Ex parte Brown
| Decision Date | 31 December 1907 |
| Citation | 21 S.D. 516,114 N.W. 303 |
| Parties | APPLICATION OF R. F. BROWN for a Writ of Habeas Corpus. |
| Court | South Dakota Supreme Court |
Original Proceedings
Writ Granted
Attorneys for applicant.
Hall, Lawrence & Roddle
Attorneys for resppondents.
Opinion filed December 31, 1907
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 courts 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, wilfully, wrongfully, and unlawfully offer, expose for sale, and unlawfully sell to the said A. H. Wheaton certain prepared med cines, 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 Pharmacopoe and the National Formulary.” Whether the act complained of constitutes a public offense depends upon judicial powers to supply certain 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 employees of the department by the state monthly upon duly itemized and certified bills. Without any reference to either drugs or medicines, the four succeeding sections of the act are devoted to a legislative definition of the term “food,” and a recital of what constitutes its adulteration or misbranding, and immediately following is section 10, which reads as follows, and is measurably relied upon to sustain this prosecution:
Neither the term “druggist” nor “medicine” was employed by the Legislature in this provision, and the unlawful possession of the adulterated or misbranded “drug,” mentioned only in the final sentence, is unaccountably limited to the dispensers of food. The 23 sections of the statute immediately following the provision above quoted are devoted to dairy products and various articles of food, and the word “drug” as used in the act is first defined in section 34. Section 35, consisting of eight subdivisions, is declarative merely of what conditions are essential to constitute misbranded or adulterated drugs or articles of food; but no language is used therein tending in the slightest degree to evidence a legislative intent to make anything unlawful or justify the infliction of a penalty for the sale or offering for sale of prepared medicine “bearing no qualitative statement of what it is composed.” While this section regulates nothing, and is merely descriptive...
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