State v. Mullenhoff
| Decision Date | 12 March 1888 |
| Citation | 37 N.W. 329,74 Iowa 271 |
| Parties | THE STATE v. MULLENHOFF |
| Court | Iowa Supreme Court |
Decided December, 1887
Appeal from Montgomery District Court.--HON. C. F. LOOFBOUROW Judge.
THE defendant was indicted and convicted of maintaining a nuisance by keeping a place for the sale of intoxicating liquors in violation of law, and he appeals to this court.
AFFIRMED.
Smith McPherson, for appellant.
A. J Baker, Attorney General, for the State.
I.
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 eighty-three, Acts Twenty-first General Assembly. 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 eighty-three, Acts Twenty-first General Assembly. Counsel insists 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, section forty-five, paragraph one, 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"the repeal of a statute does not * * * affect any right which has accrued * * * under, or by virtue of, the statute repealed."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 eighty-three, Acts Twenty-first General Assembly, 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 eighty-three, Acts Twenty-first General Assembly.
II. 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. 575, does not sustain the position of defendant.
III. Chapter eighty-three, Acts Twenty-first General Assembly, repeals prior enactments relating to permits to pharmacists. State v. Courtney, 73 Iowa 619, 35 N.W. 685. The later statute must, therefore, control, and a permit issued under a prior repealed statute did not protect defendant.
IV. The court instructed the jury that defendant, who was not a registered pharmacist, had 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...
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