dissenting.
I cannot agree to the main holding in the opinion. It seems to hold that the selling of all malt liquids or *463liquors, regardless of whether they contain intoxicating properties, is prohibited. I think that a holding that the sale of malt beverages nonintoxicating in character is a crime, unless a license has first been obtained under the provisions of the liquor law, is an entirely new doctrine in this state, and gives to the law such a new and radically changed interpretation from that which has been followed by administrative, executive and judicial officers of the government for nearly 40 years as to partake of the character of judicial legislation. I venture to say that it has been the uniform practice of public prosecutors in liquor cases ever since the law was enacted to prove, or endeavor to prove, the intoxicating quality of malt beverages, other than beer, ale or such liquors that are of such well-known ingredients and qualities that the court will take judicial notice that they are within the prohibition of the statute. When the legislature prohibited the sale of malt, spirituous or vinous liquors, I think the word “liquors” was used in the ordinary acceptation of the term. The Century Dictionary defines liquor: (1) A liquid or fluid substance, as water, milk, blood, sap, etc. (2) A strong or active liquid of any sort. Specifically — (a) An'alcoholic or spirituous liquor, either distilled or fermented; an intoxicating beverage; especially, a spirituous or distilled drink, as distinguished from fermented beverages, as wine and beer, (b) A strong solution of a particular substance, used in the industrial arts. Webster: (1) Any liquid substance, as water, milk, blood, sap, juice, or the like. (2) Especially, alcoholic or spirituous fluid, either distilled or fermented. A decoction, solution or tincture.
There are many tonic preparations of malt combined with ingredients, such as iron, phosphates or other drugs, and other and nourishing preparations of malt combined with ingredients of food value for the use of convalescents, which are in constant use by the medical profession, and which are sold in drug stores. This opinion, construed strictly, would drive all this class of preparations from *464the market, which I think was never intended by the legislature. The object of the law was to regulate the sale of malt “liquors,” not malt liquids. An examination of the liquor laws of this state as a whole confirms me in the belief that this is the reasonable and proper construction of the statute. The phraseology used in describing the liquors varies with the various sections of the liquor law. Comp. St. 1907, ch. 50. In the first section the county board is authorized to license the sale of “malt, spirituous and vinous liquors.” The word “intoxicating” does not appear in this section. Section 5 speaks of the thing to be licensed as “the liquor.” It uses no other qualifying words. The form of the license prescribed by this section names “malt, spirituous and vinous liquors,” but does not contain the word “intoxicating.” The sixth section says that no person shall be licensed to sell “malt, spirituous and vinous liquors” by the county board, etc., unless a bond is given, and provides that a bond shall be given for the benefit of any one who may be injured by the sale of “any intoxicating liquor.” No one could recover damages under bond for sale of liquors unless they were intoxicating liquors. Section 8 prohibits the sale to any minor, apprentice, or servant, under 21 years of age of any “malt, spirituous and vinous liquors, or any intoxicating drinks.” Section 10 prohibits the sale of “any intoxicating liquors to any Indian, insane person, or idiot, or habitual drunkard.” Section 15 provides that the person licensed shall pay damages that result in consequence of “such traffic,” and the expenses of all civil and criminal prosecutions growing out of, or justly attributed to, this traffic in intoxicating drinks, so that the words “such traffic” relate to the traffic forbidden in the chapter, and this section construes it to be traffic in intoxicating drinks. Section 16 gives an action to a married woman- for damages on account of “such traffic,” which we have seen by section 15 is characterized as being traffic in intoxicating drinks, and section 17 gives an action by the county or city on *465the bond of the person licensed, when a person shall become a county or city charge by reason of intemperance, against “any person licensed under this act, who may have been in the habit of selling or giving intoxicating liquors” to such persons, and in the proviso to this section any person against whom a judgment shall be rendered under the provisions of the section may recover from any other person who has “sold or given liquor to such person becoming a public charge.” Section 18 provides that, in the trial of suits the cause or foundation of which shall be the acts done or injuries inflicted by a person “under the influence of liquor,” it only shall be necessary to sustain the action to prove that the defendant sold or gave liquor to the person so intoxicated. Plainly the word “liquor” here, as in all places in the statute, should be read “intoxicating liquor.” In the last part of section 18 the words “intoxicating drinks” are used as an exact equivalent of the word “liquor” where it twice occurs in the same section. Section 20 prohibits the keeping of any “malt, spirituous, or vinous liquors” for'the purpose of selling without license, and it provides that any one who is found -in possession of “intoxicating” liquors with intention of disposing of the same without license shall be deemed guilty.
Unless we consider that the liquors kept for sale must be intoxicating liquors in order to make the act of keeping them unlawful, we must presume that the legislature would forbid the keeping of inoffensive liquors, and in the same section provide that the person who was found keeping intoxicating liquors should be punished, without providing that the person keeping the other forbidden liquors should be punished; in other words, that the legislature would prohibit the keeping' of liquors, but provide no punishment therefor, and then provide punishment for keeping intoxicating liquors which it had not specifically prohibited. Iri this same section the word “liquor” is used seven or eight times without any quali*466fying word, and twice used qualified by the word intoxicating, and so, as in other places in the statute, the word “liquor” is used as. meaning “intoxicating liquor.” In section 21 the word “liquors” is used five times without any qualifying word, and in section 22 at least five times. In section 24 a permit is authorized to druggists to sell “liquors” without any qualifying word, but I think it clear that “intoxicating liquors” is meant. It is also provided further that no license shall be granted by a village for the sale of any “liquor” within 2£ miles of a military post. By section 26 druggists who have permits are required to keep a register of “all liquors sold or given away by him.” This is not limited to malt, spirituous and vinous liquors, and the word “intoxicating” is not used. If the word “liquors” is to be construed in this section as it is in the opinion, the report required of a druggist is much greater than anybody ever supposed, and all medicinal preparations of malt would have to be reported. Section 30a, ch. 50, Comp. St., being a part of the act of 1907, speaks of the liquor license authorized under the liquor law as a license for the sale of “intoxicating liquors,” and the next section of the same act (30b) says that it shall be unlawful for any person engaged in the manufacture of malt, spirituous, or vinous liquors to aid ox assist in procuring a license for any person for the sale at retail of malt, spirituous or vinous liquors, and then speaks of these liquors so defined as “said intoxicating liquors,” thereby expressly stating that the malt, spirituous and vinous liquors named in the liquor law are intoxicating liquors, and in section 30# of the same act it speaks of all of the other acts as “acts relating to intoxicating liquors.” The act against treating forbids the giving away of any intoxicating drink. The first section of the act of 1907 (Comp. St. ch. 50, sec. 39), regulating the transportation of intoxicating liquors, makes it unlawful to consign intoxicating liquors from one point in the state to another. If the sale of malt liquors not intoxicating is forbidden by the statute, that should have *467been included in this provision, and the fourth section of the same act (Comp. St., ch. 50, sec. 42) forbids the bringing of any malt, spirituous, vinous or intoxicating liquors into any city or incorporated village in which a license has not been granted, etc. It is manifest that the word “liquors” is used in this act also with the meaning of “intoxicating liquors,” and that a malt preparation that is not intoxicating would not be included in the meaning given to the word “liquors.” If this case had been presented nearly 50 years ago, as it might have been, since the main provisions of the statute were enacted in 1858 (see Rohrer v. Hastings Brewing Co., ante, p. 111), a holding that the sale of any malt liquor was prohibited unless the seller was licensed might perhaps have been justified, though this is questionable; but, after half a century of liquor legislation and official construction, it seems to me too late to take this view, and I am firmly of the opinion that the change, if made at all should be made by the legislature.
Cases from other states throw but little light upon the question, since in order to reach the true meaning of each opinion the whole statute must be considered and compared with the statute in this state. But the courts of other states are not in harmony, the holding of the different states depending upon the interpretation and construction of the respective statutes. In Pennsylvania, Illinois and Maine the cases cited by Judge Reese hold specifically that proof of the intoxicating quality of malt liquor is unnecessary. In Minnesota it seems to be held that a charge of selling malt liquor implies that the liquor has intoxicating qualities. It is said in State v. Gill, 89. Minn. 502, cited in the majority opinion, that whether or not the liquor was really intoxicating is a question of fact for the jury, See, also, State v. Story, 87 Minn. 5. If I understand the Minnesota holdings correctly, they are exactly in line with what is and has heretofore been considered to be the law in this state, and are not in harmony with the majority opinion here; and I think the *468cases cited from other states do not all support the opinion. The Massachusetts case cited in the opinion merely holds that, where a statute declares that lager beer shall be deemed intoxicating, it cannot be proved not to be intoxicating in a prosecution for selling intoxicating liquors. The Kansas and Wisconsin cases merely hold, as . does this court, that the courts will take judicial notice that beer is a malt liquor and intoxicating.
Further, the defendant was charged with selling “a malt and intoxicating liquor, to wit, malt tonic.” To charge a sale of intoxicating malt liquor and prove nonintoxicating would be, I think, a fatal variance between the pleadings and the proof. The defendant requested instructions which are set out in the original opinion, 80 Neb. 432, that the state must prove that the malt tonic was intoxicating. Each side introduced testimony concerning the intoxicating character of the liquor in controversy, so that the state concluded that the intoxicating quality of the liquor was a material allegation necessary to be proved to entitle it to a conviction. The trial court therefore erred in refusing to give instructions 1 and 2 requested by the defendant. Perhaps inferentially the jury might conclude from the ninth instruction .given by the court that “malt liquor” referred to intoxicating liquor, but it did not supply the instructions asked by defendant.
Under the charge, it was error to refuse these instructions, and the original judgment should be adhered to.
Barnes, J., concurs in this dissent.