Craig v. Renaker

• Decision Date: 21 December 1923
• Parties: CRAIG, AUDITOR OF PUBLIC ACCOUNTS, v. RENAKER.
• Court: Kentucky Court of Appeals

257 S.W. 1018

201 Ky. 576

CRAIG, AUDITOR OF PUBLIC ACCOUNTS, v. RENAKER.

Court of Appeals of Kentucky.

December 21, 1923

Rehearing Denied Feb. 19, 1924.

Appeal from Circuit Court, Franklin County.

Suit by J. W. Renaker against John J. Craig, Auditor of Public Accounts, etc. Judgment for plaintiff, and defendant appeals. Affirmed.

T. B McGregor, Atty. Gen., and Lilburn Phelps, Asst. Atty. Gen for appellant.

Hazelrigg & Hazelrigg, of Frankfort, for appellee.

CLAY J.

The principal question on this appeal is whether the statute requiring a license fee of druggists for selling spirituous and vinous liquors has been repealed by the Prohibition Acts of 1920 and 1922 (Laws 1920, c. 81; Laws 1922, c. 33).

The question arises in the following way: Renaker, a druggist who had complied with all the provisions of law necessary to enable him to sell whisky for medicinal purposes, and had obtained a permit to do so, was required by the state authorities to obtain a license for which he paid the necessary fee for two years. Proceeding under section 162, Kentucky Statutes, he brought this suit for a mandamus requiring the auditor to refund the money on the ground that the statute imposing the fees had been repealed, and that the fees were illegally collected and paid by mistake. The auditor having declined to plead further after his demurrer to the petition was overruled, judgment was rendered in favor of Renaker, and the auditor appeals.

Under our statutes licenses to sell by retail spirituous, vinous, or malt liquors are granted by the county court, subject to certain requirements as to notice, unless the majority of legal voters in the neighborhood protest against the application, or the applicant be a person of bad character or one who does not keep an orderly, law-abiding house. Section 4203, Kentucky Statutes 1915. Licenses to merchants, druggists, or distillers shall be granted only upon satisfactory evidence that the applicant is in good faith a merchant, druggist, or distiller, and has not assumed the name or the business for the purpose of retailing liquors; and such license shall only authorize the person to sell the liquor named in the license in quantities not less than a quart, and to be taken off and not drunk on the premises where sold, or adjacent thereto, except that druggists may retail in quantities less than a quart for medical purposes only on the prescription of a regular practicing physician. Section 4205, Kentucky Statutes 1915. It is provided in section 4224, Kentucky Statutes 1915, that before engaging in any occupation or selling any article named in that subdivision, the person desiring to do so shall procure a license and pay the tax thereon as thereafter indicated. The section then authorizes the granting of licenses to sell intoxicating liquors upon the payment of certain fees not only to druggists, but to merchants, distillers, retailers, tavern keepers, and hotel keepers; the provision with reference to druggists being as follows:

"To persons who are druggists in good faith, to retail spirituous and vinous liquors at the drug stores 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, one hundred dollars."

The statute concludes with a provision to the effect that any person or corporation who shall "fail to procure" the license as therein required, or who violates any of the provisions thereof, shall, on conviction be fined not less than $25 or more than $100 for each offense.

On March 23, 1920, the General Assembly enacted a general prohibition act, Acts 1920, p. 377, for the purpose, as declared in its title, "to prohibit and provide penalties for the manufacture, sale, transportation or other disposition of spirituous, vinous, malt and intoxicating liquors except for sacramental, medicinal, scientific or mechanical purposes in the commonwealth of Kentucky and to regulate the manufacture, sale and transportation of alcohol for nonbeverage purposes thereunder." The act consists of 38 sections and provides numerous regulations for the sale of liquor for medicinal purposes. In many respects it is similar to the Volstead Act (41 Stat. 305), and provides that records shall be kept by any person that sells such liquor, showing the amount, kind, and quantity of such liquor, and the name and address of the person to whom it may be sold, which shall be open to the inspection of the county attorney. It is provided in section 20 that--

"Physicians may issue and pharmacists may fill prescriptions for intoxicating liquors under the restrictions of the national federal law."

Sections 21 to 24, inclusive, prescribe elaborate conditions and restrictions under which prescriptions may be written by physicians and filled by druggists. Among them is a provision that no more than one pint of liquor shall be filled for any person at any time, nor at intervals of less than 10 days. In section 35 it is provided that--

"Nothing in this act shall prevent the manufacture, sale, transportation or delivery of intoxicating liquors by manufacturers, wholesale druggists or retail druggists having permits issued under the regulations provided for the enforcement of the act of Congress known as the national prohibition act, or the sale, transportation and delivery by manufacturers or wholesale druggists or retail druggists to other manufacturers, wholesale druggists or to retail druggists; provided, however, that such manufacturers, wholesale druggists and retail druggists have permits to sell or to purchase under the provisions of said national prohibition act, and have complied with all the provisions of this act."

Section 36 provides that "all laws or parts of laws in conflict with this act are hereby repealed."

In the month of March, 1922, the Legislature enacted an additional prohibition act. Acts 1922, c. 33, p. 109. Its purpose, as declared in its title, was "to prohibit the manufacture, sale, transportation, possession, or other disposition, of spirituous, vinous, malt or intoxicating liquors, except for sacramental. medicinal, scientific or mechanical purposes." While this act re-enacted many of the provisions of the former act, particularly those material to this controversy, it contains many additional provisions, and concludes as follows:

"This act is intended to be a full and complete law on the subjects covered by same and it is intended to supersede all other laws of the commonwealth of Kentucky on said subjects; provided that all offenses committed prior to the passage and effective date of this act shall be prosecuted under the law in force at the time of said violations." Section 45.

For the purpose of getting the question fairly before us, let us contrast the license statutes and the prohibition acts. The former not only make the failure to procure a license unlawful, but confer on those who procure a license authority to sell intoxicating liquors. In the case of druggists authority is given not only to sell in quantities not less than quarts, and not to be drunk on the premises, but also to sell in quantities less than quarts for medicinal purposes only, on the prescription of a regular practicing physician. On the other hand, the prohibition acts purport to contain all the law on the...