State v. Roller

| Mo. | Oct 15, 1882

Lead Opinion

Henry, J.

The defendant was indicted for selling intoxicating liquors in less quantity than one gallon. The cause was submitted on the following agreed facts: “Defendant sold intoxicating liquor in Saline county, on the 2nd day of March, 1882, in less quantity than one gallon, for medical purposes only, but without a prescription from a physician. Defendant was at the time a duly registered pharmacist; and the liquor sold was whisky, which is pronounced by the National American and United States Dispensatory and Pharmacopoeia to be of recognized medical utility.” He was found guilty and fined $40, and has appealed to this court from the judgment.

The only question involved is whether the act of the legislature, approved March 26th, 1881, entitled “An act to regulate the sale of medicines and poisons by druggists and pharmacists,” repealed the act of May 19th, 1879, entitled “An act to regulate the sale of intoxicating liquors by dealers in drugs and medicines, to define who shall be known in law as dealers in drugs and medicines, and to repeal an act entitled ‘An act to regulate the sale of intoxicating liquors by dealers in drugs and medicines,’ approved May 2nd, 1877,” appellant contending that it did, and respondent that it did not, and that druggists cannot now sell intoxicating liquors in less quantity than one gallon, except on a registered physician’s prescription.

The act of 1881 establishes a “ Board of Pharmacy for the State of Missouri,” to be composed of three competent pharmacists, to be appointed by the governor, with the approval of the Senate, and requires every person desiring to conduct any pharmacy, drug store, apothecary shop or store for the purpose of retailing, compounding or dispensing medicines, or poisons for medical use, to undergo an examination by said board touching his qualifica» tions to compound and dispense medicines, and, if found qualified, the board is required to give him a certificate and register his name in a book to be kept for that purpose. Persons engaged in the business of pharmacists and druggists at the date of the passage of the act were entitled to be registered without examination, provided, that if they failed to apply for registration within sixty days after being notified to do so, they should undergo the examination required of others when they did apply. By section 8, registered apothecaries “ have the right to keep and sell, under such restrictions as are herein provided, all medicines and poisons authorized by the National American or United States Dispensatory and Pharmacopoeia, as of recognized medical utility, provided that nothing herein contained shall be construed so as to shield an apothecary or pharmacist who violates or in anywise abuses this trust, from the utmost rigor of the law regulating the sale of intoxicating liquors.” Section 9 requires the apothecary to use precautions therein prescribed in the sale of certain poisons enumerated, and declares that “it shall not be lawful for any licensed or registered druggist or pharmacist to retail, sell or give away, any alcoholic liquors or compound as a beverage,” and declares the violation of any provision of the section a misdemeanor, punishable by a fine of not less than $25 nor more than $100. Section 13 repeals all acts or parts of acts in conflict with that act.

By the act of 1879 a dealer in drugs and medicines was prohibited from selling or giving away any alcoholic liquors in any quantity less than one gallon, and in any quantity to be drunk on the premises, without having a dramshop-keeper’s license, unless on the prescription of a regularly registered physician, and for any violation of the provisions of the act was punishable by a fine of not less ' than $40 nor more than $200.

There is an obvious conflict between the two acts, in the punishment prescribed for a violation of their respective provisions, and others equally irreconcilable in other respects though not so apparent. Each act was intended to regulate the sale of alcoholic liquors by druggists, or dealers in drugs and medicines, and the act of 1881, in addition, regulates the sale of other poisons and medicines by druggists. The act of 1879 defined a druggist to be one who “ shall maintain a store, or known place of business, shall have -complied with the law relating to merchants’ licenses, and shall have, at all times on hand at said store, or place of business, a stock of goods such as are usually kept in drug stores, exclusive of intoxicating liquors.” While the act of 1881 does not attempt to define the term “druggist,” it by implication declares that, no one shall be so regarded unless registered as such under its provisions, and expressly confers the privileges of druggists given by that act, upon such as register, without requiring of them the prerequisites which enter into the definition of a druggist, in the act of 1879. The act of 1879 authorized dealers in drugs and medicines to sell alcoholic liquors in any quantity less than a gallon on the' prescription ot a physician regularly registered, and not otherwise. It required them also, by section 2, to keep a store or known place of business, as above stated; on the conditions therein prescribed he was authorized to sell. By the act of 1881, registered druggists and pharmacists have the right to sell medicines and poisons authorized by the Dispensatory and Pharmacopoeia, under such restrictions as are imposed by that act. No restrictions imposed by other acts have application to them. The proviso to the 8th section, “ That nothing contained in the act should be so construed as to shield an apothecary or pharmacist who violates or in anywise abuses the trust reposed in him from the utmost rigor of the law regulating the sale of intoxicating liquors, has not the effect to impose restrictions upon druggists other than those prescribed by that and other sections of the act. The trust mentioned in that proviso relates to the sale of intoxicating liquors. There can be no breach of that trust except in the sale of such liquors otherwise than as medicines, and that breach of the trust is by section 9 declared a misdemeanor, and punishable by a fine of not less than $25 nor exceeding $100. One restriction of the act of 1879, was as to quantity, but by the act of 1881 a druggist cannot sell alcoholic liquor’ as a beverage in any quantity. He is restricted to its sale as a medicine.

Both the tact of 1879 and that of 1881 were intended to regulate the whole subject of the sale of intoxicating liquors by druggists. Each covers the same ground on that subject, and it was held in Smith v. State, 14 Mo. 152, that “A statute is impliedly repealed by a subsequent one revising the whole subject matter of the first,” and Judge Ryland, delivering the opinion of the court, remarked that “ a subsequent statute revising the whole subject matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must on the principles of law, as well as in reason and common sense, operate to repeal the former.” Citing Bartlet v. King, 12 Mass. 537" court="Mass." date_filed="1815-11-15" href="https://app.midpage.ai/document/bartlet-v-king-6404399?utm_source=webapp" opinion_id="6404399">12 Mass. 537; Nichols v. Squire, 5 Pick. 168; Com. v. Cooley, 10 Pick. 37. There is no room to doubt that the act of 1881 was intended'as a substitute for that of 1879; and the time has passed when one in this State could erect a shanty at a cross-roads and keep for sale a few bottles of patent medicines, and many bottles of adulterated whisky, and claim to be a druggist.

The judgment is reversed.

All concur except Norton, J., who dissents.

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Dissenting Opinion

Norton, J.,

Dissenting. — Not concurring in the above opinion, I deem it proper to give my reasons for dissenting.

The only question presented by the admitted facts of the case is, whether under existing laws a druggist can sell intoxicating liquors as a medicine without the prescription of a regularly registered physician. The 3rd and 4th sections of an act entitled “An act to regulate the sale of intoxicating liquors by dealers in drugs and medicines, to define who shall be known in law as dealers in drugs and medicines,” etc., make it a misdemeanor punishable by a fine of not less than $40 nor more than $200 for any such dealer to sell or give away liquors of any kind, unless the same are prescribed by a regularly registered physician. Laws 1879, p. 165. If the said statute is in force, the defendant, under the admitted facts, is guilty of violating it. It is, however, argued, and the opinion of the court so holds, that the said act of 1879 has been repealed by a subsequent statute, the title to which is, “An act entitled an act to regulate the sale of medicines and poisons by druggists and pharmacists.” Laws 1881, p. 130. It is not pretended, nor is it claimed, that the act of 1881 in express terms repeals the act of 1879, but it is claimed that the latter act is repealed by necessary implication.

The rule that repeal by implication is not favored, and that before a later act can be construed to repeal a foimer one, the repugnancy between the two acts must be such that both cannot stand together, is so familiar that no citation of authorities is necessary, to establish it. It is also a rule equally familiar that if the later and former acts can be construed so that both may be operative, such • ■construction should be adopted. Guided by these nlain and undisputed rules, I think it is manifest that no such inconsistency exists as makes the two acts irreconcilable.

The claim that said sections 8 and 4, of the act of 1879, are so repugnant to the act of 1881 that both cannot stand, is based upon sections 8 and 9 of the act of 1881. Said section 8 is as follows: “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 medical utility; Provided that nothing herein contained shall be construed so as to shield an apothecary or pharmacist who violates or in anywise abuses this trust, from the utmost rigor of the law regulating the sale of intoxicating liquors.” It is argued that whisky is recognized as a medicine in the United States Dispensatory, and that the section above quoted authorizes druggists to sell it as such. I grant that it does authorize the sale of alcbholic liquors as a medicine; but the act of 1879 also authorizes its sale for such purpose when prescribed by a physician. What irreconcilability is there between an authority to sell whisky as a medicine, and a direction or requirement that when it is so sold it must be prescribed by a physician ? In either case it would be a sale of it as a medicine. The mere fact of requiring it to be sold when prescribed by a physician, is not a negatipn of the right to sell it as a medicine. Had the act of 1879 forbidden druggists to sell liquor as a medicine under any circumstances, then such a repugnancy would have existed between said act and the act of 1881 as would justify the conclusion that the act of 1879 was repealed.

But aside from this, it seems to me that the general assembly have settled the question beyond controversy by the proviso incorporated in the very section giving the right to sell, where in the most emphatic language they lay down a rule for the construction of said act of 1881, and say “ provided that nothing herein contained shall be construed so as to shield an apothecary or pharmacist who violates or in anywise abuses this trust, from the utmost rigor of the law regulating the sale of intoxicating liquors.” The language of said proviso, in my opinion, forbids the construction placed upon the act of 1881 in the opinion of the court, which construction renders meaniñgless said proviso. It is contended that the proviso only has relation to the following provision in section 9 of the act of 1881, viz: “ Nor shall it be lawful for any licensed or registered druggist or pharmacist to retail, sell or give away any alcoholic liquors or compounds as a beverage, and any person violating the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than $25 nor more than $100.” To apply the proviso in section 8 to the above provision in section 9, would render the proviso useless and meaningless, for he reason that without it, any druggist selling liquor as a beverage, would have subjected himself under section 9 to prosecution for a misdemeanor, and a fine of not less than $25 nor more than $100.

But more than this, it is shown by the proviso that it could not be so applied, for it was not the utmost rigor of the law of 1881, (which, as I have shown, was entitled “An act to regulate the sale of medicines and poisons by druggists and pharmacists,”) from which a druggist was not to be shielded for violating the trust, but for such violation he was not to be shielded by anything ^contained in' the act of 1881 from the utmost rigor of the'law regulating the sale of intoxicating liquors.

In my judgment, and according to all recognized rules of construction, there is no such repugnancy between the two acts as would justify the conclusion that the last act operates as a repeal of the former act, especially so when to make the repugnancy appear the rule of construction which the legislature directs to be applied to the latter act must not only be ignored, but a rule of construction which virtually expunges from the 8th section of the act of 1881 the proviso contained therein by applying it not to the law of 1879, which is a law regulating the sale of intoxicating liquors by druggists, but to an act regulating the sale or medicines and poisons by druggists and pharmacists. I think it apparent that the general assembly, so far from intending to repeal the act of 1879, which authorized druggists only to sell liquor when prescribed by.a physician, intended to continue it in force by adding said proviso to said section 8, which is equivalent to a declaration to druggists : We give you the right to sell alcoholic liquors as a medicine, but there is a law now existing regulating the sale of intoxicating liquors by druggists, which makes it an offense to sell it as a medicine except when prescribed by a physician, and if you violate the trust by selling as a medicine without such prescription, you shall not only be subjected to the rigor but the utmost rigor of that law.

If the law is as declared by the court, all that a druggist, when indicted under the act of 1881 for selling alcoholic liquors as a beverage, will have to do to insure acquittal, will be to show that the liquor was called for as a medicine, and that he sold it as such. And if indicted under the act of 1879 for selling it as a medicine without the prescription of a physician, all that he will have to do will be to claim that under the act'of 1881 he had the right’ so to sell it.

Eor the reasons given, I think the judgment ought to be affirmed.

Motion for rehearing overruled.