«OFFICIAL OPINIONS OF THE ATTORNEY GENERAL - 1918 138. State Assayer and InspectorFees. The State Assayer and Inspector cannot charge less than 25 ...»
The section further provides that no druggist shall sell any such grain alcohol for medicinal purposes except upon a written prescription, in a prescribed form, of a physician of good standing in his profession and not of intemperate habits, or addicted to the use of any narcotic drug; and that 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 and file an affidavit in the form prescribed by the Act.
Although the Act does not specifically require a prescription or an affidavit for the sale of anything except alcohol and wine, it does provide that any druggist who shall sell or give away any liquors without such affidavit or prescription shall be deemed guilty of a misdemeanor and be subject to a penalty. As a penalty implies a prohibition, the literal construction of the statute requires that the prescribed affidavit or prescription must be filed with the druggist before he can sell or give away any liquors. The word “liquors,” as used in the 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; * * * 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.” This language, literally construed is certainly sufficiently broad and comprehensive to include every liquor which contains any quantity of alcohol. It is a matter of common knowledge that alcohol is the intoxicating principle or the basis of all intoxicating drinks, and that whatever contains alcohol will, if a sufficient quantity be taken, produce intoxication. Consequently, all liquor containing alcohol is within the letter of the statute. But, if the letter of the statute be followed, many absolutely necessary toilet and culinary purposes are included within any one of the four. A person who desires bay-rum or cologne for toilet purposes or lemon extract for cooking purposes cannot get a physician’s prescription, therefor, nor file an affidavit that he intends to use it for mechanical pharmaceutical or scientific purposes, and yet only in those ways does the Act provide for sales. Neither can a person, if the statute be literally followed, purchase any one of the numerous meritorious patent medicines, without a prescription. As a prescription cannot, in many instances be obtained, the purchase of many of such medicines will be absolutely prohibited.
Druggists selling intoxicating liquor o grain alcohol, used for filling prescriptions, must take out special-tax stamps as retail liquor dealers. Without the payment of a United States liquor dealer’s tax, they cannot sell filled prescriptions containing grain alcohol. Literally construed, the Act will prevent the sale of any United States pharmacopeia or national formulary preparation in conformity with the Nevada pharmacy law, if the same contains alcohol, for the reason that such sale requires the payment of a United States liquor dealer’s tax. And, if the payment of the tax be sufficient to prevent the sale of any pharmacopeia or national formulary preparation, it is also sufficient to prevent the sale of grain alcohol.
It is apparent, particularly in view of the fact that section 13 of the Act contemplates the payment of such a tax, that the letter of the law is absurd and must give way to its spirit and reason.
Besides, the initiative prohibition measure is a penal statute. All of its provisions, with reference to druggists, are exceptions to the general law. Under the rules governing the construction of penal statutes, provisions creating exceptions must be liberally construed. (Ex Parte Davis, 33 Nev. 309, 110 Pac. 1131.) In the opinion of this office, the spirit and reason of the law, liberally construed with
reference to druggists, justify the following conclusions:
1. Druggists may carry in stock and may sell for medicinal purposes, upon prescription, any United States pharmacopoeia or national formulary preparation in conformity with the Nevada pharmacy law, which includes whisky, brandy, and many other of the most intoxicating liquors.
2. Druggists may carry in stock and may sell, for medicinal purposes upon prescription and for mechanical, pharmaceutical and scientific purposes upon affidavit, pure grain alcohol.
3. Druggists may carry in stock and may sell, without a prescription, any preparation which is exempted by the provisions of the national pure food law, if the sale of the same does not require the payment of the United States liquor dealer’s tax.
Yours very truly, GEO. B. THATCHER, Attorney-General.
BY WM. McKNIGHT, Deputy.
249. Public Schools—School Teachers—Salaries—Epidemic—Quarantine.
School trustees may lawfully pay salaries of teachers for an intermission of thirty days caused by declaration of quarantine on account of an epidemic, and, if it is necessary to close the school again at the expiration of said time, they may declare another thirty days’ intermission and pay salaries therefor.
CARSON CITY, December 16, 1918.
MR. WILLIAM M. HANSEN, Gardnerville, Nevada.
DEAR SIR: In answer to your favor of the 12th instant asking the law in regard to the payment of teachers during quarantine, let me say that section 104 of the School Code was amended by the Statutes of 1917, p. 398, by adding the additional proviso “that when on account of sickness or epidemic a longer intermission is ordered by the Board of School Trustees or by a duly constituted Board of Health, and such intermission or closing does not exceed thirty days at any one time, there shall be no deduction or discontinuance of salary or salaries therefor.” Under such amendment this office has held that School Trustees may lawfully pay salaries of teachers for an intermission of thirty days, and, if the epidemic or quarantine is not lifted at the end of that time, the board may cause the school to assemble again and after one day’s session declare another thirty-day period of quarantine, during which, of course, the teachers’ salaries will continue.
Trusting this will give you the information desired, I am Yours very truly, GEO. B. THATCHER, Attorney-General.
MRS. EDNA COVERT PLUMMER, District Attorney, Eureka, Nevada.
DEAR MRS. PLUMMER: Owing to press of business it has been impossible to answer your favor of the 6th instant, asking information on several matters, until this time. I trust the delay has not inconvenienced you or the commissioners. Permit me to answer your various inquiries as
First—A bill for expenses in holding train and telegram, amounting to $21.50, was presented to your board and passed, and the auditor vetoed the claim.
These expenses were incurred in the prosecution of a criminal action, and the auditor vetoed the claim on the ground that the State was a party to the suit and that the county was not interested in it. The auditor was clearly wrong in his ruling, as the county is also ap arty to every criminal suit, although the State is the nominal plaintiff, and you were correct in advising the Commissioners that they had a right to allow this claim under the twelfth subdivision of section 1508, Rev. Laws, which gives the Board of County Commissioners power to control the prosecution or defense of all suits in which the county is a party.
If they did not have such power they would have no right to allow witness fees in any ordinary criminal action.
Second—Your county officers wish to know whether the taxes of 1918, already paid in, can be used for paying road expenses. It seems that, owing to severe storms in your county, there was much road-work done and the county fund was not sufficient to pay the expenses incurred.
In my opinion the Act regulating the fiscal management of county, cities, towns and school districts and other governmental agencies (Stats. 1917, p. 249) gives the answer to this question.
Section 3 of the Act requires the County Commissioners to prepare a budget: section 4 makes it unlawful for any Commissioner or Board of Commissioners, or any officer of the county, to allow or contract for any expenditure unless the money for the payment thereof is in the treasury and especially set aside for such payment.
I assume that the county of Eureka followed this law in 1918 and prepared a budget and the county road fund, therein provided, proving insufficient, section 4 expressly prohibits the use of any moneys not in the budget for making up the deficiency.
This deficiency, however, may be made by using the provisions of section 11 of the Act in regard to emergency loans. As the deficiency is small, the same may be met by the provisions of Rev. Laws, 1540, which allows the County Commissioners to transfer any surplus moneys which may be in any of the county funds from fund to another.
Third—It seems that the jail of Palisade, Nevada was destroyed by fire; that the Commissioners had the jail at Buckhorn torn down by a certain person at day’s labor; that another person hauled the l umber therefrom and was paid at the rate prevailing in the county; that when the lumber was delivered in Palisade, the person who tore down the jail at Buckhorn rebuilt the jail at Palisade at day’s wages, and that, in addition to the lumber from the Buckhorn jail, the County Commissioners ordered additional lumber and cement, which additional material was used for building a room for holding the county fire-fighting machine, and for a toilet.
When all the work was finished, it was found the entire cost was over $500 and you wish to know whether the County Commissioners in view of Rev. Laws, 1530, are authorized to allow and pay the claim for the same.
Section 1530 provides that in letting contracts, when the aggregate exceeds the sum of five hundred dollars, the County Commissioners shall advertise such contracts to be let.
In my opinion, said section does not apply, because it appears that at least four different contracts were involved in this transaction—one for tearing down the jail; another for hauling the lumber; another for erection of the new building, and another for supplying additional material.
As neither of these four contracts aggregated $500, the Commissioners do not violate said section 1530.
Under these circumstances, there is no reason why the claim of one person, even though over $500, should not be allowed and paid in a lump sum by the Commissioners.
Trusting this will give you the information desired, I am Yours very truly, GEO. B. THATCHER, Attorney-General.
251. Public School—Evening Schools.
The schools contemplated in the Evening School Act (Stats. 1917, p. 354) are to be free schools, maintained by the state and county funds, and no tuition fee can be required of any one desiring their benefit.
The State Superintendent of Public Instruction cannot authorize State money to be paid for teachers for the maintenance and support of evening schools where tuition fees are charged.
CARSON CITY, December 19, 1918.
HON. JOHN EDWARDS BRAY, Superintendent of Public Instruction, Carson City, Nevada.
DEAR SIR: Your favor of the 1st instant, asking construction of the evening-school act (Stats. 1917, p. 354) received.
It seems that a certain school district opened a tuition evening school, and through its city superintendent requested state aid for the salary of its teacher or teachers, and that the school is for commercial work only.
Later a petition was filed with the state Board of Education, but signed mainly by the students of the tuition evening classes, asking for an evening school for commercial classes only.
It further appears that the regular commercial teacher is being paid extra salary from the school funds of the district in question for doing the evening school for commercial classes only.
It further appears that the regular commercial teacher is being paid extra salary from the school funds of the district in question for doing the evening commercial work, or a part of it, and that a part or all of the tuition paid reverts to the school district in compensation for extra salary paid the commercial teacher in the high school.
You state that your view of the law is that these evening schools ought to be free schools for the people of the community, to be maintained under the limitations of the Act by state and county funds, and that no tuition charge can be required of any one desiring the benefit of the same, and state that, if this view is correct, you cannot authorize state money to be paid therefor.
In the opinion of this office, you have correctly stated the scope of the evening-school Act, and such schools are to be free schools, maintained by state and county funds, and no tuition fee can be required of any one desiring their benefit.
In the opinion of this office, you cannot authorize state money to be paid for teachers for the maintenance and support of evening schools where tuition fees are charged.
Yours very truly, EDW. T. PATRICK, Deputy Attorney-General.
252. Prohibition—Initiative Prohibition Law—Druggists—Denatured Alcohol.
Druggists may sell denatured alcohol without prescription affidavit.
Druggists may carry in stock and may sell for medicinal purposes, upon prescription, any United States Pharmacopeia or national or national formulary preparation in conformity with the Nevada Pharmacy Law, which includes whisky, brandy, and many other of the most intoxicating liquors.
CARSON CITY, December 20, 1918.
HON. G.J. KENNY, District Attorney, Fallon, Nevada.
DEAR SIR: Your letter of the 17th instant, relative to the application of the initiative prohibition law, just received. The questions therein asked will be answered in their order as