Sections 18-101 and 18-102, I. C. A., read as follows:
18-101. "The manufacture, disposal and transportation of intoxicating liquors for beverage purposes are prohibited in the state of Idaho."
18-102. "The words 'intoxicating liquors' as used in this title shall be deemed and construed to include spirituous, vinous, malt and fermented liquors, and all mixtures and *Page 307 preparations thereof, including bitters and other drinks that may be used as a beverage and produce intoxication."
The legislature thus expressly and unmistakably prohibits the manufacture, transportation, disposal or sale ofintoxicating liquors for beverage purposes. These sections, as to those matters, do not require interpretation or explanation, laymen and lawyers alike have only to read them to at once understand that it is unlawful to manufacture, transport or sell intoxicating liquor in the state of Idaho for beverage purposes. It will be observed that the manufacture, transportation and sale of malt liquors containing no alcohol whatever are not expressly prohibited. Nevertheless, by ingenious construction it is held that the sale of malt liquor, having no alcoholic content whatever, is also prohibited. It is my position that the terms of said penal statute ought to be sufficiently clear to inform men of common intelligence that the sale of malt liquor in the state of Idaho, even though it contains no alcohol whatever, is unlawful and will subject the seller to prosecution and imprisonment. The mere reading of the statute will at once disclose that it gives no hint to a layman, unfamiliar with legal terms and rules of construction, that to sell malt liquor, containing no alcohol whatever, constitutes a crime. That, to say the least, the terms of the statute are vague and uncertain, concerning malt liquors having no alcoholic content whatever, is made quite clear in that the courts differ in the construction of statutes similar to the Idaho statute in question, as acknowledged in the Lockman Case,18 Idaho 465, 110 P. 253, 46 L.R.A., N.S., 759. In that case Lockman was charged with selling "near beer." Counsel for Lockman contended "that the property or quality of producing intoxication" was the proper test to be applied, and in the consideration of that contention Justice Ailshie (the author of the opinion) states:
"In support of the position taken by the defendant, 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 *Page 308 Gray, (Tex. Cr.) 83 S.W. 828; James v. State, 49 Tex. Cr. 334,91 S.W. 227; Potts v. State, 50 Tex. Cr. 368, 123 Am. St. 847,97 S.W. 477, 7 L.R.A., N.S., 194. 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, 147 Iowa, 453, 124 N.W. 787 [27 L.R.A., N.S., 1007]; Luther v. State, 83 Neb. 674, 120 N.W. 125 [20 L.R.A., N.S., 1146]; State v. Frederickson, 101 Me. 37, 115 Am. St. 295, 63 A. 535, 6 L.R.A., N.S., 186, 8 Ann. Cas. 48; State v. Gill, 89 Minn. 502, 95 N.W. 449; State v.Piche, 98 Me. 348, 56 A. 1052.
. . . . . . . . . . . . . .
"We quote the foregoing extracts to show what other courts have said of legislation similar to our own statute."
"It will thus be seen that courts of distinction and high standing and of states widely separated have taken contrary views of similar statutes."
When the terms of a statute are so vague and uncertain that "courts of distinction and high standing and of states widely separated" cannot agree, it must follow that the average citizen could not understand them. My views are very clearly and forcefully expressed by the supreme court of the United States, as follows:
"That the terms of a penal statute, creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the *Page 309 doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." (Connally v. General Constr. Co.,269 U.S. 385, 391, 46 Sup. Ct. 126, 70 L. ed. 322, 328; ChamplinRefining Co. v. Corporation Com., 286 U.S. 208,52 Sup. Ct. 559, 74 L. ed. 1062.)
And the supreme court of the United States in Connally v.General Construction Co., supra, quotes with approval the following clear statement of the law, from the case of theUnited States v. Capital Traction Co., 34 App. D.C. 592, 19 Ann. Cas. 68:
". . . . The dividing line between what is lawful and unlawful cannot be left to conjecture. The citizen cannot be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different construction. A criminal statute cannot rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue. Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another."
It is a matter of common knowledge that ever since the decision in the Lockman case was announced, "near beer" has been openly displayed and publicly sold by drug-stores, cafes and grocery-stores, in every nook and corner of the state, and in no instance brought to the attention of this court has a single person been prosecuted. It is the duty of the Governor of the State of Idaho to see to it that the laws of this state are enforced, but no Governor of Idaho at any time since the decision in the Lockman case was rendered has ever demanded of any attorney general or county attorney that the Lockman case law against the sale of "near beer" be enforced, and no attorney general or county attorney has ever attempted to enforce it until Speer was arrested *Page 310 and that arrest was made for the purpose of obtaining a modification of the decision in the Lockman case. The Lockman case law has been "a dead letter" ever since the case was decided, and, therefore, the legislature of this state has never had any reason whatever to amend the statute in question here.
Any and all legislation which has for its purpose the promotion of temperance and the conservation of the public health and morals is worthy of the highest praise, but in this case, that the Idaho statute absolutely prohibits either the manufacture, transportation or sale of intoxicating liquor is not denied by the petitioner, so that question is not involved here.
For the foregoing reasons I cannot concur in the majority opinion.