Druggist Cases

85 Tenn. 449

• Court: Tennessee Supreme Court
• Decided: February 21, 1887
• Status: Published

Opinion

Burton, J.

These five separate causes, inasmuch as they all turn upon the same legal questions, have been heard together. The defendants are retail druggists, doing business in the city of Nashville. The bills are filed by the State and the county of Davidson, for the purpose of collecting the privilege tax imposed by law upon retail liquor dealers for the years 1881, 1882, 1883, 1884, and 1885. The bills charge that the defendants, during each of these years, sold spirituous and vinous liquors without taking out the license and paying the tax imposed upon retail liquor dealers, and that they are indebted for the amount of such tax, and for the penalties and interest imposed by law. The defendants, in effect, insist that they are not liquor dealers in the sense of the law, and that, having taken out license and paid .all the taxes imposed upon them as merchants, they are not liable to the tax upon liquor dealers; that these sales of liquors have been within the legitimate scope of their business as retail druggists, and only for medicinal uses. The cases involve the determination of the question as to how far a retail druggist may handle or deal in spirituous or vinous liquors without subjecting himself to the penalties for the violation of the law prohibiting the sale of intoxicating liquors without the license required by law. That whisky, brandy, and wine are included in the list of remedial agents by pharmacopoeias and works upon materia medica does not at all determine the question.

That it is within the power of the State to regulate the sale of -liquor, and confine its sale to those specially licensed by law, is not controverted by the learned counsel who represent defendants. It is clearly within the police power of the State to determine who and under what circumstances such sales shall be made. Says Judge Cooley on this question:

“Those statutes which regulate or altogether prohibit the sale of intoxicating drinks as a beverage have also keen by some persons supposed to be in conflict with the Federal Constitution. Such of them, however, as assume to regulate merely, and to prohibit sale by other persons than those who are licensed by the public authorities, have not suggested any serious question of constitutional power. They are but the ordinary police regulations, such as the State may make in respect to all classes of trades or employments.” Cooley’s Constitutional Limitation, side page, 581.

This brings us to the inquiry as to whether the legislation of this State has in an_> way defined ■the extent to which druggists might deal in spirituous or vinous beverages. The first statute having reference to druggists in this connection, is the Act of January, 1870, which is as follows (T. & S. Code, § 696 a and b):

“ Section 1. Be it enacted, etc., That hereafter all regularly licensed druggists in this State, without obtaining an additional license therefor, be, and they are hereby, authorized to furnish vinous liquors to any church officer, to be used for sacramental or communion purposes; or to fill the prescription of a regular practicing physician prescribing spirituous or vinous liquors as ■ a medicinal remedy.”

“ Section 2. That the sale, or gift, of any spirituous, vinous, or malt' liquors, by any druggist in this State, except as provided in the first section of this act, shall be unlawful, and subject the person so offending to all the penalties now prescribed by law for selling liquors without license.”

It is unnecessary to determine whether before this statute druggists had a legal right, under the ordinary license of a merchant, to sell liquors even as a medicine. This act clearly defined and limited the extent to which they could thereafter deal in such liquors without taking out, in addition tp their license as druggists, a license as retail liquor dealers. In clear and positive language they were permitted to sell wines and spirits in just two cases — to a church officer for communion purposes and upon the prescription of a physician as a medicinal remedy. The sale or gift for any other purpose, or upon any other an-, thority, is distinctly declared unlawful.

The statute having prohibited all sales or gifts, except as expressly provided, no other exception can be grafted on. The sale for mechanical, scientific, or medicinal uses, except upon a physician’s prescription, became clearly unlawful, and an infringement upon the business of the licensed retail liquor dealer. A sale, even for medicinal purposes, unless upon prescription, was as unlawful as for any other use, u less such sale was made by a licensed liquor dealer. Statutes similar to this are in existence in a number of States, and sales by druggists, for medical purposes, held clearly unlawful. State v. Whitney, 15 Vt., 298; State v. Brown, 39 Maine, 522; Wright v. People, 101 Ill., 126; Woods v. State, 36 Ark., 36; State v. Ferguson, 72 Mo., 297.

A sale for necessary medical uses, by one not having a license, was held unlawful by the Supreme Court of this State. Phillips v. State, 2 Yer., 458.

The exercise of a privilege for which a license is required, and upon which a tax is imposed, subjects the person to the payment of the tax, and to punishment as a misdemeanor in most cases. This is clearly so . where liquor is sold without license. The liability of defendants to pay the tax placed upon retail liquor dealers becomes absolute when they made such sale, whether specially mentioned in the annual revenue bills of the State or not. Eroni 1870 down to 1882 druggists are not specially alluded to in the revenue legislation, but in 1882 the Revenue Act of 1881 was amended in these words: “ Be it further enacted, That Sec7 tion 4 of said act be so amended as to make the paragraph providing for the taxation of liquor dealers apply to all druggists who retail liquors under existing laws.” The contention of the State is that druggists, who should thereafter sell liquors for communion purposes, or upon the prescription of a physician, should pay a liquor dealer’s tax. We do not think this the true meaning of this amendment. The Act of 1870 had prohibited the sale by druggists of liquors, except in the two cases provided for by the act, without obtaining license; this amendment simply provides that if druggists shall sell liquors, other than as provided or permitted by the Act of 1870, and under the existing laws applicable to retailing liquors, that they shall pay the same tax as other retail liquor dealers. As before stated, this legislation, and that of 1883, was wholly unnecessary to subject druggists who sold other than as permitted by the Act of 1870, to the tax imposed on retail liquor dealers.

The Revenue Act of 1883, after providing the amount of tax imposed on retail liquor dealers, concludes as follows: “And the provisions of this Act shall apply to all druggists.” The literal construction of this act would subject druggists to the payment of the tax upon liquor dealers whether they sold liquors or not. Was this the intention of the Legislature? We do not think so. The druggist was already subjected to the privilege tax imposed upon all merchants, and we cannot believe that the Legislature intended that he should pay another privilege tax unless he exercised such additional privilege. This Court, speaking through Judge Cooper, in the case of Bell v. Watson, 3 Lea, 328, said: “A safe and sound rule of construction of revenue laws is to hold, in the absence of express words disclosing a different intent, that they are not intended to subject the same property to be twice charged for the same tax, nor the same business to be twice taxed for the exercise of the same privilege.”

This is the plain, common sense view of the question, and, applying it to the legislation under consideration, we hold that the Act of 1883 did not subject a druggist to the payment of the tax imposed upon retail liqrior dealers unless he sold liquors contrary to 'the provisions of the Act of 1870. We now come to the Act of 1885 providing revenue for the State. This act, after fixing the amount of tax imposed upon retail liquor dealers, concludes as follows:

“And the above tax on liquor dealers applies to all druggists, except in case of toine for sacramental purposes.”

The concluding section of this Revenue Act of 1885 is as follows;

“ Sec. 8. Be it farther enacted, That all laws or parts of laws in conflict with this Act bo, and the same are hereby, repealed.”

The meaning of this act is plain. All druggists who shall sell liquors are required to pay this tax and comply with the law regulating the sale of liquors, if they shall sell liquors “except for sacra-'' mental purposes.” If they do not sell for any other than sacramental purposes, they are not subject to this tax. The necessary effect of this act is to repeal so much of the Act of 1870 as permitted a druggist to sell upon, the prescription of regular practicing physicians for medicinal purposes. The Act of 1870 is in direct conflict with this act to this extent, and is therefore to this extent repealed, both by necessary implication as well as by the terms of the last section of the act repealing all laws or parts of laws in conflict. The result is that from and after the passage of this Act of 1885 no druggist could sell wines, brandies, whisky, or any other intoxicating beverage, without he paid the tax and took orit the license of a retail liquor dealer, except he sold wines for sacramental purposes. This cut off absolutely the sale upon prescription of a physician, which we have seen, when made in good faith, had been permitted without additional license. It follows that any druggist thereafter selling for other than sacramental uses subjected himself to the payment of this additional license tax, as well as to all the penalties prescribed by law for the sale of liquors without license. The hardship of such restriction upon the business of druggists furnishes no reason for engrafting upon the law exceptions other than that expressly named in the law. Sales for medicinal purposes, but not upon the prescription of a regular physician, were clearly 'unlawful under all the legislation from 1870 down, and by this Act of 1885 sales upon prescription are likewise made unlawful; for this tax upon retail liquor dealefs is imposed upon all druggists who sell liquors for any purpose or use, “except in case of wine for sacramental use."

The very frequent and notorious evasions of the privilege accorded of selling upon prescription undoubtedly led to the Act of 1885. No exception is made in the law, save a sale for sacramental purposes. The only course for this Court is to enforce the law as the Legislature has made it, and not defeat its execution upon the hypothetical theory that public policy requires exceptions to be made which are not found in the act. Said the Supreme Court of Illinois in a similar case:

“If the legitimate business of a druggist or other tradesman necessarily involves- the retail of liquors in small quantities, we see no reason, founded upon public policy or otherwise, why they should not, like ot]ier dealers, pay for the privilege of doing so. This construction, moreover, compels all persons who engage in the traffic to equally contribute to the support of the local government. The contrary construction would be discriminating between individuals engaged in tlie same business, with respect to the burdens of the government, without any sufficient reason for doing so.” Wright v. The People, 101 Ill., 126.

The Supreme Court of Alabama said, in a case involving much the same question:

“It was contended under this state of facts that if the appellant gave or sold the bitters in question as a prescription and in good faith, he will not come within the prohibition of the statute, and should bo acquitted. We know of no principle of law which would authorize us to incorporate so important an exception into the statute.” Carson v. State, 38 Am. Rep., 346.

Chief Justice Shaw, in answer to an argument that a sale strictly for medicinal purposes was allowable, said:

“That if it were sufficient to avoid the prohibition of the statute for the purchaser to say that the spirit was intended for medicine, it would in effect repeal the statute. But the decisive answer is that the Legislature has made no such exception.” Commonwealth v. Kimball, 24 Pick., 366.

The Act of 1870, and the legislation subsequent to its enactment, has more than once been construed by this Court. In the case of Harper v. State, 3 Lea, 211, in construing the law as it stood before the Act of 1885, Judge Turney said concerning the Act of 1870:

“ Taking the two sections together, and reading as the Legislature intended them, their interpretation is, that selling (by a druggist) or giving spirituous, vinous, or malt liquors, except upon the prescription of a practicing physician, shall subject the offender to all the penalties now prescribed by law for selling liquor without license.”

In the case of Newman v. State, 7 Lea, 617, this Court, speaking again through Judge Turney, held that druggists are within the terms of the act requiring all persons selling liquor to take an oath not to mix or adulterate the same, and are indictable for selling without taking the oath. The objection that druggists could not be within the meaning of the act requiring dealers in liquor to take the oath against adulterations, because they are necessarily required to mix and compound, is fully met by the sixth section of the Act of '1859-60, requiring that “it shall not be so construed as to prevent druggists, physicians, and persons engaged in the mechanical arts from mixing or adulterating liquors for medical or mechanical purposes.” 7 Lea, 618.

These decisions are referred to for the purpose of showing that the construction of the law applicable to the sale of liquors by druggists since the Act of 1870 is in harmony with the view we have announced. The conclusions reached by us upon a view of all the legislation bearing upon this question is:

First — That no druggist, simply because he uses alcoholic orv vinous liquors in the compounding of tinctures, essences, or other preparations is, therefore, liable to the tax of a liquor dealer.

Second — That no druggist selling compounds, tinctures, essences, perfumery, or other preparation of which either alcohol, wine, or other liquor is a component part, subjects himself to this tax, unless such sale is a mere evasion of the law, a sham and subterfuge to evade the law concerning sales of liquors. The contrary of these propositions has not been pressed by either the very able and industrious special counsel representing the State or by the Attorney-G-eneral, nor are the bills framed for any such purpose. No sound mind could conceive that either the sale or preparation of the ordinary remedies known to the pharmacopoeia, when such preparations are not intended as an evasion of the larv, made a druggist a liquor dealer, or subjected him to such tax.

Third — Prior to the Act of 1885' a druggist might, in good faith, sell wine for communion purposes, or fill the prescription of a regular practicing physician for either alcoholic or vinous liquors; but at no time since the Act of 1870 has it been lawful for him to sell without such prescription, even for medicinal purposes.

Fourth- — Since the Act of 1885 it has not been lawful for a druggist .to sell spirituous or vinous liquors for any purpose whatever or upon prescription, “ except wine for sacramental purposes.”

Fifth — The sale of liquors contrary to the Act of 1870 and of the Act of 1885 subjected all druggists to tlie necessity of taking out the license of a retail liquor dealer, giving bond as sucli, and taking tlie oaths required of such dealers.

Sixth — The failure to take such additional license by a druggist selling contrary to the Acts of 1870 and 1885, subjects him to the payment of the tax upon suit of the State, as well as an indictment for each sale.

We come now to the application of the law, as thus construed, to the facts in these cases. Before this can be done a question of evidence must be disposed of. In each case the State has called as a witness one or more of the defendants, and they have been examined at length as witnesses for the State as to the character of their sales of liquor .during each of the years of 1881, 1882, 1883, 1884, and 1885. It is insisted that inasmuch as the unlawful sale of liquor subjects the defendants to indictment,, that the defendants cannot be compelled to criminate themselves by answering. This objection is a valid objection so far as the principie of law invoked is concerned; but the objection is not applicable to the facts of this case, nor was it properly raised.

Tlie sale of liquor without license was a misdemeanor, and tlie sales about which defendants were examined were barred by the statute of limitations at the time defendants were examined. Not being liable to a prosecution for the misdemeanor about which they were examined, the objection is bad. Wharton on Evidence, Section 540.

The objection made by defendants, as shown by the record, is a general objection to the question. No reason is given. In order to be available, the witness must himself, at the time he is examined, claim his exemption, and upon the ground that his answer would criminate himself. This was not done.. A general objection was made. The witness is not shown to have answered only because compelled. Only in such case could the answer be afterward suppressed. Wharton on Evidence, Section 585, and authorities cited.

The evidence of defendants is therefore competent, and the action of the Chancellor in overruling their objections was correct. It is unnecessary to distinguish these cases one from another; for it is clearly shown that each of defendants have in each of the years 1881, 1882, 1883, 1884,’ anti 1885 openly sold both 'spirituous and vinous liquors without any regard to having a prescription of a regular practicing physician. It is true that to some extent an effort was made to sell only for medicinal purposes; but such sales, before the Act of 1885, were valid only when made in good faith and upon prescription. Each of defendants procured the liquor dealer’s license required by the United States Government and paid the tax required by Federal law. Doing the character of business they did, they were equally bound to take out the liquor dealer’s license required by the State and pay to it the tax required from retail liquor dealers. Failing to do this, they are each liable for the full amount of the tax of 1881, 1882, 1883, 1884, and 1885 both for the State and county, and for this a decree will be rendered, with interest from time each tax was due.

The State having elected to sue for this tax as a debt, and in the Chancery Court, we think it cannot recover the penalties which might have been recovered by pursuing the statutory remedy of distress warrant. These penalties can only be enforced by strict pursuance of the statutory remedy given for their collection. The decree of the Chancellor will be affirmed except as to the tax of 1881 and the interest upon each tax. Defendants will pay all costs.