State v. Gray , 61 Conn. 39 ( 1891 )

The accused, having been convicted upon a complaint charging him with the unlawful keeping for sale and with the selling of spirituous and intoxicating liquors, appealed to this court. Upon the trial in the court below it was admitted that he was a duly licensed pharmacist, and that he did not have a druggist's license from the county commissioners, having applied for one and been refused. The accused admitted that he kept spirituous and intoxicating liquors, and used them in compounding medicines, but denied that he sold any uncompounded on physician's prescriptions. The state claimed that he had so sold. The accused also offered the evidence of two licensed pharmacists, which was not contradicted by the state, that the business of a pharmacist could not be conducted without the use of spirituous and intoxicating liquors. The accused asked the court, in substance, to charge the jury: — First, that the keeping of liquors to be used in compounding medicines and in dispensing the prescriptions of physicians, was not illegal; second, that the legislature did not intend to apply the provisions of section 3087 of the General Statutes to a licensed pharmacist; third, that the state, having licensed the accused to pursue his business as a pharmacist, the board of commissioners could not by their action deprive him of the right to pursue that business in all its branches; fourth, that sections 3067 and 3087 of the General Statutes are unconstitutional.

The court did not so charge the jury, but did charge them in substantial opposition to each of these claims, and said: — "If it is necessary, as witnesses have testified, that a man should use liquors in compounding medicines in this state, and cannot practise the business of a druggist without it, then the law makes it a prerequisite to obtain not only a license from the board of pharmacy, but also from the county commissioners."

We will very briefly consider each of the requests made by the accused. Under the first it is asserted that "liquors, spirituous or intoxicating in their nature, when compounded with drugs or chemicals for use as medicine or in commerce or the arts, do not preserve their identity as spirituous or intoxicating liquors; it is against the common reason of mankind." We think, however, that since it is according to the "common reason of mankind" that such liquors may, and as dispensed by unlicensed druggists generally do, preserve their effect, the legislature, mindful of the mischief, has supplied the remedy and continued the identity, since General Statutes, § 3048, provides that the term shall include, not only "all mixed liquors," but also "all mixed liquor of which a part is spirituous and intoxicating."

The second claim, that the legislature did not intend to apply the provisions of section 3087 of the General Statutes to a licensed pharmacist, is groundless. It is admitted that such a construction as is contended for would be contrary to the letter of the statute. It needs no admission to show that it is equally contrary to its spirit. Such a claim could hardly have been seriously made.

The third request is also untenable. It is indeed provided in Gen. Statutes, § 3121, that no person shall act as a druggist or pharmacist unless he shall have been licensed therefor; but if, having obtained such license, he finds it necessary to the conduct of such business to deal in articles, the traffic in which the state, in the exercise of its undoubted police powers, may regulate even to the extent of actual prohibition, he is under the same obligation as every other citizen of the state to comply with such regulations. The accused does not indeed deny this, but says that "the regulation by the legislature of the traffic in which the, appellant is engaged is comprised in the pharmacy laws of this state." But both laws stand upon the statute book together, and are to he construed together, and the language used by the court, in the charge to the jury which we have quoted, in correct.

The remaining request relates to the constitutionality of sections 3067 and 3087 of the General Statutes. It is claimed that the former of these sections violates thefourteenth amendment of the constitution of the United States. Indeed, it is said that both sections violate that provision, and also that of the constitution of this state, art. 1, sect. 9. The argument is that the appellant "is deprived of his property and means of livelihood because of the arbitrary exercise of the discretion given to the county commissioners by section 3067." But no one can have property in that which the law for good cause declines to recognize as such. The language of ELLSWORTH, J., upon this subject, in delivering the opinion of this court in Oviatt v. Pond,29 Conn., 487, is apt and exhaustive.

Nor does the constitution recognize that a man shall have the inviolate right to a means of livelihood, the exercise of which will deprive others of their means of livelihood, and bring shame, disgrace and ruin upon the community. Such a contention is not to be tolerated. Neither does the statute contemplate the arbitrary taking away of any right. The law prohibits the sale of intoxicants without a license. The granting of the license, therefore, confers a right which previous thereto did not exist. If the granting of the license was itself a matter of right, it would add no sanction, no safeguard, to require it at all. If not a matter of right it must be a matter of discretion, vested somewhere, not indeed to be exercised arbitrarily, for that would not be discretion, and that is not to be presumed. Unless the law is to look with imputation of evil upon its own necessary agencies, there is and can be no possible point to the appellant's contentions. Indeed, although section 3067 is of recent enactment, there has no claim been presented by the appellant concerning the constitutionality of the law that has not already been anticipated and answered, so far as the principles involved are concerned, not alone by the courts of other states, and by the highest federal tribunal, but by the previous decisions of this court. Oviatt v. Pond,29 Conn., 479; State v. Stanton's Liquors,38 Conn., 233; State v. Buckley, 40 Conn., 246;Stats, v. Wilcox, 42 Conn., 364; La Croix v. County Commissioners, 49 Conn., 591, and50 Conn., 321.

There is no error in the judgment appealed from.

In this opinion ANDREWS, C. J., and CARPENTER and SEYMOUR, Js., concurred. TORRANCE, J., dissented.