The defendant was indicted for selling lager beer. On the trial it transpired that he sold what is known as “malt rose.” The *306defendant offered to prove that this beverage was not intoxicating, and the trial court held and charged the jury that the statute was violated by the sale of malt ór fermented liquors whether they were intoxicating or not. This was error for which the conviction should be reversed.
It is true that the Liquor Tax Law defines the “ liquors,” the sale of which is prohibited without a liquor tax certificate to mean and include “ all distilled or rectified spirits, wine, fermented and malt liquoi's” and does not specifically say that they must be intoxicating* ; but I think it is the plain intent of the' statute to- prohibit and regulate the sale only of those liquors and beverages which may produce intoxication. In the case of People ex rel. Einsfeld v. Murray (149 N. Y. 367) the law was claimed to be unconstitutional principally because it was a simple tax law, and "it was held that it was not a tax law but an excise law having for its primary purpose the regulation of the sale of liquors. Andrews, Oh. J., in his opinion specifically approved of what was' said by the court below (4 App. Div. 185), and in addition said; “ The character of the act of 1896 (Chap. 112), whether a tax law in a proper sense, or a law enacted under the police power, must be-determined from its whole scope, and" tenor, and there can. be no reasonable doubt, we think, that it is of the latter character. It is radically different in some respects from the excise laws which it supersedes. But the changes are in the administration of the excise system and not in its essential-character. * * * The analogy between the law of 1896 and the former excise laws is strongly marked. There is the same necessity of a public certification of a right to engage in the traffic; the same restrictions .and regulations intended to -guard the traffic and reasonably protect the public against its acknowledged evils; the same principle of local option, and the act incorporates the principle of the Civil Damage Law.† The new features of the system may prove to be efficient means of repression and regulation, such as the change in the administrative agencies, and the much larger tax upon the right to engage in the traffic.”
Under the former excise laws it ■ is not questioned .that a liquor *307must have been intoxicating to come within their prohibitions of sale.
Tiie Legislature possesses the right to control and regulate the traffic in intoxicating liquors because of its sovereign police power which it may exercise to preserve the public morals or to promote the. public safety or prosperity. (Metropolitan Board of Excise v. Barrie, 34 N. Y. 666.) It also has the right to pass health laws and to prohibit the sale of food or beverages deleterious to the public health, but it does not and could not prohibit'the sale of pure food or harmless beverages which in no way affect the public morals or public safety or public health.
If the Liquor Tax Law is to be given the narrow construction that the sale of all “ fermented ” or “ malt liquors,” whether intoxicating or not, is prohibited, the invalid food known as kumiss, “ a fermented, dietetic and sanitary drink made * * * from cows’ milk with sugar and yeast, .'and allowed to ferment until it becomes effervescent and slightly alcoholic” (Cent. Diet.), cannot be sold without procuring a liquor tax certificate. Very many other harmless, medicinal and refreshing drinks would also come under the ban. The act should receive no such interpretation.
Although the question was not presented precisely as it now is in People v. Kastner (101 App. Div. 265), decided by this court, it seems to me -the spirit of that decision is violated by the prevailing holding herein. There was no pertinency in reversing the judgment of conviction in that case unless the intoxicating properties of. the beverage there sold (which was “ malt rose ”) was an element of the crime of selling liquor without a liquor tax certificate.
It is very possible that the defendant violated the act, and that “malt rose ” is another name for lager .beer and a mere subterfuge to evade the law; but the pry should have been permitted to pass upon the question whether or not it was a subterfuge, and was lager beer, or was intoxicating.
The judgment of conviction should be reversed and a new trial granted.
Judgment of conviction affirmed.
See Laws of 1896, chap. 112, §§ 2, 31, as amd. by Laws of 1903, chap. 486.— [Rep.
See Laws of 1873, chap. 646; Liquor Tax Law, § 39.— [Rep.