Rosenham v. Com.

• Decision Date: 14 December 1886
• Parties: ROSENHAM v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

2 S.W. 230

ROSENHAM v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 14, 1886

Appeal from Louisville law and equity court.

This was an action by the commonwealth of Kentucky against C.J Rosenham for a sum of $60 for selling liquors without license.

O'Neal Jackson & Phelps, for appellant, Rosenham. Helm & Bruce, for the Commonwealth.

PRYOR C.J.

The question involved in this case is as to the liability of druggists, under the act of 1884, for selling spirituous liquors without license when they are not to be used exclusively for medical purposes. It is admitted by the demurrer that the defendant is a druggist, and that he sold liquor for other than medical purposes. The act of 1884 (1 Sess. Acts) declares that the tax on a licensed merchant or druggist to sell vinous or malt liquors shall be $50, and on a license to sell spirituous liquors or vinous or malt liquors, $100. The third section of the act provides that no license tax shall be required of any druggist who sells liquor for exclusively medical purposes. The fourth section imposes a penalty of $60 in case any of the parties required by that statute to get a license shall fail to do so, and then sell in violation of its provisions.

It is argued by counsel for appellant that the had the right to sell without license, because there was no one authorized by law to grant druggists a license; that a druggist, in contemplation of law, was not a merchant, and therefore no merchant's license could be granted. The sequence of such an argument is that, while all others must obtain license the defendant can sell because there is no provision of the statute by which he can obtain the privilege. While we are satisfied a druggist is as much a merchant as one is who sells goods or wares, yet, if he is not, the law has omitted to provide for the manner in which he is to get his license and therefore he has no right to sell. The act of 1884 provides that no person shall sell without a license without suffering the penalty. We see no reason why the penalty should not be imposed in this case.

The question is asked, "how the druggist is to ascertain that he is selling to one for medical purposes only." The question is answered by his admission that he did sell for other than medical purposes, and therefore should be fined.

The constitutional question is unavailing. The title of the act is "An act entitled an act to amend chapter 92, Gen St.,...