The facts in this case are without dispute. The petitioners had each violated the liquor laws of the state. They were under injunction not to repeat such violation. Their respective places of business were searched by peace officers on December 22, 1925, just before the holiday season. At petitioner Reppert's store the officers found:
"7 gallons of alcohol in the basement; one gallon in a box with a lid on it, and a garbage can placed on top thereof; 6 gallons on a shelf; one gallon behind a prescription counter; 7 gallons in the back room up next to the roof on the rafters, which said alcohol was seized by said police officers and taken to the police station in Des Moines, Iowa, the same being pure grain, government proof alcohol which was capable of being used as a beverage, and when so used was intoxicating."
At petitioner Veatch's place they found 9 gallons and 2 ounces of alcohol.
The record showed that, between the 12th day of November, 1924, and the 7th day of October, 1925, Reppert had purchased a total of 188 gallons of alcohol, and between the 13th day of November, 1924, and the 14th day of October, 1925, Veatch had purchased 160 gallons of alcohol. The trial court found that:
"* * * A large part of said alcohol was used by the said Reppert and Veatch, respectively, in making other products not included in the U.S.P. and N.F. Preparations. The quantity of alcohol used by each of the defendants and the respective *Page 323 amounts seized by the officers at their respective places of business on December 22, 1925, and especially the quantity found at the defendant Reppert's store, and the different places where the same was found, and all of the surrounding conclusions, lead to the inevitable conclusion that each of the defendants had on hands and had used many times the amount required and used by other Des Moines druggists, — to wit, C.W. Rogg Drug Company, Liggett's, and Denny A. Brann, — and that these defendants could not use any such quantity of alcohol for any legal purpose."
These findings of fact are abundantly sustained by the record.
There was evidence in the record regarding the amount of alcohol reasonably necessary for legitimate use by retail pharmacists in similar establishments in the city of Des Moines. It would seem as if a mere statement of these undisputed facts would be quite sufficient to sustain the order of the trial court finding petitioners to be in contempt.
The opinion of the majority is so far-reaching in its conclusion and in its discussion of the law that a few observations thereon may be pardonable.
Section 1924, Code of 1927, is as follows:
"No one, by himself, clerk, servant, employee, or agent, shall, for himself or any person else, directly or indirectly, or upon any pretense, or by any device, manufacture, sell, exchange, barter, dispense, give in consideration of the purchase of any property or of any services or in evasion of the statute, or keep for sale, or have possession of any intoxicating liquor, except as provided in this title; or own, keep, or be in any way concerned, engaged, or employed in owning or keeping, any intoxicating liquor with intent to violate any provision of this title, or authorize or permit the same to be done; or manufacture, own, sell, or have possession of any manufactured or compounded article, mixture or substance, not in a liquid form, and containing alcohol which may be converted into a beverage by a process of pressing or straining the alcohol therefrom, or any instrument intended for use and capable of being used in the manufacture of intoxicating liquor; or own or have possession of any material used exclusively in the manufacture of *Page 324 intoxicating liquor; or use or have possession of any material with intent to use it in the manufacture of intoxicating liquors."
This is the established law. The mere possession of intoxicating liquor is in every case prima-facie evidence of maintaining a nuisance or bootlegging. Section 1966-a1, Code of 1927. The statute provides that the possessor of liquor may show in defense that he has a right to the possession of such liquor under the laws of the state of Iowa. Section 1966-a2. The question is, then, simply whether or not the petitioners showed themselves legally entitled to have such a quantity of liquor in their possession, or to have had the amount which it was shown they had possessed during a period of time since the injunctions were granted, and to have used the same legally. The claim of the petitioners is that they are registered pharmacists, and that, being registered pharmacists, conducting retail drug stores, they have a perfect right to buy alcohol in the quantities shown and to use it in the manner proven.
Under the record in this case, it is quite apparent that much, if not all, of the argument of the majority opinion is by the mark. Even if it be conceded (which I do only for the purpose of the argument) that a registered pharmacist, operating a retail drug store, may buy and have in his possession a proper amount of alcohol for legitimate use in compounding medicines and filling prescriptions, still, under the undisputed record in this case, such defense is not available to these petitioners. The quantity purchased, the amount on hand, the places where it was obviously concealed, together with the established fact of its use for other purposes than compounding medicines and filling prescriptions, furnish, in any event, abundant ground for sustaining the trial court in punishing petitioners for contempt. We do not review these cases in certiorari de novo, and no error on the part of the trial court is shown, under the record. This alone should end the case.
But because of the far-reaching effect of the opinion of the majority, a few further observations are justifiable. The majority hold that the United States Pharmacopia and National Formulary are the "official guide to a pharmacist;" and the plain inference, if not the express holding, is that a registered pharmacist may possess and use alcohol in any quantity, so long as he uses it to make some product which is included in *Page 325 the United States Pharmacopia and National Formulary. The majority emphasize the point by illustrations of articles described in said books. I deny the proposition on two grounds: (1) If the pharmacist steps outside his legitimate and proper sphere as a compounder of medicines and prescriptions and becomes a manufacturer, he violates the law unless he has a manufacturer's permit; and (2) the United States Pharmacopia and National Formulary are not "official guides" and protection to a registered pharmacist in making and selling in Iowa every product described therein.
(1) Section 2580, Code of 1927, defines a pharmacy as follows:
"`Pharmacy' shall mean a drug store in which the prescriptions of licensed physicians and surgeons, dentists, or veterinarians are compounded."
Retail pharmacists are defined as being of two classes. Section 2578, Paragraphs 1 and 2:
"Persons who engage in the business of selling, or offering or exposing for sale, drugs and medicines at retail.
"Persons who compound or dispense drugs and medicines or fill the prescriptions of licensed physicians and surgeons, dentists, or veterinarians."
It is perfectly clear that, under these definitions, a pharmacist is not one who is engaged in the business of manufacturing articles of commerce and trade that may contain alcohol as one of their ingredients. The business of the pharmacist is to compound or dispense drugs and medicines and fill prescriptions. The legislature has recognized that there are articles of trade and commerce that contain alcohol, and certain persons described in the statute as "manufacturers" are allowed to purchase alcohol for the purpose of using it in the manufacture of such articles. Such manufacturers are required to obtain a permit and to file bond and to submit sworn reports, and are subject to penalties for violation of the statute. Code of 1927, Chapter 103. Even if it be true that a registered pharmacist is entitled to have alcohol in his possession for the legitimate purposes of his business as a pharmacist in compounding medicines and filling prescriptions, he is not within the law when *Page 326 he steps outside the proper realm of his functions as a pharmacist, and becomes a manufacturer of articles that contain alcohol as one of their ingredients. When he does the latter, he becomes a manufacturer, within the meaning of the statute, and must obtain a manufacturer's permit, furnish his bond, and be subject to the penalties of that statute. This was the clear purpose and intention of the legislature. The fact, if it be a fact, that a pharmacist has a legal right to have alcohol in his possession for the legitimate purpose of compounding medicines and filling prescriptions as a pharmacist, gives him no right to use alcohol for purposes of manufacture of articles for sale in commerce and trade. In this case, the trial court found that the petitioners had become manufacturers, and were using alcohol in the manufacture of articles for purposes of trade and commerce. The record so shows. They had no right to do this without having a manufacturer's permit, and having done so, they have violated the injunctions against them.
(2) Neither can I agree with the majority that a registered pharmacist has a legal right to have in his possession alcohol which he may use for the making of any article which is described within the United States Pharmacopia and the National Formulary. The argument of the majority is that a registered pharmacist may make and sell any of the many hundreds of products which are described in the books above mentioned. Among the most prominent of the drugs mentioned in said books is grain alcohol itself, which the majority say is "a solvent, preservative, and antiseptic." If the majority are right, then I see no reason why they have not opened the door for every retail pharmacist in the state to purchase alcohol and to dispense it as one of the drugs described in the "official guide." What is to prevent? In the "official guide" also appear directions for the manufacture of the product which is known as Jamaica ginger, and which, among the vulgar, is designated as "Jack." When made according to the "official guide," this contains alcohol as one of its important constituents. Heretofore, we have condemned the sale of this product, although strictly prepared according to the specifications of the United States Pharmacopia, and sustained convictions for its sale by a druggist. State v. Higgins,192 Iowa 201; State v. Snyder, 185 Iowa 728. See, also, State ex rel.Saley v. Bokmeyer Bros., 187 Iowa 1312. The *Page 327 argument of the majority necessarily leads to the conclusion that the petitioners have a perfect right to have in their possession any quantity of alcohol to be used in the manufacture of this unlawful product, because it is described in the United States Pharmacopia and the National Formulary. Numerous other instances might be cited. Are the foregoing cases now to be overruled? The majority necessarily grant immunity to all registered pharmacists who make and sell these alcoholic products, provided only they are made according to the formula of the "official guide." In this I cannot concur.
Even if it be conceded that a registered pharmacist may legitimately have alcohol in his possession for the purpose of filling prescriptions, or for the purpose of compounding and dispensing medicines, this right, even if existing under the statute, cannot be made a subterfuge for the possession of large quantities of alcohol wholly disproportionate to any such legitimate needs. Alcohol kept for the legitimate purposes of a limited retail trade does not need to be purchased in quantities of 188 gallons in eleven months; nor in the conduct of a legitimate drug business is it essential that it find lodgment in obscure places in basement and attic, behind counter, or beneath the protecting shield of a garbage can. A registered pharmacist is a member of an honorable and necessary profession; but when a registered pharmacist violates the law that governs the legitimate practice of his profession, he subjects himself to the penalties which the law prescribes.
Under this record, the trial court was abundantly justified in finding that the petitioners had alcohol in their possession which, under their own evidence, they intended to use for purposes of manufacture, and which were not within the legitimate scope of the compounding and dispensing of medicines as retail pharmacists.
They violated the injunctions against them, the penalty for contempt was properly imposed, and the writ should be annulled.
STEVENS, C.J., and MORLING, J., join in this dissent. *Page 328