Noel v. People

• Decision Date: 19 October 1900
• Citation: 187 Ill. 587,58 N.E. 616
• Parties: NOEL v. PEOPLE.
• Court: Illinois Supreme Court

187 Ill. 587

58 N.E. 616

NOEL

v.PEOPLE.¹

Supreme Court of Illinois.

Oct. 19, 1900.

Appeal from criminal court, Cook county; John Gibbons, Judge.

Action by the people of the state of Illinois against Theodore Noel. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Carter, J., dissenting.

E. A. Sherburne, for appellant.

Charles S. Deneen, State's Atty. and Fred L. Fake, Asst. State's Atty. (Gabriel J. Norden and Kitt Gould, of counsel), for the People.

This is an action of debt, brought by the people of the state of Illinois against Theo. Noel, the appellant, to recover a penalty for the violation of section 2 of the pharmacy act. On September 1, 1899, a judgment was rendered before a justice of the peace in Cook county on the verdict of a jury against the appellant, and in favor of the appellees, for $20 and costs. An appeal was taken by the appellant to the criminal court of Cook county, where the cause was submitted to the court for trial without a jury, and on February 2, 1900, judgment was rendered for the people against the appellant for $20 and costs. The present appeal is prosecuted from such judgment of the criminal court of Cook county. Ever since 1880 appellant has been and is engaged in preparing and selling in various forms, but principally in a powdered state, a kind of iron ore, called ‘Vitae-Ore.’ This ore, when it has been mined and exposed for some years to the air, becomes disintegrated or slaked, somewhat like burned limestone. When it has reached this stage, if it be put in water it makes an agreeable, subacid drink, which possesses, or is claimed to possess, valuable medicinal qualities. Appellant puts it up in powdered form, in sealed packages, from two ounces in weight upward, and in this form it is distributed and sold. In addition to this Vitae-Ore, the appellant has been and is manufacturing and selling a number of other medicinal articles, such as tooth poder, hair tonic, complexion cream, etc. His place of business is, and for some years has been, at 860 West Polk street, in Chicago, where he employs a large force of men and other medicinal articles, such as tooth powder, articles in sealed packages, boxes, bottles, etc., and shipping them out by freight, express, or mail to his agents. He does not sell at retail any more than any ordinary wholesale merchant; but, if applied to, sells one or more sealed packages or articles, as the applicant may desire. As general manager of the business, he employs his son, Dr. Joseph Noel, a graduate of the Jefferson Medical College of Philadelphia, and a physician, who has been engaged for several years in general practice, and is regularly licensed to practice medicine in the state of Illinois. On October 30, 1897, appellant applied to the state board of pharmacy, at Springfield, for a license to sell his products, tendering with such application the statutory fee of one dollar therefor; but the board refused to grant said license, without giving any reason for such refusal. On June 28, 1899, a person in appellant's employment sold a package of said Vitae-Ore; and the person so selling it was not then a registered pharmacist, or assistant registered pharmacist, or a pharmacist's apprentice. The purchaser of said package paid a dollar for it. The package was put in evidence. It was in a strong paper bag, securely sealed up, and contained about two ounces of the powder, labeled, ‘Concentrated Compound Extract of Vitae-Ore Elixir,’ etc. It is admitted that appellant's place of business was not a drug store, and that drugs were not kept there.

MAGRUDER, J. (after stating the facts).

Upon the trial of this case in the court below, the appellant asked the court to hold as law, in the decision of the case, several propositions of law questioning the constitutionality of sections 2 and 8 of the act of the legislature of Illinois entitled ‘An act to regulate the practice of pharmacy in the state of Illinois,’ as amended and in force July 1, 1895. Hurd's Rev. St. Ill. 1897, pp. 1075, 1076. These propositions of law were refused by the trial court, and to the ruling of the court in this regard exception was duly taken by the appellant. The question thus presented for our consideration is the constitutionality of said sections 2 and 8 of the pharmacy act. Section 2 is as follows: ‘It shall be unlawful for any person not a registered pharmacist within the meaning of this act to open or conduct any pharmacy, dispensary, drug store, apothecary shop or store, for the purpose of retailing, compounding or dispensing drugs, medicines, or poisons, and any person violating the provisions of this section shall be liable to a penalty of not less than twenty nor more than one hundred dollars for every such violation: provided, however, that nothing in this act shall prevent any person or persons owning a drug store or pharmacy who shall employ and place in active and personal charge of the same, a registered pharmacist, and that nothing herein contained shall apply to nor in any manner interfere with the practice of any physician, or prevent him from supplying to his patients such articles as may seem to him proper, nor with the exclusively wholesale business of any wholesale druggist; nor with the sale of patent and proprietary medicines and domestic remedies by retail dealers in localities as hereinafter provided.’ Section 8 of the act is as follows: ‘The board of pharmacy may in their discretion issue permits to persons, firms or corporations engaged in business in villages or other localities, empowering them to sell the usual domestic remedies and proprietary medicines under such restrictions as the board of pharmacy may deem proper. Each applicant for this permit shall pay to the said board the sum of one dollar before said permit shall issue. Said permit shall specifically state just what the holder thereof is allowed to sell.’ Section 4 of the act is as follows: ‘The term drug store or pharmacy shall for all purposes of this act be construed to mean a store, shop or other place of business where drugs, medicines or poisons are compounded, dispensed or sold at retail.’

The proviso to section 2 provides that nothing contained in the act shall apply to or interfere with the sale of patent and proprietary medicines and domestic remedies by retail dealers in localities ‘as hereinafter provided.’ The words ‘as hereinafter provided’ refer to section 8 of the act. The latter section confers upon the board of pharmacy the power, in their discretion, to issue permits to persons, firms, or corporations engaged in business in villages or other localities, empowering them to sell the usual domestic remedies and proprietary medicines under such restrictions as the board may deem proper. It is manifest that section 8 vests an arbitrary power in the board of pharmacy to say who shall and who shall not sell the usual domestic and proprietary remedies in villages and other localities, and just exactly what they are allowed to sell. Section 8 in no way regulates or controls the discretion vested thereby in the board. The official discretion conferred upon the board is unregulated, and not subjected to any permanent provisions operating generally and impartially. No conditions are prescribed upon which the permit authorizing the sale of the usual domestic remedies and proprietary medicines is to be issued. A law which thus invests any board or body of officials with a discretion which is purely arbitrary, and which may be exercised in the interest of a favored few, is invalid. It makes an unjust discrimination between persons coming within the same class. A person, firm, or corporation engaged in business in a village or other locality may sell these domestic remedies and proprietary medicines if a permit is obtained from the board of pharmacy, provided such board sees fit, in its discretion, and under such restrictions as it may deem proper, to issue such permit. The board is thus authorized to confer a privilege upon one person, firm, or corporation, and to deny the same privilege to any other person, firm, or corporation, and is not required to be governed, in doing so, by any fixed rules or regulations, but may be moved thereto only by its own caprice or favoritism. Laws thus conferring discretionary and arbitrary power upon statutory officials are not only invalid for the reasons already stated, but amount, in effect, to a delegation by the legislature of its legislative functions to the board or officials in question. The legislature undoubtedly has the power, in the interest of the public health, to pass a law regulating the disposition of these domestic remedies and proprietary medicines; but, instead of doing so, in section 8, it has abdicated its own power upon the subject, and conferred such power upon the board of pharmacy, to be exercised according to the discretion of the board. Cicero Lumber Co. v. Town of Cicero, 176 Ill. 9, 51 N. E. 758;City of Cairo v. Feuchter, 159 Ill. 155, 42 N. E. 308;City of Monmouth v. Popel, 183 Ill. 634, 56 N. E. 348.

But, independently of the considerations thus far presented, section 2 not only forbids any person to compound or dispense drugs or medicines, and sell the drugs or medicines so compounded at retail, unless such person is a registered pharmacist, but it also forbids any person to sell patent and proprietary medicines and domestic remedies at retail unless such person is a registered pharmacist. In other words, a...