People v. Moorman
| Decision Date | 03 July 1891 |
| Citation | 49 N.W. 263,86 Mich. 433 |
| Court | Michigan Supreme Court |
| Parties | PEOPLE v. MOORMAN. |
Exceptions from circuit court, Ionia county; VERNON H. SMITH, Judge.
A. A. Ellis, Atty. Gen., for the People. John C. Dooling and F. C. Miller, for defendant.
October 30, 1889, at the village of Belding, in Ionia county, James H. Kinnane, employed by the state board of pharmacy to prosecute violations of the pharmacy law, went into the drug-store of Spencer Bros., and asked for a half ounce of aloes and myrrh, which was furnished him by the respondent. Neither of the Spencer Bros. were present, nor was a registered pharmacist or a registered assistant pharmacist in the store, at the time this tincture was put up. A short time afterwards, and on the same day, Kinnane again went into the store, and called for an ounce of tincture of iodine and one ounce of carbolic acid, the same being, in the language of the records, "drugs, medicines, and poisons." The tinctures were put up for him by the respondent. Kinnane afterwards saw respondent, and asked him if he was a registered pharmacist or registered assistant and he said he was not; that he was a practicing physician and registered as such, and considered that he had a right to dispense such drugs without being registered as a pharmacist, and that the laws of Michigan would protect him in so doing. The court refused to direct a verdict of not guilty on these facts, upon a trial of the respondent in the Ionia circuit court upon appeal from justice court, where he was tried and convicted of violating the pharmacy law. The respondent, Moorman, in his defense, admitted the facts above stated, and showed that he was a reputable physician of 3 years' practice, now registered in Ionia county; that he had 10 years' experience as a pharmacist years ago; that he sold the drugs without any willful intent to violate the law, but relying upon his right to do so because of being a registered physician; that Kinnane was not his patient, and he did not furnish him the drugs as a patient. He testified that any reputable physician should be able, and is able, to compound medicines and poisons, and prepare his own prescriptions and the prescriptions of any other physician, and that the sale of patent medicines is no part of the business of a practicing pharmacist. In this he was corroborated by the testimony of Henry Tremayne, a practicing physician for 15 years, residing at Ionia, who also testified that the tincture of iodine and carbolic acid was not used in coloring and in tanning. Charles Thompson, a registered pharmacist, residing at Ionia, testified that the sale of patent medicines was not necessarily any part of the business of a pharmacist; that any one who could read could sell them as well as a person who had three years' experience, or any other term of years; that proprietary and patent medicines are usually kept in pharmacies. This is the substance of all the testimony. The counsel for the respondent, at the close of the evidence, requested the court to direct a verdict of not guilty, on the ground that the law was unconstitutional and void. This request was refused, and the court instructed the jury that if they found that respondent sold the tincture of iodine and carbolic acid, and that the same were not used for coloring and tanning, then they should find a verdict of guilty. The jury returned a verdict of guilty, and the case comes here upon exceptions before judgment. It is admitted by the counsel for the defendant, in his argument in this court, that a law regulating the practice of pharmacy in this state is needed, and the right of the legislature to pass such an act is not denied. The constitutionality of the present law is, however, attacked upon several grounds. We shall take them up in the order named in defendant's brief.
1. The law provides that no person shall vend patent or proprietary medicines by retail unless he has been in the business of vending and retailing such medicines three years or more. 3 How. St. � 2287 c8, p. 3204. It is claimed that the selling of such medicines is not necessarily any part of the business of a pharmacist; that the confining of the sale of patent medicines to pharmacists and retail dealers of three years' experience grants a monopoly to a favored few, and for no adequate reason; and that it is also an object in the law not embraced in the title, which reads "An act to regulate the practice of pharmacy in the state of Michigan." See Hypophosphites and Borax Cases, (Minn.) 42 N.W. 781. There is much force in both these objections to this provision of the law; but it is not shown that the respondent was charged with vending patent or proprietary medicines, or that the...
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