Commonwealth v. Fowler

• Decision Date: 22 November 1894
• Citation: 96 Ky. 166
• Parties: Commonwealth v. Fowler.
• Court: Kentucky Court of Appeals

96 Ky. 166

Commonwealth v. Fowler.

Court of Appeals of Kentucky.

November 22, 1894.

APPEAL FROM JEFFERSON CIRCUIT COURT, CRIMINAL DIVISION.

WM. J. HENDRICK, ATTORNEY-GENERAL, FOR APPELLANT.

KNOTT & EDELEN FOR APPELLEE.

JUDGE HAZELRIGG DELIVERED THE OPINION OF THE COURT.

The appellee Fowler was indicted for selling whisky without license, and found not guilty by the court upon the following agreed statement of facts: The defendant, a legally registered pharmacist, regularly engaged in business as a retail and prescription druggist in good faith in Louisville, Kentucky, sold as a medicine at his drug store one pint of whisky to R. H. Thompson at the time and in the manner charged in the indictment; that the whisky was bought in good faith to be used as a medicine; that the defendant had not procured any license to sell liquors in any quantity, except as required by the statutes of the United States to sell such liquors by retail; that the whisky so sold had not been prescribed as a medicine by any regular practicing physician, and that spirituous liquors, including whisky and the various kinds of wines, are useful and necessary medicines in the treatment of disease, and prescribed and recommended as such by all standard authorities on pharmacology and the Materia Medica, and kept, sold and dispensed by druggists everywhere as officinal medicines.

The provisions of the law alleged to have been violated are as follows:

"Before engaging in any occupation or selling any article named in this and section 4225 (relating to peddlers), the person desiring to do so shall procure license, and pay the tax thereon as follows: * * *

"To persons who are druggists in good faith, to retail spirituous and vinous liquors at the drug store in quantities not less than a quart, the liquor not to be drunk on the premises, or adjacent thereto, and to sell in quantities less than a quart, for medicinal purposes only, on the prescription of a regular practicing physician, fifty dollars." (Ky. Stat., sec. 4224.)

So much of the Constitution as is supposed to affect the question consists of a portion of section 181, and reads as follows:

"The General Assembly may, by general laws only, provide for the payment of license fees on franchises, stock for breeding purposes, the various trades, occupations and professions, or a special or excise tax."

The learned judge below, in determining the question, said: "It is evident that, under the constitutional provision aforesaid, the Legislature would have the power to provide a license fee upon druggists as a profession, or a special tax upon them as a class, or an excise tax upon their sales of commodity, but if we follow the interpretation given to a certain provision of the old Constitution, then it is clear that the Legislature would not have the power to select one special commodity sold by a druggist and legislate in regard thereto by imposing conditions upon a sale of that commodity when made by a druggist different from what is imposed upon any one else who sells the same commodity. In other words, section 181 defines and limits the power of the General Assembly, and by mentioning what powers it may exercise in regard to license fees, special and excise tax, it inhibits and excludes the exercise of all other powers."

And the conclusion was reached that, as the General Assembly, in the statute in question, had not followed either of the methods prescribed in section 181 of the Constitution — in other words, had not taxed the occupation of the druggists, or imposed on them a special or excise tax, the statute was, therefore, unconstitutional.

It must be admitted that if this statute is to be regarded as a revenue statute, and as an effort to single out, for the purposes of taxation proper, any particular commodity in the line of articles which the druggist may handle as such in the prosecution of his calling, or encumber with a specific tax any part or parcel, so to speak, of the druggist's trade, properly embraced in the conduct of his business as a whole, then the learned judge is right in saying that this court has condemned such a process of taxation. The Legislature, after taxing the whole, can not again tax the parts. It could not tax the occupation of the pharmacist and then tax him for filling each prescription, any more than it could tax the profession of the lawyer and then tax him for each case he might engage in. This would be such an arbitrary method of taxation as to be in violation of the Bill of Rights. So, with respect to the legal principle, expressio unius exclusio alterius, the Constitution having designated the subjects of taxation and the methods to be adopted in the imposition and collection of the taxes, no constitutional authority for the exercise of the power of taxation can be found outside of that instrument. The former Constitution, it will be remembered, made no provision as to taxation eo nomine, but as the power to tax is inherent to sovereignty, no difficulty was experienced on that account. The present instrument has provided in sections preceding section 181, a system for the imposition and collection of an ad valorem tax only, and in that section, under the guise of license fees, it provides for a tax on franchises, &c. But to no constitutional provision on the subject of taxation does the act imposing this alleged tax on druggists for selling a particular commodity conform. And if regarded, therefore, as a revenue statute, it must be held inoperative and invalid. We are convinced, however, that the act under consideration was not intended as a revenue measure, and its passage was in no sense in virtue of the constitutional power of levying taxes. It is simply the exercise of the ordinary police power of the government. This power is not defined in the Constitution or its extent in terms limited. It could not well be the subject of inflexible legal definition or restriction. Certainly is the extent of its exercise left unaffected by those sections of the Constitution providing ways and means for the subsistence of the State by process of taxation. It is not above or beyond the Constitution, however, and the question is, in what respect, if any, does the act under consideration violate any right guaranteed to the druggist under the Constitution?

Every one has the right to follow an innocent calling without permission from the government. He may do with his own whatsoever he pleases, so that he injure no one else. We agree with learned counsel that "the doctrine of legislative permission, as a condition precedent to the conduct of any useful or harmless business, is grossly repugnant to those obvious principles of human right which lie at the foundation of just government among men." So, then, without governmental interference or consent, we say the farmer may till his soil, the merchant may buy and sell, the lawyer and the doctor practice their professions, and the druggist and pharmacist compound their medicines. And if by reason of shysters and quacks an injured people demand protection, or if because ill-behaved druggists or pretended pharmacists debauch the public morals by dealing out intoxicating liquors and nostrums as beverages, yet the pursuit of these callings can not be prohibited. The innocent and honest druggist can not be restrained of his liberty by reason of the dishonest practices of others. His pursuit being in itself harmless, and indeed useful, and capable of being conducted without harm to the public, can not be prohibited, and this is true of every legitimate act going to make up and constitute his trade or profession. It is as true of his right to fill a prescription for whisky as a medicine, as it is of his right to fill one calling for calomel. As said by this court in Sarrls v. Commonwealth, 83 Ky., 332:

"The power of the Legislature to prohibit the prescription and sale of liquors to be used as a medicine does not exist, and its exercise would be as purely arbitrary as the...