People ex rel. State Board Of Heaith v. Wilson

• Decision Date: 25 February 1911
• Citation: 94 N.E. 141,249 Ill. 195
• Parties: PEOPLE, for the Use of STATE BOARD OF HEAITH, v. WILSON.
• Court: Illinois Supreme Court

249 Ill. 195

94 N.E. 141

PEOPLE, for the Use of STATE BOARD OF HEAITH,

v.WILSON.

Supreme Court of Illinois.

Feb. 25, 1911.

Appeal from Circuit Court, Kankakee County; Frank L. Hooper, Judge.

Action by the People, for the use of the State Board of Health, against J. A. Wilson. Judgment for defendant. Plaintiff appeals. Affirmed.

W. H. Stead, Atty. Gen., and J. Bert Miller, State's Atty. (June C. Smith and Charles E. Woodward, of counsel), for appellant.

Whitley & Fitzgerald (John A. Barnes, of counsel), for appellee.

This was an action of debt commenced in the name of the people, for the use of the State Board of Health, against J. A. Wilson, before a justice of the peace in Kankakee county, for the violation of paragraph 12 of chapter 91 (Hurd's Rev. St. 1909, p. 1474), which reads as follows: ‘That any itinerant vender of any drug, nostrum, ointment or appliance of any kind intended for the treatment of diseases or injury, who shall, by writing or printing, or any other method, profess to the public to cure or treat disease or deformity by any drug, nostrum of application, shall pay a license of one hundred dollars ($100) per month into the treasury of the board, to be collected by the board in the name of the people of the state of Illinois, for the use of said board. And it shall be lawful for the State Board of Health to issue such license on application made to said board, said license to be signed by the president of the board and attested by the secretary with the seal of the board; but said board may, for sufficient cause, refuse said license. And such itinerant vender who shall, by writing or printing, or any other method, profess to cure or treat disease or deformity by any drug, nostrum or appliance without a license so to do, shall be deemed guilty of a violation of this section, and upon conviction shall be subject to the penalties hereinafter provided.’ Subsequent sections of the act provide that, in case of conviction, the offender shall be fined in the sum of $100 for the first offense $200 for each subsequent offense, and stand committed to the county jail until the fine and costs are paid. The defendant was acquitted before the justice of the peace and the people took an appeal to the circuit court, where, at the close of the evidence, the court instructed the jury to return a verdict in favor of the defendant on the ground that said paragraph of the medical and surgery act was unconstitutional and void, and the people have prosecuted a further appeal to this court.

It appears from the evidence that the appellee was engaged in selling from a wagon, in Kankakee county, a patent or proprietary liniment, called ‘Porter's Pain King,’ recommended for colds, headaches, bruises, burns, cramps, neuralgia, etc., manufactured by the George N. Rundle Company, at Piqua, Ohio. This liniment was put up in bottles, each bottle being wrapped in printed matter and sealed in a pasteboard package, and was sold in the original package. The evidence showed one sale to Charles H. Thurston. - e1501114 State's Atty. (June C. Smith and Charles E. Woodward, of counsel), for appellant.

Whitley & Fitzgerald (John A. Barnes, of counsel), for appellee.

HAND, J. (after stating the facts as above).

It is first contended that paragraph 12 of the medical and surgery act is a valid police regulation. It is undoubtedly true that the Legislature has the right, under the police power, to pass enactments for the benefit and protection of the public health, but it is equally well settled that the exercise of the police power is limited to such measures as are designed to promote the public health, the public morals, the public safety, or the public welfare. When it can be seen from the provisions of a statute that it has no tendency to promote the public health, safety, morals, or welfare, the courts will, when such a statute is called in question before them, hold it invalid. City of Chicago v. Netcher, 183 Ill. 104, 55 N. E. 707,48 L. R. A. 261, 75 Am. St. Rep. 93. In this state, at the present time, all persons other than an itinerant vender have the right to vend patent or proprietary medicines, and an itinerant vender may obtain that right upon the payment of a monthly license fee of $100. On obtaining a license as such itinerant vender from the State Board of Health, no qualifications other than the payment of such license fee and the receipt of the license are necessary to authorize such itinerant vender to vend such medicines. As a prerequisite to obtaining a license, the statute does not require an itinerant vender to have any knowledge of the patent or proprietary medicine which he is seeking to sell, and after he has obtained a license it does not require of him that he make any analysis, inspection, or examination of the medicine he proposes to sell. We are unable to see how the public health is in any way protected by limiting such sales, when made by an itinerant vender, to an itinerant vender who has a license, who has no knowledge of what he sells or makes no examination of what he sells. It is a matter of common knowledge that patent or proprietary medicines are prepared, put up, and marked and ready for use by the public so soon as they leave the hands of the manufacturer. They are in packages or bottles, are labeled with the name, and are accompanied with wrappers containing directions for their use and the conditions for which they are claimed to be specifics, and there is nothing that calls into use any skill or science on the part of one who sells them, and one man can do it just as well as another, and the man who buys is just as well protected when he purchases from a druggist, a groceryman, or an unlicensed itinerant vender as he would be if he purchased from an itinerant vender who had paid a license fee of $100 per month for the privilege of making a sale. It is also a matter of common knowledge that practically all patent or proprietary medicines that are sold in the cities and towns of the state are sold by persons who are engaged in conducting drug stores. The only effect, therefore, of the statute, if it is a valid statute, is to give the druggists and the licensed itinerant venders a monopoly of the business of selling patent or proprietary medicines without in any way affording any additional protection to the health of the public. We think, however, the license fee in this case is so high as to be prohibitive upon the itinerant vender (which feature of the statute we will consider later), and that the practical operation of this statute must be to give the druggists of the state a monopoly of the business of selling patent and proprietary medicines without in any way conserving the health of the public, which was the ground upon which a similar statute was held invalid in Noel v. People, 187 Ill. 587, 58 N. E. 616,52 L. R. A. 287, 79 Am. St. Rep. 238. In that case a statute had been passed which authorized sales of patent and proprietary medicines to be made only by registered pharmacists, and this court held that the act was not a valid exercise of the police power of the state. In City of Chicago v. Netcher, supra, the court had before it an ordinance making it unlawful for any person, firm, or corporation engaged in selling ‘dry goods, clothing, jewelry and drugs * * * to have exposed for sale, or sell to any person, firm or corporation, any meats, fish, butter, cheese, lard, vegetables or any other provisions.’ It was held that the ordinance was not a police regulation but was purely an arbitrary prohibition, and was void as an unlawful interference with property rights granted by the state and federal Constitutions. On page 111 of 183 Ill., on page 708 of 55 N. E. (48 L. R. A. 261, 75 Am. St. Rep. 93), the court said: ‘In order to sustain legislative interference with the business of the citizen by virtue of the police power, it is necessary that the act should have some reasonable relation to the subjects included in such power. If it is claimed that the statute or ordinance is referable to the police power, the court must be able to see that it tends,...