
    Case 49 — INDICTMENT—
    October 31.
    Sarrls v. Commonwealth.
    APPEAL PROM HENRY CIRCUIT COURT.
    .1. Exclusive Privilege — Sale op Liquor. — A statute which prohibits the sale of liquor within a certain territory, but provides that physicians may keep and prescribe it as a medicine, when necessary as such, does not confer an “exclusive privilege” within the meaning of the “Bill of Rights,” and is not unconstitutional.
    
      2. Failure oe Physician to Record Prescription oe Liquor.— Where such a statute requires the physician to record, every pre- ” scription of liquor in a hook to he kept hy him, and provides a penalty for his failure to do so, under an indictment against a physician for unlawfully selling liquor, the only question is, whether he in good faith prescribed the liquor as a medicine, when necessary as such; and, if so, he is not guilty, although he may have, failed to record the prescription, .that being a separate and distinct offense.
    3. Where an act oe the Legislature prohibits the sale oe' liquor in a particular locality, it is not essential to the validity of the act that the locality should be defined by the boundary of a city, town or civil district.
    CARROLL and BARBOUR and WM. M. ORA YENS eor appellant.
    1. The statute under which the indictment was found is unconstitutional, because it confers an exclusive privilege upon physicians-residing in the town of New Castle. (Gordon v. Winchester Building Asso., 12 Bush.)
    2. The indictment is bad because it charges three separate and distinct' offenses, the charge being that the defendant “did sell, lend, and give spirituous, vinous and malt liquors.”
    3. The act under which the indictment was found creates two separate- and distinct offenses, the unlawful selling of the liquor and the-failure of the physician to record his prescription. It was, therefore, error in this case to require the jury to find,. in order to-acquit, that the defendant had recorded the prescription.
    3?. W. HARDIN, Attorney-General, eor appellee.
    1. Appellant can not be heard to complain of the unconstitutionality- ’ of a law that in nowise deprives him of his rights, but, on the-contrary makes him the exclusive beneficiary of the special privileges it confers. (Cooley’s Const. Lim., 164; Marshall v. Donovan, 10 Bush, 691; Thompson v. Carr, 13 Bush, 216.)
    2. The recording of the prescription is a condition precedent to the-physician’s right to sell.
    3. The indictment charges but a single offense.
   JUDGE LEWIS

delivered the opinion oe the court.

The offense charged in the indictment in this cas©' is unlawfully selling and giving to another person spirituous, vinous, and malt liquors without license ^ within the corporate limits of the town of New Castle,, said liquors, as charged, not being necessary to the person to whom they were alleged to have been sold and given as medicine, nor prescribed by a physician, for that purpose.

The indictment was found under an act of the General Assembly, entitled “An act-to prohibit the.selling, lending, or giving of spirituóus, vinous or malt liquors to any person or persons within the-corporate limits of the town of New Castle, in Henry county, Kentucky, and within the distance-of three miles of the court-house in -said town,” approved April 8, 1882.

By section 1 of the act it is provided, “that it, shall be unlawful for any person or persons to. sell, lend or give to any other person or persons, spirituous, vinous or malt liquors, in any quantity whatever, within the corporate limits of the town of New Castle, or within the limits of three miles of the court-house of said town, except as herein provided.” And by the same section the penalty for-■each violation is a fine of sixty dollars.

Section 3 provides that spirituous, vinous or malt liquors may be kept and prescribed as a medicine,, when necessary as such, but for no other purpose,, by a physician or physicians within the limits mentioned ; but such physician or physicians shall, record, in a book or books to be kept by him or them for said purpose, every prescription so made,, with the date, quantity prescribed, and the name of. the person prescribed for, etc. And the failure tot ■do so is made a misdemeanor, punishable by a fine of sixty dollars.

The first ground relied on for reversal of the judgment of conviction that we will notice is, that the act is unconstitutional, because, as counsel contend, it confers upon physicians residing within three miles of the court-house in New Castle special privileges to the exclusion of all others, whether they be physicians or not.

We do not think section 3 of the act can be fairly ■construed to confine the privilege of keeping and prescribing liquors as medicine, when necessary as such, to physicians residing within the limits mentioned, if it be a privilege in the meaning of the Bill of Rights, or to make it a misdemeanor for one residing without such limits to do so.

The act by its terms is operative, and a violation •of its provisions can be committed only within a prescribed boundary. But, in our opinion, the immunity conferred upon physicians is no more restricted to those of that profession who actually reside there, than the penalties imposed are restricted to resident violators of the act. •

It is unquestionably true, that, by the terms of the act, it is made unlawful for any person, besides a physician, to sell, lend, or give to any other person ■spirituous, vinous or malt liquors, in any quantity whatever, within the boundary mentioned, except that a parent may give liquor to his child, or guardian to his. ward, and, therefore, the necessary ■effect of the act, standing alone, stating the proposition in the strongest language, is, that physicians may exercise a privilege or right denied to all others, ■except a parent 'or guardian, and enjoy immunity from what, if done by others, is a misdemeanor.

The social order, health and security of a local •community may, in the opinion of the Legislature, require that the selling or giving of spirituous, malt or vinous liquors, to be used as a beverage, be prohibited, as to which, as well as any other subject affecting the health or morals of a community, that department of the government has the power to determine; and it is not inconsistent with that object to authorize the sale of liquors as medicine when necessary for that purpose; on the contrary, while the Legislature has the power to regulate the sale of liquors to be used as a beverage, or to prohibit its ■sale for that purpose altogether, it cannot exercise that power so arbitrarily as to prohibit the use or •sale of it as medicine.

But it is no exercise of arbitrary power, nor the grant of an exclusive privilege to any man or set of men, in the sense the term is used in the Bill of Rights, to restrict the right of prescribing liquors ■purely as medicine to a profession peculiarly fitted to determine when it should be so used, and of which • any person who may qualify himself has the constitutional right to become a member.

In the cáse of Anderson v. Commonwealth, 13 Bush, 485, referred to by counsel, where the validity •of what is called the “local option law” was considered, this court, though divided in respect to the •constitutionality of some of the provisions of that .•statute,■ used this language: “We unanimously hold that the sale by retail of intoxicating liquors may be constitutionally regulated; and that in localities,, where, 'in the opinion of the Legislature or of its constitutionally organized agencies, the peace and good order of society so require, license to carry on the retail traffic may .be refused altogether.”

The act under consideration, it is true, does not-operate in a locality defined by the boundary of a city, town or civil district; nor do we deem it essential to its validity that it should, especially as it was made to take effect from its passage, without submission to the voters affected by it.

It will be perceived, by reference to the case of Anderson v. Commonwealth, that one of the grounds upon which the two judges holding the local option act invalid based their objection was, that the seventh section made the guilt or innocence of a physician who prescribes liquors to his patients depend on the: vote of the people. By that act physicians, it is true, are not permitted to sell liquors, but the exclusive right is given to druggists to sell for medicinal purposes, on a prescription made and signed by a regular practicing physician; yet no member of the-court .objected to the act upon the ground that au exclusive privilege was thereby granted to druggists or physicians.

If the Legislature has the power at all to prohibit the sale of intoxicating liquors by retail, it exists-alone because the health, peace and order of society require it; and upon that ground alone this court, without dissent, has heretofore decided it may be: exercised; but there being no reason therefor, the-. power of the Legislature to prohibit the prescription .and sale of liquors to be used as medicine does not exist, and its exercise would be as purely arbitrary as the prohibition of its sale' and use for religions purposes.

In our opinion, therefore, section 3 of the act in question, instead of granting an exclusive privilege, .as the word is used in the Bill of Rights, is merely ■exceptional, and so far from being violative, is, in fact, conservative of the constitutional rights of the people.

But we think the lower court erred in giving and refusing instructions.

The court, at the instance of the Commonwealth, gave an instruction, and also gave the converse of it .on its own motion; but as ■ there is little difference in the legal bearing of the two, both being improper, we will quote only the latter, which is as follows:

“If the jury believe from the evidence that the defendant was, at the time of letting Stewart have the whisky, a practicing physician within the limits •of the town of New Castle, and in good faith prescribed the whisky to said Stewart as a medicine, and then recorded the same in a book kept for that purpose, giving the name of the person, time and quantity prescribed, they must find for the defendant.”

Counsel for the defendant then asked for the following instruction, which was refused:

“If the jury believe from the evidence . that the •defendant was, at the time of letting Stewart have the whisky, a practicing physician within the limits of the town of New Castle, and in good faith prescribed' the whisky to said Stewart as a medicine, they must find for the defendant.”

By section 3 of the act it is required of a physician who keeps and prescribes liquors as a medicine, to record, in a book kept by him for the purpose, every prescription so made and given, with the date, etc.; but his failure to do so is made a distinctpffense, of which he may be convicted and fined the same amount that is prescribed for selling when the liquor is not to be used as medicine. He is indicted in this case for unlawfully selling, lending and giving liquors, not for the offensé of failing to record, in a book kept by him, the prescriptions made and given.

Evidently the object of the Legislature in requiring the prescriptions recorded was to guard against ■the sale of liquor by physicians to be used as a beverage and not as medicine; and whether the defendant in this case in good faith prescribed the liquor sold to Stewart as a medicine when necessary as such, was the only question for the jury to determine, and if he did so, then he was not guilty, although he failed to record such prescription in a. book kept for the purpose.

The mischief the Legislature intended to guard against is the sale by physicians of liquor in bad faith, not to be used as medicine; and whenever-it appears from the record kept by the physician, which may or not be conclusive, or is proved otherwise, that he has in good faith prescribed and sold or given liquors as a medicine, his defense is made-out. For it may be that a physician is able to ex-Mbit a book in which ■ the prescription is recorded in a given case, though he has sold the liquor to-be used merely as a beverage,; while, on the other hand, he may in good faith prescribe and sell or git e liquor as medicine, and still be liable to the penalty for failing to record the prescription. The-practical effect of the instruction given is to require the defendant to exculpate himself from an. offense not charged in the indictment.

The instruction asked by the defendant and refused embodies the law and presents the sole issue, and should have been given.

Judgment reversed for a new trial and further proceedings according to this opinion.  