Acts of the Legislature of West Virginia, Thirty-first Regular Session, 1913.
(House Bill No. 8.)
CHAPTER 13.
AN ACT to prohibit the manufacture, sale and keeping for sale of malt, vinous or spirituous liquors, wine, porter, ale, beer or any intoxicating drink, mixture or preparation of like nature, except the manufacture, sale and keeping for sale for medicinal, pharmaceutical, mechanical, sacramental or scientific purposes, and the manufacture and sale of denatured alcohol for industrial purposes as regulated and provided for by this act; and to enforce the amendment of section, forty-six of article six of the state constitution, ratified on the fifth day of November, one thousand nine hundred and twelve; and making the state tax commissioner ex officio state commissioner of prohibition, and defining his duties; and providing for the enforcement of this act and prescribing penalties for violations thereof.
(Passed February 11, 1913. In effect July 1, 1914. Approved by the Governor February 17,1913.)
SEC.
1. Word liquors construed.
2. Manufacture, sale, etc., of liquors forever prohibited; except.
3. Penalty for violation; when a misdemeanor; when a felony; form of indictment deemed sufficient.
4. Exceptions, druggist; physician; prescription; affidavit; penalty for giving to persons of intemperate habits; form of indictment against druggist.
5. Person of intemperate habits or other person use other than stated in affidavit; penalty; if physician of intemperate habits - or without making examination, penalty.
6. Persons, assisting in maintaining club house, etc., where liquor is received or kept, sold, given away or divided; penalty.
7. Keeping or giving away.
8. Advertise.
9. Justice of the peace, courts, mayor shall issue warrant, when.
10. Probable cause.
11. When liquors are seized, prima facie evidence shall be publicly destroyed.
SEC.
12. Officers may break open house, when.
13. Payment of United States tax prima facie evidence of guilt.
14. Nuisance; who guilty.
15. State tax commissioner ex officio state commissioner of prohibition.
16. Duty of commissioner.
17. Suit in equity may be instituted; injunction, etc.
18. In addition to penalties, bond may be required.
19. Express and railroad companies, etc., shall keep books and record names of persons to whom liquor is shipped.
20. Who may employ attorney to assist in prosecution.
21. Rewards.
22. State right to appeal.
23. Police powers.
24. Sale by manufacturer and wholesale druggist under supervision of commissioner.
25. Sections inconsistent repealed.
26. In effect, when.
Be it enacted by the Legislature of West Virginia:
Sec. 1. The word "liquors" as used in this act shall be construed to embrace all malt, vinous or spirituous liquors, wine, porter, ale, beer or any other intoxicating drink, mixture or preparation of like nature; and all malt or brewed drinks, whether intoxicating or not, shall be deemed malt liquors within the meaning of this act; and all liquids, mixtures or preparations, whether patented or not, which will produce intoxication, and all beverages containing so much as one-half of one per centum of alcohol by volume, shall be deemed spirituous liquors, and all shall be embraced in the word "liquors" as hereinafter used in this act.
Sec. 2. Except as hereinafter provided, the manufacture, sale, keeping or storing for sale in this state; or offering or exposing for sale of liquors or absinthe or any drink compounded with absinthe, are forever prohibited in this state, except liquors manufactured prior to July first, one thousand nine hundred and fourteen, and stored in United States bonded warehouses; in the custody of the United States collector of internal revenue, and the said liquors when tax paid and in transit from such warehouses to points outside of this state.
Sec. 3. Except as hereinafter provided, if any person acting for himself, or by, for or through another shall manufacture or sell or keep, store, offer or expose for sale, or solicit or receive orders for any liquors, or absinthe or any drink compounded with absinthe, he shall be. deemed guilty of a misdemeanor for the first offense hereunder, and upon conviction thereof shall be fined not less than one hundred dollars nor more than five hundred dollars, and imprisoned in the county jail not less than two nor more than six months; and upon conviction of the same person for the second offense under this act, he shall be guilty of a felony and be confined in the penitentiary not less than one nor more than five years; and it shall be the duty of the prosecuting attorney in all cases to ascertain whether or not the charge made by the grand jury is the first or second offense; and if it be a second offense, it shall be so stated in the indictment returned, and the prosecuting attorney shall introduce the record evidence before the trial court of said second offense, and shall not be permitted to use his discretion in charging said second offense, or in introducing evidence and proving the same on the trial; and any person, except a common carrier, who shall act as the agent or employe of such manufacturer or such seller, or person so keeping, storing, offering or exposing for sale said liquors, or act as the agent or employe of the purchaser of such liquors, shall be deemed guilty of such manufacturing or selling, keeping, storing, offering or exposing for sale, as the case may be; and in case of a sale in which a shipment or delivery of such liquors is made by a common, or other carrier, the sale thereof shall be deemed to be made in the county wherein the delivery thereof is made by such carrier to the consignee, his agent or employe.
An indictment for any first offense under this section shall be sufficient if in the form or effect following:
State of West Virginia,
County of ....................... to-wit:
In the Circuit Court of ......................... County:
The grand jurors in and for the body of the said county of ......................... upon their oaths do present that A. B., within one year next prior to the finding of this indictment, in the said county of ...................... did unlawfully manufacture, sell, offer, keep, store and expose for sale and solicit and receive orders for liquors, and absinthe and drink compounded with absinthe, against the peace and dignity of the state.
Sec. 4. The provisions of this act shall not be construed to prevent any one from manufacturing for his own domestic consumption wine or cider; or to prevent the manufacture from fruit grown exclusively within this state of vinegar and non-intoxicating cider for use or sale; or to prevent the manufacture and sale at wholesale to druggists only of pure grain alcohol for medicinal, pharmaceutical, scientific and mechanical purposes, or wine for sacramental purposes by religious bodies; or to prevent the sale and keeping and storing for sale by druggists of pure grain alcohol for mechanical, pharmaceutical, medicinal and scientific purposes, or of wine for sacramental purposes, by religious bodies, or any United States pharmacopoeia or national formulary preparation in conformity with the West Virginia pharmacy law, or any preparation which is exempted by the provisions of the national pure food law, and the sale of which does not require the payment of a United States liquor dealer's tax. But no druggist shall sell any such grain alcohol except for medicinal, scientific, pharmaceutical and mechanical purposes, or wine for sacramental purposes, except as hereinafter provided, and the same shall not be sold by such druggist for medicinal purposes, except upon a written prescription of a physician of good standing in his profession and not of intemperate habits, or addicted to the use of any narcotic drug, prescribing the amount of alcohol, the disease or malady for which it is prescribed, and how it is to be used, the name of the person for whom prescribed, the number of previous prescriptions given by such physician to such person within the year next preceding the date of such prescription, and stating that the same is absolutely necessary for medicine, and not to be used as a beverage, and that such physician, at the time such prescription was given, made a personal examination of such person, and that such person is known to such physician to be of temperate habits and not addicted to the use of any narcotic drug, and only one sale shall be made upon such prescription, and such prescription shall be at all times kept on file by such druggist and open to the inspection of all state, county and municipal officers. It shall be the duty of such druggist to register in a book kept for that purpose all prescriptions from physicians mentioned in this section, stating the name of. the party for whom prescribed, the date of the prescription, the name of the physician by whom the prescription is issued, the quantity of such alcohol and the use for which prescribed, and such record shall at all times be open to the same inspection as such prescriptions.
It shall be lawful for a druggist to sell grain alcohol for pharmaceutical, scientific and mechanical purposes, or wine for sacramental purposes by religious bodies, only to any person, not a minor, and who is not of intemperate habits, or addicted to the use of narcotic drugs, who shall, at the time and place of such sale, make an affidavit in writing signed by himself before such druggist, or a registered pharmacist at the time and place in the employ of such druggist, stating the quantity and the time and place and fully for what purpose and by whom such alcohol or wine is to be used; that affiant is not of intemperate habits or addicted to the use of any narcotic drug; and that such alcohol or wine is not to be used as a beverage, or for any purpose other than that stated in such affidavit. Such affidavit shall be filed and preserved by such druggist and be subject to inspection at all times by any state, county or municipal officer, and a record thereof made by such druggist in the record book mentioned in this section, showing the date of the affidavit, by whom made, the quantity of such alcohol, or wine, and when, where, for what purpose and by whom to be used. Only one sale shall be made upon such affidavit, and only in the county where the same is made, and no greater quantity than is therein specified. For the purpose of this act, any druggist or registered pharmacist making such sale shall have authority to administer such oath.
If any druggist, owner of a drug store, registered pharmacist, clerk or employe shall upon such prescription or affidavit, or otherwise, knowingly sell or give any such alcohol or wine to any person who is of intemperate habits or addicted to the use of any narcotic drug, or knowingly sell or give the same to any one to be used for any purpose other than that named in said affidavit or prescription, or who shall sell or give away any liquors without such affidavit or prescription, he shall be deemed guilty of a misdemeanor and punished by fine of not less than one hundred nor more than five hundred dollars and confined in the county jail not less than thirty days nor more than six months. In any prosecution against a druggist, owner of a drug store, registered pharmacist, clerk or employe, for selling or giving liquor contrary to law, if a sale or gift be proven, it shall be presumed that the same was unlawful in the absence of satisfactory proof to the contrary and the presentation of such prescription or affidavit by the defendant at the time of the trial for such sale or gift, shall be sufficient to rebut the presumption arising from the proof of such sale or gift. Provided, the jury shall believe, from all the evidence in the case, that such sale or gift was made in good faith under the belief that such prescription or affidavit and statements therein were true; and, provided, further, that such druggist, owner of a drug store, registered pharmacist, clerk or employe shall have complied with all other provisions of this act relating to the sale or gift.
An indictment against any druggist, registered pharmacist, clerk or employe, for any offense committed under the provisions of this section, shall be sufficient, if in the form and effect following:
State of. West Virginia,
County of....................... to-wit:
In the Circuit Court of said County:
The grand jurors in and for the body of said county of. ............................ upon their oaths do present that A. B., within one year next prior to the finding of this indictment, in the said county of ...................... did unlawfully sell, give, offer, expose, keep and store for sale and gift, liquors, against the peace and dignity of the state.
Sec. 5. If any person who is of intemperate habits or addicted to the use of any narcotic drug shall make the affidavit mentioned in the preceding section, or if any person making such affidavit shall use as a beverage, or for any purpose, or at any place other than that stated in such affidavit, or shall knowingly permit another to do so, said alcohol or wine, or any part thereof, or shall knowingly make any false statement in such affidavit, he shall be guilty of a misdemeanor and upon conviction be punished by a fine of not less than one hundred nor more than five hundred dollars, and be confined in the county jail not less than two nor more than six months for the first offense hereunder; and for the second offense he shall be deemed guilty of a felony and punished by confinement in the penitentiary not less than one nor more than five years.
And if any physician who is not in good standing in his profession, or who is of intemperate habits, or who is addicted to the use of any narcotic drug, shall issue any such prescription as is mentioned in the last preceding section; or if any physician shall issue such prescription without, at the time, making a personal examination of the person for whom the liquor is prescribed, or shall prescribe for any person .who is in the habit of drinking to intoxication and whom he knows, or has reason to believe is in the habit of drinking to intoxication, or shall give such prescription and make the statements therein required, or any part thereof, falsely, he shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than one hundred nor more than five hundred dollars and imprisoned in the county jail not less than thirty days nor more than six months, and in addition thereto, for the first offense under this statute, the court may, in its discretion, suspend the license of such physician for a period of six months and for each offense thereafter the court shall suspend such license for a period of six months.
Sec. 6. Every person who shall directly or indirectly keep or maintain by himself or by associating with others, or who shall in any manner aid, assist or abet in keeping or maintaining any club house, or other place in which any liquor is received or kept for the purpose of use, gift, barter or sold as a beverage, or for distribution or division among the members of any club or association by any means whatsoever; and every person who shall use, barter, sell or give away, or assist or abet in bartering, selling or giving away any liquors so received or kept, shall be deemed guilty of a misdemeanor and upon conviction thereof be punished by fine of not less than one hundred nor more than five hundred dollars and by imprisonment in the county jail not less than thirty days nor more than six months; and in all cases the members, share-holders or associates in any club or association mentioned in this section, shall be competent witnesses to prove any violations of the provisions of this section, or of this act, or of any fact tending thereto; and no person shall be excused from testifying as to any offense committed by another against any of the provisions of this act by reason of his testimony tending to criminate himself, but the testimony given by such person shall in no case be need against him.
Sec. 7. The keeping or giving away of intoxicating liquors, or any shifts or devices whatever, to evade the provisions of this act, shall be deemed an unlawful selling within the provisions of this act.
Sec. 8. If any person shall advertise or give notice by signs, bill board, newspapers, periodicals or otherwise for himself or another of the sale or keeping for sale of liquors, or shall circulate or distribute any price-lists, circulars or order blanks advertising liquors or publish any newspaper, magazine, periodical or other written or printed papers, in which such advertisements or notices are given, or shall permit any such notices, or any advertisement of liquors (including bill boards) to be posted upon his premises, or premises under his control, or shall permit the' same to so remain upon such premises, he shall be guilty of a misdemeanor and be fined not less than one hundred nor more than five hundred dollars.
Sec. 9. Every justice of the peace and every circuit, criminal or intermediate court, or the judges thereof in vacation, and every mayor of any city, town or village, upon information made under oath or examination that any person is manufacturing, selling, offering, or exposing, keeping or storing for sale or barter, contrary to law, any liquors, or that the affiant has cause to believe and does believe that such liquors so manufactured, sold, offered, kept or stored for sale or barter in any house, building or other place named therein, contrary to the provisions in this act, shall issue his warrant requiring the person suspected to be brought before him for examination, or the said house, building or other place to be searched, and the parties found therein to be arrested and brought before him as aforesaid; and requiring the officer to whom it is directed to summon such witnesses as shall be therein named, or whose names are endorsed thereon to appear and give evidence on the examination, and in the same warrant shall require the officer to whom it is directed to seize and hold all liquors found therein, also vessels, bar fixtures. Screens, glasses, bottles, jugs and other appurtenances apparently used in the sale keeping or storing of such liquors contrary to law.
Sec. 10. If, upon examination of such person, it shall appear to such justice, court, judge or mayor, that there is probable cause to believe him guilty of the offense charged, the accused shall be required to enter into a recognizance, with sufficient securities, in the sum of not less than five hundred dollars, to appear before the next term of the circuit or criminal or intermediate court of the county having jurisdiction, to answer an indictment if one be preferred against him; and upon his failure to enter into such recognizance, the justice, court, judge or mayor shall commit him to jail to answer such indictment. All material witnesses shall also be recognized, with or without sureties, as such justice, court, judge or mayor may deem proper, to appear before the grand jury at the next term of such court and give evidence against the accused, and such justice, court, judge or mayor shall require the accused to give bond with sufficient security in the sum of five hundred dollars conditioned that he will not violate any of the provisions of this act during the time intervening between the date of such bond and the adjournment of the next grand jury term of said circuit or criminal or intermediate court of the county; and upon his failure to give such bond, the justice, court, judge or mayor shall commit him to jail until such bond is given or until he is discharged therefrom by the circuit or intermediate court of the county.
Sec. 11. Whenever liquors shall be seized in any room, building or place which has been searched under the provisions of this act the finding of such liquors in such room or of a government license therein shall be prima facie evidence of the unlawful selling, and keeping and storing for sale of the same by the person, or persons, occupying such premises, or by any person named in any government license posted in such room, or his associates, agents or employes thereunder, and the proprietor or other persons in charge of the premises where such liquor was found, or who is so named in such government license, and his associates, shall be subject to trial by due process of law on the charge of selling or keeping or storing for sale unlawfully such liquor, under the indictment and form prescribed in section three of this act, and upon his conviction of selling, offering, storing or exposing for sale such liquor unlawfully, the liquor found upon said premises shall at once be publicly destroyed by some responsible person to be appointed by the court.
Sec. 12. If in such house, building or place, as is hereinbefore mentioned, the sale, offering, storing or exposing for sale of liquors is carried on clandestinely, or in such manner that the person so selling, offering, exposing, keeping or storing for sale, cannot be seen or identified by the officer or officers charged with the execution of a warrant issued under sections ten and eleven of this act, any such officer may, whenever it is necessary for the arrest or identification of the person so offending, or the seizing of such liquor, break open and enter such house, building or place.
Sec. 13. The payment of the special tax required of liquor dealers by the United States by any person, or persons other than druggists, within the state, shall be prima facie evidence that such person, or persons, are engaged in keeping and selling, offering and exposing for sale, liquors contrary to the laws of this state, and a certificate from the collector of internal revenue, his agents, clerks or deputies, showing the payment of such tax, and the name or names of person to whom issued, and the names of the person or persons, if any, associated with the person to whom such tax receipt is issued, shall be sufficient evidence of the payment of such tax, and of the association of such persons for the selling, and keeping, offering and exposing for sale of liquors contrary to the provisions of this act in all trials or legal inquiries.
Sec. 14. All houses, boat houses, buildings, club rooms arid places of every description, including drug stores, where intoxicating liquors are manufactured, stored, sold or vended, given away, or furnished contrary to law (including those in which clubs, orders or associations sell, barter, give away, distribute or dispense intoxicating liquors to their members, by any means or device whatever, as provided in section six of this act) shall be held, taken and deemed common and public nuisances. And any person who shall maintain, or shall aid or abet, or knowingly be associated with others in maintaining such common and public nuisance, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than one hundred nor more than five hundred dollars, and by imprisonment in the county jail not less than thirty days nor more than six months for each offense, and judgment shall be given that such house, building or other place, or any room therein, be abated or closed up as a place for the sale or keeping of such liquors contrary to law, as the court may determine.
Sec. 15. The state tax commissioner shall be ex officio state commissioner of prohibition. Wherever the word "commissioner" is used in this act, it shall mean and be taken to mean the state commissioner of prohibition.
Sec. 16. It shall be the duty of the commissioner, his deputies and agents, to superintend the enforcement of all provisions of this act, and of laws of this state affecting the manufacture, sale, keeping, exposing or offering for sale, or giving or soliciting or receiving orders for liquors, or laws connected in any way with the liquor traffic, to diligently inform themselves of all violations of such laws and either make report thereof to the prosecuting attorney of the proper county, who shall forthwith prosecute the same as provided by law, or said commissioner, his agents or deputies, shall make complaint of any violations of any such laws before the proper court or committing justice, and conduct the prosecution thereof in any court in the state having jurisdiction of such matters; and for the purpose of enforcing such laws, the said commissioner, his agents and deputies, shall have all the powers now vested in the prosecuting attorneys of this state and the attorney general thereof, and of sheriffs, their deputies, and constables and police officers of the state. Provided, that nothing in this act shall be construed to take from such prosecuting attorneys or the attorney general, or his assistants, any of the powers now conferred upon them by law, except as herein provided, or to relieve any of the said officers from any duty imposed upon him by any statute of this state.
Sec. 17. The commissioner, his agents and deputies, and the attorney general, prosecuting attorney, or any citizen of the county where such a nuisance as is defined in section fourteen of this act exists, or is kept or maintained, may maintain a suit in equity in the name of the state to abate and perpetually enjoin the same, and courts of equity shall have jurisdiction thereof. The injunction shall be granted at the commencement of the action and no bond shall be required.
It shall not be necessary for the court to find that the premises involved were being unlawfully used as aforesaid at the time of the hearing, but on finding that the material allegations of the bill are true, the court shall order that no liquors shall be sold, bartered, given away, distributed, dispensed or stored in such house, building, boat house, club room or other place, nor in any part thereof, for a period of not to exceed one year in the discretion of the court from and after such finding, in case of a drug store; in other cases the order for abatement shall be perpetual.
Any person violating the terms of any injunction granted in proceedings hereunder shall be punished for contempt summarily by the court without the impanelling of any jury to try the same, by a fine of not less than one hundred nor more than five hundred dollars, and by imprisonment in the county jail not less than thirty days nor more than six months, in the discretion of the court or judge thereof in vacation. In case decree is rendered in favor of the plaintiff in any action brought under the provisions of this section, the court entering the same shall also enter decree for a reasonable attorney's fee in such action in favor of the plaintiff against the defendants therein, which attorney's fee shall be taxed and collected as other costs therein, and when collected paid to the attorney, or attorneys of the plaintiff therein.
Sec. 18. In addition to the penalties prescribed for violation of any of the provisions of sections two to sixteen, inclusive, of this act, the court may in its discretion, when such conviction is had, require the defendant to execute bond with good security to be approved by the court or clerk thereof, in the penalty of one thousand dollars, conditioned not to violate any of the provisions of any of said sections for the term of two years, and in default of such bond may commit the defendant to jail for said term of two years, unless such bond be sooner given.
Sec. 19. All express companies, railroad companies and transportation companies within this state are hereby required to keep books in which shall be entered immediately upon receipt thereof the name of every person to whom liquors are shipped; the amount and kind received; the date when delivered, and by whom, and to whom delivered, after which record shall be a blank space in which the consignee shall be required to sign his name in person to such record, which book shall be open to the inspection of any state, county or municipal officer in this state, at any time during business hours of the company. Such books shall constitute prima facie evidence of the facts therein stated, and be admissible as evidence in any court in this state having jurisdiction, or in any manner empowered with the enforcement of the provisions of this act. Any employe or agent of any express company, railroad company or transportation company knowingly failing or refusing to comply with the provisions of this section, shall be guilty of a misdemeanor and punished by a fine of not less than fifty nor more than one hundred dollars and may be imprisoned in the county jail not less than thirty days nor more than six months.
Sec. 20. Any citizen or organization within this state may employ an attorney to assist the prosecuting attorney to perform his duties under this act, and such attorney shall be recognized by the prosecuting attorney and the court as associate counsel in the proceedings; and no prosecution shall be dismissed over the objection of such associate counsel until the reasons of such prosecuting attorney for such dismissal, together with the objections thereof of such associate counsel, shall have been filed in writing, argued by counsel and fully considered by the court.
Sec. 21. The prosecuting attorney of any county, with the approval of the governor, or of the court of the county vested with authority to try criminal offenses, or of the judge thereof in vacation, may, within his discretion, offer rewards for the apprehension of persons charged with crime, or may expend money for the detection of crime. Any money expended under this section shall, when approved by the prosecuting attorney, be paid out of the county fund in the same manner as other county expenses are paid.
Sec. 22. In all cases arising under this statute the state shall have the right to appeal.
Sec. 23. This entire act shall be deemed an exercise of the police powers of the state for the protection of public health, peace and morals, and all of its provisions shall be liberally construed for the attainment of that purpose.
Sec. 24. The manufacture of alcohol, wine and liquors, and the sale of the same by the manufacturer and by wholesale druggists, shall be under the supervision of the commissioner and under such rules and regulations as he may from time to time prescribe.
Sec. 25. Paragraphs b, c, d, h and y of section one, and section ten, section forty, section sixty-six, section seventy-four, section seventy-seven, sections eighty-seven, eighty-eight, eighty-eight-a, section ninety-two and section one hundred and twenty-a of the code of one thousand nine hundred and six, as amended and re-enacted by chapter eighty-two of the acts of one thousand nine hundred and seven, and sections eighty-seven, eighty-seven-a and section one hundred and twenty-a of chapter sixty-eight of the acts of one thousand nine hundred and nine, and all other acts and parts of act inconsistent with the provisions of this act are hereby repealed.
Sec. 26. All of the provisions of this act shall take effect on the first day of July, one thousand nine hundred and fourteen.