The State v. Finney

• Decision Date: 09 December 1903
• Citation: 77 S.W. 992,178 Mo. 385
• Parties: THE STATE v. FINNEY, Appellant
• Court: Missouri Supreme Court

77 S.W. 992

178 Mo. 385

THE STATE v. FINNEY, Appellant

Supreme Court of Missouri, Second Division

December 9, 1903

Appeal from Bollinger Circuit Court. -- Hon. R. A. Anthony, Judge.

Affirmed.

Moses Whybark for appellant.

(1) Section 3051, Revised Statutes 1899, is an attempted exercise of the police power which is unreasonable, and unwarranted as against a physician who administers intoxicating liquors in good faith, on his judgment as a physician, to his patient where the relation of physician and patient exists, as in this case. The courts will correct an unreasonable exertion or mistaken application of the police power. 23 Am. and Eng Ency. Law (2 Ed.), pp. 935 to 937; Sarrls v Commonw., 83 Ky. 332. (2) The section discriminates against a physician who is the owner of a drugstore, and there keeps his office, by prohibiting him from administering intoxicating liquor to his patient as a medicine at or about his place of business, when if he is a physician following his profession apart from the mercantile business of conducting a pharmacy or drugstore, no such prohibition exists. R. S. 1899, sec. 3046; State v. Carnahan, 63 Mo.App. 248; State v. Larrimore, 19 Mo. 392. The statute does not apply to physicians as a class, but to those who own drugstores, and deal in drugs and medicines. It is therefore a special law, and in violation of the Constitution. Dunne v. Railroad, 131 Mo. 4; Grimes v. Eddy, 126 Mo. 187.

Edward C. Crow, Attorney-General, and Bruce Barnett for the State.

(1) It has been the established law of this State for many years that the right to sell intoxicating liquors is not a natural right, but a calling which no one has a right to pursue without first receiving a license so to do from the alwful authorities of the State. Austin v. State, 10 Mo. 591; State v. Bixman, 162 Mo. 1. (2) Druggists being permitted to sell intoxicating liquors in small quantities, for certain prescribed purposes only, the State has the power to prevent the abuse of this privilege by appropriate and effective legislation, and no more natural manner of preventing such abuse could be conceived than is provided by the law in question. R. S. 1899, sec. 3051. (3) The act can be sustained as a police measure, being intended to prevent a manifest evil, and having for its aim the preservation of the public morals. State v. Ashbrook, 154 Mo. 375; Hamman v. Cen. Coal and Coke Co., 156 Mo. 232. The State has the right to prevent such an evil by as many different provisions as may be deemed necessary. The statute applies to all who come within the range of its provisions, namely, those who are permitted to sell spirituous liquors in small quantities without a dramshop license. The law therefore is general and not special, its classification being reasonable and natural and not arbitrary. This being true, it is not obnoxious to the Constitution Hamman v. Cen. Coal and Coke Co., supra; State ex rel. v. Yancy, 123 Mo. 391; State ex rel. v. Miller, 100 Mo. 439; Lynch v. Murphy, 119 Mo. 163; State v. Bishop, 128 Mo. 373; State v. Hathaway, 115 Mo. 36; Barber v. Connelly, 113 U.S. 27, 32. (4) There is no merit in appellant's contention that the statute discriminates against physicians who are also druggists. Appellant has his rights as a physician, but if he has his office as a physician in connection with his drugstore, he incumbers that office with the restrictions placed by the statute on such a place of business. If a contrary doctrine were to be announced by this court, it is safe to say that physician's offices in the back end of drugstores would begin at once to increase in popularity.

OPINION

BURGESS, J.

The defendant was convicted in the circuit court of Bollinger county, and fined twenty-five dollars under an indictment charging that one J. M. Finney, late of the county and State aforesaid, on or about the -- -- day of August, in the year 1902, at and in the county of Bollinger and State of Missouri, aforesaid, being then and there a druggist and proprietor of a drugstore and a pharmacist and a dealer in drugs and medicines, unlawfully and willfully then and there did suffer and knowingly permit intoxicating liquor, to-wit, one pint of beer, to be drunk at and about his place of business, his drugstore; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State.

The case was tried upon the following agreed statement of facts:

"1. That the defendant is a physician residing, and has for more than twenty-five years resided, in Bollinger county Missouri, and during all the time has been a regularly authorized and registered and practicing physician, according to the laws of this State.

"2. That his residence is Leopold, in Bollinger county, Missouri, where he is the owner of a drugstore in connection with his profession as a physician, and owned and conducted such drugstore at the date specified in the indictment, and was a duly registered pharmacist.

"3. That Herman Elfrank was one of his patients whom he had treated for typhoid fever, and during his convalescence he had recommended to him the use of beer in moderate quantities until his strength had fully recuperated.

"4. That the said Herman Elfrank called at his drugstore for beer, during his convalescence aforesaid and defendant prescribed it for him, and first wrote out a written prescription, and dated and signed the same as a physician in which prescription the name of the said Herman Elfrank was written, he being the person for whom the same was prescribed, and further stating that such intoxicating liquor was prescribed as a necessary remedy and the amount prescribed was one bottle, a pint; that thereupon, after the writing of said prescription of said beer, the same was sold to said Elfrank by defendant, at his drugstore, as a part of his stock of...