Com. v. Melville

• Decision Date: 04 January 1894
• Parties: COMMONWEALTH v. MELVILLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

160 Mass. 307

35 N.E. 863

COMMONWEALTH v. MELVILLE.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1894

COUNSEL

P.J. Casey, for appellant.

Frederick E. Hurd, for the Commonwealth.

OPINION

HOLMES J.

By St.1885, c. 313, a board of registration in pharmacy was established, and it was provided by section 3 how existing dealers should be registered. Other persons might be examined and registered as pharmacists if found qualified. Section 4. By section 9, "whoever not being registered as aforesaid shall *** retail, compound for sale or dispense for medicinal purposes, drugs, medicines, chemicals or poisons, shall be punished by a fine not exceeding fifty dollars." After existing dealers had been given an opportunity to be registered as such for about two years, the right was withdrawn by St.1887, c. 267, repealing section 3, but saving the rights of persons already registered. Thereafter it was necessary to be examined under section 4, in order to obtain a certificate. The only defense on the merits in the present case is that since the repeal of section 3, section 9 has been emptied of its meaning; but it hardly needs argument to show the unsoundness of the suggestion. Although section 3 is repealed, it is not obliterated as a document; and, when referred to by section 4, or needed to complete the full meaning of section 9, it still may be read. Of course, as time goes on, the words, "not being registered as aforesaid," will have more and more exclusive reference to section 4, although section 3 still may be needed to complete the sense. Com. v. Kendall, 144 Mass. 357, 359, 11 N.E. 425.

We have preferred to express an opinion upon the merits of the case notwithstanding the provision of Pub.St. c. 214, § 27, that "no motion in arrest of judgment shall be allowed for a cause existing before verdict, unless the same affects the jurisdiction of the court." We agree that the words "before verdict" are not to be taken with literal exactness, (Com. v. Chiovaro, 129 Mass. 489, 498,) but it might be argued that, if the repeal of section 3 in effect has repealed section 9, St.1885, c. 313, the jurisdiction of the municipal and superior courts in one sense of that variously used word has been taken away; and we have given the defendant the benefit of the doubt without deciding the question. Com. v. Le Clair, 147 Mass. 539, 540, 18 N.E. 428.

The defendant seeks to have us consider a motion to quash for alleged formal defects apparent on the face of the record which was seasonably made in the municipal court, and renewed in the superior court after default there. But the...