Collotta v. State

delivered the opinion of the court.

This action was begun in the chancery court of Sunflower County by the state and by the county of Sunflower jointly. The bill of complaint was drawn under chapter 134, Laws 1919, as amended by chapter 256, Laws 1912, and the complainants sought and obtained an injunction restraining defendants from selling the liquors described in the statutes above mentioned. The bill also sought and obtained an attachment which was levied upon the property of defendants. The defendants in their answer denied that they had ever sold any vinous or spirituous liquors. A motion was made to dissolve the injunction and discharge the attachment. Both motions were overruled, and a final decree was entered perpetuating the injunction.

The case was tried upon an agreed statement of facts, from which we quote the parts pertinent to the issue presented to this court, viz.:

“The bill in this cause was filed under chapter 134 of the Laws of 1910, and the amendment thereto, being chapter 256 of the Laws of 1912. On or about the 1st day of January, 1912, D. Collotta commenced business in a certain building located on part of lot twenty-four in block 0 in the town of Indianola, Sunflower county, Miss., described in the bill of complaint in this cause, *450paying a privilege tax for a near beer stand, under chapter 97 of the Laws of 1912. The defendant D. Collotta is a son-in-law of Joe Carrero, one of the defendants. The near beer license has always been taken out in the name of D. Collotta and paid for by Joe Carrero with money belonging to Collotta. Continuously from the timé of the opening of said business as aforesaid until the writs of attachment and injunction were served in this cause the defendant D. Collotta sold to customers who carné to his establishment and called for beer various drinks which had the appearance of beer, and the chemical analysis of which shows the following amount of alcohol by weight and volume in the various drinks sold by D. Collotta, as aforesaid: First, alcohol by volume 3.95 per cent, alcohol by weight, corrected, 3.09 per cent.; second, alcohol by volume, 3.65 per cent., alcohol by weight, corrected, 2.85 per cent.; . . . fourth, alcohol by volume, 3.83 per cent., alcohol by weight, corrected, 2.991 per cent.; . . . tenth, alcohol by volume, 3.61 per cent., alcohol by weight, corrected, 2.81 per cent.; eleventh, alcohol by volume, corrected, 3.55’ per cent., alcohol by weight, corrected, 2.77 per cent. All of ■which was manufactured by Frank Fehe Brewing Company, of Louisville, Ky., and by the Tennessee Brewing Company, of Memphis, Tenn.”

The statute relied on to support the decree of the chancery court provides for the procedure followed in this case against persons who may “sell or give away vinous or spirituous liquors unlawfully. ’ ’ If the liquor sold falls within the definition of the statute, the decree will be affirmed, as this court has already pronounced the statute constitutional. State v. Marshall, 100 Miss. 635, 56 So. 792, Ann. Cas. 1914A, 434.

It is not claimed, and we believe it cannot be maintained, that the liquor sold by appellant was a “vinous” liquor, and so the state insists that the liquor was á “spirituous” liquor within the meaning of the statute. It is argued that the liquor as one of its elements con*451tained alcohol, and that alcohol is a spirituous liquor, and is also intoxicating, and therefore the legislature must have intended by the use of the word “spirituous” to give the remedy pursued against persons selling intoxicating liquors. It might be possible to construe the word as synonymous with “intoxicating,” but for the fact that vinous liquor is also intoxicating, and sometimes contain a much greater percentage of alcohol than the liquor sold in this instance, and for this reason, if for no other, it is obvious that the legislature did not think that spirituous would cover vinous liquors. Why add “vinous” when “spirituous” would have been sufficient? It is to-be assumed that the lawmakers knew the definition the-courts had placed upon the words employed by it.

This court, in Smith v. State, 94 Miss. 259, 49 So. 113, said:

“There can be no . . . doubt that beer, as commonly prepared, is a malt liquor, as distinguished from spirituous and vinous liquors.”

It will he seen that it has been judicially declared that malt liquors and spirituous liquors are entirely different. Besides, the legislative history of the state will demonstrate that it has always been deemed necessary to differentiate malt, spirituous, and vinous liquors. The legislature has always classified the liquors differently, and •every cub of the law has always known that his client could not be convicted for the sale of malt or vinous liquors under an indictment charging the sale of spirituous liquors. We think the variance in the proof and statute brings this ease within the rules applicable to indictments. The appellant here was charged with selling vinous and spirituous liquors, while the proof shows that he did not sell either. The facts in tliis case seem to indicate that the liquor handled by .appellant was a weak beer. It looked like beer, tasted like beer, was. sold for beer, and, no doubt, the customer thought he was drinMng beer. ' It was not spirituous liquors either in the ordinary sense or within the judicial definition- of *452the word, or within the previous legislation on the subject.

It would be futile to conjecture why the legislature elected to confine the remedy prescribed in the statute to cases wherein the liquor sold was spirituous or vinous. The courts cannot assume the power of legislation, nor presume to write into the statutes words to carry out what the court may conjecture the legislature intended to do. .

Reversed and remanded on appeal of D. Collotta and affirmed on appeal of- county of Sunflower and town of Indianola. ■

Reversed and remanded.