ent's tract of land. It appears that 50 inches | option statute (Sess. Laws 1909, p. 18), and is is not too much for the irrigation of the as a matter of law an intoxicating liquor. [Ed. Note.-For other cases, see Intoxicating amount of land she has been cultivating. Liquors, Dec. Dig. § 122.*] In view of the facts and circumstances surrounding this case, we think substantial justice has been done by the decree of the trial court, and it will therefore be affirmed. Since we have reached a different conclusion on this rehearing from what we reached in the original opinion at the January term, that opinion will not be reported, and this will serve as the only opinion in the case. Judgment affirmed, with costs in favor of the respondent. (18 Idaho, 465) Ex parte LOCKMAN. (Supreme Court of Idaho. Aug. 3, 1910.) (Syllabus by the Court.) 1. DEFINITION OF "INTOXICATING LIQUORS." Section 31 of the local option statute (Sess. Laws 1909, p. 18) defines intoxicating liquors as including "spirituous, vinous, malt, and fermented liquors, and all mixtures and preparations thereof, including bitters and other drinks that may be used as a beverage and produce intoxication." [Ed. Note. For other definitions, see Words and Phrases, vol. 4, pp. 3736-3746; vol. 8, p. 7692.] 2. INTOXICATING LIQUORS (§ 224*)-SALESEVIDENCE-NATURE OF BEVERAGE. Under the definition given by the Legislature in section 31 of the local option statute (Sess. Laws 1909, p. 18), all "spirituous, vinous, malt, and fermented liquors" are declared as a matter of law to be intoxicating, and it is unnecessary for the state to prove that any liquor or beverage falling within the enumerated class will in fact produce intoxication. [Ed. Note. For other cases, see Intoxicating Liquors, Dec. Dig. § 224.*] 3. INTOXICATING LIQUORS (§ 224*)-SALEEVIDENCE. Inder the provisions of the local option statute (Sess. Laws 1909, p. 18, § 31 thereof), it is necessary for the state to prove the intoxicating quality of all mixtures and preparations used or intended to be used as beverages which do not fall within the enumerated class designated as "spirituous, vinous, malt, and fermented liquors." [Ed. Note. For other cases, see Intoxicating Liquors, Dec. Dig. § 224.*] Application of Jacob Lockman for a writ of habeas corpus. Proceeding dismissed. Hawley, Puckett & Hawley, for petitioner. D. C. McDougall, Atty. Gen., O. M. Van Duyn, J. H. Peterson, Asst. Atty. Gen., and F. A. Hagelin, for the State. AILSHIE, J. The petitioner, Jacob Lockman, was arrested and taken before the probate court in Canyon county charged with selling intoxicating liquor in a prohibition district contrary to the local option statute. A preliminary examination was held, and the evidence taken has been made a part of the petition in this case. The petitioner insists that the complaint and depositions fail to show that he has committed any public offense, and that he is therefore held unlawfully and is entitled to his discharge. The undisputed evidence as developed at the preliminary examination shows that the petitioner sold to one Charles S. Paynter at the city of Nampa four quart bottles of malt liquor, commonly known as "near beer." It · is admitted that Canyon county is a prohibition district within the meaning of the local option statute. Sess. Laws 1909, pp. 9-19. It is also admitted that this liquor, called "near beer," is a malt liquor. A chemist who analyzed the near beer purchased from petitioner testified that he found it contained 1.28 per cent. alcohol, and 7.1 per cent. malt extract. He also testified that this beer did not contain enough alcohol to intoxicate any one, unless it would be in rare instances. He says that a person could not drink enough of it to secure sufficient alcohol to intoxicate him. It was practically conceded on the argument that this drink, designated "near beer," is classed among the "soft" drinks or "temperance" beverages and is not ordinarily used as an intoxicant. The only question to be determined in this case is whether or not the liquor or beverage called near beer falls within the purview of the local option statute, as the words "intox 4. INTOXICATING LIQUORS (§ 25*)-LOCAL OP-icating liquors" are defined in section 31 TION LAW-OBJECT. The Legislature, in the enactment of the local option statute (Sess. Laws 1909, p. 9), evidently had in mind a twofold object, first, that of discouraging, and as far as possible preventing, intoxication and intemperance in the use of intoxicants; and secondly, and equally important, that of protecting the youth of the state from acquiring a taste for intoxicants and the habit of indulging in drinks and beverages that contain the intoxicating element. [Ed. Note.-For other cases, see Intoxicating Liquors, Dec. Dig. § 25.*] (Additional Syllabus by Editorial Staff.) 5. INTOXICATING LIQUORS (§ 122*) - WHAT CONSTITUTES "NEAR BEER." thereof. That section reads as follows: "Sec. 31. The words 'intoxicating liquors' as used in this act shall be deemed and construed to include spirituous, vinous, malt and fermented liquors, and all mixtures and preparations thereof, including bitters and other drinks that may be used as a beverage and produce intoxication." The petitioner contends that the words, "that may be used as a beverage and produce intoxication," refer to and modify "spirituous, vinous, inalt, and fermented liquors, and all mixtures and preparations thereof. "Near beer," being a malt liquor, falls including bitters and other drinks." In othwithin the definition of section 31 of the local er words, the petitioner insists that the prop. erty or quality of producing intoxication is the test that must be applied in every case, whether the liquor be vinous, malt, fermented, or a mixture or preparation thereof, or any other drink. On the other hand, the state contends that the lawmakers have unqualifiedly and arbitrarily defined "spirituous, vinous, malt, and fermented liquors" as intoxicating as a matter of law, whether they be intoxicating as a matter of fact or not. The state also contends that "all mixtures and preparations thereof, including bitters and other drinks" are to be tested by the proofs as to whether they will in fact produce intoxication. This case must be settled and determined upon the acceptance and application of one of these two views of the statute and theories of construction. that it is so manufactured as not to be intoxicating in its ordinary use as a beverage is immaterial. * * The manufacturer cannot bring a malt liquor within the class of liquors not prohibited by the statute by giving it some name other than that of beer, much less can he do so by adding a qualifying descriptive term to the word 'beer' used in the name. We reach the conclusion without the slightest doubt that the beverage in question, being a liquor manufactured from malted grain by a process involving fermentation, no matter how slight the fermentation may be, and irrespective of the amount of alcohol which it actually contains, and also without regard to whether it is in fact intoxicating, is within the statutory description of liquors the sale of which is prohib In support of the position taken by the de-ited." fendant, he calls our attention to the following among other authorities: Campbell v. City of Thomasville, 6 Ga. App. 212, 64 S. E. 815; Stoner v. State, 5 Ga. App. 716, 63 S. E. 602; Ex parte Gray (Tex. Cr. R.) 83 S. W. 828; James v. State, 49 Tex. Cr. R. 334, 91 S. W. 227; Potts v. State, 50 Tex. Cr. R. 368, 97 S. W. 477, 7 L. R. A. (N. S.) 194, 123 Am. St. Rep. 847. An examination of these cases discloses the fact that the Texas and Georgia courts construe somewhat similar statutes in harmony with the view maintained by the petitioner, and take the position that the statutes of those states were intended to prevent intemperance and intoxication, and that the test as to whether the liquor comes within the purview of those statutes is to be determined upon the intoxicating property or quality of the liquor or drink. The state, on the other hand, calls our attention to a great array of authorities which seem to support its contention. Among the many cases cited, the following seem to be closely in point here: Sawyer v. Botti (Iowa) 124 N. W. 787; Luther v. State, 83 Neb. 455, 120 N. W. 125, 20 L. R. A. (N. S.) 1146; State v. Frederickson, 101 Me. 37, 63 Atl. 535, 6 L. R. A. (N. S.) 186, 115 Am. St. Rep. 295; State v. Gill, 89 Minn. 502, 95 N. W. 449; State v. Piche, 98 Me. 348, 56 Atl. 1053. In Luther v. State, the Supreme Court of Nebraska had under consideration a statute which provides that "all persons who shall sell or give away, upon any pretext, malt, spirituous, or vinous liquors, or any intoxicating drinks," without first having complied with the provisions of the act and obtained a license, should be deemed guilty of a misdemeanor, etc. In course of the consideration of that statute, the court said: "It is contended by counsel for plaintiff in error that it was the legislative intent to suppress the sale of intoxicating liquors, and that, although the term 'malt liquors' is used in the act, yet it was not the purpose to prevent the sale of malt liquors or liquids, unless they contained a sufficient quantity of alcohol to produce intoxication; or, stated differently, that the language used in sections 11 and 20 must be construed to mean as if it read 'intoxicating malt liquor.' I cannot read the statute in that light. As well might we apply the adjective to the words 'spirituous' and 'vinous.' It is my opinion that the Legislature realized and appreciated the fact that malt, spirituous, and vinous liquors are equally largely used as a beverage and are alike injurious to the consumer, if not by producing immediate intoxication when taken in small quantities, by producing the same effect when more is taken and at the same time creating an abnormal appetite which leads to dissipation and inebriety. At any rate, the law prohibits the sale of 'malt liquors' without a license, and we must obey its plain mandate." In Sawyer v. Botti, the Supreme Court of Iowa as recently as February of this year had occasion to consider a statute somewhat similar to ours, and Mr. Justice McClain speaking for the court said: "The statute (Code, § 2382) prohibits the selling or keeping We quote the foregoing extracts to show for sale, etc., of any intoxicating liquor, what other courts have said of legislation which term shall be construed to mean alco- similar to our own statute. It will thus be hol, ale, wine, beer, spirituous, vinous and seen that courts of distinction and high malt liquor and all intoxicating liquor what-standing and of states widely separated have ever,' except as otherwise provided. It is taken contrary views of similar statutes. apparent, therefore, that the prohibition is twofold: First, of the sale of any liquor which is in fact intoxicating; second, of certain described liquors, whether intoxicating or not. In the second class are enumerated beer and malt liquor, and if the beverage in question is beer or malt liquor, then the fact We shall therefore endeavor to ascertain from an independent examination what the Legislature intended by the enactment of the statute under consideration, and in doing so our first consideration should be given to the natural, ordinary, and simple meaning and import of the language employed. The state contends that the words "that may be used as a beverage and produce intoxication" apply to and modify only the clause in which they are found and refer to the mixtures and preparations named therein. This construction is in harmony with our understanding of the language used. On the other hand, if we should adopt the view taken by the defendant, we would have to hold that each kind or class enumerated commencing with the word "spirituous" is modified by the phrase "that may be used as a beverage and produce intoxication." The section written out in full, as defendant contends that it was intended, would read as follows: "Sec. 31. The words 'intoxicating liquors' as used in this act shall be deemed and construed to include spirituous liquors that may be used as a beverage and produce intoxication, vinous liquors that may be used as a beverage and produce intoxication, malt liquors that may be used as a beverage and produce intoxication, and fermented liquors that may be used as a beverage and produce intoxication, and all mixtures and preparations thereof, including bitters and other drinks, that may be used as a beverage and produce intoxication." We cannot agree with this contention. It is not to be presumed that the Legislature would have entered into an enumeration of certain drinks commonly known and understood to contain the element of alcohol and to be intoxicating, if they had in fact intended that the test in all cases should be whether or not the drink is such as will produce intoxication. There would have been no reason for or object in enumerating these various liquors, distilled, vinous, malt, and fermented, if the Legislature had intended that in all cases the test should be whether or rot the drink is in fact such as will produce intoxication. The Legislature in the enactment of this law evidently had in mind a twofold object: First, that of discouraging and as far as possible preventing intoxication and intemperance in the use of intoxicants; second, and equally important, that of protecting and preventing the boys and young men of the state from acquiring a taste for intoxicants and the habit of indulging in drinks and beverages that contain the intoxicating element. The Legislature likewise recognized the fact that vinous, malt, and fermented liquors all contain, to some extent, the element of alcohol, although it may not be to such a degree as will produce intoxication. They therefore concluded when writing this statute, defining the words “intoxicating liquors," to declare as a matter of law that all "spirituous, vinous, malt, and fermented liquors" are intoxicating, irrespective of the amount of alcohol they may contain, and whether or not the particular kind of drink will in fact produce intoxication. They must also have had in mind the ment of such a law as they were enacting, if they left it to be proven in every case of the sale of a vinous, malt, or fermented liquor, whether or not the same was in fact such as would produce intoxication. If it were a question of fact in each case, one man might be convicted for the sale of a certain brand of malt or fermented liquor, while another man might be acquitted for the sale of the identical brand of liquor. Under that view of the statute, near beer might be sold in one prohibition district with safety and in another the sale prove to be a violation of the statute. This is a drink that furnishes great opportunities for violation of the statute. It was said by the Supreme Court of North Carolina, who evidently spoke from the record, in State v. Dannenberg, 151 N. C. 718, 66 S. E. 301, that: "Although near beer properly made is a nonintoxicating beverage, the sale of it furnishes extraordinary opportunities for the violation of the state prohibition law; that it is made by those who make beer, sold by those who sell beer, and drunk by those who drink beer; and that 'it looks like beer, smells like beer, and tastes like beer.'" The In our judgment it was the clear and unmistakable intent of the Legislature to say, as they had an undoubted right to say (State v. Frederickson, 101 Me. 37, 63 Atl. 535, 6 L. R. A. [N. S.] 186: Woollen and Thornton on Intoxicating Liquors, §§ 5, 114), that all "spirituous, vinous, malt, and fermented liquors" should be treated as intoxicating within the meaning of this statute. lawmakers also appreciated the fact that there would be many other mixtures and preparations used as a beverage that would produce intoxication, and which the lawmaking power could not specifically enumerate, and so they concluded that with reference to this latter class of drinks and beverages they would fix the test as one of fact in each case as to whether the drink or beverage would produce intoxication. We conclude, therefore, that section 31 of the local option law defining "intoxicating liquors" contains two divisions or classes of liquors or beverages: First, "spirituous, vinous, malt, and fermented liquors" which are declared as a matter of law to be intoxicating, and for which no proof is required except to show that they come within the enumeration; and second, all other mixtures and preparations thereof which will in fact produce intoxication. In the latter case the state must prove that the liquor is such that it may be used as a beverage and produce intoxication. It is conceded that "near beer" is a malt liquor. It follows, therefore, from what has been said that it falls within the definition of section 31 of the local option statute, and is declared as a matter of law to be an intoxicating liquor, and cannot be sold in a prohibition district. Held that, in order to bring a public amusement not specifically enumerated by the statute (section 6825, Rev. Codes) under the general language of "any such place of public amusement,' the likeness or similarity must exist in something other than the mere fact that it is a "public amusement," and must in a general way correspond to the amusements specified. [Ed. Note.-For other cases, see Sunday, Cent. Dig. §§ 11, 12; Dec. Dig. § 6.*] 2. SUNDAY (§ 6*)-PUBLIC AMUSEMENTS vised Codes, known as the "Sunday Rest Law," and was sentenced to pay a fine of $50 and to be imprisoned in the county jail for a term of 10 days. The specific offense charged against the petitioner was that of unlawfully keeping open a place of public amusement known and designated as a "Scenic Railway." This case was submitted on a stipulation of facts, from which it appears that on July 24th, the same being Sunday, the petitioner kept open his place of amusement, and admitted such persons as applied for admission, and operated his cars and furnished rides to those who paid the fee of 10 cents. It seems that the Natatorium Park Amusement Com pany, Limited, is a corporation organized The state contends that this comes within [Ed. Note. For other cases, see Sunday, Cent. the provisions and purview of section 6825 of Dig. §§ 11, 12; Dec. Dig. § 6.*] 3. SUNDAY (§ 6*)-PUBLIC AMUSEMENTS PROHIBITION. An amusement that is not per se unlawful or criminal, and is not in itself immoral or dangerous or detrimental to the public health, will not be included within the provisions of the statute prohibiting certain specified public amusements and other like and similar amusements on Sunday, unless the same is forbidden by the statute either in direct terms or by clear implication. [Ed. Note.-For other cases, see Sunday, Cent. Dig. §§ 11, 12; Dec. Dig. § 6.*] the Revised Codes. That statute provides Application of G. W. Hull for writ of ha- consequently prohibited by the phrase "or any beas corpus. Prisoner discharged. P. E. Cavaney and Richards & Haga, for petitioner. D. C. McDougall, Atty. Gen., J. H. Peterson and O. M. Van Duyn, Asst. Atty. Gen., and C. P. McCarthy, Prosecuting Atty., for the State. such place of public amusement." It is argued on behalf of the state that under the doctrine of ejusdem generis a scenic railway such as above described is prohibited on the ground that it falls within the prohibition of like, similar, and kindred amusements to the ones specifically prohibited. The peAILSHIE, J. The petitioner was convicted titioner on the other hand argues equally as in the justice's court of Boise precinct, Ada earnestly and eloquently that under the doccounty, of violating section 6825 of the Re-trine of the same rule the amusement he is For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes conducting is not included within the pro- | follow the specific amusements enumerated hibition of the statute. We enter upon the with the words "or any such place of public consideration of this statute fully conscious amusement." The word "such" has a very of the duty which rests on the court to as- definite and distinct meaning. It is defined certain what the law is on the subject and to by the lexicographers as: "Of that kind; declare it as we find it rather than as we of the same or like kind; identical with or think it ought to have been. We have no similar to something specified or implied; The right to add to or take from the law. * being the same as what has been task is sometimes extremely difficult to as- mentioned or indicated; being the same in certain the purpose or intent of the law-quality; having the quality specified, etc." makers, but that difficulty does not relieve a court of the undertaking. It is useless to undertake to review or analyze the authorities cited by counsel in this case for the reason that none of them construe a statute in the language of ours, and the only benefit we derive from them is such as we have gathered from the analogy of reasoning employed. The following are the principal cases to which our attention has been called and that we have given examination: Cited by petitioner: Ex parte Joseph Neet, 157 Mo. 527, 57 S. W. 1025, 80 Am. St. Rep. 638; Keith & Proctor Amusement Co. v. Bingham (Sup.) 108 N. Y. Supp. 205; State v. Prather, 79 Kan. 513, 100 Pac. 57, 21 L. R. A. (N. S.) 23, 131 Am. St. Rep. 339. By the state: State v. Groves, 119 N. C. 822, 25 S. E. 819; Randolph v. State, 9 Tex. 521; Chicago Union Trac. Co. V. Chicago, 199 Ill. 484, 65 N. E. 451, 59 L. R. A. 631; Willis v. Mabon, 48 Minn. 140, 50 N. W. 1110, 16 L. R. A. 281, 31 Am. St. Rep. 626; 2 Lewis' Sutherland on Stat. Const. § 437; State v. Dolan, 13 Idaho, 693, 92 Pac. 995, 14 L. R. A. (N. S.) 1259. It is difficult to tell the exact theory on which the lawmakers drafted this section of our statute. The amusements enumerated and prohibited are not similar or kindred amusements. There is apparently nothing common to all of them except that they are all public amusements. They are not all immoral amusements, nor are they all noisy and boisterous amusements. The race track may be said to be immoral in that it is a place of betting and gambling, and so it may be said that the "concert saloon" and the "variety hall" are classes of amusement at least suggestive of immorality. On the other hand, the merry-go-round is not an immoral amusement. It may also be said that there is nothing especially immoral about the circus or show, the billiard hall, nor the bowling alley, and yet these are prohibited on Sunday. When we come, therefore, to ascertain the moving purpose of the lawmakers in enumerating the amusements that should be prohibited, we fail to find a reason that is common to all of the amusements enumerated or that could be applied to each of them. It is patent that the Legislature did not intend to absolutely forbid and prohibit all public amusements on Sunday. If they had so intended they would undoubtedly have said so in so many words. On the contrary, they immediately * Now it is evident that the Legislature intended to prohibit any other public amusement not enumerated which could be distinctly classed as like or similar to those specified, but, since all are alike in that they are public amusements, the similarity must exist in something else other than the mere fact of amusement. The merry-go-round needs no description, for, on account of its popularity, it must be known and understood by all. There is a similarity between the merry-go-round and this scenic railway in that each furnishes a ride, but the character of the ride is apparently very different on the scenic railway from that of the merry-goround. One of the distinguishing features of the merry-go-round is the inspiring and animating sacred and patriotic music which it furnishes and which tends to make it more public than it otherwise might be. This the scenic railway does not seem to have. The scenic railway is by force of necessity obliged to make up in scenery for the loss of horses, giraffes, zebras, elephants and other beasts of burden that add interest and vari ety to the merry-go-round. Riders of animals of the same species are enabled to quietly converse together while they enjoy the music, but on the scenic railway there is nothing to be done but to hold on, exercise the muscles, and view the scenery. The merry-go-round was evidently prohibited on account of the noise it makes and the fact that it is usually located in the midst of the residence portion of the city, town, or village. So far as the record shows, this scenic railway is not attended by the noise that characterizes the merry-go-round. Again, the character of the amusement under consideration is such as to render it necessary that it have a great deal more room than the merrygo-round requires, and as a consequence it must be located outside of the principal residence portion of the community, and will therefore be farther removed from residences generally and from places of public worship. This class of legislation is upheld solely as an exercise of the police power of the state. The prohibition of public amusements on Sunday must therefore rest on the theory that it is necessary either for the protection of the public morals, the public health, or the public peace and safety. Mullen & Co. v. Moseley, 13 Idaho, 457, 90 Pac. 986, 12 L. R. A. (N. S.) 394, 121 Am. St. Rep. 277; State v. Dolan, 13 Idaho, 693, 92 Pac. 995, 14 L. R. A. (N. S.) 1259. |