State v. Evans

• Decision Date: 08 January 1907
• Citation: 130 Wis. 381,110 N.W. 241
• Parties: STATE v. EVANS.
• Court: Wisconsin Supreme Court

130 Wis. 381

110 N.W. 241

STATE

v.EVANS.

Supreme Court of Wisconsin.

Jan. 8, 1907.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by the state against N. C. Evans for a violation of Rev. St. 1898, § 1409g, in relation to pharmacists. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Action for penalties for keeping a drug and pharmacy store in a village of more than 500 population, defendant not being, and not having in his employ, a registered pharmacist, as required by section 1409g, Rev. St. 1898, as amended, and for, at the same time, permitting the retailing, compounding, and dispensing of drugs by a person, to wit, defendant's son, not a registered pharmacist and not under the charge of a registered pharmacist. The defendant and appellant, since 1884, has been a duly licensed and practicing physician located at Mt. Horeb, Dane county, Wis., and had been engaged in the pharmacy business continuously since 1888. It was stipulated that he was not a registered pharmacist and did not have in his employ a registered pharmacist, but that he and also his son, C. Milo Evans, who took charge of the store during his absence, are and were assistant registered pharmacists; that the latter was permitted to compound and dispense drugs, medicines, and poisons, and did so at the time charged in the complaint without the supervision or charge of a registered pharmacist. Opinion evidence was offered and excluded to the effect that there was no more reason for requiring a registered pharmacist in charge of a drug store in cities or villages containing more than 500 population than in those which contained less. The defendant's office as a practicing physician was in, and in connection with, the drug store, and the latter had been conducted by him, in connection with his practice as a physician, for about 20 years. It was stipulated that the acts complained of did not come within any of the statutory exceptions. The trial was had to the court without a jury, and the defendant found guilty upon both counts of the complaint, and judgment rendered against him for $100 and costs, from which he brings this appeal.O. A. Stolen and R. M. Bashford, for appellant.

L. M. Sturdevant, Atty. Gen., for the State.

DODGE, J. (after stating the facts).

The fundamental question raised is the constitutionality of our statutes regulating the practice of pharmacy, chapter 56a, Rev. St. 1898, with its amendments, and especially section 1409g. imposing penalties. Those acts, summarizing the elements important to this discussion, provide for the licensing of pharmacists and of assistant pharmacists, requiring for each a specified, but different, age and experience, together with diploma or examination by the state board of pharmacists. Section 1409g prohibits retailing or dispensing of drugs, or the maintenance of any pharmacy therefor, in any town, city, or village having 500 population or more, except by or under charge of a registered pharmacist, while in towns, cities, or villages of less than 500 population similar acts are prohibited, except by a registered pharmacist or by a registered assistant pharmacist, or under his charge. It also imposes a penalty of $50 for each offense. Exception is made in favor of a practicing physician in dispensing his own medicines. No substantial contention is made that the business or profession of pharmacy is not a legitimate field for police regulation by reason of peril to health or lives in the community generally which may result from incompetence therein. This subject is set at rest in this state by State v. Heinemann, 80 Wis. 253, 49 N. W. 818, 27 Am. St. Rep. 34. Neither is it contended that the requirements of experience or school education and examination are not reasonably germane to the subject of competency. Neither can there be successful contention that there is in that respect any classification of individuals except on the lines of competency, for every one who becomes a registered pharmacist has the same right as any other in that class to practice anywhere and everywhere in the state, and every one who becomes a registered assistant is also privileged and restricted equally with every one in his class, and those who have not qualified at all are equally restricted from the practice. Indeed, there is no complaint on this subject.

The principal objection to the law is that it classifies localities, allowing some to be served in the business of pharmacy by assistant pharmacists who, as a class, presumptively have less of competence than is de manded of registered pharmacists by whom the larger communities are required to be served. It is strenuously urged that here is false classification; that the life and health of every individual and of the public is as important in the little hamlet as in the great city, and that any protection against incompetent dispensers of drugs is as much due to the one as the other; that, the purpose of the act being the promotion of the safety of the communities in obtaining necessary supply of medicines, there is no distinction between communities over 500 in number and those less which is in any wise germane to the purposes of this police regulation of the business. Doubtless this law, like all other police laws, presents classification, and we are confronted, as in the case of every such law, with the duty to consider the relationship of the distinctions between the classes to the subject of the legislation. Of course there must be such relationship. A mere arbitrary distinction in no wise relevant to the subject of legislation will not justify a departure from that equal protection of the laws commanded by the 14th amendment to the federal Constitution, nor that equality before the law commanded by section 1, art. 1, of the Wisconsin Constitution. It is unnecessary, and probably futile, to attempt again to state those rules as to classification in legislation which have been phrased so often to the utmost of the ability of the judges writing the opinions. The citation of a few illustrative cases will suffice: Adams v. City of Beloit, 105 Wis. 363, 81 N. W. 869, 47 L. R. A. 441;State ex rel. Kellogg v. Currens, 111 Wis. 431, 436, 87 N. W. 561, 56 L. R. A. 252;Black v. State, 113 Wis. 205, 219, 89 N. W. 522, 90 Am. St. Rep. 853;State ex rel. Risch v. Trustees, 121 Wis. 44, 54, 98 N. W. 954;State v. Whitcomb, 122 Wis. 110, 119, 99 N. W. 468;Bingham v. Supervisors, 127 Wis. 344, 106 N. W. 1071. That there are distinctions between large and dense communities and small and sparser ones as separate classes is, of course, obvious. That such differences are germane and relevant to some purposes of legislation has been declared, almost without limit, by courts. Smith v. City of Burlington, 109 N. W. (Wis.) 79, and cases there cited. But, as remarked in that case, each new exercise of the power of police regulation presents anew to the courts the question of possible relationship between the distinguishing characteristics of the classes and the object and purposes of the regulation. As to the cogency or propriety of either the regulations made, or of the importance of the distinctions, as we have so often said, the courts have little concern. Those subjects rest with the Legislature, and only when the court, in the exercise of the utmost deference toward that other branch of the government, is compelled to say that no one in the exercise of human reason and discretion could honestly reach a conclusion that distinctions exist having any relation to the purpose and policy of the legislation, can it deny it validity. State ex rel. Kellogg v. Currens, 111 Wis. 439, 87 N. W. 561, 56 L. R. A. 252; Black v. State, supra; State ex rel. Risch v. Trustees, supra; Smith v. City of Burlington, supra. In approaching this question it must be continually borne in mind that we are not to consider merely the distinctions between individuals of the one class and of the other. It is a favorite argument of counsel in all these cases to make such comparison, and it is not surprising that we find it pointed out in this case that a town with a population less than 500 situated close to populous city presents all the reasons for requiring any pharmacy maintained therein to be of as high quality in management as could be demanded within the city itself. The question to be considered, however, is the distinction between the classes as classes, whether there are characteristics which, in a greater degree, persist through the one class than in the...