Ex parte Brown

CourtSupreme Court of South Dakota
Writing for the CourtFULLER
Citation114 N.W. 303,21 S.D. 515
Decision Date31 December 1907
PartiesEx parte BROWN.

21 S.D. 515
114 N.W. 303

Ex parte BROWN.

Supreme Court of South Dakota.

Dec. 31, 1907.


Application by R. F. Brown for writ of habeas corpus for his discharge from imprisonment. Granted.

[114 N.W. 304]

Aikens & Judge, for applicant.

Hall, Lawrence & Roddle, contra.


FULLER, P. J.

Upon a showing deemed sufficient to invoke the original jurisdiction of this court, a writ of habeas corpus directed to the sheriff of Minnehaha county was issued, and the question presented for review on the obedient return of that officer is whether the statute authorizes the process under which the petitioner is detained.

Omitting formal requisites of the complaint sworn to by the food and dairy commissioner before a justice of the peace by whose warrant the petitioner was apprehended, the supposed public offense is described as follows: “That on the 2d day of December, A. D. 1907, at the city of Sioux Falls, in said county, R. F. Brown did he then and there being, and being then and there a druggist engaged in the business of selling drugs and medicines, willfully, wrongfully, and unlawfully offer, expose for sale, and unlawfully sell to the said A. H. Wheaton certain prepared medicines, to wit, one bottle of Peruna, one bottle of Hamburger's Drops, one bottle of Chamberlain's Diarrhoea Remedy, one bottle of Piso's Cure for Consumption, one bottle of Kodol for dyspepsia, and one bottle of Dr. King's New Discovery, all of said prepared medicines being then and there misbranded, in that none of the said medicines bore a qualitative statement of what it was composed, and each and all of said medicines not being then and there such drugs as are recognized in the United States Pharmacopoeia and the National Formulary.” Whether the act complained of constitutes a public offense depends upon judicial power to supply certan terms claimed to have been inadvertently omitted by the Legislature, and which subject the petitioner to the operation of a penal statute in which the word “druggist” does not appear.

To sustain the assertion that a druggist who has sold prepared medicines containing no qualitative statement or analysis of contents is guilty of a misdemeanor, punishable by fine or imprisonment, we are directed to what is commonly called the “pure food law,” being chapter 151, p. 322, Laws 1907, entitled, “An act to provide for a state food and dairy commission; to prevent the adulteration, misbranding and imitation of foods, beverages and condiments, candies, drugs and medicines, meats and fish, and to regulate the manufacture and sale thereof, and of dairy products.” Section 1 of the act creates the food and dairy department, and empowers the Governor, by and with the consent of the Senate, to appoint a commissioner to take charge of the office at a salary of $1,600 per annum. Section 2 authorizes such food and dairy commissioner to appoint and fix the compensation of a department analyst, and such inspectors and office assistants as he may deem necessary to carry out the provisions of the act. Sections 3, 4, and 5 define the duties of the commissioner and analyst, and make provision for the payment of their actual and necessary expenses and of other employés of the department by the state monthly upon duly itemized and certified bills. Without any reference to either drugs or medicines, the four succeeding...

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9 practice notes
  • Townley, Matter of, No. 15547
    • United States
    • Supreme Court of South Dakota
    • April 22, 1987
    ...N.W.2d 882, 884-85 (S.D. 1984); Elk Point Independent Sch. Dist. v. State, 85 S.D. 600, 605, 187 N.W.2d 666, 669 (1971); Ex Parte Brown, 21 S.D. 515, 519, 114 N.W. 303, 305...
  • Petition of Famous Brands, Inc., No. 14269
    • United States
    • South Dakota Supreme Court
    • February 16, 1984
    ...lawmakers, it is equally fundamental that we must confine ourselves to the intention as expressed in the language used. Ex parte Brown, 21 S.D. 515, 519, 114 N.W. 303, 305 (1907). To violate the rule against supplying omitted language would be to add voluntarily unlimited hazard to the alre......
  • Jensen v. Turner County Board of Adjustment, No. 24134.
    • United States
    • Supreme Court of South Dakota
    • March 14, 2007
    ...lawmakers, it is equally fundamental that we must confine ourselves to the intention as expressed in the language used. Ex parte Brown, 21 S.D. 515, 519, 114 N.W. 303, 305 (1907). To violate the rule against supplying omitted language would be to add voluntarily unlimited hazard to the alre......
  • Appeal of AT & T Information Systems, No. 15370
    • United States
    • Supreme Court of South Dakota
    • April 22, 1987
    ...and Secondary Education, 85 S.D. 600, 187 N.W.2d 666 (1971), and the court must confine itself to the language used. Ex parte Brown, 21 S.D. 515, 114 N.W. 303 Words and phrases in a statute must be given their plain meaning and effect. Board of Regents v. Carter, 89 S.D. 40, 228 N.W.2d 621 ......
  • Request a trial to view additional results
9 cases
  • Townley, Matter of, No. 15547
    • United States
    • Supreme Court of South Dakota
    • April 22, 1987
    ...N.W.2d 882, 884-85 (S.D. 1984); Elk Point Independent Sch. Dist. v. State, 85 S.D. 600, 605, 187 N.W.2d 666, 669 (1971); Ex Parte Brown, 21 S.D. 515, 519, 114 N.W. 303, 305...
  • Petition of Famous Brands, Inc., No. 14269
    • United States
    • South Dakota Supreme Court
    • February 16, 1984
    ...lawmakers, it is equally fundamental that we must confine ourselves to the intention as expressed in the language used. Ex parte Brown, 21 S.D. 515, 519, 114 N.W. 303, 305 (1907). To violate the rule against supplying omitted language would be to add voluntarily unlimited hazard to the alre......
  • Jensen v. Turner County Board of Adjustment, No. 24134.
    • United States
    • Supreme Court of South Dakota
    • March 14, 2007
    ...lawmakers, it is equally fundamental that we must confine ourselves to the intention as expressed in the language used. Ex parte Brown, 21 S.D. 515, 519, 114 N.W. 303, 305 (1907). To violate the rule against supplying omitted language would be to add voluntarily unlimited hazard to the alre......
  • Appeal of AT & T Information Systems, No. 15370
    • United States
    • Supreme Court of South Dakota
    • April 22, 1987
    ...and Secondary Education, 85 S.D. 600, 187 N.W.2d 666 (1971), and the court must confine itself to the language used. Ex parte Brown, 21 S.D. 515, 114 N.W. 303 Words and phrases in a statute must be given their plain meaning and effect. Board of Regents v. Carter, 89 S.D. 40, 228 N.W.2d 621 ......
  • Request a trial to view additional results

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