The majority opinion is contrary to the views entertained by all the Justices who first sat upon this court and. the Criminal Court of Appeals, as shown by opinions rendered in 1909 and 1910, when the question of the intention and understanding of those responsible for framing and adopting our Constitution and the prohibition ordinance was fresh in the minds of the judges and the people.
In Rochester Brewing Co. v. State (1910) 26 Okla. 309, 109 P. 298, in an opinion written by Justice Williams, and concurred in by Justices Dunn, Hayes, Kane, and Turner, this court, in paragraph 1 of the syllabus, said:
“When the word ‘beer’ is used without restriction or qualification, it denotes an intoxicating malt liquor, and, being included by the constitutional provision among intoxicating liquors, one who unlawfully handles beer has the burden of proof to show that it is not intoxicating if he so claims.”
Justices Williams, Hayes and Kane were delegates to the constitutional convention and knew first hand what was *208intended by these constitutional provisions.
That this view was entertained by all of the first five Judges of the Criminal Court of Appeals (Judges Furman, Doyle, Baker, Owen and Richardson) is shown by the following quotations:
“If the proof had shown that the contents of the bottle was beer, that would have been sufficient, as said ordinance designates beer as intoxicating liquor.” Markinson v. State (1909) 2 Okla. Cr. 323, 101 P. 353.
“The provision of the Constitution under which the indictment was had includes beer as one of the liquors prohibited, and defines it as intoxicating.” Antonelli v. State (1910) 3 Okla. Cr. 580, 107 P. 951.
“In prosecutions for selling liquors when the sale was made prior to the passage of the enforcement act, and the prosecution is based upon the provisions contained in our Constitution, if the liquor sold comes within one of the classes mentioned in the Constitution it need not be alleged or proven that such liquor was intoxicating.” De Graff v. State, 2 Okla. Cr. 519, 103 P. 538.
“The Constitution classes beer as an intoxicating liquor; this makes it presumptively so, and it is therefore incumbent upon the defendant, when it is shown that the article which he sold was beer, to remove by evidence the presumption thus created that it was intoxicating, and, if no evidence as to its intoxicating quality is introduced by either side, the presumption that it was intoxicating is conclusive upon the jury.” Moss v. State (1910) 4 Okla. Cr. 247, 111 P. 950.
These views entertained by eminent Judges soon after statehood are in harmony with the rule obtaining generally in the other states. See Black on Intoxicating Liquors, §§ 469, 521; 30 Am. Jur. 460 (note 8), 475 (note 7); 48 C.J.S. 417 (note 54), 554 (note 61).
The rule in civil cases is that in testing the sufficiency of a petition by demurrer, it is to be liberally construed, and all facts well pleaded together with all inferences which may be reasonably drawn therefrom must be taken as true. Farmers & Merchants National Bank v. Lee, 192 Okla. 9, 132 P. 2d 931. Under this rule an allegation that whisky, which all the courts judicially know to be intoxicating, or beer, which the Constitution names as being intoxicating, was kept for sale and sold would be a sufficient allegation that it is intoxicating in an action to abate a nuisance.
The provisions have the same meaning today as they did in 1907, and we should so hold. The fact that the people voted for the Non-Intoxicating Beverage Law, not as a -constitutional amendment but as an ordinary statute, and that large revenues are being collected under that law, are beside the point. It is our duty to properly interpret and then enforce the Constitution.
2. The majority opinion is not only contrary to the decisions just cited, and which have not been overruled, but it also violates what I believe are settled rules of construction.
a. One of the applicable rules of construction is to consider the evils sought to be remedied and the history of the provision and the policy behind it. 50 Am. Jur. 274, 279, 291; 11 Am. Jur. 677. Why did Congress, in section 3 of the Enabling Act, require the inclusion in the Constitution of a provision prohibiting the manufacture, advertisement, sale, etc., of “intoxicating liquor of any kind, including beer, ale and wine” (the exact language used in the prohibition ordinance and section 7, art. 1, of the Oklahoma Constitution) in what was then the Indian Territory, the Osage Indian Reservation and the other Indian Reservations? The debates in Congress clearly answer this question. At page 1553 of 40 Congressional Record, Part 2, Congressman Cole of Ohio stated the purpose as follows:
“The purpose of this prohibitive clause is to carry out the policy of the *209Federal Government toward the Indians since 1832. The established policy oí the nation is to prohibit the sale of liquor among the Indians. The treaties signed by the Dawes Commission with the Five Civilized Tribes, under which their lands have been allotted and under which they have accepted citizenship, provided that — ‘The United States agrees to maintain strict laws in the territory of the said nations against the introduction, sale, barter, or giving away of liquors and intoxicants of any kind or quality.’” (Italics mine.)
The framers of the Constitution and of the prohibition ordinance were, no doubt, as conversant with the policy of Congress in this regard as were the members of Congress. They should be presumed to have had the same intention as Congress, for they used the same language in the prohibition ordinance as Congress used in” the Enabling Act.
The policy of the United States Government to protect the Indians against the use of all kinds of liquor is shown by the quoted treaty provision, “liquors and intoxicants of any kind or quality.” The policy of Congress is shown by the various acts. The Act of March 15, 1864, 13 Stat. 29, referred to “spirituous liquor or wine.” In Sarlls v. United States, 152 U. S. 570, 38 L. Ed. 556, 14 S. Ct. 720, it was held that these terms did not include beer. On July 23, 1892,* while that case was pending, Congress amended the law to cover “ardent spirits, ale, beer, wine, or intoxicating liquors of any kind.” See 27 Stat. 260. Then on March 1, 1895, Congress changed the statute to read “vinous, malt or fermented liquor, or any other intoxicating drinks of any kind whatsoever”. 28 Stat. 697. Again, on January 30, 1897, Congress changed it to read “malt, spirituous or vinous liquor, including beer, ale and wine, or any ardent or other intoxicating liquor of any kind whatsoever, or any essence, extract, bitters preparation, compound, composition, or any article whatsoever, under any name, label or brand, which produces intoxication.” 29 Stat. 506. Thus it is seen that Congress, mindful of the attempts to evade the law, was striving to protect the Indians against the use by them of all kinds of alcoholic liquors, by making each succeeding law more inclusive than the prior laws. In United States v. Cohn, 2 Ind. Ter. 474, 52 S. W. 38, decided in 1899, the court held that the Act of March 1, 1895, above quoted, covered beer and malt liquors “whether intoxicating or not,” and rejected the argument that the words “any other intoxicating drinks” modified the preceding words “vinous, malt, or fermented liquor.”
Thus it is plain that at the time of the framing and adoption of our Constitution and the prohibition ordinance, it was the policy of Congress to prohibit the sale to the Indians of all kinds of alcoholic beverages, including beer, ale and wine by name, and this, I think, was the policy intended to be carried out by our constitutional provisions. The trend in 1906 and 1907 was toward prohibitory liquor laws, and within a few years thereafter the states adopted national prohibition. The fact that the trend in recent years has been against such laws is not material and does not change the meaning of these constitutional provisions.
b. Another applicable rule of construction is that it is to be presumed that it was intended that each word and clause in a statute or constitutional provision should have some significance and none should be held to be superfluous. 11 Am. Jur. 665. If, as the majority opinion holds, it was intended to prevent the sale only of “intoxicating liquors,” why were the words “including beer, ale and wine” used? All the authorities then agreed that beer and ale were fermented alcoholic malt liquors, and that wine was a fermented alcoholic vinous liquor. 23 Cyc. 60, 64;. 17 Am. & Eng. Enc. of Law 199, 200,* Black on Intoxicating Liquors, §§ 5, 16, 17. The word “liquors” denoted a vinous, fermented or malt liquor. Black, above, page 8. In United States v. Cohn, *210above, the court used this pertinent language:
“It will be seen that the only kinds of liquors specifically named by the statute are vinous, malt, and fermented liquors. If it were intended that only such of these as could be shown to be intoxicating should be included, why name them at all? Why not simply say that all intoxicating liquors and drinks should be prohibited, or whisky, brandy, rum, wines, and all other intoxicating drinks?”
Congress and the delegates to the Constitutional Convention should not be convicted of doing a vain thing, by using the words “including beer, ale and wine,” when they were included in the preceding words “intoxicating liquors,” if in fact intoxicating.
The reason these words were used was to make certain that these borderline liquors, concerning which there was a division of opinion as to whether ' they denoted intoxicating liquors, should be prohibited, so that all would know that they were prima facie intoxicating and the burden would not be on the prosecuting officers in each prosecution to allege and prove the alcoholic content and that such liquors were in fact intoxicating.
c. Another applicable rule of construction is that words used in the Constitution are to be understood in their plain, ordinary and popular sense, unless the contrary appears. 11 Am. Jur. 680. Under this rule, we must presume that the word “beer” was so used. According to the weight of authority in 1906 and 1907, when our Constitution and prohibition ordinance were framed and adopted, the word “beer” ordinarily denoted an intoxicating malt liquor. Black on Intoxicating Liquor, 1892, § 17; 17 Am. & Eng. Enc. of Law (1900) p. 201. And this is still the prevailing rule. 20 Am. Jur. 116; 30 Am. Jur. 256; 48 C.J.S. 140. According to the Encyclopedia Britannica, 1910 Edition, beer then generally made and sold in this country contained from 2.68 to 4.12 per cent of alcohol by weight. It seems clear that in using the word “beer” in the Enabling Act, the prohibition ordinance, and section 7, art. 1, of the Constitution, Congress and the framers of the Constitution had in mind the alcoholic malt beverage then in general use throughout the country. Can it be doubted that the 3.2 beer now being widely advertised, manufactured and sold as “beer,” and which contains ■ about the same percentage of alcohol as “beer” did in 1907, is not “beer” such as is referred to in the prohibitory provisions of our Constitution? Can it be doubted that when the average citizen refers to “beer” he means a fermented alcoholic malt liquor? If he means any other kind of beer, he refers to it by its full name, such as “near beer,” “root beer,” etc. If the liquid does not contain alcohol it is not “beer” as the term is commonly understood.
d. In saying that the first part of the prohibition ordinance was the prohibition clause and the second part the self-executing clause, the majority opinion violates the rule of construction that the provision should be looked to from its four corners to ascertain its meaning. 11 Am. Jur. 662. The second part is also a prohibition clause, in that it fixes a penalty for its violation. It has the effect of broadening the first part and naming beer, ale and wine as prohibited liquors.
The Selective Service Act of 1917, 40-Stat 82, made it a crime to sell “any-intoxicating liquor, - including beer, ale and wine” to the officers and soldiers in uniform. The Judge Advocate General held that beverages containing 1.4 per cent of alcohol came within the act. See note (L) to Ruppert v. Caffey, 251 U. S. 264, 40 S. Ct. 141 at 149. An examination of the exhaustive note to that case will disclose that a method frequently adopted to make the prohibition of the sale of intoxicants effective was to name the border-line liquors, such as beer, ale and wine, or to refer to them as malt or vinous liquors, and *211in the great majority of the states where they were referred to by name, it was held that sale of liquors by such names was either absolutely prohibited or they were made prima facie intoxicating. And in note (M) an opinion of the Attorney General of the United States was quoted to the effect that the words “intoxicating liquors” are so indefinite as to preclude the efficient and uniform administration of the law. The reason, therefore, for naming beer, ale and wine was to include them among the prohibited liquors so that there could be an efficient and uniform enforcement of the constitutional provisions.
These constitutional provisions designate beer, ale and wine as intoxicating liquors. The Legislature is without power to declare them nonintoxicating. And, in fact, it has not done so in the Non-Intoxicating Beverage Taxing Law, for beer, ale and wine are not named therein. However, it is probable that the Legislature could validly declare that beverages not named in the » Constitution, which contain no more than 3.2 per centum of alcohol, are nonintoxicating, for such beverages are on the border line between intoxicating and nonintoxicating beverages and the question of whether they are intoxicating is a debatable one. Ruppert v. Caffey, above. The Legislature would have no such power as to liquors, which all the courts take judicial notice are intoxicating, such as alcohol, whisky, rum, brandy, gin, etc., for the Constitution clearly covers such liquors under the designation “intoxicating liquors.”
If the people of Oklahoma have changed their minds since 1907, and if a new generation has grown up which is not aware of the evils which brought about constitutional prohibition or which believes that constitutional prohibition has not operated satisfactorily, the Constitution provides a method of amending or repealing the prohibition clauses. Until that is done, the manufacture, advertisement, transportation, • .sale, etc., of beer, ale, and wine is expressly forbidden and constitutes a crime.
It follows that the allegation that the defendant Bliss was operating a nuisance by sale of “beer” stated a cause of action, and she should be required to make her defense. Under the foregoing authorities, it was not necessary for plaintiff to allege that the beer being handled was intoxicating, since it was not necessary for the plaintiff to prove that fact, as only such facts as must be established by evidence need be alleged. State v. Prock, 195 Okla. 387, 158 P. 710; 49 C. J. 134; 41 Am. Jur. 344. If the product she is selling is not the “beer” referred to in the Constitution, that would constitute a good defense. The demurrer to the petition should have been overruled.
For the foregoing reasons, I respectfully dissent.