The Birmingham age-herald., 1919-02-11
CITY ATTORNEY GIVES OPINION ON
 SALE OF MEDICINE
Moore Holds It Not in Viola ton of Law to Sell Stand ard Medicines Contain
 ing Alcohol


 | query from Commissioner of Fire and Police John H. Taylor who was some what confused on the various points of the Weekley prohibition law, recently adopted by the Alabama legislature. The | opinion states that it is not contrary to the law to sell medicines containing alcohol, regardless of the doctors pre- scription, but that a prudent man win not sell them for beverage purposes.
 City Attorney Moore's opinion follows:
 "The recent act, approved January 25 1919, provides in section l as follows: " That in addition to the liquors 1 liquids, drinks and beverages already en- | hraced in the term prohibited liquors and beverages" as defined by the ex- isting laws of the state of Alabama en- acted in 1915, the said term shall here | after be deemed also to include and em- brace the following: (6) All liquors, l liquids, drinks or beverages made in inn itaton or intended as substitute for 1 beer. ale rum, gin. whisky or for any other alcoholic, spirituous, vnous or malt liquor, and further that any liquor, | drink or liquid made used for bev- craze purposes containing any alcohol shall be deemed an alcoholic liquor, with in the meaning of the term prohibited liquors and beverages as defined in this act in connection with the existing pro- hibition laws of Alabama
 ''The act of 1915 (acts 1915, page D allowed one-half of l per cent of alco- bol and said nothing about the use of the liquors, drinks, etc. but used the term manufactured or sold or otherwise l disposed of so that the latter part of subdivision (6) of section 1 of the act et1,>a |, .;-sz t tion of the act of 1915
 This is the only substantial change in. the law so far as the definition of prohibited beverages is concerned. "The only prohibited liquor or bever- age which can be received or sold for medicinal purposes upon the prescrp- tion of a physician is pure alcohol in quantities of not more than one half a pint for any one prescription (which cannot be refilled) under the restrictions and regulations provided in the laws of 1915 and sections 5, 6 and of the act of 1919
 "The new act also makes it unlawful for any person, except druggist or pro- prietor of a drug store entitled under the law to sell alcohol for medicinal pur- poses upon prescription, to sell dispense or give away the essence, extract or tincture of Jamaica ginger, so that the only prohibited liquors and beverages which can be sold upon the prescription of a regularly licensed physician of this state are pure alcohol and Jamaica gin ger, and those only under the regula- tions provided by law.
 Retail druggists may use alcohol in the compromising of prescriptions or other medicines, the sale of which would not subject them to the payment of the special tax required of liquor dealers by the United States, and physicians may use it in compounding and dispensing remedies in the practice of their pro- fessions only, and alcohol may also be sold by wholesale to retail druggists, and both wholesale and retail druggists may sell it for use in the arts and sci ences, and wine may be sold by retail druggists for sacramental or religious purposes, all under the regulations pro- vided by law.
 Intoxicating bitters by whatever name called, sometimes attempted to be sold as medicine, also come under the ban and cannot be sold even in good faith and upon the prescription of physician
 Carson vs. States, s9 Ala. 236
 'Carle vs. State, S7 Ala. IT; So.
 "Carle vs. State, s9 Ala s7; 8 So.
 156.
 'In the last cited case the supreme court, in defining intoxicating bitters, and determining whether or not the sale thereof was unlawful said:
 Whether a compound consisting of drugs, barks and other medicinal sub stances, and spirituous liquor. is within the prohibition of the statute depends upon the question whether the article sold is. in reality, an intoxicating bit ter If the liquor and other ingredients are used and mixed in such manner and proportions as to counteract the intoxi- eating force and character of the liquor, fairly constituting a medicine, and rem dering its use as a beverage practically impossible, it does not come within the statute On the other hand if the liquor is the predominant element or suffi- ciently retains it's intoxicating qualities so as to render the mixture reasonably susceptible of use as beverage, or substitution for the ordinary intoxicat- ing drinks. it is within the statutory prohibition
 ""The statute under which defendant is indicted makes the specific act of selling intoxicating bitters indictable, ir- respective of defendants belief. motive or intention. (The present statute does Ikewise.) His ignorance of the charac- ter of the mixture or his belief that 1t N not intoxicating based on mistaHe of fact is no defense, and where there is no exception taking out of the general provisions of the statute sales in good faith for medical purposes. the fact that the article was sold in good faith as medicine does not operate to acquit the defendant This doctrine was emphati- cally declared in Carson vs. State. above cited, where the defendant, whose con- viction was affirmed, was a practcing physician who prescribed and sold the mixture in good faith as medicine to patient under his treatment.
 We do not mean to have it under stood. however, that a preparation IS considered intoxicating in the estima- ton of the statute, because it may in toxicate if used in unreasonable and excessive quantities. The excessive and mmoderate use of any preparation in which alcohol is used in sufficient quantities to preserve the other ingre- dients may intoxicate, but the mixture does not fall under the ban of the statute because spirituous liquor IS present The true inquiry is whether the liquor used is necessary to extract and preserve the medicinal properties of the other ingredients, and it's dis tinctive intoxicating character is so enumerated or greatly impaired that it's reasonable and ordinary use will not intoxicate, whether it is. in reality. a medicine.
 -.Jn addition to intoxicating bitters and beverages by whatever name called, our statute also prohibits the sale or other disposition of any liquor, drink of liquid made or used for beverage purposes con- taining any alcohol
 There are many liquids containing al cohol in varying quantities which are commonly used for medicinal, culinary or