State v. Enoch.

• Decision Date: 03 July 1885
• Citation: 26 W.Va. 253
• Parties: State v. Enoch.
• Court: West Virginia Supreme Court

26 W.Va. 253

State

v.Enoch.

Supreme Court of Appeals of West Virginia.

Submitted June 22, 1885.

Decided July 3, 1885

1. The allegation in the indictment, that the defendant "carried on

the business of a druggist without a license therefor," using as it does the language of the statute is sufficient, (p. 255.)

2. The statute requiring the name of the witness, on whose evidence

the indictment was found, to be stated at the foot of the indict- merit is directory, and the omission to so state the name is not fatal to the indictment. (p. 255.)

.3. To repeal a statute by implication it must appear, that the latter provision is certainly and clearly hostile to the former. If by any reasonable construction the two statutes can stand together, they must so stand. (p. 256.)

4. No druggist is authorized to carry on his business in this State

without a State license therefor, (p. 257.)

5. The Pharmacy Act does not repeal the statute requiring a State

license to carry on the business of a druggist. (p. 258.)

The facts of the case appear in the opinion of the Court. V. S. Armstrong and G. J. Walker for plaintiff in error. Alfred Caldwell, Attorney General, for State. Johnson, President:

B. B. Enoch was on August 3, 1881, indicted in the circuit court of Jackson county in the following words:

" The grand jurors of the State of West Virginia in and for the body of the county of Jackson and now attending the said court upon their oaths present, that B. B. Enoch on

the--day of May, A. I). 1881, and on divers other days

since that time, did carry on the business of a druggist in said county without a license therefor, against the peace and dignity of the State. Upon the information of-sworn in

open court and sent to the grand jury to give evidence on this indictment."

The detendant demurred to the indictment, which demurrer was overruled, and, neither party requiring a jury, the case was tried by the court, and the court having heard all the evidence and arguments of counsel found the defendant guilty and entered judgment for a fine of $10.00 and the costs. The defendant moved.the court to set aside the judgment and grant him a new trial, which motion the court overruled; and the defendant excepted. His bill of exceptions, which certifies all the evidence, shows that the State proved, that the defendant was carrying on the business of a druggist in the town of Ripley in said county of Jackson within a year next preceding the finding of the indictment and had no State license therefor. The defendant proved, that during the time he carried on said business of a druggist as aforesaid he was a registered pharmacist of the State of West Virginia as provided for in the Acts of the Legislature of West Virginia of 1881, chap. 52; and that he, said defendant, presented to the county court a copy of the order of the town council of said town of Bipley giving its assent to said court to grant said defendant license to carry on the said business of a druggist during the time aforesaid, and that he, said defendant, had duly applied to the county court for a license to carry on said business of a druggist during the time aforesaid. This is in substance all the evidence heard by the court on the trial.

The bill of exceptions shows that the defendant based his motion to set aside the judgment on two grounds. First. Because said defendant was a registered pharmacist, and therefore no license was required. Second. Because if a license was required, then the county court had no discretion and was bound to grant said defendant license.

To the judgment the defendant obtained a writ of error.

No defect in the form of the indictment is pointed out. The allegation that the defendant carried on the business of a druggist without a license therefor, using as it does the language of the statute, is sufficient. (State v. Riffe, 10 W. Va. 794.)

It is true sec. 8 of ch. 157 of the Code required, that the names of the witnesses appearing before the grand jury, on whose information the indictment was found, should be written at the foot of the indictment, and the indictment in this case does not contain the name of the witness, on whose evidence the indictment was found. This requirement of the statute is directory, and the indictment is good notwithstanding the omission. (Com. v. Dewer, 10 Leigh 685; Com. v. Williams, 5 Grat. 702.) But the demurrer should have been sustained, if there was, at the time the indictment was found, no statute requiring a license to permit carrying on the business of a druggist. Sec. 1 ot ch. 107 of the Acts of 1877, declares that no person without a State license therefor should "carry on the business of a druggist." That is yet the law; it was not repealed by the Pharmacy Act." Ch. 52 of the Acts of 1881. This act certainly does not re- peal that clause of sec. 1 of eh. 197 of the Acts of 1877 in direct terms. Sec. 14 of that act declares, "That all acts and parts of acts inconsistent.with this act are hereby repealed" If repealed at all then it is done by implication. Section 1 of chap. 52 of Acts of 1881 provides: "It shall be unlawful for any person not a registered pharmacist, or who does not employ exclusively as his salesman a regular pharmacist within the meaning of this act to conduct any pharmacy, drug store, apothecary shop, or store for the purpose of retailing, compounding and dispensing, medicines or poisons for medical use except as hereinafter provided." The second section declares it unlawful for the proprietor of a store or pharmacy to allow any except registered pharmacists to compound or dispense poisons, &c, for medical use: and provides a penalty for the violation of the section. The third section provides for the appointment of a commissioner of pharmacy, &c. The fourth section provides for the registration of all pharmacists, to whom certificates are granted, and provides that certain persons may be rejected without examination. The fifth relates to the examination of applicants. The sixth section provides for the examinations, &c. The seventh provides for holding rejected pharmacists liable for the quality of the drugs sold by them, and provides for a penalty for the...