Battle v. State

• Decision Date: 01 December 1888
• Citation: 10 S.W. 12
• Parties: BATTLE <I>v.</I> STATE and five other cases.
• Court: Arkansas Supreme Court

Page 12

10 S.W. 12

BATTLE

v. STATE and five other cases.

Supreme Court of Arkansas.

December 1, 1888.

Appeal from circuit court, Garland county; J. B. WOOD, Judge.

Prosecutions for selling intoxicating liquors in districts prohibited under the provisions of act March 21, 1881, known as the "Three-Mile Act." Defendants were convicted, and appeal.

George W. Murphy, for appellants. Daniel W Jones, Atty. Gen., for appellee.

COCKRILL, C. J.

These six appeals from convictions for violation of the liquor laws have been submitted together, as involving similar questions. Some of the convictions were had under the general license law, and some under the three-mile local option law. All the defendants are druggists, and each sold whisky to his customers, on the prescription or requisition of a practicing physician that it was for a sick person under his charge. The physician in each case had made and filed the oath hereinafter mentioned, as the law prescribes. The question presented is the correctness of the defendant's contention that it was the intention of the legislature, as expressed in the third section of the act of March 21, 1881, known as the "Three-Mile Law," to authorize druggists to sell any kind of ardent spirits on the prescription of a physician who had qualified himself to prescribe alcoholic and vinous liquors for the sick, by compliance with the requirements of the act. It is the settled construction of our license law that no one without a license can lawfully sell any of the prohibited liquors or concoctions mentioned in the act; not even a druggist when selling as medicine in good faith upon the prescription of a practicing physician. Woods v. State, 36 Ark. 36; Flower v. State, 39 Ark. 209; State v. Butcher, 40 Ark. 362; Chew v. State, 43 Ark. 361. The presumption is that in licensed districts ardent spirits needed for medical purposes can be procured from a licensed dealer, (Woods v. State, supra,) and the intention of the license act is to confine the traffic to such persons. The terms of the act prohibit a sale by any unlicensed person "for any purpose whatever;" no exceptive provision being made in favor of the druggist, or for medical purposes. The legislative intent, like that expressed in the similar statute of Illinois and of other states, has therefore been considered too manifest for the courts to ingraft any exception upon the statute. Wright v. People, 101 Ill. 126; Bish. St. Cr. § 1026, note 6. This was the construction placed upon it prior to the enactment of the three-mile law, and that that act did not alter it was decided in Chew v. State, supra.

The question remains: Does the three-mile law intend to exempt druggists selling ardent spirits as medicine upon the prescription of a physician within the prohibited district from the penalties imposed by it? The first section of that act is to the effect that when the county court upon a prescribed petition has prohibited sales within a radius of three miles of a designated point, "it shall be unlawful for any person to vend or give away any spirituous, vinous, or intoxicating liquors of any kind," etc., within the district described in the order. Now, the value of spirituous liquors in the treatment of diseases is, perhaps, universally recognized. But as no license can be had in the prohibited district, if no one can lawfully sell or give them away, their use as a medicine would practically be lost. But the intention of the legislature not to bring about that state of things is manifested by the third section of the three-mile law, which is as follows: "This act shall not be construed as...