Sarrls v. Commonwealth

• Citation: 7 Ky.L.Rptr. 300,13 Ky.Op. 714,83 Ky. 327,7 Ky.L.Rptr. 473,13 Ky.Op. 718
• Parties: Sarrls v. Commonwealth.
• Decision Date: 31 October 1885
• Court: Kentucky Court of Appeals

83 Ky. 327

7 Ky.L.Rptr. 300, 7 Ky.L.Rptr. 473, 13 Ky.Op. 714, 13 Ky.Op. 718

Sarrls v. Commonwealth.

Court of Appeals of Kentucky.

October 31, 1885

APPEAL FROM HENRY CIRCUIT COURT.

CARROLL AND BARBOUR AND WM. M. CRAVENS FOR APPELLANT.

1. The statute under which the indictment was found is unconstitutional, because it confers an exclusive privilege upon physicians residing in the town of New Castle. (Gordon v. Winchester Building Asso., 12 Bush.)

2. The indictment is bad because it charges three separate and distinct offenses, the charge being that the defendant " did sell, lend, and give spirituous, vinous and malt liquors."

3. The act under which the indictment was found creates two separate and distinct offenses, the unlawful selling of the liquor and the failure of the physician to record his prescription. It was, therefore, error in this case to require the jury to find, in order to acquit, that the defendant had recorded the prescription.

P. W HARDIN, ATTORNEY-GENERAL, FOR APPELLEE.

1. Appellant can not be heard to complain of the unconstitutionality of a law that in nowise deprives him of his rights, but, on the contrary, makes him the exclusive beneficiary of the special privileges it confers. (Cooley's Const. Lim., 164; Marshall v. Donovan, 10 Bush, 691; Thompson v. Carr, 13 Bush, 216.)

2. The recording of the prescription is a condition precedent to the physician's right to sell.

3. The indictment charges but a single offense.

OPINION

LEWIS JUDGE:

The offense charged in the indictment in this case is unlawfully selling and giving to another person spirituous, vinous, and malt liquors without license within the corporate limits of the town of New Castle, said liquors, as charged, not being necessary to the person to whom they were alleged to have been sold and given as medicine, nor prescribed by a physician for that purpose.

The indictment was found under an act of the General Assembly entitled " An act to prohibit the selling, lending, or giving of spirituous, vinous or malt liquors to any person or persons within the corporate limits of the town of New Castle, in Henry county, Kentucky, and within the distance of three miles of the court-house in said town," approved April 8, 1882.

By section 1 of the act it is provided, " that it shall be unlawful for any person or persons to sell, lend or give to any other person or persons spirituous, vinous or malt liquors, in any quantity whatever, within the corporate limits of the town of New Castle, or within the limits of three miles of the court-house of said town, except as herein provided." And by the same section the penalty for each violation is a fine of sixty dollars.

Section 3 provides that spirituous, vinous or malt liquors may be kept and prescribed as a medicine, when necessary as such but for no other purpose, by a physician or physicians within the limits mentioned; but such physician or physicians shall record, in a book or books to be kept by him or them for said purpose, every prescription so made, with the date, quantity prescribed, and the name of the person prescribed for, etc. And the failure to do so is made a misdemeanor, punishable by a fine of sixty dollars.

The first ground relied on for reversal of the judgment of conviction that we will notice is, that the act is unconstitutional, because, as counsel contend, it confers upon physicians residing within three miles of the court-house in New Castle special privileges to the exclusion of all others, whether they be physicians or not.

We do not think section 3 of the act can be fairly construed to confine the privilege of keeping and prescribing liquors as medicine, when necessary as such, to physicians residing within the limits mentioned, if it be a privilege in the meaning of the Bill of Rights, or to make it a misdemeanor for one residing without such limits to do so.

The act by its terms is operative, and a violation of its provisions can be committed only within a prescribed boundary. But, in our opinion, the immunity conferred upon physicians is no more restricted to those of that profession who actually reside there, than the penalties imposed are restricted to resident violators of the act.

It is unquestionably true, that, by the terms of the act, it is made unlawful for any person, besides a physician, to sell lend, or give to any other person spirituous, vinous or malt liquors, in any quantity whatever, within the boundary mentioned, except ??hat a parent may give liquor to his child, or ?? ardian to his ward, and, therefore, the necessary effect of the act, standing alone, stating the proposition in the strongest language, is, that physicians may exercise a privilege or right denied to all others, except a parent or guardian, and enjoy immunity from what, if done by others, is a misdemeanor.

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