State v. Roller

• Decision Date: 31 October 1882
• Citation: 77 Mo. 120
• Parties: THE STATE v. ROLLER, Appellant.
• Court: Missouri Supreme Court

77 Mo. 120

THE STATE

v.ROLLER, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Saline Criminal Court.--HON. J. E. RYLAND, Judge.

REVERSED.

Draffen & Williams for appellant.

1. By section 8 of the act of 1881, apothecaries registered as provided by the act “have the right to keep and sell, under such restrictions as are herein provided, all medicines * * of recognized medical utility.” Whisky is admitted to be such a medicine. The act is a special grant to sell, not upon such terms as were prescribed by other statutes, but on such as are prescribed by this act. On these terms a special privilege is accorded to a certain class to sell liquor as medicine. This class are permitted to sell other medicines subject only to the restrictions contained in this act. Under the same restrictions they may sell whisky as a medicine. The trust spoken of by the same section is manifestly the privilege thus accorded them. If it be true that they can only sell on prescriptions of physicians, there is no trust confided in them. The trust is reposed in the physicians.

2. By section 9 it is provided: “Nor shall it be lawful for any druggist or pharmacist to retail, sell or give away any alcoholic liquors or compounds as a beverage.” It must be assumed that the legislature had an intelligent purpose in that enactment, and that it was supposed that there was a necessity for it. Now, if it was intended that the act of 1879, absolutely prohibiting sales except upon a prescription, should stand, why the above provision? The act of 1879 was far more rigorous, and if it was to be continued, there was no ground for the above recited prohibition. This would seem to show that the legislature did not intend to continue in force the act of 1879, otherwise they would not, with that act prohibiting sales of intoxicating liquors except for medical purposes and upon the prescription of a physician before them, have inserted a less exacting provision upon the same subject.

3. Under the act of 1879 the sale of liquors as a medicine, but without a physician's prescription, was punishable by a minimum fine of $40, and a maximum of $200. Under the act of 1881 the sale by a druggist, as a beverage, renders him liable to a minimum fine of $25, and a maximum of $100. In other words, if the law of 1879 is in force, then the druggist who in good faith sells liquor as he does any other drug, but without a prescription, in the estimation of the legislature, ought to pay not less than $40 nor more than $200 for the offense; while if the same man sells as a beverage, the legislature only intended to fine him from $25 to $100! The man who turns his drug store into a dramshop commits a less grievous offense than the one who sells liquor as medicine under the privilege accorded him by the act of 1881. Such a result could not have been intended. The legislature evidently intended to cover in the act of 1881 the whole subject of the sale of liquors by druggists, and hence inserted the prohibition against the sale as a beverage under a penalty.

4. One of the principal objects of the act of 1881 was to throw such restrictions around the business of druggists that only those who could pass a satisfactory examination and show that they possessed the requisite qualifications could carry on the business. It was doubtless thought that by so doing the dramshops under the guise of drug stores could be more effectually suppressed than by requiring prescriptions as prerequisites to the sale of liquor. By the act of 1881 the legislature endeavored to reach the evil by according the privilege of selling liquor for medical purposes as a trust to a class whose qualifications have been passed upon by a board appointed by the governor, and who are examined and registered; and who, for a violation of this trust, are liable to the penalties prescribed by the act. It was, doubtless, thought that more could be accomplished by the character of the men permitted to engage in the business and by the supervision provided for in the act than by restrictive statutory enactments, which had proved failures heretofore.

Davis & Willis also for appellant.

The act of 1881 covers the whole subject of the sale of liquor by druggists in the State of Missouri; and since that act is a legislation upon all the points embraced in the act of 1879, we conclude that the intention of the legislature was to substitute the latter act for the former, and to thereby repeal the same. U. S. v. Tynen, 11 Wall. 89, 92; Smith v. State, 14 Mo. 147; Murdock v. Memphis, 20 Wall. 590; Towle v. Marrett, 3 Greenl. 22; s. c., 14 Am. Dec. 206.

D. H. McIntyre, Attorney General, for the State.

1. Our act of 1881 is almost a literal copy of an Iowa act approved March 22nd, 1880. 2 Miller's Code, 950. Thus, section 8 of both acts are the same except that the Iowa act contains a provision for striking the name of the offender from the register, and also these very important words “for the legitimate and actual necessities of medicine.” Now it cannot be said that the omission of these words was by inadvertence, nor through ignorance of the effect, nor that it was without design. On the contrary, the presumption must be that the legislature knew and understood the provisions of both acts, that they carefully considered them together to ascertain what parts of the Iowa statute were adapted to the plan and purpose of the proposed act, and what parts were not so adapted. It must be presumed that they saw and understood what is patent to the most casual observation that the words above quoted, beyond question, gave the pharmacist under the said act, the right to sell for the legitimate and actual necessities of medicine, without the prescription. Iowa had no prescription provision, but licensed persons to sell intoxicating liquors for mechanical, medicinal and other purposes. Miller's Code, §§ 1526, 1555. And it must, therefore, be presumed that these words were left out because they did not agree with the laws of this State regulating the sale of intoxicating liquors. If the legislature had left them in, can there be any doubt that the prescription requirement of the act of 1879 would have been thereby repealed? Having stricken them out, can there be any more doubt that the provision was not thereby repealed and that the legislature so intended? This view of the question harmonizes with every rule of construction, and I believe it to be consonant with section 5461, Revised Statutes, which requires the laws regulating the sale of intoxicating liquors to be liberally construed as remedial in their character.

2. Granting that there is some conflict between the act of 1879 and 1881 in respect to the punishment for selling liquor as a beverage, this only shows that the earlier act is repealed to that extent, no further. It does not affect the question whether there is an irreconcilable conflict with reference to the prescription requirement.

3. If the two acts were intended to regulate the whole subject of the sale of intoxicating liquors by druggists, their titles fail to perform the office of expressing clearly the subjects of the acts. The act of 1879 is entitled “An act to regulate the sale of intoxicating liquors by dealers in drugs and medicines; to define who shall be known in law as dealers in drugs and medicines;” not to regulate the sale of drugs and medicines. The act of 1881 is entitled “An act to regulate the sale of medicines and poisons by druggists and pharmacists.” It is respectfully submitted that this act is intended to accomplish only what its title declares, to regulate the sale of medicines and poisons, as these terms are commonly understood; with incidental reference to the sale of intoxicating liquors by way of caution or warning, with the exception of the provision against giving away, retailing, etc.

4. The position that registered pharmacists may sell intoxicating liquors as medicines under no other restrictions than those contained in the act of 1881 is untenable in the face of the proviso to the 8th section of that act. “A proviso in deeds or laws is a limitation or exception to a grant made or authority conferred, the effect of which is to declare that the one shall not operate or the other be exercised unless in the case provided.” Voorhees v. Bank, 10 Pet. 449;“The proviso is generally intended to restrain the enacting clause, and to except something which would otherwise have been within it, or in some measure to modify the enacting clause.” Wayman v. Southard, 10 Wheat. 1. Two difficulties lie in the way of the construction of the 8th section, contended for by the appellant. First, it stultifies the act, and makes it appear foolish in providing a penalty in the 9th section for the offense of selling, etc., as a beverage, since, if there can be no breach of that trust, (mentioned in the proviso,) except in the sale of such liquors otherwise than as medicines, as argued for appellant, it must follow that the sale would be as and for a beverage, and its punishment was already provided for in the 8th section. Any construction attended with this result must be erroneous, for it is the province of construction to make the statute consistent and intelligent in itself, if possible. With the construction put upon this act, who can say what the penalty for selling as a beverage should be under the act of 1881; whether it should be ascertained by reference to the 8th or the 9th section. The second difficulty consists in the fact that it gives no meaning at all to the proviso, for the reason that it excepts nothing, does not qualify or modify the grant, and especially does it deprive the words “from the utmost rigor of the law regulating the sale of intoxicating liquors” of any meaning. What law regulating the intoxicating liquors? The law in force at the time of the passage of the act of March 26th, 1881. Had the legislature meant the “rigor” of this act, which nowhere in any specific...