State v. Osmers

• Decision Date: 23 December 1911
• Citation: 120 P. 165,21 Idaho 18
• Parties: STATE, Respondent, v. C. F. OSMERS, Appellant
• Court: Idaho Supreme Court

120 P. 165

21 Idaho 18

STATE, Respondent, v. C. F. OSMERS, Appellant

Supreme Court of Idaho

December 23, 1911

LOCAL OPTION ACT-PURE ALCOHOL-SALE OF-MEDICINAL PURPOSES-WRITTEN APPLICATION FOR-PHYSICIAN'S PRESCRIPTION.

(Syllabus by the court.)

1. Under the provisions of sec. 15 of the local option act (Laws 1909, p. 9), a sale in prohibition districts of pure alcohol for medicinal, mechanical, manufacturing or scientific purposes, or wines for sacramental purposes, may be legally made upon the written application of the purchaser, and pure alcohol may be sold for medicinal purposes without the prescription of a duly licensed physician of the state.

2. The provisions of said act which require a physician's prescription before a legal sale can be made apply to intoxicating liquors that are used as a beverage and not to pure alcohol.

3. Said act makes it a misdemeanor for the seller to sell pure alcohol except upon the written application prescribed by said act, and also makes it a misdemeanor for him to sell intoxicating liquors that are used as a beverage except on the prescription of a duly licensed physician.

4. Said act makes it a misdemeanor for a purchaser to purchase pure alcohol except on the written application as prescribed by said act, and also makes it a misdemeanor for him to use it for any other purpose than that named in the written application.

5. Any licensed pharmacist or other person authorized to sell pure alcohol under the provisions of said act, who shall knowingly sell the same upon written application of the purchaser which is intended by the purchaser to be used for unlawful purposes, is guilty of a misdemeanor.

APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

The defendant was convicted of selling pure alcohol upon the written application of the purchaser for medicinal purposes and sentenced to pay a fine of fifty dollars. Judgment reversed.

Eugene A. Cox, for Appellant.

The purpose of this act and of all similar legislation is to restrict the use of intoxicating liquors as beverages. The interpretation which the state seeks to place upon this law does not further that purpose; it rather hinders it. It does not make pure alcohol more difficult to obtain for illicit purposes; it only makes the law, which before was plain, more difficult for men to understand and obey.

The weakness of the state's contention is that, in order to make its position tenable, the plain and manifest meaning of the act must be ignored, the context of words overlooked, and an unnatural and strained interpretation given to the language of the legislature.

The legislature could not prohibit the use or sale of alcohol for medicinal purposes while physicians and surgeons commonly use and recognize it as necessary medicine. (Freund, Police Power, p. 152.)

D. C McDougall, Attorney General, and Dwight E. Hodge, County Attorney, for Respondent.

With practical unanimity the courts of this country take judicial notice of the fact that alcohol is a spirituous liquor hence, under the definition of the statute, it is an intoxicating liquor.

There is no inherent right in the people to engage in the traffic in intoxicants in any such sense as to remove it from the legislative sphere of legislative control. (25 Cyc. 65; Gillesby v. Board of County Commissioners, 17 Idaho 586, 107 P. 71; Darby v. Pence, 17 Idaho 697, 107 P 484, 27 L. R. A., N. S., 1194; State v. Calloway, 11 Idaho 719, 114 Am. St. 285, 84 P. 27, 4 L. R. A., N. S., 109.)

Statutes prohibiting or regulating the sale of intoxicating liquors are applicable to druggists and physicians unless exceptions or special provisions are made in their favor. (23 Cyc. 166; Huston v. Commonwealth, 32 Ky. L. 392, 105 S.W. 955; Commonwealth v. Reynolds, 89 Ky. 147, 12 S.W. 132, 20 S.W. 167; Commonwealth v. Fowler, 98 Ky. 648, 34 S.W. 21; State v. Durein, 70 Kan. 13, 80 P. 987, 15 L. R. A., N. S., 908; Durein v. State, 208 U.S. 613, 28 S.Ct. 567, 52 L.Ed. 654.)

It is clear that the legislature sought to make prohibition as nearly absolute in a prohibition district within this state as the medical, manufacturing and scientific practices of the state and customs of the state's inhabitants made practicable.

P. E. Stookey, Amicus Curiae.

Alcohol is an intoxicating liquor. (Snider v. State, 81 Ga. 753, 12 Am. St. 350, 7 S.E. 631; 3 Cyc. 61-63.)

The physician is the only person qualified to prescribe the use of alcohol, and the legislature so intended. (Battle v. State, 51 Ark. 97, 10 S.W. 12; Commonwealth v. Fowler, 96 Ky. 166, 28 S.W. 786, 33 L. R. A. 839; Parker v. Commonwealth, 11 Ky. L. 454, 12 S.W. 276; Commonwealth v. Reynolds, 89 Ky. 147, 12 S.W. 132, 20 S.W. 167.)

The state may absolutely prohibit the manufacture and sale of intoxicating liquors. (License Cases, 5 How. 504, 12 L.Ed. 256; State v. Durein, 70 Kan. 13, 80 P. 991, 15 L. R. A., N. S., 908; Jacobs Pharmacy Co. v. Atlanta, 89 F. 244; Kansas v. Bradley, 26 F. 289; Giozza v. Patrick Tiernan, 148 U.S. 662, 13 S.Ct. 721, 37 L.Ed. 602.)

SULLIVAN, J. Stewart, C. J., concurs. Ailshie, J., did not sit at the hearing nor take any part in the decision.

OPINION

SULLIVAN, J.

This is an appeal from a judgment of conviction for selling one-half pint of pure alcohol for medicinal purposes on a written application of the purchaser and without a physician's prescription therefor, and is presented on stipulated facts.

It is stipulated, among other things, that the defendant is a duly qualified druggist under the laws of this state and is the president and general manager of the Idaho Drug Company, and in charge of its retail and wholesale business carried on at Lewiston, Idaho; that on the 3d day of August, 1911, C. F. Hersey, a farmer, applied to defendant at said corporation's said place of business during business hours to purchase one-half pint of pure alcohol for medicinal purposes, and that at said time and place said C. F. Hersey, for the purpose of procuring such alcohol, signed and delivered to defendant, as an agent of said corporation, an application for the purchase thereof in the words and figures following, to wit:

"Lewiston, Idaho, 8/3/11.

"I, C. F. Hersey, residing at Lewiston in the county of Nez Perce in the state of Idaho, by occupation a farmer, do hereby make application to purchase 1/2 Pt. alcohol of Idanha Pharmacy, to be used for Medicinal purposes, and for those purposes only.

(Signed) "C. F. HERSEY."

Upon the signing and delivery of the said application, defendant, as an agent of said corporation, sold and delivered to the said C. F. Hersey one-half pint of pure alcohol upon said application, without a physician's prescription being had or made therefor.

It appears that the defendant, as a duly licensed pharmacist engaged in the drug business, sold one-half pint of pure alcohol in a prohibition district in good faith for medicinal purposes, upon a written application. The state contends that said sale was a misdemeanor, for the reason that a physician's prescription did not accompany the written application; that in such a case it requires the physician's prescription and also a written application from the purchaser; while defendant contends that only a written application is required under the law. This prosecution was made under the provisions of an act commonly known as the local option law, approved February 20, 1909, and acts amendatory thereof (Sess. Laws 1909, p. 9), and involves the construction of several sections of said act.

Sec. 15 of said act is as follows:

"The provisions of this Act shall not be so construed as to prohibit the sale of denatured and wood alcohol, or the sale in prohibition districts of pure alcohol for medicinal, mechanical, manufacturing, or scientific purposes, or wines for sacramental purposes: Provided, however, That no pure alcohol or wine for any of the purposes mentioned shall be sold or delivered to any person, until such person signs a written application therefor in substantially the following form:

"Application to Purchase Intoxicating Liquors.

"I, , residing at , in the County of , in the State of Idaho, by occupation a , do hereby make application to purchase of to be used for purposes and for those purposes only.

"Dated this day of , 19 .

" .

"Intoxicating liquors shall never be sold in prohibition districts as medicine, except in case of actual sickness, and upon the written prescription of a duly licensed physician of this State, and such prescription shall contain the name and quantity of liquor prescribed, the name of the person for whom prescribed, the day upon which the prescription was written, and the direction for the use of the liquor so prescribed: Provided, That a duly licensed physician who does not follow the practice of medicine as a principal and usual calling shall not be authorized to give the prescription permitted by this section: Provided, further, That no person shall be allowed to sell more than once on one prescription, nor shall any person be permitted to sell at all on the prescription of a physician not authorized herein to give it, nor on a prescription which in form does not comply with the provisions of this section.

"Every person selling such liquor upon the prescription provided for shall, immediately after making such sale, cancel such prescription by endorsing thereon the words 'Canceled,' and the date of such cancellation, and keep the same until by him filed with the County Auditor as hereinafter directed. Nothing in this Act shall be construed to prevent one registered pharmacist, who is actually engaged in the pharmaceutical business at the time of making such sale, selling or disposing of...