Jones v. State , 68 Ala. 559 ( 1881 )

SOMERVILLE, J.

The defendant is indicted for selling spirituous liquors in quantities less that a quart, without a license and contrary to law. The evidence shows he was, at the time of the sale, a druggist and a practising physician, and tbat be sold less than one quart of whiskey for medical purposes, on the prescription of a licensed practising physician. There is no question made as to the perfect bona jides of the transaction.

The defense made is, that the defendant was excused from obtaining a license under the provisions of section 9 of the act incorporating the town of Springville in the county of St. Clair.—Pamph. Acts 1872-73, p. 376. This section provides that “it shall be unlawful for any person or persons to retail any spirituous, vinous or malt liquors, or bitters, witbiin the corporate limits of said town; Provided, That this section shall not be construed, so as to prevent any practising physician or druggist selling bitters, 'spirituous, vinous or other liquors, or beer, for medical or sacramental purposes.”

We do not construe this law to require any license of practising physicians and druggists who sell spirituous liquors in good faith for the limited purposes specified. The whole system of licenses in the matter of retailing is general, and a duly authorized licensee may sell for any and every purpose, the only limitation being that he is prohibited from selling to minors and certain others particularly designated in the statutes. There is no autnority any where given to issue licenses permitting sales for medical or sacramental purposes. Code, 1876, § 494; § 1544.

The general statutory system is one of regulation by license. The special system here put in operation, in a limited locality, is one of total prohibition. The proviso only excepts two classes of persons, druggists and physicians. They have no authority to retail liquors generally to all persons, or for all purposes. Their power is limited so as to confine their sales to medical, or sacramental purposes. Much is entrusted to the probity and intelligence of these clases of persons, the legislature having no doubt assumed that less evil is to be apprehended from the probable abuse of the confidence thus reposed, than from the inconvenience of an absolute and entire system of prohibition.

We think the rulings of the court, holding the contrary view, were erroneous, and its judgment must be reversed. The facts being undisputed, and the appellant being guilty of no offense, a judgment is hereby rendered in this court dismissing the cause.