160 Mass. 307 | Mass. | 1894
By St. 1885, c. 313, a board of registration in pharmacy was established, and it was provided by § 3 how existing dealers should be registered. Other persons might be examined, and might be registered as pharmacists if found qualified. § 4. By § 9, “ whoever, not being registered as aforesaid, shall... retail, compound for sale, or dispense for medicinal purposes, drugs, medicines, chemicals, or poisons, shall be punished by a fine not exceeding fifty dollars.” After existing dealers had been given an opportunity to be registered as such for about two years, the right was withdrawn by St. 1887, c. 267, repealing § 3, but saving the rights of persons already registered. Thereafter it was necessary to be examined under § 4 in order to obtain a certificate. The only defence on the merits in the present case is that, since the repeal of § 3, § 9 has been emptied of its meaning. But it hardly needs argument to show the unsoundness of the suggestion. Although § 3 is repealed, it is not obliterated as a document, and when referred to by § 4, or needed to complete the full meaning of § 9, it still may be read. Of course, as time goes on, the words “ not being registered as aforesaid ” will have more and more exclusive reference to § 4, although § 3 still may
We have preferred to express an opinion upon the merits of the case, notwithstanding the provision of Pub. Sts. c. 214, § 27, that “ no motion in arrest of judgment shall be allowed for a cause existing before verdict, unless the same affects the jurisdiction of the court.” We agree that the words “before verdict ” are not to be taken with literal exactness. Commonwealth v. Chiovaro, 129 Mass. 489, 498. But it might be argued that if the repeal of § 3 in effect has repealed § 9 of St. 1885, c. 313, the jurisdiction of the Municipal and Superior Courts, in one sense of that variously used word, has been taken away, and we have given the defendant the benefit of the doubt, without deciding the question. Commonwealth v. Le Clair, 147 Mass. 539, 540.
The defendant seeks to have us consider a motion to quash for alleged formal defects apparent on the face of the record, which was seasonably made in the Municipal Court, and renewed in the Superior Court after default there. But the defendant acquiesced in the judgment of the Superior Court, (based on Pub. Sts. c. 214, § 25; Commonwealth v. Chiovaro, 129 Mass. 489,) and although there is no doubt that his appeal from the judgment against him upon his motion in arrest of judgment is properly here, ( Commonwealth v. McCormack, 126 Mass. 258; Commonwealth v. Dunleay, 157 Mass. 386; Pub. Sts. c. 152, § 10; St. 1891, c. 362,) it only brings up the questions of law raised by the latter motion.
Judgment affirmed.