INTOXICATING LIQUOR ‑- MANUFACTURER OF FOODSTUFFS AS MANUFACTURER OF LIQUOR

INTOXICATING LIQUOR ‑- MANUFACTURER OF FOODSTUFFS AS MANUFACTURER OF LIQUOR

Manufacturers of bakery goods, sauces, flavoring extracts, mincemeats and other products of a similar nature are included within the meaning of RCW 66.20.010 (5), and as such, these manufacturers, if they meet the other requirements of the statute, are entitled to secure a permit for the importation of alcohol and alcoholic beverages.

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                                                                   June 24, 1957

Washington State Liquor Control Board
Public Lands-Social Security Building
Olympia, Washington                                                                                                                Cite as:  AGO 57-58 No. 86

Gentlemen:

            You have requested the opinion of this office as to the proper interpretation of RCW 66.20.010.  Your question may be paraphrased as follows:

            Under RCW 66.20.010 (5), may a permit be issued for the importation of malt, alcohol and other materials containing alcohol, to be used in the manufacture of bakery goods, sauces, flavoring extracts, mincemeat and other products of a similar nature?

            We answer in the affirmative.

                                                                     ANALYSIS

            RCW 66.20.010 (5) provides as follows:

            "Upon application in the prescribed form being made to any employee authorized by the board to issue permits, accompanied by payment of the prescribed fee, and upon the employee being satisfied that the applicant should be granted a permit for the purchase of liquor under this  [[Orig. Op. Page 2]] title, the employee shall issue to the applicant a permit of the class applied for, as follows:

            "(5) Where the application is for a special permit by a manufacturer to import alcohol, malt, and other materials containing alcohol to be used in the manufacture of liquor, or other products, under the regulations, at such fee as may be fixed by the board;" (Emphasis supplied.)

            The terms "manufacturer" and "liquor," as they are used in this section, are defined as follows:

            RCW 66.04.220

            "'Manufacturer' means a person engaged in the preparation of liquor for sale, in any form whatsoever."  (Emphasis supplied.)

            RCW 66.04.200

            "'Liquor' includes the four varieties of liquor herein defined (alcohol, spirits, wine, and beer), and all fermented, spiritous, vinous, or malt liquor, or combinations thereof, and mixed liquor, a part of which is fermented, spiritous, vinous, or malt liquor, or otherwise intoxicating; and every liquid or solid or semisolid or other substance, patented or not, containing alcohol, spirits, wine, or beer, and all drinks or drinkable liquids and all preparations or mixtures capable of human consumption, and any liquid, solid, semisolid, or other substance, which contains more than one percent of alcohol by weight shall be conclusively deemed to be intoxicating."  (Emphasis supplied.)

            The problem as we see it is whether the term "manufacturer" includes individuals engaged in the preparation of the items concerning which inquiry has been made; and this, in turn, depends on whether these terms are to be considered "liquor" within the statutory definition of that term.

            At first reading, that portion of RCW 66.04.200 which precedes the semicolon seems to define the term "liquor"; the subsequent portion, the term "intoxicating."  So interpreted, it would be possible to conclude that the  [[Orig. Op. Page 3]] definition of liquor is intended to include only liquor as the term is used in the conventional sense, that is, as a beverage.  Yet this conclusion would be by no means a certain one.  "Liquor" is said to include "mixed liquor" "a part of which is . . . otherwise intoxicating;" and this is followed by a definition of the term "intoxicating" which specifically includes solids.  Furthermore, throughout the definition section of the act, the legislature has consistently employed the word "beverage" when it meant "liquid" (see the definition of "beer" in RCW 66.04.030; that of "spirits" in RCW 66.04.320; and that of "wine" in RCW 66.04.360) and it has conspicuously avoided this term in its definition of "liquor."

            We do not believe, however, that the definition of "liquor" ends with the semicolon.  Read in this fashion, the statute is ambiguous if not meaningless.  The phrase "liquid, solid, semisolid or other substance" is included twice in seeking to state what things are intoxicating.  As first used, it suggests that such a substance need only contain "alcohol, spirits, wine or beer" in order to be deemed intoxicating; as later used, it states that such a substance must contain "more than one percent of alcohol by weight."

            This difficulty is resolved, however, by assuming that the semicolon has been placed where it is in order more clearly to set off the parenthetical phrase "a part of which is fermented, spiritous, vinous, or malt liquor, or otherwise intoxicating," from the list of items included within the term "liquor."  Concededly, the legislature's choice of punctuation was unfortunate; by substituting other punctuation, such as the following, the meaning of the statute would have been made clearer:

            "'Liquor' includes (1) the four varieties of liquor herein defined (alcohol, spirits, wine and beer), and (2) all fermented, spiritous, vinous, or malt liquor or combinations thereof, and (3) mixed liquor, a part of which is fermented, spiritous, vinous or malt liquor, or otherwise intoxicating, and (4) every liquid or solid or semisolid or other substance, patented or not, containing alcohol, spirits, wine, or beer; and all drinks or drinkable liquids and all preparations or mixtures capable of human consumption, and any liquid, solid, semisolid, or other substance, which contains more than one percent of alcohol by weight shall be conclusively deemed to be intoxicating."

            Though this interpretation may not be apparent at first reading, it is perfectly  [[Orig. Op. Page 4]] consonant with the punctuation the legislature has used.  In any event, punctuation, being a fallible standard, is the last resort as an aid in the interpretation of a statute.  State v. Fabbri, 98 Wash. 207.  When an act as punctuated is inconsistent with the legislative intent, the punctuation should be disregarded or the act repunctuated to effect the intent of the legislature.  2 Sutherland, Statutory Construction (3rd Ed.), § 4939, page 479.  In the present instance, such repunctuation gives meaning to the statute; and it is an elementary rule of construction that effect must be given if possible to every word, clause, and sentence of a statute.  2 Sutherland, Statutory Construction (3rd Ed.), § 4705, page 339; Department of Labor & Industries v. Cook, 44 Wn. (2d) 671.

            If the section is read in this light, it seems clear that it was the legislative intent to include solids, semisolids and other substances, as well as liquids, within the term "liquor."  Consequently, "liquor" must be held to encompass the foods, flavorings and sauces about which inquiry has been made; a manufacturer of such substances is a manufacturer as that term is defined in the act, and should he require materials containing alcohol to be used in the manufacture of "liquor or other products" he may receive a permit to import the same.

            There is an additional and perhaps equally persuasive reason for the conclusion we have reached.  If the definition of "liquor" includes solids, semisolids, etc., a manufacturer of such items is a manufacturer of liquor within the meaning of the act and as such is clearly entitled to an importer's license.  But even assuming, for the purpose of argument, that the definition of liquor does not include such substances, we find that the definition of "manufacturer" includes any person engaged in the preparation of liquor for sale "in any form whatsoever."  Independently of the statutory definition of liquor, it would seem that this extremely broad language would include liquor in solid or semisolid, as well as in liquid form.  In other words, liquor, even as an ingredient, remains liquor within the meaning of the statute.

            Under any construction of the act, therefore, a manufacturer of the items here involved is a manufacturer within the meaning of RCW 66.20.010 (5).  But even assuming that we are wrong in our interpretation of the section of the statute defining "liquor," and that "liquor," when used without the words "in any form whatsoever," means only a beverage, still the manufacturer may obtain a permit to import alcohol for the manufacture, not  [[Orig. Op. Page 5]] only of liquor, but of "liquor and other products."  The question, then, is whether the consumable items in question are "other products."  There seems little doubt but in the layman's reading of this phrase, they would properly be so considered.

            It has been suggested, however, that the doctrine of ejusdem generis requires another result.  Briefly stated this rule requires that where special words are used in a statute, followed by words of more general import, the general words are limited to things of the same kind as described by the special words.  State v. Thompson, 38 Wn. (2d) 774.  Applied to the case at hand, the doctrine ofejusdem generis would require us to limit the meaning of the words "other products," a general term, to other productssimilar to liquor.

            In light of the sweeping definition of "liquor" in the statute, what other products are there which are not liquor but which at the same time are similar to liquor?  We do not believe there are any.  Therefore, to apply the doctrine ofejusdem generis would be to render meaningless the words "or other products"; and as already stated, where possible in construing a statute, each word and phrase thereof must be given some meaning.  The apparent conflict between these two principles of statutory construction is resolved by the fact that the maxim ejusdem generis has no application where the specific word or words embrace all the objects of the class designated.

            Our supreme court in the case of State ex rel. Bloedel-Donovan L. M. v. Savidge, 144 Wash. 302, quoted with approval as follows from Sutherland, Statutory Construction (2d Ed.), § 437:

            "'. . . "If the particular words exhaust the genus, there is nothingejusdem generis left, and in such case we must give the general words a meaning outside of the class indicated by the particular words or we must say that they are meaningless, and thereby sacrifice the general to preserve the particular words.  In that case the rule would defeat its own purpose." . . .'"

            See alsoRepublic Investment Co. v. Naches Hotel Co., 190 Wash. 176.

            Answering your question directly, it is our opinion that manufacturers of bakery goods, sauces, flavoring extracts, mincemeats and other products  [[Orig. Op. Page 6]] of a similar nature are included within the meaning of RCW 66.20.010 (5), and as such, these manufacturers, if they meet the other requirements of the statute, are entitled to secure a permit for the importation of alcohol and alcoholic beverages.

            We trust that this opinion will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DAVID S. BLACK
Assistant Attorney General