McDougal v. State

• Decision Date: 16 April 1915
• Docket Number: No. 22719.,22719.
• Parties: McDOUGAL v. STATE.
• Court: Indiana Supreme Court

183 Ind. 168

108 N.E. 524

McDOUGAL

v.STATE.

No. 22719.

Supreme Court of Indiana.

April 16, 1915.

Appeal from Circuit Court, Randolph County; Wm. A. Thompson, Special Judge.

William E. McDougal was convicted of violating the “blind tiger” law, and appeals. Reversed, with directions to sustain motion for new trial.

White & Haymond, of Muncie, and Walter G. Parry, of Winchester, for appellant. R. M. Milburn, Atty. Gen., B. E. Woodbury, of Union City, H. M. Kean, of Jasper, L. R. Naftzger, of Muncie, O. S. Jackson, of Greenfield, M. A. Sweeney, of Jasper, and W. T. Gruber, of Indianapolis, for the State.

MORRIS, J.

Appellant was indicted under section 1 of the act of March 16, 1907, commonly called the “blind tiger” law (Acts 1907, p. 689; section 8351, Burns 1914). It was charged that he did “keep, run, and operate a place where intoxicating liquors were sold, bartered, and given away in violation of the laws of the state of Indiana.” A trial by jury resulted in his conviction. The evidence admitted on behalf of the prosecution showed that appellant operated a drug store, where, on various occasions, he sold intoxicating liquors without any prescription or written application. On his defense he offered in evidence to show that during all the time embracing the period within which the unlawful sales occurred as shown by the state's evidence he was a licensed druggist and pharmacist. Sections 9727-9729, Burns 1914. The offer was refused, and this ruling is the basis of the only question here presented.

Section 8351, supra, provides, among other things that:

“Any person who shall *** operate a place where intoxicating liquors are sold, *** in violation of the laws of the state, *** shall be deemed guilty of a misdemeanor: *** Provided that none of the provisions of this section shall apply to any druggist or pharmacist who is licensed as such by the state board of pharmacy. ***” (Italics ours.)

Another proviso deals with wholesale liquor dealers. The statute was approved March 16, 1907. At the same legislative session, by an act approved February 13, 1907, the General Assembly passed a statute relating to the subject of regulation of the liquor traffic. Section 1 of that statute was substantially copied in section 1 of the act approved March 16, 1907 (section 8351, supra), to which was added the proviso that we have italicized.

Counsel for appellant urge that, to sustain the ruling of the trial court, the druggist proviso of section 8351, supra, must be ignored, and that courts are without rightful power to disregard any constitutional statutory provision; that the legislative purpose to except licensed druggists and pharmacists from the operation of the provisions of the section is shown by the language of the proviso alone, but that, when considered in connectionwith the history of the legislation, and of the provisions of other statutes relating to druggists, such purpose is so clearly manifested as to preclude doubt. The Attorney General seeks to meet such contention with the statement that this court has held otherwise, and cites Rigrish v. State (1912) 178 Ind. 470, 99 N. E. 786. In the opinion in that case the effect of the proviso here discussed was not considered, nor was such question presented by the briefs filed. This appeal presents the question to this court for the first time. The Attorney General also contends that for analogous reasons the question should be deemed as decided adversely to appellant's contention by Rowan v. State (1912) 178 Ind. 663, 100 N. E. 9, and Dressel v. State, 174 Ind. 752, 93 N. E. 211, and cases cited. It will be noted that those cases deal with attempted defenses by appellants, who claimed to be licensed as wholesale dealers. The proviso in relation to such dealers does not purport to except them generally from the operation of the section, but only when they refrain from selling in quantities less than five gallons, and to persons other than retailers. Neither Rowan nor Rigrish, as shown by the opinions, came within the letter or spirit of the wholesale dealer proviso, as each sold to consumers in less quantities than five gallons. The Dressel Case further holds that in that case the evidence warranted a finding that appellant there was not a wholesaler, but was merely using a federal tax receipt as a wholesaler to cover an illicit retail business. Whether,...