Hypophosphites & Borax Cases. State v. Donaldson

• Decision Date: 18 June 1889
• Citation: 41 Minn. 74,42 N.W. 781
• Parties: HYPOPHOSPHITES AND BORAX CASES. STATE v DONALDSON ET AL., (TWO CASES)
• Court: Minnesota Supreme Court

41 Minn. 74

42 N.W. 781

HYPOPHOSPHITES AND BORAX CASES.STATEvDONALDSON ET AL., (TWO CASES)

Supreme Court of Minnesota.

June 18, 1889.

(Syllabus by the Court.)

1. The title of chapter 147, Laws 1885, to-wit, “An act to regulate the practice of pharmacy, the licensing of persons to carry on such practice, and the sale of poisons in the state of Minnesota,” sufficiently expresses the subject of regulating the sale of drugs and medicines not poisons.

2. The provision permitting shop-keepers, (not pharmacists,) whose places of business are more than one mile from a drug-store, to sell the commonly used medicines and poisons, if put up by a registered pharmacist, but prohibiting such sales within that distance, is not an arbitrary discrimination, but reasonable in view of the necessities and convenience of those who reside at a distance from a regular drug-store. The proviso in the twelfth section construed as excepting generally from the provisions of the act the sale of “patent or proprietary medicines.” The act held to apply only to articles whose primary and principal uses are medicinal, and commonly understood as medicines, and as not including (at least when not prepared and sold for medicinal purposes) articles commonly used in the arts or industrial pursuits, or for domestic purposes; although also frequently used in compounding medicines. The sale of borax, not for medicinal use, is not within the act.

Appeals from municipal court of Minneapolis; EMERY, Judge.

Prosecutions against Donaldson & Co. for retailing medicines, not being themselves registered pharmacists nor having a registered pharmacist in their employ. Defendants appeal.

Keith, Evans, Thompson & Fairchild, for appellants.

V.M. Gore, for the State.

MITCHELL, J.

Most of the questions raised on these appeals are common to both, and hence the two may be considered together. The facts are correctly and fully set out in the statements prefixed to appellants' briefs, except that it should be added that the preparation called “Beef, Iron, and Wine,” is not a “patent” or “proprietary” medicine, and that it has no other use but medicinal. The questions involved are the construction and validity of chapter 147, Gen. Laws 1885, entitled “An act to regulate the practice of pharmacy, the licensing of persons to carry on such practice, and the sale of poisons in the state of Minnesota.” The first section of the act provides that it shall be unlawful for any person, other than a registered pharmacist, to retail, compound, or dispense drugs, medicines, or poisons, or to institute or conduct any pharmacy, store, or shop for the retailing, compounding, or dispensing drugs, medicines, or poisons, unless such person shall be a registered pharmacist, or shall employ, and place in charge of such pharmacy, store, or shop, a registered pharmacist. The next 10 sections (the provisions of which are not assailed) relate to the qualifications required to become a registered pharmacist, the manner of admission, and registration as such; and create a board of pharmacy, among whose duties is that of examining applicants for admission, and issuing certificates to those found qualified. Section 12 prohibits, under certain penalties, any person, not a registered pharmacist, from retailing, compounding, or dispensing medicines; and also prohibits any person from permitting the compounding and dispensing of prescriptions, or the vending of drugs, medicines, or poisons in his store or place of business, except under the supervision of a registered pharmacist: “provided, that nothing in this act shall, in any manner, interfere with the business of any physician in regular practice, or prevent him from supplying to his patients such articles as may seem to him proper, nor with the making of proprietary medicine or medicines placed in sealed packages with the name of the contents and of the pharmacist or physician by whom prepared or compounded, nor prevent shopkeepers, whose place of business is more than one mile from a drug or apothecary shop, from dealing in and selling the commonly used medicines and poisons, if such medicines and poisons are put up by a registered pharmacist, or from dealing in and selling of patent or proprietary medicines, nor with the exclusively wholesale business of any dealers, except as heretofore provided.” Section 13 makes every proprietor or conductor of a drug-store responsible for the quality of all drugs, chemicals, and medicines sold or dispensed by him, “except those sold in the original package of the manufacturer, and except those articles or preparations known as ‘patent’ or ‘proprietary’ medicines.” Section 14 prohibits the retailing of poisons commonly recognized as such without labeling them “Poison.”

1. The first point made against this act is that the provisions regulating or prohibiting the sale of drugs or medicines (not poisons) are invalid, because not expressed in the title. The line of argument by which this contention is supported is that the subject expressed in the last division of the title is the sale of poisons, and that the only subjects expressed in the first two divisions are “regulating the practice of pharmacy,” and “the licensing of persons to carry on such practice.” We are then referred to the etymological definition of “pharmacy” as the science or art “of preparing and compounding medicines,” as distinguished from their sale. But this is altogether too technical. It will not do to apply strict etymological definitions to the language of the enactments of a popular legislature. As a matter of fact, in this country the business of pharmacist, or apothecary and druggist, is all one; and the same person who prepares and compounds medicines also sells them; so that, in popular speech, all three are used interchangeably, as practically synonymous. It was with the regulation of pharmacy as an occupation or business, in its relations to the public, that the legislature had to do; and the term “practice of pharmacy,” as used in the title of this act, is intelligible only as it includes the sale to the public of drugs and medicines. The title fully apprised the legislature of the general subject of the enactment, and all the provisions of the act are germane to that subject.

2. It is objected that the “one-mile” limitation in the proviso in the twelfth section is arbitrary, and not founded upon any natural or apparent reason suggested by necessity, or by such a difference in the situation or circumstances as suggests the necessity or propriety of a distinction; and it is claimed that for this reason the act is void. Doubtless, the use of impure medicines or dangerous drugs is just as injurious to those who buy them one mile from a drug-store as to those who buy them within that distance; and, if this was the only thing to be taken into the account, the discrimination would be purely arbitrary. But the legislature had to deal with this as a practical question, and had a right to take into consideration the convenience of the public. In sparsely settled districts, frequently, there is no pharmacy or drug-store near at hand. In case of sickness it is often absolutely necessary to obtain medicinal remedies promptly, in order to save life. The question was, how far was it practicable to protect the public from the sale of impure or dangerous medicines and drugs, and at the same time have due regard to the convenience of those living at distance from a drug-store? To meet the requirements of the situation, the legislature made an exception so as to allow shop-keepers whose place of business is more than a mile from a drug or apothecary shop to deal in and sell the commonly used medicines and poisons, if put up by a registered pharmacist; thereby protecting the public, especially in the centers of population where they most need it, as far as practically consistent with the convenience or necessities of those...