In re-Petition of George Reinhart

How does this leave the situation? The Act of Congress has defined intoxicating liquors to be any liquid fit for beverage purposes, by whatever name called, 'containing one-half of one per centum of alcohol by volume.'

If there were nothing else in the Act of Congress, the conclusion would be irresistible that it legislates only as to vinous, spirituous, malt or brewed liquors which contain more than onehalf of one per centum of alcohol by volume, and that it does not cover such liquors if they contain less than one-half of one per centum of alcohol.

The Brooks High License Law having been construed to incliude liquors containing any percentage of alcohol, and, therefore, percentages less than one-half of one per cent., would cover a field that has not been covered by the Act of Congress. It would follow that the Act of Congress has not superseded the Brooks High License Law as to such liquors, but in Section 1 of Title 2 of the Act of Congress defining 'intoxicating liquors' there is this further provision.

"That the foregoing definition shall not extend to dealcoholized wine nor to any beverage or liquid produced by the process by which beer, ale, porter or wine is produced, if it contains less. than one-half of one per centum of alcohol by volume, and is made as prescribed in Section 37 of this title, and is otherwise denominated than as beer, ale or porter, and is contained and sold in, or from, such sealed and labeled bottles, casks or containers as the commissioners may by regulation prescribe.'

Section 37 provides that

'A manufacturer of any beverage containing less than onehalf of one per centum of alcohol by volume may, on making application and giving such bond as the commissioner shall prescribe, be given a permit to develop in the manufacture thereof by the usual methods of fermentation and fortification or otherwise a liquid such as beer, ale, porter or wine, containing more than one-half of one per centum of alcohol by volume but therefore any such liquid is withdrawn from the factory or otherwise disposed of the alcoholic contents thereof shall under such rules. and regulations as the commissioner may prescribe be reduced below such one-half of one per centum of alcohol.'

This section further provides how the alcohol may be extracted and taxed, and that no tax shall be assessed on de

VOL. XXXVI-No. 20

In re-Petition of George Reinhart

alcoholized wine containing less than one-half of one per centum of alcohol by volume.

Does this provision, which covers the manufacture of dealcoholized wine, so cover its sale as to supersede the Brooks High License Law regulating beverages containing less than onehalf of one per centum of alcohol by volume? I do not think it has that effect. The Act of Congress determines how realcoholized wine may be made, but it is not, in my opinion, intended to regulate the sale thereof. The Brooks High License Law, as interpreted by the Courts, distinctly regulates the sale of dealcoholized wine from which all the alcohol has not been extracted, and prohibits such sale without a license.

I am, therefore, of the opinion that the Act of Congress has not superseded the Brooks High License Law in so far as beverages are concerned which contain less than one-half of one per centum of alcohol by volume, and that a license is required to sell such beverages. This conclusion is consistent with that reached by the Court of Quarter Sessions of Schuylkill County in the matter of the petition of Wilson, G. Freeze for the transfer of a retail liquor license, wherein the Court came to the conclusion that a license was still required to sell 'vinous, spirituous, malt or brewed liquors, or any admixture thereof' containing less than one-half of one per centum of alcohol by volume, and that such requirement was not affected by the National Prohibition Act.

I, therefore, advise you that 'Virginia Dare Wine,' if it contains any percentage of alcohol, does not come within the NonAlcoholic Drink Act of March 11, 1909, P. L. 15, as amended by the Act of June 16, 1919, P. L. 480, and is, therefore not subject to your supervision."

It therefore seems quite clear to us that this court is not without jurisdiction of the subject matter of this proceeding. The contention of the learned counsel for the remonstrants, made in open court in the course of his argument, that this court is without jurisdiction to grant retail liquor licenses, because beverages which contain an alcoholic content less than one-half of one per cent. may lawfully be sold merely by complying with certain Federal regulations, is believed by us to be entirely without merit and cannot be approved, because it has been held by the Supreme Court and the Superior Court of this State that

In re-Petition of George Reinhart

the unlicensed sale of such beverages subjects the seller, under our statutes, if convicted of having made such sale, to punishment by fine and imprisonment. Neither the Eighteenth Amendment to the Constitution of the United States nor Federal legislation or regulation to enforce it can, in our opinion, make that lawful in the State of Pennsylvania which is unlawful by its statutes. If we were to adopt the contention of the learned counsel, and we would do so if we believed it to be the law, it would follow, in our opinion, that such sales might be made on Sunday, subject only to the penalty that would be incurred by the violation of the Act of April 22, 1794, 3 Sm. L. 177, which is known as the Blue Law, and which is rarely sought to be enforced by our citizenry, who are responsible for its enforcement. The enforcement of law and order is not promoted by a suggestion that persons may violate the provisions of the Brooks High License Law with impunity. Upon the other hand, the licensees of this court must know,-notwithstanding the language of their license, which is prescribed by statute, and which in the absence of Federal law would place no limit upon the alcoholic content of the beverages which they are upon the face of such license authorized to sell, that they are restricted by the Federal Law, as now in force under the decisions of the United States Supreme Court, to the sale of beverages of an alcoholic. content of less than one-half of one per cent. by volume. For the reasons stated the remonstrance must be dismissed.

And now, January 16, 1920, exceptions dismissed and license. granted.

Quarter Sessions of Columbia County

Columbia County Liquor Licenses

Applications were filed for granting of licenses under the "Brooks High License Law of May 13th, 1887. P. L. 108." The court raised the question as to its jurisdiction to grant licenses under the aforesaid act because of the passage of the National Prohibition Amendment. The Brooks High license law gives power to the courts to grant licenses for the sale of spirituous, vinous, malt or brewed liquors. It is therefore held that it is not necessary for a license to be granted to persons to sell malt, vinous or brewed preparations containing one-half per cent or less of alcohol, and that the Court is without jurisdiction to grant any licenses and all applications for liquor licenses are therefore refused. It is not necessary for a license to be granted for the sale of beverages containing one half per cent or less of alcohol as persons can sell same without a license.

Application for Liquor License, Jan. Term, 1920.

Small, Herring, Flynn, Charniall, Brockway and Chrisman, Attorneys for Petitioner.

Opinion by Harman, P. J. Feb. 2, 1920.

The question involved in the matter of granting licenses upon the applications as presented to us, in view of the 18th Amendment to the Federal Constitution and what is known as the "National Prohibition Act," seems to us to be one of jurisdiction. We do not think that a license can now be granted in Pennsylvania under our statutes to sell at wholesale, because under the Act of June 9, 1891, P. L. 257, repealed as to the 1st section only by the Act of July 30, 1897, P. L. 464, we are authorized to grant wholesale licenses only to that class of dealers mentioned in the act "dealing in intoxicating liquors, either spirituous, vinous, malt or brewed." Such is the plain provision of section 1 of the latter act. If only those wholesalers, etc., "dealing in intoxicating liquors," either spirituous, vinous, malt or brewed, are to be licensed and are to pay the fees, it follows that no license is required to sell a non-intoxicating liquor at wholesale. Title 2, section 1, of the National Prohibition Act of Oct. 28, 1919, in defining what are "intoxicating beverages", says: "The word 'liquor', or the phrase 'intoxicating liquor,' shall be construed to include alcohol, brandy, whiskey, rum, gin,

Columbia County Liquor Licenses.

beer, ale, porter and wine, and, in addition thereto, any spirituous, vinous, malt or fermented liquor, liquids and compounds, whether medicated, proprietary, patented or not, and by whatever name called, containing one-half of 1 per centum or more of alcohol by volume which are fit for use for beverage purposes: Provided, that the foregoing definition shall not extend. to dealcoholized wine, nor to any beverage or liquid products by the process by which beer, ale, porter or wine is produced, if it contains less than onehalf of 1 per centum of alcohol by volume, and is made as prescribed in section 37 of this title, and is otherwise denominated than as beer, ale or porter and is contained and sold in or from such sealed and labeled bottle, casks or containers as the commissioner (of internal revenue) may by regulation prescribe." For the above reasons, it seems to us that no license can be granted to sell a non-intoxicating liquor at wholesale, in view of the fact that our act limits us in the granting of such licenses to those dealing in intoxicating liquors, and that no fees need to be paid to do so.

As to the granting of licenses for the sale of liquor at retail under what is known as the Brooks High License Law of May 13, 1887, P. L. 108, we are not unmindful of the fact that our Supreme Court has held in a number of cases that a license is necessary under that act for the sale of any spirituous, vinous, malt or brewed liquor, regardless of the alcoholic content thereof. All these decisions were before the adoption of the 18th Amendment and the passage of the Prohibition Act. For this reason, therefore, we think we may with propriety discuss the question whether a license is necessary to sell at retail the liquors mentioned in the Act of 1887, containing less than one-half of 1 per cent. alcohol. That act neither in its title nor in the body of it makes any use of the word "intoxicating" as applied to the character of liquors for which licenses may be sought to sell and predicated upon that fact. In any event, we could not now grant a retail license, in the face of the Federal law, which would permit the sale of anything but an admitted non-intoxicating liquor, such as is prescribed and defined in the Federal law. As to the necessity for license to sell at retail such liquors as contain less than half of 1 per cent. of alcohol, denominated in the National Prohibition Act as "non-intoxicating", we believe that