State v. Donaldson
| Decision Date | 18 June 1889 |
| Citation | 41 Minn. 74 |
| Parties | STATE OF MINNESOTA <I>vs.</I> WILLIAM DONALDSON and another. (Two Cases.) |
| Court | Minnesota Supreme Court |
These are two actions brought in the municipal court of Minneapolis, in each of which the plaintiff seeks to recover $100 from defendants for alleged violation of Laws 1885, c. 147, — the act to regulate the practice of pharmacy. The following facts are admitted in the pleadings: The defendants keep a large retail department store at the corner of Nicollet avenue and Sixth street, and not more than one mile from a drug or apothecary shop. They sell dry goods, notions, and toilet articles, (including soaps, perfumes, etc.,) such as are usually kept for sale by druggists, and patent and proprietary medicines. They do not conduct a pharmacy nor do they vend, compound, or sell drugs or poisons. They are not, nor are their clerks who made the sales complained of, registered pharmacists or registered assistants.
In the first case the sales charged and admitted were of "one bottle of Fellows' Compound Syrup of Hypophosphates" and one bottle of "Ayer's Sarsaparilla." These are patent or proprietary medicines, prepared by skilled and responsible manufacturers, are simple, harmless, and very extensively used, and are commonly purchased and used independent of any physician's prescription. The articles sold were in the same condition in which they are sold by druggists, viz., contained in the original sealed bottles in which they were prepared for sale, enclosed in the wrappers placed around the bottles by the manufacturers, on which and on the bottles are explicit and sufficient printed directions for use, the conditions for which the articles are specifics or beneficial, and the quantity in which and the time when to be taken, being the same directions with which they are sold by druggists. At the time of these sales these patent medicines were commonly sold by retail shopkeepers whose places of business were more than one mile from any drug or apothecary shop.
In the second case the sales were of "one pound of borax" and "one pint of beef, iron, and wine." The latter is prepared by skilled manufacturers of medicine, but is not a patent or proprietary medicine. It is not a drug or poison, being a simple, wholly harmless, and well-recommended tonic and medicine for the blood, in very extensive use, and commonly purchased and used independent of any physician's certificate. Borax is not a drug or poison, but a salt formed of boracic acid and soda. It is largely used in metallurgy, is especially useful in soldering, and is as much used or more in the arts than in the preparation of prescriptions or the compounding of medicines. It is in general and extensive use for cleansing and other domestic and household purposes, and is a simple and exceedingly helpful agent applicable to many and the commonest wants of man wholly unconnected with physicians' prescriptions or the compounding of drugs or medicines. Its use is in no degree harmful to or likely to injure the public health. It is prescribed by physicians for medicinal use, and is often used by pharmacists in compounding medicines.
In each case the plaintiff moved for and obtained judgment on the pleadings for $100, and the defendants appealed.
Keith, Evans, Thompson & Fairchild, for appellants.
V. M. Gore, for the State.
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, 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 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 shop-keepers, 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 exclusive 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 labelling 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...
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