The majority opinion in this case seems to be that the double-strength tincture of ginger, which the defendant possessed for sale for nonbeverage purposes, was, as the statute says, "fit for use as a beverage or for intoxicating beverage purposes," but that the defendant was, as the statute says, "the holder of a legal permit therefor from proper federal authorities," and was therefore not guilty of a violation of the statute. The defendant was not guilty of a violation of the statute, but the reason is that, although he was not the holder of a permit to sell the double-strength tincture of ginger which he had in his possession for sale for nonbeverage purposes, it was not fit for use as a beverage or for intoxicating beverage purposes, according to the ruling made by the proper federal authorities.
The question that was propounded to us for decision in this case was a question of *Page 457 law; otherwise, we would not have had jurisdiction of the case. The question was whether the fitness or unfitness of the drug for use as a beverage was to be determined by the ruling of the so-called proper federal authorities, or was to be determined by the judge, acting as jury, without regard for the federal authorities.
The part of the majority opinion which I object to, particularly, is the expression:
"In so far as the trial judge found as a fact that double-strength tincture of ginger was fit for use for beverage purposes, he was acting clearly within his province as the tribunal charged with the finding of facts; and the finding of no federal authority, or other authority whatever, on that subject, is or can be of any weight against his finding."
How can it be said that the ruling or finding of the federal authority on the subject is not and cannot "be of any weight against his [the judge's] finding * * * that double-strength tincture of ginger was fit for use for beverage purposes," when the ruling or finding of the federal authority to the contrary is of so much weight that it has overturned the judge's ruling, and set the defendant free? If the ruling of the federal authority had been that double-strength tincture of ginger was, as our statute says, fit for use as a beverage or for intoxicating beverage purposes, our ruling would be that the defendant's possession of the tincture of ginger, for sale for nonbeverage purposes, was a violation of the statute, merely because he was not the holder of a legal permit therefor from proper federal authorities.
The method of reasoning pursued in the majority opinion in this case is apt to lead to confusion and grave consequences. If we say that it is the province of the district judge to determine,as a fact, and without regard for the rulings or classifications made by the federal authorities, whether any particular drug, or medicated or proprietary or patented liquid, is fit for use as a beverage, *Page 458 and if we say that the rulings or classifications made by the federal authority on the subject cannot "be of any weight against his finding," it must follow that, if the judge's sense of taste rebels against a particular liquid, "either medicated, proprietary, or patented," or if the judge deems the liquid unfit for use as a beverage or for intoxicating beverage purposes, he must hold that it is not a violation of the law for a person to possess such liquid for sale for nonbeverage purposes, without being "the holder of a legal permit from the proper federal authorities," even though the proper federal authorities have ruled that such liquid is fit for use as a beverage, and should not be possessed for sale for nonbeverage purposes without a permit.
The theory of the majority opinion seems to be that the defendant was the holder of a legal permit from the proper federal authorities to possess double-strength tincture of ginger for sale for nonbeverage purposes, because, by classifying double-strength tincture of ginger as being unfit for use as a beverage, the proper federal authorities granted permission to everybody to possess double-strength tincture of ginger for sale for nonbeverage purposes. But the language of the statute — "unless he shall be the holder of a legal permit therefor from proper federal authorities" — does not contemplate that a person may have permission from the federal authorities to possess for sale for nonbeverage purposes intoxicating liquors that are in fact fit for use as a beverage or for intoxicating beverage purposes.
In the indictment against the defendant in this case, it was charged that the tincture of ginger, which the defendant possessed for sale for nonbeverage purposes, was fit for use as a beverage or for intoxicating beverage purposes. Without that allegation, the indictment would not have accused the defendant of a violation of the statute, because, *Page 459 in precise terms, the statute declares that "alcoholic liquids, either medicated, proprietary or patented, containing one-half of one per centum or more of alcohol by volume," are not within the definition of intoxicating liquors, unless such liquids are those "which are fit for use as a beverage or for intoxicating beverage purposes." The definition of intoxicating liquors of that kind, in the language of section 8 of Act 39 of 1921, as amended by Act 57 of 1924, p. 93, is:
"All alcoholic liquids, either medicated, proprietary or patented, containing one-half of one per centum or more of alcohol by volume, which are fit for use as a beverage or for intoxicating beverage purposes."
In the majority opinion in this case, the court quotes from State v. Stewart, 157 La. 494, 102 So. 584 (syllabus No. 7, by one of the justices), viz.:
"Whether concoctions, tinctures, extracts, essences, etc., in a drug store, be or be not fit for use as a beverage or for intoxicating beverage purposes, is a question of fact which the Supreme Court will not review."
That trite statement may be ever so true, as an abstract proposition, but it is not appropriate to the case before us. I thought it was not appropriate in the case of State v. Stewart, because, in that case, the indictment, on which the defendant was prosecuted and convicted, did not contain the allegation that the tincture of ginger, which Stewart was accused of having in his possession for sale for beverage purposes, was fit for use as a beverage or for intoxicating beverage purposes. The question that was presented to us for decision was whether the indictment was sufficient without that allegation. That question was plainly a question of law. In my humble opinion, therefore, it was a mistake to say, in State v. Stewart, that the question presented for decision was a question of fact, over which the Supreme Court had not jurisdiction. A *Page 460 reading of the decision as reported leaves no doubt as to what the issue before us was.
My reason for subscribing to the court's decree in this case is that the district judge erred when he took it upon himself to decide, as a matter of fact, and without regard for the ruling or classification made by the proper federal authorities on the subject, whether double-strength tincture of ginger was fit or unfit for use as a beverage or for intoxicating beverage purposes.