Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1909-04-10

TON. \ n
Fargo, N. D., April 9.-What can be
characterized as one of the most i'm
sortant decisions based on the pro-
hibition law of the state Of North
Dakota, ever written in the distrIc>
court, was filed by Judge Charles A
Pollock in the case of the state
agains Adolph G. Foogman and Harry
Clark of Hillsoro, in which he holds
that where there has been violation
of the prohlbitory law that buildings
must be closed for one year.
The case Is one which has attracted
ae attention of druggists all over
the state, who were anxious to see
what stand would be taken by the
Third judicial Judge since the matter
of handling the issuance of permit
has been placed in the hands Of the
jurists. ~=
In a memorandum, Judge Pollock
says:
Briefly stated, the testimony In this
case shows that A. G. Foogman, q
jeweler by trade, owned .two-story
brick store building, fronting on a
main street of the city of Hillsboro,
in this state, in which he carried on
a jewelry business.
Thereafter he bought drug store
and moved the drugs, stationery,
books, ETC., into the store room with
his jewelry business secured part
ner, who was regular pharmacist,
| and continued the drug, book, station.
cry and jewelry business in the same
room. Mr.. Foogman, in the mean
time, became an assistant pharmacist.
About three years ago, defendant
Foogman and one Clark, formed q
copartnership, to run the drug bust.
ness under the partnership name Of
The Foogman Drug Co., Mr.. Foogman
continuing the jewelry business on one
side of the store room. A govern
ment stamp tax, to sell Intoxicating
liquors was issued to the Foogman
Drug Co., but it had no permit to
sell intoxicating liquor under the
laws of North Dakota. &%
Fine Line Of Booze. s, r
The complaint charges frequent un-
lawful sales between March /, 1907,
and Dec. q, 1908. Ample. testimony
| was offered to substantiate the charge
made, so far as Clark was concerned
personally. No evidence offered show
ed a sale bv Foogman individually.
The evidence did show that Foog-
man was the owner of at least two
thirds Of the interest in the drug
business, was constantly in the store
day and night, and during the past
few months, at least, took all the
money from the register at night, for
banking purposes. Also that he wait
ed ON customers in the drug depart
ment when Clark was not there;' that
he was constantly in and about the
prescription case and the drugs, and
was generally familiar with the arti-
cles there found, including intoxicat-
ing liquor in abundance kept in the
store. .,~ - " !
Among other things, the sheriff's
return shows the following: T.. -,
Twenty-six gallons of whiskey.
Five gallons grape brandy.
Five gallons Tom Gin Cordial.
One barrel of rDigesto in bottles
labeled per cent alcohol.
| sixty-seven bottles Of Digesto, I'M
opened. r.,
| Four barrels of bottles labeled Di
gesto, empty I'D
Sixteen bottles Old Dry, Sherry.
Seven bottles Angelica. Il.
| Seven bottles Old Selected Port.
Five bottles ROYAL Ruby Cocktails
Three hotties labeled Old Selected
Port, empty. .5%a. ~
| Two bottles labeled Old Dry Sherry
empty. ~
| Five liquor glasses. .% ..%
Foogman claims the liquors were
kept only for medical purposes. The
evidence showed several sales by the
pint and half pint of whiskey, on pre-
scription of local physician.
From the foregoing the court finds
as a fact, that the defendant Clarh
sold intoxicating liquors without au'
Foogman was constant in possess
ion of knowledge sufficient to excite
the suspicion of prudent man, and
to put him upon inquiry; this, in con
temptation of law, making his re
sponsible for such unlawful sales
made by Clark.
The court reviews the matter Of re.
leasing the premises upon the films
Of bond by the defendant and holds
that it was not the intent of the law.
makers to release the premises where
guilt has been established in less thar
a year. OF the feature of the sales
by druggists under permit the court
says: r. @ $4
| A druggist cannot shield himself
behind a doctors prescription. Thai
affords absolutely no protection to thu
druggist without permit; and to 4
druggist with q permit: it., only fur
nishes an evidence OF the good faitt
OF the purchaser. Some doctors and
druggists have enormously thought
that prescriptions could be. given and
sales permitted thereon bv virtue 81
the provisions OF section 1858, laws
OF 1905. But such 10 not the fact. a
clearer statement OF what can and
cannot be done under. that section
will be found In the amendment pass.
ed by the last legislature in what II
known as the McCrea bill (house bill
i 283). Now that the legislature hal
put the granting and ravoking OF per.
mits into the hands Of the district
4 Judges, druggists who are too prone
to accommodate their friends to the
4, drink behind the prescription case,
| may be wise, il the inevitable lega