140 Ky. 124 | Ky. Ct. App. | 1910
Opinion of the Court bt
Affirming.
The information filed hy the Commonwealth against the appellant, who is a druggist, charged that he unlawfully sold at retail, not on a physician’s prescription, to Will Frazier a certain quantity of poison, to-wit: Opium, without satisfying htimself that such poison was to be used for legitimate purposes, and with the knowledge that it was intended for smoking purposes or for habitual use. It was returned under section 2630 of the Kentucky Statutes, reading in part:
“No person shall sell at retail any poisons except as herein provided, without affixing to the bottle, .box,
It is agreed that the appellant is a retail druggist; that he sold the opium charged in the information to the purchaser for the purpose of allowing the purchaser to smoke the same; that he knew before making the sale that the purchaser was addicted to the use of opium; that it was not sold on a physician’s prescription; that it is a poison, destructive to adult human life in quantities of five grains or less. It is further agreed that there was affixed to the bottle or package containing the opium a printed label, giving the name of the article, the word “poison,” and the name and place of the seller, with the common name of two readily accessible antidotes; and that before delivering the poison appellant entered in a book kept for that purpose as required by the statute the name of the seller, the name and residence of the buyer, the name of the article, the quantity sold, and the purpose for which it was said to be intended.
It will thus be observed that the offense charged against the appellant consisted in selling the drug by retail without a prescription to a person addicted to the use of it; and this being so, the sale was not made for a legitimate purpose.
A reversal is asked upon the ground that the statute is invalid for uncertainty because it does not define as it should have done the. words “retail” and “legitimate purposes,” and because it makes an arbitrary and unreasonable discrimination in excluding from, its provisions manufacturing chemists and druggists selling by wholesale, and has the effect of depriving the appellant of his liberty and property without due process of law.
That it is competent for the Legislature to impose reasonable restrictions upon the sale of drugs and poisons there is no room to doubt. It has been so often held that laws controlling and regulating the sale of these articles come within the police power of the State that we do not deem it necessary to do more than cite the case of the Kentucky Board of Pharmacy v. Cassidy, 115 Ky. 690, and call attention to the numerous1 authorities therein cited. Indeed, counsel for the appellant does not attack the statute upon the ground that it was not within the power of the Legislature to enact a law regulating the sale of opium or other drugs or poisons, but upon the theory that this power was not properly exercised. If this statute Is so* uncertain and indefinite in describing what will constitute the offense denounced by the statute that persons of ordinary understanding cannot comprehend its meaning or determine when they have violated its provisions, then it is open to the objection urged against it. The law is well settled that a penal statute creating an offense must be sufficiently plain and exact to enable persons of ordinary intelligence to understand its provisions. As said by Justice Brewer, in Chicago Railroad Co. v. Day, 35 Fed. Rep., 866: “No penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can' determine in advance what he may and what he may not do under it. ’ ’
And this principle, which was fully approved by this court in L. & N. R. Co. v. Commonwealth, 99 Ky., 132, we have no disposition to modify or depart from.
In the argument in support of the objection mentioned, it is said that the Legislature should have defined the meaning of the words “retail” and “legitimate purposes,” so that a druggist might know what quantity wo aid constitute a sale by retail and what would or
“Penal statutes must be construed as other statutes, with a view to carry out the intention of the Legislature. * * * The intention of the Legislature is to be collected from the words employed, but, in construing a statute, the court will look to the whole act, and the purpose of its makers in its enactment. The court cannot depart from the plain meaning of the words in a penal act, and adjudge that punishable under the statute which its language.does not fairly cover. ■ But, in determining what may be punished under the words of a statute, the court must apply the rule that every statute shall be construed literally, with a view to carry out the intention of the Legislature, and promote its objects, taking all ordinary words and phrases according to the common and approved-use-of language. ” ’
The purpose of the statute in so far. as it refers to> opium-and kindred drugs'was to prevent, without a physician’s’ prescription, their sale in small quantities to; persons who intend to use them, not for medical hr legitímate purposes, but to satisfy a depraved habit; .and its- purpose ought not to be weakened by an'interpretation.that would impair if not destroy-its usefulness/'
The word “retail’? is defined by Webster to be “the sale of commodities in small quantities or- parcels.” Tlrs is the-definition given by Bouvier-in, his law dictionary; and-the one recognized as correct by law writers -generally. 24 Cyc., page 1684; 24 Am. & Eng. Ency. of Law, page 875. - There are few persons of ordinary intelligence who do'not understand the meaning of the word “retail,” or who would not be áble to decide with reasonable certainty whether the sale hf 'a given article hr commodity-was a salé by retail or wholesale. ' In the common
The statute does not impose any harsh or unreasonable duty on druggists, because if the person desiring to purchase has not a prescription, the druggist can save himself from violating its provisions by in- good faith exercising reasonable care to satisfy himself -that it is intended for a legitimate purpose. But if he makes a sale by retail -in the absence of a prescription, without first in good faith exercising reasonable care to satisfy himself that the purchaser intends to use the drug for a legitimate purpose, and it appears in the prosecution against him that the purchase was not made for a legitimate purpose, he subjects himself to the penalty denounced by the statute. In other words, whenever a druggist sells by retail the poisons mentioned, without being protected by the prescription of a physician, he takes the risk of violating the law, unless before making the sale he in good faith uses reasonable care to satisfy himself that it is intended for legitimate purposes. And whether or not this degree of care is used is a question of'fact to be determined if put in issue from the evidence.
On the trial of this case a number of physicians were introduced for the Commonwealth for the purpose of showing that the sale of opium for smoking purposes or to an habitual user of the drug was not a sale for legitimate purposes. These physicians graphically described the ruinous effect of opium, physically, mentally and morally, when used habitually in any manner, and declared an emphatic terms the habit to be the most degrading and destructive that any person can acquire. Their testi
The question is further suggested that the construction of words and phrases in a statute is usually for the court. Generally this is true. But, if it is shown by evidence that words and phrases-are susceptible. of two meanings, depending on the state of facts it is attempted to apply them to, the court may instruct the jury in the words of the statute and leave them to find from the evidence whether it has been violated. To illustrate, if there should be difference of opinion on the part of witnesses as to whether or not the sale being inquired into was made for a legitimate purpose, the court should leave
In reference to the criticism that the statute makes an arbitrary and unreasonable discrimination against retail dealers in drugs and in favor of wholesalers, it is sufficient to say that it was the evil of selling by retail that the Legislature intended to prohibit. If a wholesaler1 should sell by retail in violation of the statute, he would' of', course be liable to the same extent as would the retail dealer. But there is a reasonable and well defined distinction between the sale of goods by wholesale and by retail, and it was entirely competent for the Legislature in the exercise of the police power and to accomplish the purpose intended to make it a penalty to sell the prohibited article by retail, without mentioning its sale in wholesale quantities. The Legislature did not deem it necessary, in an effort to correct the evil following the illegitimate use of opium and other drugs to extend the law so as to embrace wholesale dealers. It is a well known fact that persons who purchase opium for illegitimate purposes as a rule obtain it in small quantities; and to place restrictions around its saie in the'quantities in which it is usually obtained was the motivé"in;'the’-mind of the Legislature. It was dealing with a1 condition that existed. This legislation was not intended to reach or touch all persons or conditions, but only those that the law-makers in the exercise of their' wisdom1 and discretion deemed it necessary to regulate for the safety and protection of the unfortunate class who-have' acquired the drug habit. If hereafter it becomes' accessary to do so" the Legislature may placé such restrictions as are reasonably necessary around the sale-of-this of'other drugs by wholesale, but the failure to do so in the "act we are considering does not leave it open to the objection that it is discriminatory,1 arbitrary or unreasonable.
'The dtassifieation made by-the statute is a reasonable and' natural''one, and all persons within its scope are treated'^ exactly alike. An offense is créated and defined in ápjpó^tíhté'words, capable of being understood and' appli'é’d'wíth reasonable certainty; and viewed'from any-' standpoint the penalty imposed upon the'appellant did1' not deprive-1 him of -his liberty'or property without due; prbcess. of -law. The -statute does not violate either the State* or';Federal11 Constitution, and, as under the- evi-;