| Ky. Ct. App. | Dec 21, 1923
Opinion of the Court by
Affirming.
The principal question on this appeal is whether the statute requiring a license fee of druggists for selling spirituous and vinous liquors has been repealed by the prohibition acts of 1920 and 1922.
The question arises in the following way: Renaker, a druggist, who had complied with all the provisions of law necessary to enable him to sell whiskey for medicinal purposes, and had obtained a permit to do so, was required by the state authorities to obtain a license for which he paid the necessary fee for two years. Proceeding under section .162, Kentucky Statutes, he brought this suit for a mandamus requiring the auditor to refund the money on the ground that the statute imposing the fees
Under our statutes licenses to sell by retail spirituous, vinous or malt liquors are granted by the county court, subject to certain requirements as to notice, unless the majority of legal voters in the neighborhood protest against the application, or the applicant be a person of bad character or one who does not keep an orderly, law-abiding house. Section 4203, Kentucky Statutes, 1915. Licenses to merchants, druggists or distillers shall be granted only upon satisfactory evidence that the applicant is in good faith a merchant, druggist or distiller, and has not assumed the name or the business for the purpose of retailing liquors; and such license shall only authorize the person to sell the liquor named in the license in quantities not less than a quart, and to be taken off and not drunk on the premises where sold, or adjacent thereto, except that druggists may retail in quantities less than a quart for medicinal purposes only on the prescription of a regular practicing physician. Section 4205, Kentucky Statutes, 1915. It is provided in section 4224, Kentucky Statutes, 1915, that before engaging in any occupation or selling any article named in that subdivision, the person desiring to do so shall procure a license and pay the tax thereon as thereafter indicated. The section then authorizes the granting of licenses to sell intoxicating liquors upon the payment of certain fees not only to druggists, but to merchants, distillers, retailers, tavern keepers and hotel keepers, the provision with reference to druggists being as follows:
“To persons who are druggists in good faith, to retail spirituous and vinous liquors at the drug stores in quantities not less than a quart^ the liquor not to be drunk on the premises or adjacent thereto, and. to sell in quantities less than a quart, for medicinal purposes only, on the prescription of a regular practicing physician, one hundred dollars.”
The statute concludes with a provision to the effect that any person or corporation who shall “fail to procure” the license as therein required, or who violates any of the provisions thereof, shall, on conviction, be
On March 23, 1920, the General Assembly enacted a general prohibition act, Acts 1920, p. 377, for the purpose, as declared in its title, “to prohibit and provide penalties for the manufacture, sale, transportation or other disposition of spirituous, vinous, malt and intoxicating liquors, except for sacramental, medicinal, scientific or mechanical purposes in the Commonwealth of Kentucky, and to regulate the manufacture, sale and transportation of alcohol for non-beverage purposes thereunder.” The act consists of 38 sections and provides numerous regulations for the sale of liquor for medicinal purposes. In many respects it is similar to the Volstead act, and provides that records shall be kept by any person that sells such liquor, showing the amount, kind and quantity of such liquor, and the name and address of the person to whom it may be sold, which shall be open to the inspection of the county attorney. It is provided in section-20 that “physicians may issue and pharmacists may fill prescriptions for intoxicating liquors under the restrictions of the national federal law.” Sections 21 to 24, inclusive, prescribe elaborate conditions and restrictions under which prescriptions may be written by physicians and filled by druggists. Among them is a provision that no more than one pint of liquor shall be filled for any person at any time, nor at intervals of less than ten days. In section 35 it is provided that “Nothing in this act shall prevent the manufacture, sale, transportation or delivery of intoxicating liquors by manufacturers, wholesale druggists or retail druggists having permits issued under the regulations provided for the enforcement of the act of congress known as the national prohibition act, or the sale, transportation and delivery by manufacturers or wholesale druggists or retail druggists to other manufacturers, wholesale druggists or to retail druggists; provided, however, that such manufacturers, wholesale druggists and retail druggists have permits to sell or to purchase under the provisions of said national prohibition act, and have complied with all the provisions of this act.” Section 36 provides that “all laws or parts of laws in conflict with this act are hereby repealed.”
In the month of March, 1922, the legislature enacted an additional prohibition act. Acts 1922, chapter 33, p. 109. Its purpose as declared in its title was “to prohibit the manufacture, sale, transportation, possession, or
For the purpose of getting the question fairly before us, let us contrast the license statutes and the prohibition acts. The former not only make the failure to procure a license unlawful, but confer on those who procure a license authority to sell intoxicating liquors. In the case of druggists, authority is given not only to sell in quantities not less than quarts, and not to be drunk on the premises, but also to sell in quantities less than quarts for medicinal purposes only, on the prescription of a regular practicing physician. On the other hand, the prohibition acts purport to contain all the law on the subject, and absolutely prohibit the sale of intoxicating liquors except for sacramental, medicinal, scientific or mechanical purposes, and only then under regulations and restrictions, wholly different from those formerly in force. In other words, the license statute deals with a situation where the sale of intoxicating liquors is lawful. The prohibition acts make the sale unlawful except under conditions therein named. To say 'that under these circumstances the legislature did not intend to put an end to the license system, and institute a new regime wholly inconsistent therewith, is to ignore entirely the purpose of the prohibition acts. We must not overlook the fact that our license statutes contain two features, one prohibitory and the other permissive. The argument that the permissive feature of the license system is repealed, while the prohibitory feature is left in force as “appropriate legislation” is not persuasive when applied to our statutes. It is not to be supposed for one moment that the legislature would have enacted in the first instance, or have left in force, a statute imposing a penalty for a failure to procure a license, and at the same time have denied the right to obtain a license, or have made it unlawful to do the thing authorized toy the license. In other words, the pro
Moreover, it is said in the notes to that base, which is reported in 3 L. R. A. (N. S.) 620, that in sustaining the prosecution under the general liquor law for selling without a license in a local option territory, the case falls “in with the minority rule, ’ ’ and that the weight of authority is to the effect that the general law is suspended, while the local option law is in operation; that one cannot be convicted under the general law for selling intoxicating liquors without a license when the local option law, which prohibits the issuing of licenses; is in force, and in support of this position the following eases are cited: Butler v. State, 25 Fla. 347" court="Fla." date_filed="1889-01-15" href="https://app.midpage.ai/document/butler-v-state-4914175?utm_source=webapp" opinion_id="4914175">25 Fla. 347, 6 So. 67; Stringer v. State, 32 Fla. 283, 13 So. 450; Collins v. State, 114 Ga. 70" court="Ga." date_filed="1901-11-06" href="https://app.midpage.ai/document/collins-v-state-5571171?utm_source=webapp" opinion_id="5571171">114 Ga. 70, 39 S.E. 918" court="Ga." date_filed="1901-11-06" href="https://app.midpage.ai/document/batty-v-state-5571176?utm_source=webapp" opinion_id="5571176">39 S. E. 918; Batty v. State, 114 Ga. 79" court="Ga." date_filed="1901-11-06" href="https://app.midpage.ai/document/batty-v-state-5571176?utm_source=webapp" opinion_id="5571176">114 Ga. 79, 39 S. E. 918; Edwards v. State,
“But we are of the opinion 'that in localities where the people have voted against the sale of liquor the act becomes operative as a whole, and suspends pro tanto all inconsistent laws. Being in force in precinct No. 5 in Meade county, it at the same time deprived the appellant of the protection his license would otherwise have given him, and relieved him from liability to the penalty denounced by the statute relative to taverns and tippling houses. If he has violated the local option law, he should have been prosecuted and punished under its provisions, and consequently had a right to have the fine against him fixed by the jury at not less than $25.00, nor more than $100.00, instead of having it fixed by the court at $60.00, as prescribed by the general law.”
In Gifford v. Commonwealth, 2 K. L. R. 437, it was held that a section in the charter of the town of Falmouth, passed by the legislature in 1878, granting the council of that town the power to license and regulate the sale of liquors, operated as a repeal of the general local option. law then in force, because repugnant thereto and inconsistent therewith. So, too, in the later case of Tabor v. Lander, 94 Ky. 237" court="Ky. Ct. App." date_filed="1893-04-04" href="https://app.midpage.ai/document/tabor-v-lander-7132802?utm_source=webapp" opinion_id="7132802">94 Ky. 237, it was held that where the general local option law had been voted into operation in a civil district of which a city formed a part, an amendment to the city charter conferring for the first time authority on the city council to license taverns and coffee houses with the privilege of retailing liquor in the city, repealed the local option law so far as the city was concerned. The decision was rested on the ground that the authority conferred on the council to license and regulate the sale of liquors was inconsistent with the general local option law, and indicated a clear intent to repeal or suspend the operation of that law. There is no reason, of course, why the rule should not work both ways. In other words, if the granting of power to a municipal corporation to li
As the statute imposing the license fees had been repealed, it necessarily follows that the fees in question were no longer due and collectible, and having been paid by mistake, it was the duty of the auditor to refund them, and upon his refusal to do so, appellee was entitled to a mandamus requiring the auditor to issue a warrant in his favor. Section 162, Kentucky Statutes; Greene v. Taylor, Jr. & Sons, 184 Ky. 739, 212 S. W. 925.
Judgment affirmed.