PEOPLE v. TUX WINERY CO

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District Court of Appeal, Second District, Division 2, California.

PEOPLE v. TUX WINERY CO.

Cr. 11415.

Decided: June 28, 1937

U. S. Webb, Atty. Gen., and Seibert L. Sefton, Deputy Atty. Gen., for the People. Benjamin J. Goodman, of Los Angeles, for respondent.

Plaintiff appeals from a judgment in favor of defendant after the trial court granted defendant's motion for a nonsuit in an action to collect an excise tax on distilled spirits.

The essential facts are these:

Defendant manufactures beverages containing ingredients as set forth in the following formulas:

A.

BOURBON HIGH BALL

B.

FORMULA No. 16

OLD FASHION 30 Proof

26–3/4 gallons of Syrup

52.40 gallons of Fruit Spirit, 187 proof

5 1/2 oz. Bourbon Whisky Flavor

2 1/2 gallons of Pineapple Juice

5 1/2 gallons of Lemon Juice

C.

FORMULA No. 17

HIGHBALL 30 Proof

34–3/4 gallons of Syrup

52.40 gallons of Fruit Spirit, 187 proof

6 1/2 oz. Bourbon Whisky Flavor

D.

FORMULA No. 18

LIME FIZZ 30 Proof

34–3/4 gallons of Syrup

52.40 gallons of Fruit Spirit, 187 proof

2 1/2 oz. of Juniper Oil

2 1/2 oz. of Ginger Flavor

Defendant claimed that its product was not subject to the tax on distilled spirits but to the tax on sparkling wine, which it paid. It was stipulated that, if its product was subject to the distilled spirits tax, there was due plaintiff the sum of $585.91.

The only questions presented for determination are these:

First. Is a mixture of prune juice, water, sugar, ginger extract, angostura essence, 50–50 acid, vanilla, caramel, bourbon whisky flavor and alcohol a “distilled spirit,” as defined by the Alcoholic Beverage Control Act (St.1935, p. 1123), and taxable as such? (Formula A, supra.)

Second. Is a mixture of fruit juice, brandy, bourbon whisky flavoring, pineapple juice, lemon juice, prune juice, distilled water, sugar, ginger extract, angostura bitters, vanilla, and 50–50 acid a “distilled spirit,” as defined by the Alcoholic Beverage Control Act, and taxable as such? (Formulas B, C, and D, supra.)

Third. Did the complaint fail to state a cause of action because of the absence of allegations that (a) sales were made in the state of California, and (b) plaintiff had failed to comply with sections 26, 27, and 31 of the Alcoholic Beverage Control Act?

The first and second questions must be answered in the affirmative. This court in Tux Ginger Ale Co., Ltd., v. Davis, 12 Cal.App.(2d) 73, 54 P. (2d) 1122, held that alcoholic concoctions which were the result of mixtures such as those in the formulas set forth, supra, could not by legal definition nor common understanding of the word be termed wines. We see no reason to deviate from our former opinion. The beverages in question were subject to the tax on distilled spirits, since, not being wine and admittedly containing brandy or its equivalent, they came within the definition of distilled spirits as set forth in the Alcoholic Beverage Control Act, sections 2(d) and 2(e), which so far as material here read as follows:

“‘Distilled spirits' means * * * spirits of wine, * * * brandy * * * including all dilutions and mixtures thereof.”

The third question must be answered in the negative for the reasons that (a) in the absence of a special demurrer the complaint sufficiently alleged sales in the state of California, and (b) the procedure outlined in sections 26, 27, and 31 of the Alcoholic Beverage Control Act is inapplicable to the collection of a tax on distilled spirits but applies solely to the collection of a tax on beer and wine.

For the foregoing reasons the judgment is reversed.

McCOMB, Justice.

I concur: CRAIL, P. J.

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