Appellant was charged by information with two alleged offenses: 1. with selling liquor on Sunday; and 2, with selling beer containing alcohol in excess of 3.2 per cent. in dry territory. He was convicted by instruction of the court on both charges, fined in the first and fined and ordered imprisoned in the second. The majority have affirmed on the first and reversed and remanded on the second because the court cannot instruct a verdict of guilty where the punishment involves imprisonment. I concur in the judgment of reversal, but go further and would hold that appellant should be discharged on both charges.
Discussing the second charge first, I am of the opinion that appellant did not violate the law and that the information did not state a public offense. The facts are that the city of Malvern held a referendum election under the provisions of act 108 of 1935, and voted dry as to the liquors covered by that act. Such an election requires a petition equal to 35 per cent. of the qualified voters before the county judge shall order such election, and the question submitted to the voters is "whether or not spirituous, vinous or malt liquors, shall be sold, bartered or loaned" in any "county, city, town, district, or precinct." But, as heretofore stated, the result of such *Page 467 election applies only to such liquors as are covered by said act. Section 6 defines the words "spirituous," "vinous" and "malt" and as to the last says: "The word `malt' shall mean liquor brewed from the fermented juices of grain and containing more than five (5%) per centum of alcohol by weight. Beer containing not more than five (5%) per centum of alcohol by weight and all other malt beverages containing not more than five (5%) per centum of alcohol by weight are not defined as malt liquors, and are excepted from each and every provision of this act.
"It is further provided that malt and vinous beverages containing more than 3.2% of alcohol by weight and not more than 5% of alcohol by weight shall be taxed and regulated as provided for malt and vinous beverages containing not more than 3.2% of alcohol by weight under the provisions of act No. 7 of the Acts of the Extraordinary Session of the General Assembly of 1933, approved August 24, 1933." The repealing section of said act 108 is very significant and is as follows: "All laws or parts of laws in conflict herewith are hereby repealed; provided, however, that this act is not intended to repeal or conflict in any way with the taxing provisions of act No. 4 of the Second Extraordinary Session of the Forty-ninth General Assembly of the State of Arkansas, approved January 12, 1934; nor with the taxing provisions of act No. 7 of the Extraordinary Session of the Forty-ninth General Assembly of the State of Arkansas, approved August 24, 1933, nor with act No. 9 of the Second Extraordinary Session of the Forty-ninth General Assembly of the State of Arkansas, approved January 26, 1934, and in case there is any conflict between the taxing provisions of this act and either of the former acts hereinbefore mentioned, the provisions of the former act or acts shall be the law and govern the case."
Act No. 4 and act No. 9, mentioned above, are not material to this inquiry, but act No. 7 is and will now be discussed. It is entitled "An Act to Permit the Manufacture, Sale and Distribution Within the State of Arkansas of Light Wines and Beer, and to Provide for Taxing the Manufacture, Sale and Distribution of Such Products, *Page 468 and for Other Purposes." It was the first step in the repeal of prohibition made in this state. It legalized the manufacture and sale of light wines and beer. It defined these terms as follows: "The term `Beer' means any fermented liquor made from malt or any substitute therefor and having an alcoholic content of not in excess of 3.2 per cent. by weight."
"The term `light wine' means the fermented liquor made from malt or any substitute therefor and having an alcoholic content of not in excess of 3.2 per cent. by weight." This definition is erroneous as shown by the original bill and should read: "The term `light wine' means the fermented juice of grapes or other small fruit including berries and having," etc., as above. Also intoxicating liquor is defined to "mean vinous, ardent, malt fermented liquor or distilled spirits with an alcoholic content in excess of 3.2 per cent. by weight."
It appears to me that the necessary effect of said act 108 is to repeal these definitions in said act 7 and to substitute the definitions in act 108 for those in act 7. They are most certainly in conflict and the repealing section of 108 specifically says it repeals all laws or parts of laws in conflict with it, except as to the taxing provisions of the acts mentioned therein. The conclusion is irresistible to me that beer containing 5 per cent. or less of alcohol by weight is not now, nor has it been since the passage of act 108 of 1935, classed by the legislature as intoxicating liquor and that such beer can be lawfully sold in all parts of the state, except where it has been voted out under the provisions of said act 7 of the Special Session of 1933, which provides the precedure in 27-A. There the question may be submitted to the whole county and not to a part thereof and, if by a petition, it must contain 51 per cent. of the qualified electors of the county.
It is undisputed in this case the beer for which appellant is convicted of selling contains more than 3.2 per cent., but less than 5 per cent. of alcohol by weight. Therefore, the provisions of said act 108 have no application and a referendum election held under the provisions thereof could only bar the liquors covered by that *Page 469 act — in the case of beer, of an alcoholic content of more than 5 per cent., and since appellant is not selling beer of more than 5 per cent. he cannot be convicted of a violation of that act.
Act 108 of 1935, art. 7, 5, provides: "It shall be unlawful for anyone to sell, barter or loan, directly or indirectly, any beverage containing any alcohol; or any liquid mixture or decoction of any kind which produces or causes intoxication in any county, city, town, district or precinct in which the sale, barter or loan of spirituous, vinous or malt liquors is or shall be prohibited in accordance with the local option law," and making it an offense punishable by a fine only for a violation thereof. Just what does this quoted language mean? My thought is it must be read in connection with the other provisions of the act and that it means that it shall be unlawful to sell any "spirituous," "vinous" or "malt" liquors as these words are defined in the act in any territory which has voted dry under the provisions of the act, bearing in mind that, under the express provision above quoted from art. 1, 6, "beer containing not more than 5% of alcohol by weight and all other malt beverages containing not more than 5% of alcohol by weight are not defined as malt liquors, and are excepted from each and every provision of this act." We must, therefore, read the prohibition in 5, art. 7, above quoted as applying only to beverages, liquid mixtures or decoctions containing more than 5% of alcohol by weight, instead of beverages "containing any alcohol," or liquid mixtures or decoctions "which produces or causes intoxication." To construe this provision of the act otherwise is to make it applicable to beer "containing not more than 5% of alcohol by weight" as well as all other malt beverages with a like content, in the very teeth of the provision excepting them "from each and every provision of this act."
My conclusion on this charge of the information is that the demurrer should have been sustained, as it fails to charge a public offense.
As to the charge of selling liquor on Sunday, the information charges it to have been done in violation of 3421 of Pope's Digest and B of art. 6 of act 108 of the *Page 470 Acts of 1935. This charge is based on the sale of the same bottle of beer, on a Sunday, as that relied on on the other charge above discussed. He was convicted under said 3421 of Pope's Digest. The information evidently refers to subsection (b) of 1 of art. 6, and the court evidently found that this section had no application to the kind of beverage sold. Section 3421 of Pope's Digest is act 33 of 1885 amending 1887 of the Revised Statutes to read as follows: "Every person who shall, on Sunday, keep open any store or retail any goods, wares, and merchandise, or keep open any dram shop or grocery, or who shall keep the doors of the same so as to afford ingress or egress, or retail or sell any spirits or wines, shall, on conviction thereof, be fined in any sum not less than twenty-five dollars nor more than one hundred dollars."
This section has no application to the facts in this case and cannot, in my opinion be the basis of a conviction of appellant. The only part of it that has any possible bearing on this case is the prohibition against the retailing or selling "any spirits or wine." He is not charged with keeping open any store, or that he retailed any goods, wares or merchandise, nor that he kept open any dram shop or grocery. The charge is that he "did unlawfully sell liquor, and was unlawfully interested in the sale and giving away of alcoholic, vinous, malt spirituous, fermented and medicated liquors on Sunday," etc. The proof was that appellant is engaged in the restaurant or cafe business, in the city of Malvern and that on Sunday, August 13, 1938, he sold a bottle of "Budweiser" beer containing 3.76% of alcohol by weight, and that beer of more than 3.2% and 5% or less is being sold all over Arkansas and in territory that has voted dry under act 108, on Sunday and every other day. Appellant did not sell any "spirits or wine" and was not so charged, and there was no proof to sustain such a charge had it been made. "Spirits" means spirituous liquors as defined in act 108 and must contain "more than 21% of alcohol by weight. The sale of wine is governed by act 69 of 1935, wine being excepted from the provisions of act 108 where the term "vinous "is defined. In so far as said *Page 471 3421, Pope's Digest, (act 33 of 1885) applies to the sale of "spirituous," "vinous" and "malt" liquors is concerned, it has been repealed by act 108 of 1935 and act 69 of 1935, where the sale of these beverages is regulated and where sales on Sundays, election days, to minors and otherwise are specifically prohibited.
The commissioner of revenues is given authority to administer the provisions of these acts herein referred to and to make rules and regulations regarding their enforcement. There has never been a referendum election under the provisions of said act 7, and the department now rules that it is not a violation of law to sell beer in dry territory, that is, territory which has voted dry under act 108, which has an alcoholic content of 5% or less by weight, or light wine of 5% or less, and that it may be so sold on any day, Sunday or election day, because it is not a liquor covered by the provisions of act 108. It is an admitted fact, and would have been given in evidence in this record, but was excluded by the court, that such beverages are being so sold all over Arkansas, with the knowledge, consent, or at least, the acquiescence of the state commissioner of revenues who holds that it is not a violation of law to sell same in so-called "dry territory" or on Sunday or any other day, if the beverages are tax paid and the dealer holds a license. It would seem to me to be a great injustice for the state to license a dealer to do the very things appellant did, and then to prosecute him for doing them.
Administrative or executive construction of statutes and long time operation under such construction are entitled to great weight and consideration by the courts, and if a reasonable construction may be made by the courts conformable with executive construction it should be done. In Baxter v. McGee, 82 F.2d 695, certiorari denied by United States Supreme Court; and McGee v. Baxter, 298 U.S. 680, 56 S. Ct. 948, 80 L. Ed. 1401, it was held that considerable weight, in arriving at the meaning of a doubtful statute, must be given to the practical construction placed upon it by the executive officers of the state, especially when such construction has been unchallenged over a long period of years. See, also, State v. *Page 472 Sorrels, 15 Ark. 664; State v. Lancashire Fire Ins. Co.,66 Ark. 466, 51 S.W. 633, 45 L.R.A. 348. In Moore v. Tillman,170 Ark. 895, 282 S.W. 9, it was held that the interpretation of federal homestead laws by the Federal Land Department, though not controlling on courts, is highly persuasive, and, where in harmony with United States Supreme Court's decision, must govern. Act 7 of 1933 has been in force nearly six years and act 108 of 1935 has been in force nearly four years, and during all this time they have been given the interpretation and have been administered as herein contended, and I think the court should not now, at this late day, disturb such construction. I am, therefore, of the opinion that the state failed to make a case against appellant on this charge, and that a directed verdict should have been given in his favor.
To the extent the views herein expressed may be in conflict with State v. Hutchison, 194 Ark. 1057, 110 S.W.2d 7, I would overrule same.
I would reverse and dismiss both charges and am authorized to say that Mr. Justice BAKER concurs in this dissent.