State v. Childs

• Decision Date: 22 June 1927
• Docket Number: Criminal 655
• Citation: 257 P. 366,32 Ariz. 222
• Parties: STATE, Appellant, v. THOMAS CHILDS and C. C. ROCKWELL, Respondents
• Court: Arizona Supreme Court

257 P. 366

32 Ariz. 222

STATE, Appellant, v. THOMAS CHILDS and C. C. ROCKWELL, Respondents

Criminal No. 655

Supreme Court of Arizona

June 22, 1927

APPEAL from an order of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Order sustaining demurrer affirmed.

Mr John W. Murphy, Attorney General, Mr. Earl Anderson Assistant Attorney General, Mr. George T. Wilson, County Attorney, Messrs. Hayes, Stanford, Laney & Allee, and Messrs Cunningham & Carson, for the State.

Mr. L C. McNabb and Mr. L. J. Holzwarth, for Respondents.

OPINION

LOCKWOOD, J.

Thomas Childs and C. C. Rockwell were informed against for the violation of paragraph 4805, Revised Statutes of Arizona of 1913, Civil Code. The charging part of the information reads as follows:

"The said Thomas Childs and the said C. C. Rockwell on or about the 26th day of August, 1926, and before the filing of this information at and in the county of Maricopa, state of Arizona, being then and there copartners doing business under the firm name and style of Childs & Rockwell, and being then and there the proprietors of and operating and conducting a general store in the town of Gila Bend, county of Maricopa, state of Arizona, in wich said store the said Thomas Childs and C. C. Rockwell did then and there maintain and were the owners and proprietors of a drug department, and the said Thomas Childs and C. C. Rockwell did then and there permit the sale and vending of drugs and medicines in its said store at the said Gila Bend, Arizona, in the said drug department thereof, and the said C. C. Rockwell and Thomas Childs did then and there permit one Monwell Mozom, an employee of the said Thomas Childs and C. C. Rockwell, to sell and vend to one E. C. Stults certain drugs, medicines and poisons in said drug department of said store of the said Thomas Childs and C. C. Rockwell, to wit:

1 tube -- 20 tablets calomel and soda, 1/2 grain

each, Lilly & Company, Mfgrs., Indianapolis,

Ind.

30 cts.

1 bottle Emerson's bromo-seltzer, manufactured

by Emerson Drug Company, Baltimore,

Md.

30 cts.

1 bottle Mexican Oil, manufactured by Hausman

Drug Company, Trinidad, Colorado.

15 cts.

1 bottle Puritan hydrogen peroxide, manufactured

by Brunswig Drug Company, Los Angeles, California.

25 cts.

1 bottle aromatic Cascara Sagrada, put up by

L. Perrigo Company, Allegan, Michigan.

25 cts.

1 bottle tincture arnica, put up by L. Perrigo

Company, Allegan, Michigan.

25 cts.

1 box boric acid, put up by L. Perrigo Company,

Allegan, Michigan.

25 cts.

-- lawful money of the United States of America, at retail in the original packages, the said Monwell Mozom not being then and there a registered pharmacist duly and regularly registered under the laws of the State of Arizona, and said drugs, medicines, and poisons so sold, as aforesaid, not then and there being sold within the presence or under the direction or immediate or personal supervision of any registered pharmacist duly registered under the laws of the State of Arizona. . . ."

A demurrer was interposed which set up substantially that said paragraph 4805, supra, was unconstitutional. It was argued, submitted, and by the trial court sustained, and from the sustaining order an appeal was taken by the state.

There is no issue of fact involved, and the real question of law is as to the validity of the statute. The paragraph on which the information is based is a part of title 48, chapter 5, Civil Code of 1913, ordinarily known as the Pharmacy Act. This chapter regulates in detail the practice of pharmacy and the manufacture, compounding, and selling of drugs, medicines, and poisons. Paragraph 4805 thereof reads as follows:

"4805. Any proprietor of a pharmacy or store which maintains a drug department who shall fail, or neglect to place in charge of such pharmacy or drug department a registered pharmacist, or any such proprietor who shall, by himself or any other person, permit the compounding of prescriptions, or the vending of drugs, medicines, or poisons, in his or her store, or place of business, except by or in the presence and under the direct, immediate and personal supervision of, a registered pharmacist, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than twenty dollars nor more than one hundred dollars or by imprisonment for a term of not more than fifty days, or by both such fine and imprisonment."

It was the contention of defendant in the lower court, and is his position here, that the act, in so far as it attempts to confine to registered pharmacists the right to sell what are known as "patent" or "proprietary" remedies and drugs and medicines sold in the original packages of the manufacturer, violates section 4, article 2, and subdivision 13, section 19, part 2, of article 4 of the Constitution of Arizona. These provisions read, respectively, as follows:

"Section 4. No person shall be deprived of life, liberty, or property without due process of law."

"Article iv. . . .

"Section 19. No local or special laws shall be enacted in any of the following cases, that is to say: . . .

"13. Granting to any corporation, association, or individual, any special or exclusive privileges, immunities, or franchies."

The question thus presented is of considerable importance to the state, and we have gone most carefully into the authorities cited by both parties. There are certain general propositions on which they are in substantial agreement. It is contended by the state and admitted frankly by defendants that for the preservation of the public health and safety the state may regulate and place proper restrictions upon the practice of pharmacy, and may prescribe qualifications to be possessed by those engaged in it; that in the exercise of its police power it may regulate the sale of drugs, medicines and poisons, where such regulation in any way reasonably tends to protect the public health, safety or morals. It is, however, insisted by defendants that such regulation must be of a reasonable nature, and calculated in some way to promote such protection, and that the particular paragraph in question, if construed to prohibit any person except a registered pharmacist from selling patent or proprietary medicines or those in the original package of the manufacturer, does not in the slightest degree protect the public, but grants a monopoly of a business recognized by the state as legitimate to one class of persons, without any legitimate reason therefor. We think the general rule contended for by defendants, to the effect that a statute allowing one class of persons to engage in what is presumptively a legitimate business, while denying such right to others, must be based upon some principle which may reasonably promote the public health, safety or welfare, that unless it does so in some degree it is unconstitutional, and that while every presumption is in favor of the validity of a statute, yet when it clearly appears that on no reasonable theory could such a one contribute to the public health or safety it is the duty of the courts to so declare and to set it aside as unconstitutional, is well taken. Lawton v. Steele, 152 U.S. 133, 38 L.Ed. 385, 14 S.Ct. 499; Dobbins v. Los Angeles, 195 U.S. 223, 49 L.Ed. 169, 25 S.Ct. 18; Ex parte Whitewell, 98 Cal. 78, 35, Am. St. Rep. 152, 19 L.R.A. 727, 32 P. 870; 12 C.J. 930.

Let us then examine the statute with this general rule as the test of its validity. There are certain other provisions of the Pharmacy Act which will assist us in determining this question. Paragraph 4803, Revised Statutes of Arizona of 1913, Civil Code, reads as follows:

"Every proprietor or manager of a pharmacy or drug store shall be held 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. . . ."

And paragraph 4807 is in the following language:

"The board of pharmacy shall issue a permit to general dealers in rural districts in which the coditions, in their judgment, do not justify the employment of a registered pharmacist, and where the store of such general dealer, is not less than three miles distant from the store of a registered pharmacist, which permit shall authorize theperson or firm named therein to sell in such locality, but not elsewhere, and under such restrictions and regulations as said board may from time to time adopt, the following simple household remedies and drugs, and any other, in such manner and form as may be hereafter authorized by said board, as follows, to wit:

"Tincture of arnica, spirits of camphor, almond oil, distilled extract witch-hazel, syrup of ipecac, syrup of rhubarb, hive syrup, sweet spirits of nitre, tincture of iron, epsom salts, rochelle salts, senna leaves, carbonate of magnesia, seidlitz powders, quinine, cathartic pills, camomile flowers, caraway seed, chlorate of potash, moth balls, plasters, salves, ointments, peroxide of hydrogen, copperas, gum camphor, asafoetida, saffron, anise seed, saltpeter.

"The board shall charge in advance an annual fee of one dollar for such permit, and it shall be unlawful for any dealer to sell any drugs or ordinary household remedies without complying with the requirements of this section. Whenever a registered pharmacist shall establish a pharmacy within one mile by the shortest road from the place of business of such general dealer, no further license shall be granted, and the license already issued shall be void; provided, that the following drugs, medicines, and chemicals may be sold by grocers and general dealers without restriction, viz.:

"Glauber salts, vaseline,...