State v. Roller

Norton, J.,

Dissenting. — Not concurring in the above opinion, I deem it proper to give my reasons for dissenting.

The only question presented by the admitted facts of the case is, whether under existing laws a druggist can sell intoxicating liquors as a medicine without the prescription of a regularly registered physician. The 3rd and 4th sections of an act 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,” etc., make it a misdemeanor punishable by a fine of not less than $40 nor more than $200 for any such dealer to sell or give away liquors of any kind, unless the same are prescribed by a regularly registered physician. Laws 1879, p. 165. If the said statute is in force, the defendant, under the admitted facts, is guilty of violating it. It is, however, argued, and the opinion of the court so holds, that the said act of 1879 has been repealed by a subsequent statute, the title to which is, “An act entitled an act to regulate the sale of medicines and poisons by druggists and pharmacists.” Laws 1881, p. 130. It is not pretended, nor is it claimed, that the act of 1881 in express terms repeals the act of 1879, but it is claimed that the latter act is repealed by necessary implication.

The rule that repeal by implication is not favored, and that before a later act can be construed to repeal a foimer one, the repugnancy between the two acts must be such that both cannot stand together, is so familiar that no citation of authorities is necessary, to establish it. It is also a rule equally familiar that if the later and former acts can be construed so that both may be operative, such • ■construction should be adopted. Guided by these nlain *131 and undisputed rules, I think it is manifest that no such inconsistency exists as makes the two acts irreconcilable.

The claim that said sections 8 and 4, of the act of 1879, are so repugnant to the act of 1881 that both cannot stand, is based upon sections 8 and 9 of the act of 1881. Said section 8 is as follows: “Apothecaries registered as herein provided shall have the right to keep and sell, under such restrictions as herein provided, all medicines and poisons authorized by the National American or United States Dispensatory and Pharmacopoeia, as of recognized medical utility; Provided that nothing herein contained shall be construed so as to shield an apothecary or pharmacist who violates or in anywise abuses this trust, from the utmost rigor of the law regulating the sale of intoxicating liquors.” It is argued that whisky is recognized as a medicine in the United States Dispensatory, and that the section above quoted authorizes druggists to sell it as such. I grant that it does authorize the sale of alcbholic liquors as a medicine; but the act of 1879 also authorizes its sale for such purpose when prescribed by a physician. What irreconcilability is there between an authority to sell whisky as a medicine, and a direction or requirement that when it is so sold it must be prescribed by a physician ? In either case it would be a sale of it as a medicine. The mere fact of requiring it to be sold when prescribed by a physician, is not a negatipn of the right to sell it as a medicine. Had the act of 1879 forbidden druggists to sell liquor as a medicine under any circumstances, then such a repugnancy would have existed between said act and the act of 1881 as would justify the conclusion that the act of 1879 was repealed.

But aside from this, it seems to me that the general assembly have settled the question beyond controversy by the proviso incorporated in the very section giving the right to sell, where in the most emphatic language they lay down a rule for the construction of said act of 1881, and say “ provided that nothing herein contained shall be *132 construed so as to shield an apothecary or pharmacist who violates or in anywise abuses this trust, from the utmost rigor of the law regulating the sale of intoxicating liquors.” The language of said proviso, in my opinion, forbids the construction placed upon the act of 1881 in the opinion of the court, which construction renders meaniñgless said proviso. It is contended that the proviso only has relation to the following provision in section 9 of the act of 1881, viz: “ Nor shall it be lawful for any licensed or registered druggist or pharmacist to retail, sell or give away any alcoholic liquors or compounds as a beverage, and any person violating the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than $25 nor more than $100.” To apply the proviso in section 8 to the above provision in section 9, would render the proviso useless and meaningless, for he reason that without it, any druggist selling liquor as a beverage, would have subjected himself under section 9 to prosecution for a misdemeanor, and a fine of not less than $25 nor more than $100.

But more than this, it is shown by the proviso that it could not be so applied, for it was not the utmost rigor of the law of 1881, (which, as I have shown, was entitled “An act to regulate the sale of medicines and poisons by druggists and pharmacists,”) from which a druggist was not to be shielded for violating the trust, but for such violation he was not to be shielded by anything ^contained in' the act of 1881 from the utmost rigor of the'law regulating the sale of intoxicating liquors.

In my judgment, and according to all recognized rules of construction, there is no such repugnancy between the two acts as would justify the conclusion that the last act operates as a repeal of the former act, especially so when to make the repugnancy appear the rule of construction which the legislature directs to be applied to the latter act must not only be ignored, but a rule of construction which virtually expunges from the 8th section of the act of 1881 *133 the proviso contained therein by applying it not to the law of 1879, which is a law regulating the sale of intoxicating liquors by druggists, but to an act regulating the sale or medicines and poisons by druggists and pharmacists. I think it apparent that the general assembly, so far from intending to repeal the act of 1879, which authorized druggists only to sell liquor when prescribed by.a physician, intended to continue it in force by adding said proviso to said section 8, which is equivalent to a declaration to druggists : We give you the right to sell alcoholic liquors as a medicine, but there is a law now existing regulating the sale of intoxicating liquors by druggists, which makes it an offense to sell it as a medicine except when prescribed by a physician, and if you violate the trust by selling as a medicine without such prescription, you shall not only be subjected to the rigor but the utmost rigor of that law.

If the law is as declared by the court, all that a druggist, when indicted under the act of 1881 for selling alcoholic liquors as a beverage, will have to do to insure acquittal, will be to show that the liquor was called for as a medicine, and that he sold it as such. And if indicted under the act of 1879 for selling it as a medicine without the prescription of a physician, all that he will have to do will be to claim that under the act'of 1881 he had the right’ so to sell it.

Eor the reasons given, I think the judgment ought to be affirmed.

Motion for rehearing overruled.