent, be cannot be convicted\u2019 of a violation of that act.\nAct 108 of 1935, art. 7, \u00a7 5, provides: \u201cIt shall be unlawful for anyone to sell, barter or loan, directly or indirectly, any beverage containing any alcohol; or any liquid mixture or decoction of any kind which produces or causes intoxication in any county, city, town, district or precinct in which the sale, barter or loan of spirituous, vinous or malt liquors is or shall be prohibited in accordance with the local option law, \u2019 \u2019 .and making it an offense punishable by a fine only for a violation, thereof. Just what does this quoted language mean? My thought is it must be read in connection with the other provisions of the act and that it means that it shall be unlawful to sell any \u201cspirituous,\u201d \u201cvinous\u201d or \u201cmalt\u201d liquors as these words are defined in the act in any territory which has voted dry under the provisions of the act, bearing in mind that, under the express provision above quoted from art. 1, \u00a7 6, \u201cbeer containing not more than 5% of alcohol by weight and all other malt beverages containing not more than 5% of alcohol by weight are not defined as malt liquors, and are excepted from each and every provision of this act.\u201d We must, therefore, read the prohibition in \u00a7 5, art. 7, above quoted as applying only to beverages, liquid mixtures or decoctions containing more than 5% of alcohol by weight, instead of beverages \u201ccontaining any alcohol, \u2019 \u2019 or- liquid mixtures or decoctions \u201cwhich produces or causes intoxication.\u201d To construe this provision of the act otherwise is to make it applicable to beer \u201c containing not more than 5% of alcohol by weight\u201d as well as all other malt beverages with a like content, in the very teeth of the provision excepting them \u201cfrom each and every provision of this act.\u201d\nMy conclusion on this charge of the information is that the demurrer should have been sustained, as it fails to charge a public offense. .\nAs to the charge of selling liquor on Sunday, the information charges it to have been done in violation of \u00a7 3421 of Pope\u2019s Digest and \u00a7 B of art. 6 of act 108 of the Acts of 1935. This charge is based on the sale of the same bottle of beer, on a Sunday, as that relied on on the other charge above discussed. He was convicted under said \u00a7 3421 of Pope\u2019s Digest. The information evidently refers to subsection (b) of \u00a7 1 of art. 6, and the court evidently found that this section had no application to the kind of beverage sold. Section 3421 of Pope\u2019s Digest is act 33 of 1885 amending \u00a7 1887 of the Revised Statutes to read as follows: \u201cEvery person who shall, on Sunday, keep open any store or retail any goods, wares, and merchandise, or keep open any dram shop or grocery, or who shall keep the doors of the same so-as to afford ingress or egress, or retail or sell any spirits or wines, shall, on conviction thereof, be fined in any sum not less than twenty-five dollars nor more than one hundred dollars.\u201d\nThis section has no application to the facts in this case and cannot, in my opinion be the basis of a conviction of appellant. The only part of it that has any possible bearing on this case is the prohibition against the retailing or selling \u201cany spirits or wine.\u201d He is not charged with keeping open any store, or that he retailed any goods, wares or merchandise, nor that he kept open any dram shop or grocery. The charge is that he \u201cdid unlawfully sell liquor, and was unlawfully interested in the sale and giving away of alcoholic, vinous, malt spirituous, fermented and medicated liquors on Sunday,\u201d etc. The proof was that appellant is engaged in the. restaurant or cafe business, in the city of Malvern and that on Sunday, August 13,1938, he sold a bottle of \u201cBudweiser\u201d beer containing 3.76% of alcohol by weight, and that beer of more than 3.2% and 5% or less is being sold all over Arkansas and in territory that has voted dry under act 108, on Sunday and every other day. Appellant did not sell any \u201cspirits or wine\u201d and was not so charged, and there was no proof to sustain such a charge had it been made. \u201cSpirits\u201d means spirituous liquors as defined in act 108 and must contain \u201cmore than 21% of alcohol by weight. The sale of wine is governed by act-69 of' 1935, wine being excepted from the provisions of act 108 where the term \u201cvinous\u201d is defined. In so far as said \u00a7 3421, Pope\u2019s Digest, (act 33 of 1885) applies to the sale of \u201cspirituous,\u201d \u201cvinous\u201d and \u201cmalt\u201d liquors is concerned, it has been repealed by act 108 of 1935 and act 69 of 1935, where the sale of these beverages is regulated and where sales on Sundays, election days, to minors and otherwise are specifically prohibited.\nThe commissioner of revenues is given authority to administer the provisions of these acts herein referred to and to make rules and regulations regarding their enforcement. There has never been a referendum election under the provisions of said act 7, and the department now rules that it is not a violation of law to sell beer in dry territory, that is, territory which has voted dry under act 108, which has an alcoholic content of 5% or less by weight, or light wine of 5% or less, and that it may be so sold on any day, Sunday or election day, because it is not a liquor covered by the provisions of act 108. It is an admitted fact, and would have been given in evidence in this record, but was excluded by the court, that such beverages are being so sold all over Arkansas, with the knowledge, consent, or at least, the acquiescence of the state commissioner of revenues who holds that it is not a violation of law to sell same in so-called \u201cdry territory \u201d or on Sunday or any other day, if the beverages are tax paid and the dealer holds a license. It would seem to me to be a great injustice for the state to license a dealer to do the very things appellant did, and then to prosecute him for doing them.\nAdministrative or executive construction of statutes and long time operation under such construction are entitled to great weight and consideration by the courts, and if a reasonable construction may be made by the courts conformable with executive construction it should be done. In Baxter v. McGee, 82 Fed. 2d 695, certiorari denied by United States Supreme Court; and McGee v. Baxter, 298 U. S. 680, 56 S. Ct. 948, 80 L. Ed. 1401, it was held that considerable weight, in arriving at the meaning of a doubtful statute, must be given to the practical construction placed upon it by the executive officers of the state, especially when such construction has been unchallenged over a long period of years. See, also, State v. Sorrels, 15 Ark. 664; State v. Lancashire Fire Ins. Co., 66 Ark. 466, 51 S. W. 633, 45 L. R. A. 348. In Moore v. Tillman, 170 Ark. 895, 282 S. W. 9, it was held that the interpretation of federal homestead laws \u2018by the Federal Land Department, though not controlling on courts, is highly 'persuasive, and, where in harmony with United States Supreme Court\u2019s decision, must govern. Act 7 of 1933 has been in force nearly six years and act 108 of 1935 has been in force nearly four years, and during all this time they have been given the interpretation and have been administered as herein contended, and I think the court should not now, at this late day, disturb such construction. I am, therefore, of the opinion that the state failed to make a case against appellant on this charge, and that a directed verdict should have been given in his favor.\nTo the extent the views herein expressed may be in conflict with State v. Hutchison, 194 Ark. 1057, 110 S. W. 2d 7, I would overrule same.\nI would reverse and dismiss both charges and am authorized to say that Mr. Justice Baker concurs in this dissent.", "type": "dissent", "author": "McHaNey, J." } ], "attorneys": [ "JoJm L. McClellan, for appellant.", "Jack Holt, Attorney General, and Millard Alford, Assistant Attorney General, for appellee." ], "corrections": "", "head_matter": "McKeown v. State.\n4105\n124 S. W. 2d 19\nOpinion delivered January 9, 1939.\nJoJm L. McClellan, for appellant.\nJack Holt, Attorney General, and Millard Alford, Assistant Attorney General, for appellee.\nPope\u2019s Digest, \u00a7 3421: \u201cEvery person who shall, on Sunday, keep open any store or retail any goods, wares and merchandise, or keep open any dram shop or grocery, or who shall keep the doors of the same so as to afford ingress or egress, or retail or sell any spirits or wine, shall, on conviction thereof, be fined in any sum not less than twenty-five dollars nor more than one hundred dollars.\u201d" }, "file_name": "0454-01", "first_page_order": 470, "last_page_order": 488 }