State v. Hall, 141 Wis. 30.

The second question is whether the employment of labor to be performed on Sunday prevents prosecution under the statute. The argument of counsel for defendant under this head is, in substance, that because such contract would be void no prosecution could be had under such an agreement. Subd. 2, . sec. 1728a, Stats. (ch. 523, Laws of 1907), provides:

"No child under the age of sixteen years shall be employed in adjusting any belt. . . or in any place where intoxicating liquors are made, given away or sold. .

The engagement in service was obviously the evil intended. to be guarded against; and whether the means which brought about such service or engagement amounted to a void contract is wholly immaterial. The evil which a statute is designed to cure may be considered in construing it. Minneapolis T. M. Co. v. Haug, 136 Wis. 350, 117 N. W. 811; Cohn v. Neeves, 40 Wis. 393; Johnson v. Huber, 117 Wis. 58, 93 N. W. 826; State v. Foster, 37 Iowa, 404; McCluskey v. Cromwell, 11 N. Y. 593; Carpenter v. Strickland, 20 S. C. 1. Therefore we think the second question should be answered in the negative.

The third question is the one which has caused us the most trouble. From the facts set forth under this head it appears that the defendant contracted with an adult to furnish music at a gross sum, and that defendant at the time of employment neither knew nor saw any of the musicians except the person with whom he contracted, and had no knowledge of their ages, and the person with whom defendant contracted employed the minor under sixteen years of age to assist him with others in furnishing the music, and after the attention of defendant. had been called to the fact of such employment he caused the boy's discharge. It is true the statute providing the penalty (sec. 1728h, Stats.: ch. 523, Laws of 1907) is very broad and reaches any person who, whether for himself or by himself "or through agents, servants, or foreman," shall violate, etc. But it must receive a reasonable construction, and so construing it we think it does not reach the case before us. In the instant

Pennell v. State, 141 Wis. 35.

case the defendant contracted with one who was of full age to furnish the music, and had no direct connection with the employment of the minor, never consented to his employment, and, as soon as he discovered that he had been employed and was under sixteen, immediately caused his discharge. The person who violated the statute in the instant case, if there has been such violation, is the person who employed the minor, not the defendant, who merely contracted with a person above the age of sixteen for the music. The defendant here did not contract with the boy under sixteen, either himself or through an agent. It does not appear from the question submitted that the person with whom defendant contracted was an agent of the defendant for the purpose of employing musicians or otherwise. He was bound by his contract to furnish music, and the persons whom he employed to assist him in that regard were his agents, and, if he violated the law in the employment of a minor under sixteen, he, and not the defendant, was liable under the law. We therefore think the third question should be answered in the negative.

It follows that the first question certified must be answered in the affirmative, and the second and third in the negative. By the Court.-It is so ordered.

PENNELL, Plaintiff in error, vs. THE STATE, Defendant in

error.

October 30-November 12, 1909.

Intoxicating liquors: Statutes construed: Sale of "malt liquor." Evidence: Constitutional law: Police power.

1. The word "liquor" and the associated word "drinks" in a statute regulating or forbidding the sale of intoxicants mean an alcoholic beverage.

Pennell v. State, 141 Wis. 35.

2. Sec. 1565c, Stats. (1898), forbidding the sale in no-license territory of "any spirituous, malt, ardent or intoxicating liquors or drinks," forbids the sale of fermented malt liquor containing alcohol, whether intoxicating or not.

[3. Whether in sec. 1565, Stats. (Supp. 1906; Laws of 1905, ch. 341),— providing that "in all cases proofs of the sale or giving away of any malt, spirituous, vinous or distilled liquor of any name or nature whatsoever shall be deemed proof of the sale or giving away of intoxicating liquors without proof that the liquor so sold or given away was in fact intoxicating,"-the words "shall be deemed proof" create merely a rebuttable presumption or mean conclusive evidence of the fact that the liquor was intoxicating, not determined.]

4. In enacting a police regulation the legislature may include within the purview of the statute acts innocent and not in themselves the subject of police regulation, where the inclusion of such acts is necessary, in the opinion of the legislature, to make the police regulation effective.

5. On the principle above stated it was competent for the legislature by sec. 1565c, Stats. (1898), to forbid the sale in no-license territory of any fermented malt liquor containing alcohol.

ERROR to review a judgment of the circuit court for Vernon county: JAMES O'NEILL, Judge. Affirmed.

C. W. Graves, for the plaintiff in error, cited, among other authorities, secs. 1565, 1565c, Stats. (1898); ch. 284, Laws of 1883; Jones, Ev. (2d ed.) § 128 (129); Briffitt v. State, 58 Wis. 39, 16 N. W. 39; Brown v. Piper, 91 U. S. 37; Stoner v. State, 5 Ga. App. 716, 63 S. E. 602; Blatz v. Rohrbach, 116 N. Y. 450, 22 N. E. 1049; 57 Cent. Law J. 310; State v. Laffer, 38 Iowa, 422; Hardwick v. State, 55 Tex. Crim. 140, 114 S. W. 832; State v. Giersch, 98 N. C. 720, 4 S. E. 193; Connolly v. Atlanta, 79 Ga. 664, 4 S. E. 263.

For the defendant in error there was a brief signed by J. Henry Bennett, district attorney, and oral argument by Mr. Bennett and by A. C. Titus, assistant attorney general. They cited State v. York, 74 N. H. 125, 65 Atl. 685, 13 Am. & Eng. Ann. Cas. 116; Luther v. State, 83 Neb. 455, 120 N. W. 125, 20 L. R. A. N. s. 1146; Eaves v. State, 113 Ga. 749, 39 S. E. 318; Bradshaw v. State, 76 Ark. 562, 89 S. W.

Pennell v. State, 141 Wis. 35.

1051; Feibelman v. State, 130 Ala. 122, 30 South. 384; State v. Frederickson, 101 Me. 37, 63 Atl. 535, 6 L. R. A. N. s. 186, and note; People v. Adams, 95 Mich. 541, 55 N. W. 461; State v. Ely (S. Dak.) 118 N. W. 687; Briffitt v. State, 58 Wis. 39, 16 N. W. 39.

TIMLIN, J. The plaintiff in error was convicted upon a charge of having, on November 28, 1908, sold certain spirituous, malt, ardent, and intoxicating liquors and drinks in the city of Viroqua, contrary to a vote of the qualified electors of that city at an election held April 7, 1908, pursuant to secs. 1565a, 1565b, Stats. (1898). When the case was called and ready for trial the following stipulation was made between the attorneys for the respective parties:

"(1) That all the formal allegations of the complaint with relation to the election and negativing the right of the defendant to vend, deal, or traffic in, or give away any malt, spirituous, ardent, or intoxicating liquors or drinks in any quantity whatsoever and of any name whatsoever as a beverage or otherwise are true as therein stated.

"(2) That at the time and place alleged the defendant sold as a beverage to one C. J. Smith two quart bottles of fermented malt liquor manufactured by the Lauritzen Malt Co. of Minneapolis, Minnesota, from barley malt and foreign and do mestic hops, containing the following percentage of alcohol, to wit: 1.44 by weight and 1.84 by volume, which said liquor so sold was labeled as follows: 'Non-Intoxicating. A Fermented Liquor. Gold Foam. Guaranteed Less Than Two % Alcohol By Weight. Made From Choicest Selected Materials. Bottled For Export. Lauritzen Malt Co. Minneapo lis, Minnesota.'

"(3) That the defendant claimed said liquor so sold to be not intoxicating in fact, and hereby reserves the right to offer to prove, and to prove in fact if permitted by the court, that such liquor was not intoxicating. The state reserves the right to prove, and prove if permitted, that it was intoxicating in fact."

Having offered this stipulation the state rested its case, whereupon the plaintiff in error offered himself as a witness

Pennell v. State, 141 Wis. 35.

to show that the liquor in question was a nonintoxicating liquor. On objection by the state the court excluded this evidence, and the jury found the plaintiff in error guilty after having been instructed by the court to the effect that it was not necessary for the jury to determine whether this fer mented malt liquor was or was not intoxicating in fact. “If it was a fermented malt liquor containing alcohol, as admitted in the stipulation, it is really immaterial how much alcohol it contained. The statute prohibits the sale of malt liquor, and is conclusive."

The word "liquor” in a statute regulating or forbidding the sale of intoxicants should be taken to mean an alcoholic beverage. Cent. Dict.; Standard Dict.; People v. Crilley, 20 Barb. 246; U. S. v. Cohn, 2 Ind. Terr. 474, 52 S. W. 38. The associated word "drinks" in such statute means an alcoholic beverage. State v. Oliver, 26 W. Va. 422. Alcohol is a product of fermentation. Malting is a process preliminary to fermentation. Alcohol is separated, not produced, by distillation, and the liquor thus separated containing a percentage of alcohol is called spirituous liquor. Where there is no such separation, but the alcohol produced by fermentation remains in the liquid drawn off from the malt, the product is called malt liquor. Where the production of alcohol by fermentation is preceded by no malting process, as in the case of wine, the product is called vinous liquor. So that under sec. 1565c, standing alone, an offense was committed if the accused sold ardent drinks or malt drinks or spirituous drinks, or ardent liquor or malt liquor or spirituous liquor, as well as if he sold intoxicating liquors or drinks. Each is apparently prohibited by this statute. But this is not all the statute law on the subject, for sec. 1565, as amended by ch. 341, Laws of 1905, provides that it shall not be necessary to allege or state in the complaint, information, or indictment the kind or quantity of liquor sold or the person to whom the same was sold, but it shall be sufficient to allege generally that the accused sold intoxicating liquor at a time and place mentioned, etc.

This