45 So.2d 891

#### STATE v. KOLB.

No. 39231.

March 21, 1949.

On Rehearing Dec. 9,1949.

On Second Rehearing March 20, 1950.

*15Cawthorn & Golsan, Mansfield, Cecil C. Cutrer, Lake Charles, for defendant-appellant.

Osceola H. Carter, Delos R. Johnson, Franklinton, amici curiae.

Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., J. Reuel Boone, Dist. Atty., Many, Jack L. Simms, Asst. Dist. Atty., Leesville, R. C. Gamble, Sp. Counsel, Mansfield, for appellee.

McCALEB, Justice.

Appellant was charged, tried and convicted of operating a blind tiger at his drug store in the town of Logansport, De Soto Parish, which is dry territory. After being sentenced to pay a fine of $400 and costs, he prosecuted this appeal.

Three bills of exception were reserved in the trial court but they apparently have been either abandoned (not argued orally or in brief) or have been interwoven with other contentions so that the case presents three grounds (said to be patent on the face of the record) for a reversal of the conviction.

The first contention is that the Blind Tiger Act, Act 8 of the Ex.Sess. of 1915, has been repealed. The case of State v. Carter, 179 La. 156, 153 So. 676, is said to support this proposition.

Section 1 of Act 8 of the Ex.Sess. of 1915 defines a blind tiger to be “any place in those subdivisions of the State where the sale of spirituous, malt or intoxicating liquors is prohibited, where such spirituous, malt or intoxicating liquors are kept for sale, barter, or exchange or habitual giving away” or any place in such subdivisions where the sale of intoxicating liquors is prohibited where such liquors are kept for sale, etc. in connection with any business conducted thereat.

Act 39 of 1921, Ex.Sess., the Hood Act, the general prohibition law passed to conform -with National prohibition, did not repeal the Blind Tiger Act — -for in Section 10 thereof, it was specifically provided that that Act was to remain in full force and effect. Thereafter, when the Hood act was repealed by Act 1 of the Ex.Sess. of 1933, the Blind Tiger Act was not affected in any way. Of course, prior to the enactment of the present Local Option Law, Act 17 of the First Ex.Sess. of 1935, no prosecutions could be maintained under the Blind Tiger Act for the simple reason that there were no subdivisions within the State wherein the sale of intoxicating liquors was or could be prohibited. But, since the passage of the local option law and the adoption of ordinances in various subdivisions prohibiting the sale of intoxicating liquors, the Blind Tiger Act has the same *17force and effect which it had prior to the adoption of the Hood act.

This conclusion is fully fortified by the .decision in State v. Carter, supra, upon which appellant relies. In that matter, the defendant was charged with having violated the Blind Tiger Act on December 7, 1933. He moved to quash the information on the ground that the Hood act had repealed the local option law, Act 221 of 1902, in effect at that time; that local option had not been revived by the repeal of the Hood act and that, therefore, there was no subdivision in the State on December 7, 1933 wherein the sale of intoxicating liquor was prohibited. The court sustained the contention holding that, since the local option law was not revived by the repeal of the Hood act, the Blind Tiger Act was in a state of “innocuous desuetude”.

Obviously, then, coexistent with the enactment of the local option law in 1935 and the passage of ordinances prohibiting the sale of liquor in various subdivisions, the Blind Tiger Act has emanated from its state of harmless inefficacy and regained its former potency,

The second contention of appellant is that, since he was operating a drug store and selling liquors for medicinal purposes under various permits (State and Federal), he cannot violate the Blind Tiger Act because that law prohibits only the unlawful keeping of intoxicating liquors for sale. Two points are made under this proposition (1) that appellant’s keeping of liquor was a lawful and licensed keeping for sale and (2) that, since there are no subdivisions o£ the State where the sale of liquor is pro-hibited when the sale is made by a licensed pharmacist on prescription of a licensed physician, a duly licensed drug store cannot be a blind tiger.

The short answer to both propositions is that they involve the determination of questions of fact of which this court is without jurisdiction under Section 10 of Article 7 of the Constitution. The indictment charges appellant with operating a blind tiger in that he was unlawfully keeping intoxicating liquors for sale in his drug store which is located in dry territory. Whether the keeping of the liquors was an unlawful keeping is purely a question of fact — for, surely, it cannot be seriously argued that, because appellant operated a drug store under a license, he is immune from prosecution for violation of the Blipd Tiger Act even though his liquor sales were for beverage purposes. And his declaration that the liquors kept by him were for medicinal purposes does not affect the validity of the indictment; it can only be asserted as a matter of defense. Section 2 of Act 17 of the First Ex.Sess. of 1935, Local Option Law, declares, in part: “Where it is contended in *any*prosecution for the violation of *any law of this State*or any ordinance enacted pursuant to the authority of this act that any such liquors were prescribed and sold as a medicine, it shall be for the court to decide whether *21suon prescription and sale were made • in good faith and in case of sickness, or as a mere subterfuge and with intent to evade the provisions of such laws or ordinances.” (Italics ours.) See also State v. White, 195 La. 1028, 197 So. 745.

Defendant’s final proposition is that his conviction cannot stand because the sales were made by a licensed pharmacist at a time when he was not present, nor was he shown to aid, assist, or abet the actions of the pharmacist.

This complaint manifests only a question of fact. It addresses itself to the sufficiency of the evidence rather than the absence of any proof on which a judgment of con-viction might be based.

The conviction and sentence are affirmed.

O’NIELL, C. J., takes no part.

On Rehearing

FOURNET, Chief Justice.

This appeal presents for our consideration the question of whether a duly licensed drug store operated in a dry territory can be classed as a “Blind Tiger” when intoxicating liquor is kept there for sale under a permit granted by the state in accordance with the specific provisions of the Local Option Law.

A “Blind Tiger” is defined in Section 1 of Act 8 of the Extra Session of 1915 to be any place, whether connected with another business conducted at that place or not, “in those subdivisions of the State where the sale of spirituous, malt or intoxicating liquors is prohibited, where such spirituous, malt or intoxicating liquors are *kept*for sale, barter, or exchange or habitual giving away”. The *keeping*of a “Blind Tiger” is denounced in Section 2 as a misdemeanor and is made punishable by fine and imprisonment in Section 4. (Italics ours.)

Obviously, in order for the “Blind Tiger” act to be effective, the sale of intoxicating liquor must be prohibited in the locality where it is sought to be enforced. It was thus inoperative following the repeal of the 18th Amendment to the Constitution of the United States and the adoption of Act 1 of the Extra Session of 1933 in conformity with this amendment, when the sale of liquor . was permitted throughout the entire state, and it remained inoperative (except in certain cases that are not pertinent here) until the legislature, in the exercise of its police power, sought to regulate and license the sale of malts and intoxicating liquors by its adoption of Act 2 of the Extra Session of 1933 and Act 15 of 1934, providing that the sale of beer and intoxicating liquor would be permitetd and licensed throughout the state except in those subdivisions that had been declared dry territories pursuant to a referendum held under the provisions of these acts. Subsequently, in a special act that is known as the Local Option Law, the legislature at the 1st Extraordinary Session of 1935 detailed in its Act 17 the .procedure to be *23followed in conducting such referendums and the effect thereof, authorizing the authorities of such subdivisions to adopt ordinances prohibiting the sale or keeping for sale of intoxicating liquors for beverage purposes in those territories where the referendum- has been successful. In Section 2 of the act, however, it is provided that “this Act shall not authorize the prohibition of the sale of such liquors when prescribed by a licensed physician as medicine”, and Section 3 expressly authorizes the state to grant permits or licenses for the sale of these liquors by druggists when they are prescribed as a -medicine by a licensed physician.

Clearly, therefore, a drug store that is *keeping*intoxicating liquors on its premises-under a permit issued by the state in compliance with the provisions of this Local Option Law is doing so under the specific provisions of the very law that renders possible the designation of municipalities and other subdivisions of the state as dry territories, and, in our opinion, such a drug store 'by its possession and keeping of these intoxicating liquors for sale under such a permit cannot be said to be violating any law and cannot be classed as a “Blind Tiger.”

The abuse of such a license or permit, that is, the sale of intoxicating liquors by a licensed pharmacist employed by the owner of a drug store — or by the owner himself if he be a party to the transaction— on a prescription of a physician that was not issued in good faith, violates the Local Option Law itself and, under the express terms of this law, is punishable a§ such. In other words, the fact that there has been a violation of the law by the illegal sale of intoxicating liquors that are legally kept on the premises for sale for medicinal purposes, cannot render the premises themselves a “Blind Tiger.” The offender in such cases is subj ect to prosecution as a violator of the parish ordinance, the municipal ordinance, or of the state law.

To hold otherwise would render all drug stores in dry territories holding such permits prima facie “Blind Tigers,” destroying the presumption of innocence and compelling the owners thereof, when charged, to show by way of defense the good faith of each and every sale made under a doctor’s prescription of the intoxicating liquor that was on the premises with the express permission of law. This was never the intention of the legislature.

For the reasons assigned, the conviction and sentence are annulled and set aside and it is now ordered that the defendant be discharged and that the intoxicating liquor seized on the premises be released.

HAMITER, J., concurs and assigns written reasons.

HAWTHORNE and McCALEB, JJ., dissent and assign written reasons.

HAMITER, Justice

(concurring).

If this prosecution were under an ordinance adopted pursuant to the Local Option *25Statute, Act 17 of the First Extra-ordinary Session of 1935, we would be obliged to affirm defendant’s conviction and sentence. The appeal would then present only the issue- of whether or not defendant as a licensed druggist was keeping liquor for sale for medicinal purposes, a question of fact of which this court cannot entertain jurisdiction. But such is not the case. Defendant was indicted, tried and convicted for violating the Blind Tiger Statute (the indictment discloses and the State concedes this), and, as pointed out in the majority opinion, that statute is inapplicable to the sale of liquor by a licensed druggist when prescribed by a physician as medicine.

I respectfully concur.

HAWTHORNE, Justice

(dissenting).

In my opinion, a drug store licensed to sell liquor is a blind tiger when illegal sales of liquor are made at that place. When a druggist is indicted for keeping a blind tiger, his contention that the intoxicating liquor is kept and sold when prescribed by a licensed physician as a medicine must be urged by way of defense. Under the. Blind Tiger Act, a blind tiger is any place, in a part of the state where the sale of intoxicating liquor is prohibited, where intoxicating liquor is kept for *sale;*but, since keeping for sale or selling liquor by a duly licensed drug store, when prescribed by a licensed physician as a medicine, is not illegal, a plea that the liquor is kept for sale and sold in a licensed drug store only when prescribed by a licensed physician as a medicine would present an exception to this definition, and thus would be a matter of defense.

I respectfully dissent.

McCALEB, Justice

(dissenting).

The prevailing opinion declares that the question for consideration is “whether a duly licensed drug store operated in a dry territory can be classed as a ‘Blind Tiger’ when intoxicating liquor is kept there for sale under a permit granted by the state in accordance with the specific provisions of the Local Option Law.” But, in reality, that is not the exact question. It would be more appropriate to say that the question is whether a drug store, which sells intoxicating liquor for beverage purposes in dry territory, is immune from prosecution under the Blind Tiger Act merely because its proprietor holds a permit to sell liquor for medicinal purposes on the prescription of a licensed physician. It strikes me that this question answers itself. Obviously, where the liquor is being kept for sale for beverage purposes, it is being illegally kept and, therefore, not being kept under the permit for the simple reason that a permit for the sale of liquor in dry territory can be granted only for medicinal sales “when prescribed by a licensed physician”. See Section 3 of Act 17 of the First Extra Session of 1935.

It follows that, if the liquor is not kept under the permit, the drug store falls squarely within the definition of a “Blind Tiger” and the fact that -its owner ‘held a *27permit for the sale of liquor when prescribed by a licensed physician as a medicine does not change its status as such. The holding to the contrary effects an amendment of Act 8 of the Extra Session of 1915 by excepting from its provisions drug stores that have obtained a permit to sell liquor for medicinal purposes when no such exception appears in the statute.

For these and the reasons given in the original opinion, to which I adhere, I respectfully dissent.

On Second Rehearing

MOISE, Justice.

This is an appeal from a conviction under the Blind Tiger Act — No. 8 of the Extra Session of 1915. The judgment of conviction was affirmed by this Court on the original hearing. However, on rehearing the judgment of conviction and sentence were annulled and set aside. Because of the manifold complexities of the law, a second ■rehearing was granted and this case is now under consideration by us for a third time.

The Hood Act, No. 39 of 1921, which came into existence at the Extra Session of 1921, was repealed by Act 1 of the Ex.Sess. of 1933, and the National Prohibition Law having likewise gone out of existence, the entire State at that time had no prohibition against the keeping for sale of intoxicating liquors, provided the businesses were properly licensed. Under these circumstances, the Legislature, in its wisdom, felt that municipalities, wards and parishes, if they so desired, should have the right by a vote of the people to declare for local option within their territorial limits and, therefore, enacted Act No. 17 of the Ex.Sess. of 1935. In this local option statute the sovereign reserved to itself a limitation by and under which the local optionist could not go beyond the limitation imposed in Section 3 thereof. This section provides, in substance, that intoxicating liquors can be kept in dry territories and can be sold by drug stores on the prescription of a physician. Section 6 of the statute provides that, in order to make local option herein effective in those parishes, wards and municipalities where liquor traffic is prohibited by a vote of the people — as is the situation in the Town of Logansport, which is dry territory — that the authorities be granted both a right .and a remedy to enact ordinances and provide for their enforcement by penal punishment. The universal rule is that “A law can prescribe only for the future * * Revised Civil Code, Art. 8. Therefore, prosecutions for the violation of the local option law in dry territories can only be effected under ordinances adopted in accordance with the statute, or by future enactments. In analyzing the Blind Tiger Act, we must give significance to the word “blind”. As used in the statute, te word “blind” means a surreptitious concealment or that which is not visible to the naked eye. In the instant-case, we have no concealment and it is impossible to reconcile-the language of the in-. *29dictment with the language of the statute charging the operation of a “Blind Tiger”. Therefore, the sleeping “Blind Tiger” should not be aroused and should remain where it was placed by the former decision of this Court — in a state of “innocuous desuetude”.

Being in accord with the views expressed in our opinion on first rehearing, we adopt and make them a part hereof.

For the reasons given in our opinion on the first rehearing and as amplified by the views herein expressed, our decree'on first rehearing wherein the conviction and sentence are annulled and set aside and the defendant discharged and the intoxicating liquor seized on the premises ordered released, is reinstated and made the final judgment of this Court.

LE BLANC, J., concurs with written reasons.

HAMITER, HAWTHORNE and McCALEB, JJ., dissent with written reasons.

LE BLANC, Justice

(concurring).

It may be inferred from the language in the opinion written for the majority of the court on the present rehearing, that Act No. 8 of the Extra Session of 1915, commonly referred to as the Blind Tiger Act, was repealed by the repeal of the State law passed in pursuance to the National Prohibition Law and known as the Hood Act. If I am correct in so interpreting the opinion I cannot agree with that part of it. The Hood law, Act 39 of 1921, specifically retained the Blind Tiger law in effect and although it may not have been necessary to make *use*of or enforce its provisions during the existence of State-wide prohibition, it nevertheless remained a valid law of the State. The repeal of the Hood law by Act No. 1 of the Extra Session of 1933 had the effect of ending prohibition in the State and until further legislation on the subject of liquor was enacted, the Blind Tiger law still lay dormant. In 1935 new legislation was enacted by the passage of Act 17 of the First Extra Session of that year. That Act provided for local option elections and it had the effect of reviving the Blind Tiger law and making its provisions enforceable in those areas where the people had voted against the sale of intoxicating liquors.

I am of the further opinion however, that the local option law of 1935 had the effect of exempting drug stores from the operation of the Blind Tiger law since the local' option law, Act 17 of the First Extra Session of 1935 specifically provides in section 2 that “this Act shall not authorize the prohibition of the sale of such liquors when prescribed by a licensed physician as medicine” and section 3 expressly authorizes, the State to grant permits or licenses for sale of such liquors by druggists when prescribed as medicine by a licensed physician. In order to so sell them it is obvious that druggists must *“keep*them for *31sale” and the keeping them for sale is the only thing' that is denounced hy Act 8 of the Extra Session of 1915, the Blind Tiger law. Admittedly, the prosecution in this case is one for violation of that law and the only question presented, as I view it, is the question of law whether such prosecution can be maintained against this defendant who is a druggist. I am of the opinion that it cannot.

For these reasons and for the reasons stated in the majority opinion on the first rehearing, I concur in the decree now being handed down.

McCALEB, Justice

(dissenting).

My comprehension of the latest majority .view is that it is now held that the Blind Tiger Act, Act 8 of the Extra Session of 1915, .although it has never been repealed, either expressly or impliedly, is doomed to remain “in a state of ‘innocuous desuetude’ ” despite the fact that there are presently subdivisions of the State wherein the sale, possession, etc. of intoxicating liquor is prohibited. In concluding thus, the majority have overruled the case of State v. Carter, 179 La. 156, 153 So. 676 by indirection.

Moreover, it is also apparent that the Court has assumed jurisdiction of a question of fact in a criminal case, contrary to Section 10 of Article 7 of the Constitution, for it is resolved that “In the instant case we have no concealment * * * ”, obviously meaning that the facts of the case show that the defendant did not operate a “blind tiger” but that he lawfully and openly sold or kept for sale the large quantities of intoxicants found in his possession under his restricted permit to sell it only as a medicine when prescribed by a licensed physician. As long as the court is dealing in facts, it is apt to remark that there is no evidence in the record justifying the conclusion that defendant did not use his drug store as a “blind” for the purpose of screening his unlawful conduct.

For these and the reasons heretofore given, I respectfully dissent.

HAWTHORNE, Justice

(dissenting).

I dissent, adhering to the views expressed in my dissenting opinion heretofore written when the case was decided by this court on first rehearing. The majority has exercised a legislative function, for its opinion has the effect of repealing in its entirety the Blind Tiger Act.

HAMITER, Justice

(dissenting).

In a concurring opinion on the first rehearing, following my pointing out that a prosecution of defendant under the ordinance adopted pursuant to Act 17 of the First Extraordinary Session of 1935, the Local Option Statute, would 'be proper, I observed that Act 8 of the Extraordinary Session of 1915, the Blind Tiger Act, is inapplicable to the sale of liquor by a licensed druggist when prescribed by a physician as medicine. Undoubtedly, this observation, as thus limited, is correct. It does not comprehend, however, a possible *33factual situation whereby a druggist, although duly licensed, keeps intoxicants in a dry territory for sale for purposes other than as medicine. In this suggested factual situation, I readily concede, the druggist would not only be violating the ordinance adopted pursuant to the Local Option Statute but also he would be operating in a manner contrary to the provisions of the Blind Tiger Act.

The provisions of the Blind Tiger Act are still effective, it appears, unless superseded by those of the Local Option Statute (none is expressly repealed thereby). Clearly, they have been superseded insofar as they applied to a druggist’s keeping for sale, under a properly issued permit, liquor *when prescribed by a licensed physician as a medicine,*this being specifically authorized by the later statute. I find, however, that they were not superceded with respect to a druggist (even though holding a permit) who keeps intoxicants in a dry territory for sale for purposes other than for medicine. Section 2 of the Local Option Statute contains a recitation (to which I did not give proper effect on the first rehearing) that obviously relates to and contemplates such a case and, with respect thereto, retains the efficacy of all former applicable laws, including the Blind Tiger Act. In part, that section states: “ * * * Where it is contended in any prosecution *for the violation of any law of this State*or any ordinance enacted pursuant to the authority of this act that any such liquors were prescribed and sold as a medicine, it shall be for the court to decide whether such prescription .and sale were made in good faith and in case of sickness, or as a mere subterfuge and with intent to evade the provisions of such laws or ordinances.” (Italics ours.)

Therefore, and after further consideration of the principal issue presented by this prosecution, I am of the opinion that a violation of the provisions of the Blind Tiger Act can be committed, under certain circumstances, by a duly licensed drug store operated in a dry territory. But whether this defendant has been guilty of such an offense is a question of fact with reference to which this court has no jurisdiction.

For the above reasons, as well as those assigned in the majority opinion rendered on the original hearing of this cause, I respectfully dissent.