State v. Mullenhoff

• Decision Date: 12 March 1888
• Citation: 74 Iowa 271,37 N.W. 329
• Parties: STATE v. MULLENHOFF.
• Court: Iowa Supreme Court

74 Iowa 271

37 N.W. 329

STATE

v.MULLENHOFF.

Supreme Court of Iowa.

March 12, 1888.

Appeal from district court, Montgomery county; C. F. LOOFBOURON, Judge.

The defendant was indicted and convicted of maintaining a nuisance by keeping a place for sale of intoxicating liquors in violation of law, and appeals to this court.Smith McPherson, for appellant.

A. J. Baker, Atty. Gen., for the State.

BECK, J., ( after stating the facts as above.)

1. The defendant was a member of a firm doing business as druggists, composed of C. W. Hine, a registered pharmacist, and himself. He was not a registered pharmacist. The firm held a permit to sell intoxicating liquors, under the law in force prior to the taking effect of chapter 83, Acts 21st Gen. Assem. When that statute took effect, and the sales for which defendant is indicted were made, the time had not expired for which the permit was limited according to its terms. Subsequent to making these sales, Hine, defendant's partner, received a permit under chapter 83, Acts 21st Gen. Assem. Counsel insist that defendant's right to sell under the first permit was not affected by the repeal of the statute under which it was issued. To support this position he relies upon Code, § 45, subsec. 1, which declares that “the repeal of a statute does not * * * affect any right which has accrued * * * under, or by virtue of, the statute repealed.” The right contemplated by the section pertains to any property right, or person, of the citizen. The permit in question bestowed upon defendant no such right, but was rather authority conferred by the statute in the exercise of the police power of the state, which regulated the sale of intoxicating liquors. The state, by the permit, did not abandon its authority to forbid at any time the sales permitted, or change the condition upon which they may be made. If the law were otherwise, permits issued under chapter 83, Acts 21st Gen. Assem., which are indifferent as to time, would confer upon those holding them perpetual authority to sell intoxicating liquors. The district court rightly held, in the instructions, that defendant's right to sell liquor for medicinal purposes depended upon compliance with chapter 83, Acts 21st Gen. Assem. 2. The defendant asked an instruction to the jury to the effect that he could not be convicted, if in good faith he believed he had the right to sell for medicinal purposes. The honest but mistaken belief that an act is lawful will not protect one indicted therefor from punishment, if it be criminal under the statute. An instruction to this effect, asked by defendant, was rightly refused. State v. Hayes, 67 Iowa, 27, 24 N. W. Rep. 575, does not sustain the position of defendant.

3. Chapter 83, Acts 21st Gen. Assem., repeals prior enactments relating to permits to pharmacists. State v. Courtney, 35 N. W. Rep. 685. The later statute must therefore control, and a permit issued under a prior repealed statute did not protect defendant.

4. The court instructed the jury that defendant, who was not a registered pharmacist, has no right to sell, independently, intoxicating liquors for medicinal purposes, after the permit was issued, but was authorized to assist a registered pharmacist in selling, under his “immediate personal direction and supervision.” This instruction is complained of by counsel. Chapter 75, Acts 18th Gen. Assem., forbid any one not a registered...