Wright v. People of State

• Decision Date: 10 November 1881
• Parties: CHARLES W. WRIGHTv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

101 Ill. 126

1881 WL 10694 (Ill.)

CHARLES W. WRIGHT

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Ottawa Nov. 10, 1881.

WRIT OF ERROR to the Appellate Court for the Second District;-- heard in that court on writ of error to the Circuit Court of Stark county; the Hon. D. MCCULLOCH, Judge, presiding.

Mr. M. SHELLENBARGER, for the plaintiff in error, in quite a lengthy and exhaustive argument, made among others the following points:

Section 1 of the Dram-shop act, while sweeping in its terms, making no exceptions in favor of any persons or class of persons, was not intended to apply to a sale made by a druggist in good faith for medical and domestic purposes.

Mr. Dwarris says, in his Fifth Maxim: “When statutes are made, there are some things which are excepted and foreprized out of the provisions thereof by the law of reason, though not expressly mentioned; thus, things for necessity's sake, or to prohibit a failure of justice, are excepted out of statutes.” Dwarris on Statutes, 123. See, also, Vattel on Rules of Int. 128-130; Dwarris on Statutes, 144, 145; Hart v. Kleis, 8 Johns. 44; McCarter v. Orphan Asylum, 9 Cow. 437; Leavitt v. Blatchford, 5 Barb. 13; People v. New York Central R. R. Co. 13 N. Y. 81; Holmes v. Corby, 31 Barb. 289; Commonwealth v. Kimball, 24 Pick. 370; Pearce v. Atwood, 13 Mass. 343.

As to further instances of a construction to avoid a wrong, or particular hardship, or to prevent an absurd consequence, and to promote right, see People v. Utica Ins. Co. 15 Johns. 358; 1 Kent's Com. 462; Bryan v. Buckmaster, Breese, 408; 3 Scam. 160; Zarresseller v. People, 17 Ill. 101; Burgett v. Burgett, 1 Ohio, 221.

It can not be supposed the legislature intended to make it criminal, and punishable by fine and imprisonment, for a regular druggist to fill a physician's prescription, or even sell without license, when necessary to save life, or in other extreme cases, and yet the statute makes no express exceptions. Other courts have, by construction, supplied exceptions in proper cases. See Dowell v. State, 2 Ind. 658; Thomason v. State, 15 Id. 449; Haber v. State, 19 Id. 457; Jakes v. State, 42 Id. 473; Ball v. State, 50 Id. 595; State v. Wray, 72 N. C. 253; Hooper v. State, 56 Ind. 153.

Mr. B. F. THOMPSON, State's Attorney, for the People:

1. Where the terms of the statute are general, and no exceptions are made for medicinal purposes, no necessity of the purchaser to use the liquor, even if prescribed by a physician as an indispensable medicine, and there is no person in the county with authority to sell, will protect the vendor. Commonwealth v. Sloan, 4 Cush. 52; Commonwealth v. Kimball, 24 Pick. 366.

2. Unless there be an express exception in the statute, the fact that the liquor was sold for a medicine is no defence. Phillips v. State, 2 Yerger, 358; State v. Whitney, 15 Verm. 298; State v. Chandler, 15 Id. 425; State v. Brown, 31 Maine, 522; State v. Hall, 39 Id. 107. 3. The Indiana courts, it is true, hold that a druggist may, upon a proper occasion, bona fide and with due caution, retail liquors to be used merely as a medicine. But the courts of that State also hold that the prosecutor must prove that the defendant had no license ( Sheaver v. State, 7 Blackf. 99); that the defendant is not responsible for sale to a minor, if the minor looked like, or represented himself to be, an adult, or his family, or the community, treated him as of age ( State v. Kalb, 14 Ind. 403); that the principal is not responsible for the sales made by his clerk, without his knowledge or consent ( Lathrop v. State, 51 Ind. 192), and many other like opinions upon the “liquor question,” which are contrary to the decisions of this court, and inconsistent with the spirit and policy of the laws of this State.

4. As to rule of construction, see Way v. Way, 64 Ill. 406; Potter's Dwarris on Statutes, 188; Biggs v. Clapp, 74 Ill. 335; Scott v. Reed, 10 Pet. 524. And as particularly applicable to the construction of our statute forbidding the sale of liquor without license, Bishop on Stat. Crimes, sec. 1019; State v. Wray, 72 N. C. 253; State v. Larrimore, 19 Mo. 391; State v. Gummer, 22 Wis. 442; State v. Downer, 21 Id. 274.

5. And if the sale is made in good faith for lawful purposes, the burden of proof is on the defendant to show that fact. Gunnarsshon v. City of Sterling, 92 Ill. 569; Harbaugh v. City of Monmouth, 74 Id. 356; State v. Wray, 72 N. C. 253; State v. Wray, 1 Am. Cr. R. 480.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

Charles W. Wright was convicted at the March term, 1879, of the Stark county circuit court, for the selling of intoxicating liquors without a license, and on error to the Appellate Court for the Second District that conviction was affirmed. Thereupon the plaintiff sued out the present writ of error, and the case is now here for review. Plaintiff in error admits the selling of intoxicating liquors without a license, but insists that under the circumstances he incurred no criminal liability in doing so. The evidence shows that at the time of the sales for which the indictment was preferred, plaintiff in error was a regular druggist, doing business in Toulon, Stark county, and we think the weight of evidence clearly establishes the fact that these sales were made by him as such druggist without any intention of violating the Criminal Code, and that the liquors so sold by him were in good faith bought, sold and used for medical purposes only; and the question presented for our determination in this case is, do these facts constitute a defence to the indictment.

The answer to this question depends upon the construction which must be given to sec. 2 of chap. 43, of the Revised Statutes, entitled “Dram-shops,” the title of the act being, “An act to provide for the licensing of, and against the evils arising from, the sale of intoxicating liquors.” The first section defines a dram-shop to be “a place where spirituous, vinous or malt liquors are retailed in less quantity than one gallon,” and declares that “intoxicating liquors shall be deemed to include all such liquors, within the meaning of the act.” The second section then provides: “Whoever, not having a license to keep a dram-shop, shall, by himself or another, either as principal, clerk or servant, directly or indirectly, sell any intoxicating liquors in any quantity less than one gallon, or in any quantity to be drunk on the premises, or in or upon any adjacent room, building, yard, premises or place of public resort, shall be fined not less than $20 nor more than $100, or imprisoned in the county jail not less than ten nor more than twenty days, or both, in the discretion of the court.”

It is conceded by counsel that the sales of intoxicating liquors proven against the accused fall within the letter of this section, and that if it is to be enforced according to the literal import of the terms used, the accused was properly convicted; but it is earnestly, and with much force of reasoning, contended, that notwithstanding the comprehensive and sweeping terms of this section it was only intended to apply where intoxicating liquors are sold as a beverage,--or in other words, it is claimed that in the construction of the section, an exception is to be understood or supplied which will exclude from its operation all sales made in good faith by druggists or other tradesmen, in the regular course of business, for purely medical, mechanical, or other like purposes. That such exceptions are sometimes implied and given effect in the construction of statutes, even where the language is clear and unambiguous, as in the present case, is not to be denied; but this latitude of construction is never permissible except where, in order to avoid imputing to the legislature highly improbable or absurd purposes, it must be presumed that such construction was intended.

The whole controversy, therefore, in the present case, resolves itself into this: Did the legislature intend that an exception of the kind we have just stated is to be understood and supplied in construing and giving effect to the section in question? That there is no express declaration of such intention, either in the section itself, or in other parts of the act, is not pretended; hence, if it exists at all, it must be deduced either from matters apparent upon the face of the act, or from extrinsic considerations, or in part from both. Although counsel for plaintiff in error has favored the court with a very elaborate and able argument, devoted almost exclusively to this question, yet he nowhere in it claims there is anything upon the face of the act indicating such intention, and we may, therefore, fairly presume nothing of the kind exists, otherwise he would have directed the attention of the court to it. We have, however, with a view of ascertaining for ourselves, carefully examined the various provisions of the act, and from such examination have no hesitancy in saying nothing can be found in it evidencing such intention. On the contrary, we find in the enumeration contained in the seventh section of the act, of the places where liquors are sold in violation of the provisions of the second section, drug stores,--not mere pretended drug stores, as counsel would have it,--are specifically mentioned, and all such places are expressly declared to be nuisances. This clearly shows that druggists, as a class of dealers, were not inadvertently overlooked by the legislature, but, on the contrary, were in the legislative mind at the very time of the adoption of the act, and the seventh section expressly denounces a penalty against them, as possible violators of its provisions.

If, then, the legislature intended, as is claimed, the act should not apply to sales made by druggists for medicinal or other like purposes, it was certainly a very opportune time, when declaring their establishments nuisances for selling liquors in contravention of the act...