McNiel v. Horan

• Decision Date: 12 January 1912
• Citation: 153 Iowa 630,133 N.W. 1070
• Parties: MCNIEL v. HORAN, JUDGE.
• Court: Iowa Supreme Court

153 Iowa 630

133 N.W. 1070

MCNIEL

v.HORAN, JUDGE.

Supreme Court of Iowa.

Jan. 12, 1912.

Appeal from District Court, Muscatine County; L. J. Horan, Judge.

Certiorari proceedings in the nature of an appeal. The facts appear in the opinion. Reversed.Betty & Betty, for appellant.

J. F. Devitt, for appellee.

EVANS, J.

In August, 1908, a decree of injunction was entered against one Kuechmann, whereby he was enjoined from selling intoxicating liquors in violation of law within the county of Muscatine. In June, 1911, an information was filed against him for contempt of court, in that he had sold intoxicating liquors within said county in violation of law and in violation of such injunction. The contempt proceeding was heard before the defendant herein as judge of the district court of such county, and at the conclusion thereof Kuechmann was discharged. A review of such action of the court is now sought by this proceeding. Kuechmann was a registered pharmacist, and owned and operated a drug store. As such he sold “Centennial Tonic Bitters.” This was an alleged compound consisting of various drugs, and containing 30 per cent. of alcohol. It was compounded by a wholesale house at Burlington, and purchased by Kuechmann in bottles, and sold in the same packages. The question upon which the controversy centered in the trial below was whether such compound was so medicated with other drugs as to have lost its distinctive character as an intoxicant, or whether it was still capable of being used as a beverage. Was it, in fact, a beverage, or was it a medicine?

[1] Kuechmann, as a registered pharmacist, had a right to sell drugs and medicines, even though they contained intoxicating liquor or alcohol, provided they were so compounded that they could not be used as a beverage. In State v. Gregory, 110 Iowa, 624, 82 N. W. 335, it is said: “If the liquor was so compounded with other substances as to lose its distinctive character as an intoxicant, and to be no longer desirable as a stimulating beverage, and was in fact a medicine, then defendant was not guilty.” To the same effect is State v. Laffer, 38 Iowa, 422. Whether the “Centennial Tonic Bitters” was in fact a medicine was a question of fact and not of law. State v. Gregory, supra. The trial court in effect found that it was medicine, and not a beverage.

[2] It is now urged in behalf of the defendant that such finding of fact by the court in the contempt proceedings is conclusive upon us in this certiorari proceeding. We have never so held, nor are we prepared to do so now. Where a certiorari proceeding is instituted in the district court against an inferior tribunal, and is brought before us on appeal from the order of the district court therein, we have held in such a case that the finding of fact by the trial court has the force and effect of a verdict. Remey v. City of Burlington, 80 Iowa, 470, 45 N. W. 899. Such is not the case before us. Where a contempt proceeding is brought before us for review upon writ of certiorari, it is sufficient to say now that we are reluctant to interfere with the findings of fact by the trial court upon a fair conflict in the evidence.

[3] We have gone through this record with a searchlight, and we fail to find any substantial conflict in the evidence on the pivotal proposition. The evidence on behalf of the state disclosed the actual use of the liquor in question as a beverage and the intoxicating effects resulting therefrom. This was undisputed. The defense confined its evidence to expressions of opinion by witnesses that the compound was medicine, and not a beverage. The principal witnesses upon this question were two medical witnesses. Dr. J. D. Fulliam testified as follows: “A liquid compounded as shown by ‘Exhibit A’ would be a medicine, and not desirable as a beverage. It would be a tonic or medicine. Alcohol is the best known means of extracting medicinal qualities of herbs and roots; and is the best known means of preserving them...