Straight v. Crawford

73 Iowa 676 | Iowa | 1887

Reed, J.

1. PHARMAfaflues ofw" strUdngby: "register by1 erslevi-1011’ dence' Section 8, Ohap. 75, Acts Eighteenth General Assembly, contains the following provisions: “Provided, that nobhine: herein contained shall be construed . “ so as to shield an apothecary or pharmacist who violates, or in 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 The Twenty-first General Assembly repealed that section, and, in lieu of the provisions quoted, enacted the following: “Provided, further, that nothing herein contained shall be so construed as to shield the person who in anywise abuses this trust for the legitimate and actual necessities of medicine only, from the utmost rigors of the law, now or hereafter in force, relating to intoxicating liquors, and in addition thereto his name shall be stricken from the register by the commissionsrs of pharmacy, upon receipt of transcript of conviction, which shall -be transmitted by the court, or by order of the court, before whom conviction is had.” (Section 2, chap. 83.) Section 9 of the original act contains the following provision: ‘‘Nor shall it be lawful for any licensed or registered phar-' macist or druggist to retail or sell or give away alcoholic liquors or compounds as a beverage, and any violations of the provisions of this section shall make the owner or principal of said store or pharmacy liable to a fine of not less than twenty-five dollars, and not more than one hundred dollars, to be collected in the usual manner; and, in addition thereto, for repeated violations of this section, his name shall be stricken from’ the register.” Other provisions of this section establish restrictions and regulations as to the sale, of certain poisons, and prohibit the sale of such poisons, except under such regulations and restrictions.

The important question in the case is whether the commissioners have the power to revoke the certificate, and strike the name of a registered pharmacist from the register, on the ground that he has sold intoxicating liquors contrary to law, except upon proof of his conviction of the offense by the record of such conviction; and the question depends upon the construction which shall be placed upon the provisions of section 2, chap. 83, Acts Twenty-first General Assembly, and of section 9 of the original act quoted. If the question depended for its solution upon the language alone of either one of the provisions, there would perhaps be but little difficulty in determining it; but both provisions are part of the same statute, and they relate to the same subject, and the language of both must be considered in determining the legistive intent. It is reasonably clear, we think, that the commissioners, before the enactment of chapter 83, possessed the power which in the present case they attempted to exercise. By the provisions of both sections 8 and 9, it was the fact that the party had violated the law with reference to the sale of intoxicating liquors -that subjected him to the additional penalty of having his name stricken from the registry; and neither section contains any provision prescribing any particular character of evidence as essential for the establishment of the fact. The record, of a conviction would be competent, and, as against the .party, conclusive, evidence of the fact; but it would by no means be exclusive. As the question depended simply upon whether a particular fact existed, any evidence which, under the ordinary rules of law, would be competent for the establishment of that fact, would be admissible upon the investigation.

2. statutes : tim“atestcfu vails. But we are of the opinion that the provision quoted from chapter 83 has the effect to establish a different rule. Under that provision, the name of the pharmacist is to be stricken from the register for a second violation, and the commissioners are empowered to act upon the receipt of the transcript of conviction. While the ground of the action remains substantially as before, the only modification being that a second violation must be established, a rule is created as to the character of evidence by which the fact of violation may be proven. The record of conviction is now the only competent evidence of that fact. It is true that the provision of section 9 of the original act is not expressly repealed or modified by chapter 83. The latter, however, works a modification by implication. Section 9 prescribes a penalty for a particular offense against the statute relating to the sale of intoxicating liquors, viz., for selling such liquors as a beverage; but chapter 83 is a general provision, prescribing the penalty which shall be imposed upon a pharmacist for any violation of that statute. The particular offense denounced by section 9 is included in the general provision of chapter 83. The latter is the subsequent enactment. It does not prescribe a new or additional penalty to that prescribed by the former act, but enacts merely a new condition upon which the same penalty shall be imposed for the same violation. The two provisions are repugnant. The one provides that upon proof, by any competent evidence, of a single offense by the pharmacist, his name shall be stricken from the register; the other, that upon proof of a second offense being made by the presentation of the record of conviction, the same penalty shall be imposed. The rule in such case is that the latest expression of the legislative will shall control. (Potter’s Dwar. St., 155; Sedg. St. & Const. Law, 104; Com. v. Kimball, 21 Pick., 273.)

Another consideration, leading to the same result, is found in the construction which had been placed upon section 9 before the enactment of chapter.83. In Hildreth v. Crawford, 65 Iowa, 339, we held that' the provision of that section as to repeated offenses applied to other violations of the law than the sale of intoxicating liquors, and that, under it, the name of the pharmacist might be stricken from the register on proof of a single sale of liquor in. violation of law. That construction was necessary in order to harmonize that section with section 8. The provision of the latter section authorized the imposition of the penalty on pi’oof of a single offense; while the language of section 9, if applicable to the same subject, provided for imposing the penalty only on proof of “ repeated violations.” It is manifest that the provisions were in conflict if'they were both applicable to the same subject, and that difficulty was avoided by the holding that the provision of section 8 was applicable to all cases of violation of the law with reference to the sale of intoxicating liquors; while that óf section 9, as to “ repeated violations,” related to the other offenses enumerated. Under that construction, section 8 contained the rule with reference to offenses of that character. But chapter 83 contains a substitute for section 8. That it created a different rule on the subject from that contained in the original section there can be no doubt; but before its enactment that section contained the rule on the whole subject, and the substitute is necessarily applicable to the whole subject. It was contended, however, that the power to revoke the certificate and strike the name of the pharmacist from the register is included in that exercised originally by tbe commissioners when they granted the certificate, and that, as they, might have withheld it for the same reason originally, they could revoke it without any express statutory authority. But that argument proceeds upon a mistaken theory as to the nature'of the powers exercised by the commissioners. They are not possessed of any original powers, but are the instrumentality, merely, by which the state seeks to effect one of the objects of the government. They are public officers, possessing such powers only as have been conferred upon them by statute, and exercising them in the manner prescribed by law.

As the privileges enjoyed by the pharmacist under his certificate and registration are conferred by the state, it may provide, doubtless, for their forfeiture for any sufficient reason; and perhaps they could be withdrawn at its will, arbitrarily exercised. -But it is sufficient for the present to say that causes for revocation are pointed out by statute, and the manner in which the power to revoke shall be exercised is prescribed, and it cau be exercised only in that manner. .

We are of the opinion that the commissioners exceeded their jurisdiction in the matter in question.

Reversed.