26 W. Va. 253 | W. Va. | 1885
B. B. Enoch was on August 3,1881, indicted in the circuit court of Jackson county in the following words:
“ The grand jurors of the State of West Virginia in and for the body of the county of Jackson and now attending the said court upon their oaths present, that B. B. Enoch on the-day of May, A. D. 1881, and on divers other days since that time, did carry on the business of a druggist in said county without a license therefor, against the peace and dignity of the State. Upon the information of-sworn in open court and sent to the grand jury to give evidence on this indictment.”
The defendant demurred to the indictment, which demurrer was overruled, and, neither party requiring a jury, the case was tried by the court, and the court having heard all the evidence and arguments of counsel found the defendant guilty and entered judgment for a fine of $10.00 and the costs. The defendant moved the court to set aside the judgment and grant him a new trial, which motion the court overruled; and the defendant excepted. His hill of exceptions, which certifies all the evidence, shows that the State proved, that the defendant was carrying on the business of a druggist in the town of Ripley in said county of Jackson within a year next preceding the finding of the indictment and had no State license therefor. The defendant proved,
The bill of exceptions shows that the defendant based his motion to set aside the judgment on two grounds. First. Because said defendant was a registered pharmacist, and therefore no license was required. Second. Because if a license was required, then the county court had no discretion and was bound to grant said defendant license.
To the judgment the defendant obtained a writ of error.
No defect in the form of the indictment is pointed out. The allegation that the defendant carried on the business of a druggist without a license therefor, using as it does the language of the statute, is sufficient. (State v. Riffe, 10 W. Va. 794.)
It is true sec. 8 of ch. 157 of the Code required, that the names of the witnesses appearing before the grand jury, on whose information the indictment was found, should be written at the foot of the indictment, and the indictment in this case does not contain the name of the witness, on whose evidence the indictment was found. This requirement of the statute is directory, and the indictment is good notwithstanding the omission. (Com. v. Dewer, 10 Leigh 685; Com. v. Williams, 5 Grat. 702.) But the demurrer should have been sustained, if there was, at the time the indictment was found, no statute requiring a license to permit carrying on the business of a druggist. Sec. 1 of ch. 107 of the Acts of 1877, declares that no person without a State license therefor should “carry on the business of a druggist.” That is yet the law; it was not repealed by the Pharmacy Act.” Ch. 52 of the Acts of 1881. This act certainly does not re
If there is any section that could possibly by implication repeal the statute requiring druggists to obtain license to carry on their business, it is the eighth section, which is in full as follows:
*257 “Apothecaries registered, as herein provided shall have the right to keep and sell, under such restrictions as herein provided, all medicines and poisons, authorized by the National American, or United States Dispensatory and Pharmacopoeia, as of recognized utility. Provided, that nothing herein contained shall he construed so as to shield an apothecary, or pharmacist who violates or anywise abuses this trust for-the legitimate and actual necessities of medicine, from the utmost rigor of the law relating to the sale of intoxicating liquors; and in addition thereto his name shall be stricken from the register.”
The rule of law is well- settled, that to repeal a statute by implication there must be such a positive repugnancy between the provisions of the new law and the old, that they can not stand together or be consistently reconciled. (Forqueran v. Donnally, 7 W. Va. 114; C. & O. R. R. Co. v. Hoard, 16 W. Va. 270; McConiha v. Guthrie, 21 W. Va. 134; State v. Stoll, 17 Wall. 425; Chew Heong v. U. S., 112 U. S. 549.) The rule as stated in 17 Wall. 425, is terse as well as sound. It is, that in such case “it must appear that the latter provision is certainly and clearly in hostility with the former. If by any reasonable construction the two statutes can stand together, they must so stand. If harmony is impossible, only in that event the former statute is repealed in part, or wholly as the case may be.”
How it seems to us that sec. 8 of ch. 52 of the Acts of 1881 is not certainly and clearly in hostility to the latter clause of sec. 1 of ch. 107 of the Acts of 1877, which requires a State license to pursue the business of a druggist. We think the two acts may be reconciled and may well stand together. The objects of the two acts are different; the object of the first being in part at least to produce revenue, and that of the other to restrict the sale of poisonous drugs to those who are capable of dispensing them properly. 'When the Legislature said: “Apothecaries registered as herein provided shall have the right to keep and sell under such restrictions, as herein provided, all medicines,” &c.,it is understood it was meant, “provided they had obtained license to carry on the business as required by sec. 1 of ch. 107 of the Acts of 1877.” If it had been intended to repeal the law requiring license, the
There is nothing in the error assigned, that the defendant had complied with all the requirements of the law necessary to obtain license as a druggist, and the county court had improperly refused to grant him a license. That is to say, that he would be justified in selling without license, if the court improperly refused' to grant him license.
There is no error in the judgment of the circuit court of Jackson county, and it is therefore affirmed.
Aeelrmed.
