STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6370

June 10, 1986

BOTTLES AND BOTTLING:

Application of returnable container and deposit requirements to containers of spirituous liquors distilled from malted grains

In their approval of 1976 PA Initiated Law, the people did not require spirituous alcoholic liquors, such as whiskey, gin or vodka distilled from malt or fermented malt grains, to be sold only in returnable containers and upon payment of refundable cash deposits.

Honorable Charles Mueller

State Representative

The Capitol

Lansing, Michigan 48913

Honorable Michael J. O'Brien

State Senator

The Capitol

Lansing, Michigan 48913

You have requested my opinion on the question whether alcoholic liquors consisting of spirits such as whiskey, gin, or vodka which are distilled from malt or malted cereals, are subject to the 1976 PA Initiated Law, MCL 445.571 et seq; MSA 18.1206(11) et seq.

At the general election held on November 2, 1976, the people approved an initiative proposal designated as Proposal A, which, as listed on the ballot, read as follows:

'PROPOSAL A

The notice to the people of the election stated, in pertinent part, that Proposal A was:

1976 PA Initiated Law prohibits the use of non-returnable containers for the sale of certain beverages for off-premise consumption, requires cash deposits and repayment of deposits for such containers, and prohibits the use of certain containers for such beverages.

Certain definitions are contained in the 1976 PA Initiated Law, MCL 445.571; MSA 18.1206(11), which are pertinent to your question:

In 1976 PA Initiated Law, MCL 445.572; MSA 18.1206(12), the people have provided in pertinent part:

Violations of 1976 PA Initiated Law are punishable by fines of not less than $100.00 nor more than $1,000.00 and the cost of prosecution. MCL 445.574; MSA 18.1206(14). Thus, 1976 PA Initiated Law is a penal statute and must be strictly construed. People v Gilbert, 414 Mich 191, 211; 324 NW2d 834 (1982).

Analysis of your question begins with the focus on the definition of 'beverage' adopted by the people in MCL 445.571(1)(a); MSA 18.1206(11)(1)(1), which consists of two parts. Since your question relates to alcoholic liquors consisting of spirits, the first part of the definition dealing with soft drinks is patently not in issue here. The remaining portion lists 'beer, ale or other malt drinks of whatever alcoholic content.'

As commonly understood, beer is a malted and hopped, somewhat bitter beverage brewed by bottom fermentation. It may also be a carbonated, nonalcoholic or a fermented, slightly alcoholic beverage with flavoring from roots and plant parts. Ale, on the other hand, is a malted and hopped beverage that is generally higher in alcoholic content and heavier in body than beer, more bitter in taste and is brewed by top fermentation. Webster's Third New International Dictionary.

The common understanding of the term 'beer' was examined by the New York Court of Appeals in Blatz v Rohrbach, 116 NY 450, 451; 22 NE 1049 (1889):

State v Oliver, 26 W Va 422, 426 (1885); Williams v State, 72 Ark 19; 77 SW 597 (1903).

The opinion of District Judge Brieant in Bloor v Falstaff Brewing Corp, 454 F Supp 258, 260-261, contains an interesting historical treatment of the brewing of beer and ale:

Beer is generally made from barley, which is first malted and ground, and its fermentable substance extracted by hot water. People v O'Reilly, 129 App Div 522; 114 NYS 258, 261 (1908), aff'd, 194 NY 592; 88 NE 1128 (1909). Malted barley is barley that has been germinated and the germination stopped at a suitable point by the application of heat and drying. The grain is indistinguishable from barley in appearance except to the extent that the sprout changes its appearance. Joseph Schlitz Brewing Co v City of Milwaukee, 232 Wis 118; 286 NW 602, 605 (1939), 122 ALR 1431.

Spirituous liquors, on the other hand, are not synonymous with malt liquors. Spirituous liquors, like whiskey, rum and gin, contain alcohol extracted by distillation, while malt liquors are produced by fermentation of malt. King v Waigand, 208 Md 308; 117 A2d 918, 921 (1955), reh den (1956); State v Adams, 51 NH 568, 569 (1872); Sarlls v US, 152 US 570, 576; 14 S Ct 720; 38 L Ed 556 (1894); Jameson v Brown, 71 App DC 254; 109 F2d 830, 832-833 (1940). It has also been held that 'malt beverages' consist of beer, ale, porter and the like and do not include distilled alcoholic beverages. McCaffrey v State, 189 SE 825, 827 (GA, 1937).

Whiskey is an alcoholic liquid obtained by distillation of fermented grain. Ramsey v State, 132 Tx Cr 411; 104 SW2d 858, 859 (1937). Malt liquor is produced by the fermentation of malt as opposed to the distillation of malt. Claunch v State, 82 Tx Cr 355; 199 SW 483 (1917), rev on other grds, 83 Tx Cr 382; 203 SW 891 (1918).

The meaning of beer and ale, as commonly understood, is not open to question. No one would contend that a whiskey, gin or vodka distilled from malt or malted grain was either a beer or an ale. The intent of the people as to the statutory term 'other malted beverage of whatever alcoholic content,' however, is not clear and requires interpretation.

In order to understand the meaning of terms in a statute, it is appropriate to rely upon certain rules of statutory construction. Research reveals no Michigan appellate decision on the construction of statutes enacted by the people by initiative petition.

Laws enacted by the people through initiative petition have been held to be of equal dignity with laws enacted by the Legislature. State v Erickson, 75 Mont 429; 244 P 287, 290 (1926). See. In re Proposals D & H, 417 Mich 409; 339 NW2d 848 (1983).

There is no essential difference in the construction of statutes enacted directly by the people and those enacted by the Legislature. State v Erickson, 244 P 290; Anthony v Veatch, 189 Or 462; 220 P2d 493, 507-508 (1950), app dis, 340 US 923; 71 S Ct 499; 95 L Ed 667 (1951); Washington State Department of Revenue v Hoppe, 82 Wash 2d 549; 512 P2d 1094, 1096 (1973).

In construing a statute enacted by the people through initiative petition, the collective intent of the people is the object of inquiry. Washington State Department of Revenue v Hoppe. The common understanding of the people of the purpose of the initiated law is an appropriate measure of the peoples' intent. Denny v Wooster, 175 Wash 272; 27 P2d 328, 330-331 (1933). The intent of the people may be ascertained from the ballot proposal, Eugene School Dist No 4 Fisk, 159 Or 245; 79 P2d 262, 265, 267 (1938), and from the arguments on the initiative proposal published and circulated to the people attendant to the election upon the initiative proposal, People v Fowler, 32 CA2d 737; 84 P2d 326, 330 (1938); Lynch v State, 19 Wash 2d 802; 145 P2d 265, 270 (1944); Eugene School Dist No 4 v Fisk, 79 P2d 267; Iman v Southern Pacific Co, 7 Ariz App 16; 435 P2d 851, 857 (1968).

The peoples' intent may also be gleaned from a study of all of the provisions of the initiated statute. Stroud v Fryar, 216 Ark 250; 225 SW2d 23, 24 (1949).

The Legislature has enacted certain rules for the construction of statutes. MCL 8.3a; MSA 2.212(1), provides:

The language of the statute to be construed must be read in light of the general purpose sought to be accomplished. Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 478; 208 NW2d 469 (1973). Further, 'under the principle of ejusdem generis, where a statute contains a general term supplementing a more specific enumeration, the general term will not be construed to refer to objects not of like kind with those enumerated.' Poletown Neighborhood Council v Detroit, 410 Mich 616, 635-636; 304 NW2d 455 (1981), citing 2A Sutherland, Statutory Construction (4th ed), Secs. 47.18-47.19, pp 109-114.

Applying the aforesaid rules of construction, the ballot proposal approved by the people as 1976 PA Initiated Law made no reference to spirituous alcoholic beverages. Instead, it referred only to soft drinks and beer. The proposal contains five references to 'soft drinks and beer' but no mention of spirituous liquors.

To apply the rule of ascertaining the peoples' intent from the published arguments on the initiative proposal, a review of arguments on Initiative Proposal A published and circulated to the people prior to the November, 1976 election is especially instructive.

The initiative petition drive to place Proposal A on the ballot was sponsored by the Michigan United Conservation Clubs. 'MUCC Leads Bottle Bill Battle,' Mich Out-of-Doors, XXX (May, 1976), 38. It is noted that Mich Out-of-Doors is published by the Michigan United Conservation Clubs.

The purpose for Proposal A was succinctly stated in Lowe, 'The Case for Returnables,' Mich Out-of-Doors, XXX (May, 1976), 39:

In 'Questions and Answers,' published next to 'The Case for Returnables,' Mich Out of Doors, XXX (May, 1976), 39, it is stated:

The opponents of Proposal A, while expressing concern over the problem of litter in Michigan, argued that Proposal A did not offer a cost effective solution. A column by Peter W. Stroh, President of the Stroh Brewery Company, entitled 'Proposal A Would Be Too Costly To Enforce, A Brewer Views Banning Throwaways,' published in the Detroit News, September 28, 1976, Section B, p 7, stated:

'Proposal A would be too costly to enforce

As stated in McDiarmid, 'Beer Baron and Teetotaler Debate Bottle Deposit Bill,' Detroit Free Press, September 9, 1976, p 3A, 6A, when the Michigan State Highway Commission met in Lansing on September 9, 1976 to consider a request of the Michigan United Conservation Clubs for Commission endorsement of Proposal A, a debate between Peter Fletcher, a member of the State Highway Commission, and Peter Stroh, President of the Stroh Brewery Company 'over the matter of beer cans, other roadside litter and mandatory deposits was conducted . . ..':

The Civic Search Light and Oakland Citizens Voter Guide, General Election, November 2, 1976, p. 20, listed the State Ballot Questions and in recommending a 'yes' vote on Proposal A, in pertinent part, stated:

Review of available published arguments on Proposal A circulated to the people prior to the November, 1976 general election is persuasive of the conclusion that the proponents of Proposal A disclaimed any intent to subject alcoholic liquors obtained by distillation such as whiskey, gin or vodka, to the requirement that they be sold only in returnable containers and subject to the payment and refund of a deposit on the container. Similarly, opponents made no claim that spirituous alcoholic liquors were subject to Proposal A.

Under the rule that the peoples' intent may be ascertained by reading all parts of the initiated law, and reading all parts of 1976 PA Initiated Law, the Liquor Control Commission is not listed within the definition of 'dealer' defined in subsection (g) of MCL 445.571; MSA 18.1206(11), even though it is expressly enumerated in subsection (1) thereof. As a major seller to consumers of spirituous alcoholic liquors, MCL 436.13; MSA 18.984, had the people intended to regulate the sale of spirituous alcoholic liquors in returnable containers, the Liquor Control Commission would, of necessity, have expressly been listed within the definition of 'dealer' so as to make the obligation imposed by 1976 PA Initiated Law, MCL 445.572(1); MSA 18.1206(12)(1), binding upon it as a major seller of spirituous alcoholic liquors. This omission must be deemed to be intentional.

Application of the statutory construction rule of ejusdem generis is particularly appropriate. This rule states that where a statute contains a listing of specific terms followed by a general term, the general term will be construed as including only objects similar to the specific terms enumerated.

In Hollender v Magone, 38 Fed 912 (NY, 1889), in construing the term 'liquor' used in the federal tariff act of 1883, the court examined the Webster Dictionary definition of that term as well as 'malt drink, or malt liquor, a liquor prepared for drink by an infusion of malt, as beer, ale, porter, etc.'

The term 'other malt drinks of whatever alcoholic content,' as a general term, is used in context with and supplements the specific terms 'beer' and 'ale' and refers to malt drinks of a like kind to beer and ale made from malted cereals by fermentation but of whatever alcoholic content. The term does not include alcoholic liquors made by distillation.

This analysis compels the conclusion that the collective intent of the people in approving 1976 Initiated Law and their common understanding of its purpose was to subject soft drinks, beer, ale and other malt beverages of whatever alcoholic content obtained from the fermentation of malted grains were to be sold for consumption off the premises only in returnable containers and subject to payment of monetary deposit for the container by the purchaser. The people did not intend to subject alcoholic liquors obtained from the distillation of malt or fermented malted grains to the strictures of 1976 PA Initiated Law.

It is my opinion, therefore, that in approving the 1976 PA Initiated Law, the people did not require spirituous alcoholic liquors, such as whiskey, gin or vodka distilled from malt or fermented malt grains, to be sold only in returnable containers and upon payment of refundable cash deposits.

Frank J. Kelley

Attorney General