OPINION
Monks, C. J.
Appellant,
a druggist, was tried and convicted of the offense of selling
one quart of whisky in violation of law.
The
only error assigned and not waived calls in question the
action of the court in overruling appellant's motion for
a new trial. The causes assigned for a new trial are (1)
"the finding of the court is contrary to law," and
(2) "the finding of the court is not sustained by
sufficient evidence."
It is
admitted that appellant is a druggist and sold one quart of
whisky to the person named in the affidavit, but it is claimed that the provisions of § 8352 Burns
1908, Acts 1907 p. 689, § 2, as to
"applications," were complied with, and therefore
the sale was lawful.
Appellant
further insists that "a sale of intoxicating liquor made
by a druggist in good faith and for medicinal purposes, with
reasonable caution, is not a violation of law, but is
justified by the decisions of this court, citing
Nixon v. State (1881), 76 Ind. 524;
Ball v. State (1875), 50 Ind. 595. The same
contention was made in the case of Barton v.
State (1884), 99 Ind. 89, where appellant was found
guilty of violating the provisions of § 2099 R. S. 1881,
which made it unlawful for a druggist to barter, sell or give
away any intoxicating liquor on Sunday or on certain other
days, or between certain hours mentioned in said section,
"unless the person, to whom the same is sold, bartered
or given shall have first procured a written prescription
therefor from some regular practicing physician of the county
where the same is so sold, bartered, or given away." In
relation to said contention this court said in that case, at
page 90: "Appellant contends, however, that as the
liquor was sold in good faith for medicinal purposes, the
case is not within the spirit of the law. In support of this
contention, we are cited to the case of Nixon v.
State [1881], 76 Ind. 524, as being conclusive. That
was a prosecution against a druggist for having sold
intoxicating liquors without a license. The court followed
previous cases, in excepting from the operation of the
statute requiring a license, sales made in good faith for
medicinal purposes. The spirit and intent of the statutes
requiring a license to sell intoxicating liquors were to
regulate and curtail the sale of such liquors, and lessen
intoxication, and not to prohibit the sale for medicinal
purposes. The case of Nixon v. State,
supra, and the cases there cited, rest upon
this interpretation. This reasoning cannot be applied to the
case before us. * * * The section [§ 2099 R. S. 1881] is
an absolute inhibition upon the sale of such liquors on the
days named, to be drunk as a beverage. It seems to recognize the right of druggists to sell such liquors
for medicinal purposes, but imposes a condition upon such
sales on Sunday and the other days named, and that is, that
the sale shall be made only to those who may have procured a
written prescription therefor from a regular practicing
physician of the county. The intention is to prohibit the
sale on those days except in cases of sickness. And in order
that this intention shall not be thwarted by feigned
sickness, the prescription is required; and that there may be
no imposition here, the physician must be a regular
practicing physician; and still further to guard against
imposition, the physician must be of the county where the
liquor is to be sold, so that the druggists and the
authorities may be more likely to have a personal
acquaintance with him. This condition is the barrier erected
about the sale by druggists on those days. To hold that the
sale may be made on those days without the prescription,
would be to override and break down that barrier. Such a
holding would be in conflict with both the spirit and letter
of the statute. It would carry us beyond the boundaries of
interpretation and construction, into the domain of
legislation. The argument, that cases of emergency may arise
where it may be inconvenient, if not impossible, to procure
such a prescription in time to prevent serious consequences,
may have
force when addressed to legislators, but it cannot be
controlling with the courts, whose duty it is to declare the
law as enacted by the lawmaking branch of the
government." Said case was approved by this court in
Tilford v. State (1887), 109 Ind. 359, 10
N.E. 107, and in Edwards v. State (1890),
121 Ind. 450, 23 N.E. 277. In the case last cited this court
said: "In a prosecution for the violation of this
statute [§ 2099 R. S. 1881], it is no defense that the
liquor was sold in good faith for medicinal purposes. It was
so decided by this court in the case of Barton v.
State [1884], 99 Ind. 89, and in the case of
Tilford v. State (1887), 109 Ind. 359, 10
N.E. 107. * * * In addition to what was said in the two cases
above cited, it may be remarked that, prima facie,
every sale of intoxicating liquor on Sunday,
and the other days named in the statute, is unlawful. The
burden of showing such sale to be lawful rests upon the
person making the sale, and the statute contemplates that
such proof shall be in writing." See, also,
Rizer v. Tapper (1907), 133 Iowa 628, 630,
631, 110 N.W. 1038, and cases cited; Peak v.
Bidinger (1907), 133 Iowa 127, 110 N.W. 292;
Commonwealth v. Perry (1889), 148 Mass.
160, 19 N.E. 212.
It was
no defense to a prosecution for a violation of § 2099,
supra, that the liquor was sold in good faith, for
medicinal purposes, and that it was actually used for such
purpose, if not sold upon a written prescription, as required
by said section. Caldwell v. State (1897),
18 Ind.App. 48, 51, 46 N.E. 697, and cases cited. Section
2099, supra, was reenacted in 1905 as § 580 of
the act concerning public offenses (Acts 1905 p. 722, §
2493 Burns 1908).
It is
evident that the reasoning of the court in the cases of
Nixon v. State, supra, and
Ball v. State, supra, cannot be
applied to the case now before us, but that the rule declared
in the cases of Barton v. State,
supra, Tilford v. State,
supra, and Edwards v. State,
supra, applies.
The
part of § 8352, supra, upon which appellant
relies, reads as follows: "It shall be lawful for any
druggist or pharmacist to sell vinous or spirituous liquors
in quantities not less than a quart at a time for medicinal,
industrial or scientific purposes, and for no other purposes,
and then only upon the written (not printed or typewritten)
prescription of a reputable physician in active practice, or
upon the written and signed application of any other person
who is personally known to such druggist or pharmacist and
who is by him known not to be a person in the habit of using
intoxicating liquors as a beverage, such person stating
therein that such liquor is desired and will be used for
medicinal, scientific or educational purposes only, and upon
making such sale such druggist shall indorse in writing on
such application a statement that in his
opinion such liquor is desired for the purposes last above
stated, and for no other purposes whatever; or upon the
written and signed application of the superintendent of any
hospital or educational institution where such liquor is used
solely for medicinal or scientific purposes; and in no case
shall any liquor sold hereunder be permitted by such druggist
or pharmacist to be drunk on the premises where sold. Such
prescription or application shall be plainly written, dated
and signed in his or her full and correct name, by the maker
thereof, and the date of the sale shall be plainly written
thereon by the person making such sale, and such prescription
or application shall be filed and carefully preserved for at
least one year from the date of such sale, by the person
making such sale, and only one sale shall be made under such
prescription or application."
It is
provided in § 240 Burns 1908, § 240 R. S. 1881
that "the construction of all statutes of this State
shall be by the following rules, unless such construction be
plainly repugnant to the intent of the legislature or of the
context of the same statute: * * * Ninth. The words
'written' and 'in writing' shall include
printing, lithographing, or other mode of representing words
and letters." Appellant contends that § 240,
supra, governs the construction of the words
"written" and "in writing" when they
appear in § 8352, supra, and that when so
construed the prescription and the application mentioned in
said § 8352, supra, may be printed,
typewritten, lithographed or prepared in any other mode of
representing words and letters. This contention is not
correct, for the reason that such construction is plainly
repugnant to the intent of the legislature as expressed in
§ 8352, supra, and also to the context of said
section. If this is true, § 240, supra, has no
application to the construction of the words
"written" and "in writing" contained in
§ 8352, supra. It will be observed that when
the word "written" first appears in said section it
is expressly provided that it does not mean
"printed or typewritten." It is a rule of statutory
construction that when the same word or phrase is used more
than once in the same section of an act, and the meaning is
clear as used in one place, it will be construed to have that
meaning wherever used in said act or section, unless there is
something therein to...
