State v. Red Owl Stores, Inc.

• Decision Date: 09 February 1962
• Docket Number: No. 38153,38153
• Citation: 115 N.W.2d 643,262 Minn. 31
• Parties: STATE of Minnesota, Appellant, and Minnesota State Pharmaceutical Association, Plaintiff-Intervener, Appellant, v. RED OWL STORES, INC., James Ford Bell, Jr., Glen R. Grife and J. Ty Sydness, Respondents, and Groves-Kelco, Inc., Elliott F. Royce, Arnold A. Royce and Leonard Royce, Respondents.
• Court: Minnesota Supreme Court

Page 643

115 N.W.2d 643

262 Minn. 31

STATE of Minnesota, Appellant and Minnesota State Pharmaceutical Association Plaintiff-Intervener, Appellant, v. RED OWL STORES, INC., James Ford Bell, Jr., Glen R. Grife and J. Ty Sydness, Respondents and Groves-Kelco, Inc., Elliott F. Royce, Arnold A. Royce and Leonard Royce, Respondents.

No. 38153.

Supreme Court of Minnesota.

Feb. 9, 1962.

As Modified on Denial of Rehearing

March 7, 1962.

Upon Appeal from Clerk's Taxation of

Costs June 1, 1962.

SYLLABUS BY THE COURT

1. Where the sole object of a suit is to enforce a criminal action, courts will not exercise equity jurisdiction.

2. Where acts complained of are violations of the criminal law, courts of equity will not on that ground alone interfere by injunction to prevent their commission, since they will not exercise their preventive power for the purpose of enforcing criminal laws by restraining criminal acts. However, courts of equity will interfere by injunction to restrain acts amounting to a public nuisance if they affect public rights or privileges or endanger public health, regardless of whether such acts are denounced as crimes.

3. Whether injunctive relief to restrain the commission of an offense is warranted depends upon the particular facts in each case.

4. The supreme court on appeal will consider testimony in the light most favorable to the prevailing party.

5. If the evidence as a whole tends to support the findings, they should not be disturbed on appeal.

6. The findings of the trial court as the trier of the facts are entitled to the same weight on appeal as the verdict of a jury and will not be reversed unless they are manifestly and palpably contrary to the evidence. This rule applies even though the reviewing court might have on the basis of the record reached a different conclusion.

7. The 18 prepackaged trade-name products involved in this action are drugs and medicines within the meaning of definitions and provisions contained in Minn.St. c. 151.

8. Statutory reference to proprietary medicines was intended to include only those medicines which have a proprietor, not of the label or name under which the medicine is sold, but of the right of mixing or compounding the particular preparation so that it is not the common property of all the world.

9. Where the basic and essential elements of a drug are known to and freely used by the public, its character as a 'proprietary medicine' cannot be established simply by claiming that secrets are employed in its manufacture.

10. The exemption provided in Minn.St. 151.26, which permits unsupervised sale of proprietary medicines at places other than a licensed pharmacy, was granted for the purpose of making so-called patent and proprietary medicines or other home remedies generally available for purchase at a time when our society was largely rural and doctors were few and far between. Because of the advance in science and the medical arts, the ingredients and composition of most drugs can now be analyzed and determined, as a consequence of which proprietary medicines may have lost their identity as such; consequently, it is doubtful if the exemption of such medicines from the provisions of the Pharmacy Act may have realistic application at the present time.

11. The common-usage approach, which accords to prepackaged trade-mark drugs and medicines an exemption as proprietary medicines, is not based upon the inherent nature of the drugs but upon considerations of trade, including marketing techniques, trade-marks, advertising, and other factors from which the purchasing public may accept the product by name and reputation without more.

12. Courts which have adopted the common-usage approach have been permitted to do so because of language peculiar to their statutes, which is different from provisions contained in the Minnesota Pharmacy Act. This state has for a long time through numerous decisions been committed to an interpretation of the act which rests upon the right of the legislature in the exercise of its police power to legislate with reference to the subject of drugs in the interest of public health.

13. In view of the doubtful viability of the exemption provided for by § 151.26, the legislature should amend the Pharmacy Act to conform with present-day realities.

14. Where with the passage of time and the advance of science a provision in a statute may become obsolete or no longer have practical application to the subject with which it deals, courts are not permitted to substitute a new and different provision in place thereof. It is within the province of the legislature and not the courts to establish policies and standards with reference to the sale of drugs and medicines.

Walter F. Mondale, Atty. Gen., William W. Essling, Spec. Asst. Atty. Gen., Loftsgaarden & Loftsgaarden, St. Paul (intervener-appellant), for appellant.

Charles S. Bellows and Harold C. Evarts and Best, Flanagan, Lewis, Simonet & Bellows, Minneapolis, for Red Owl Stores, Inc., et al.

Theodore Herman, Minneapolis, (for Groves Kelco, et al.)

MURPHY, Justice.

This case comes to us on appeal from an order denying a new trial and from judgments entered for defendants in proceedings in which the State of Minnesota and the Minnesota State Pharmaceutical Association, hereinafter referred to as the association, sought to enjoin the sale of certain prepackaged trade-name drugs and medicines by defendants who are not licensed under the provisions of Minn.St. c. 151. This case was originally before us in State v. Red Owl Stores, Inc., 253 Minn. 236, 92 N.W.2d 103. It is unnecessary to again state the involved setting in which the issues were originally presented to the trial court. It is sufficient to say that on review of the first action, in which similar relief was sought, we said (253 Minn. 252, 92 N.W.2d 114), 'The real issues in this case, which affect substantial business interests of the defendants as opposed to an important concern of the state in the area of public health, were never reached.' We returned the matter to the district court for a new trial.

The issue bearing on the right of the state and the association to injunctive relief has now been fully presented. During a trial which lasted 14 weeks the court heard evidence from numerous witnesses for both the plaintiffs and the defendants, including distinguished experts in the fields of pharmacology, medicine, and chemistry. We have before us a lengthy record with complete findings of fact by the trial court, accompanied by an able and exhaustive memorandum on every aspect of the issues involved. Two issues are presented: (1) Do the facts warrant injunctive relief? (2) Are the drugs in question exempted from the application of the Pharmacy Act?

As to the first issue the court found that the defendants were engaged in selling at either wholesale or retail, without benefit of a license from the board of pharmacy, certain prepackaged medicines known by the trade names of Bromo Seltzer, Anacin, Aspergum, Thrifty Spot Aspirin Compound Tablets, Alka-Seltzer, Bufferin, 4-Way Cold Tablets, Bromo Quinine, Pepto-Bismol, Pinex, Vick's Cough Syrup, Vick's Va-Tro-Nol, Murine, Castoria, Ex-Lax, Feen-a-mint, Sal Hepatica, and Lysol.

The evidence on behalf of the state and the association lays great stress upon the character of these products as toxic drugs and they seek to establish that there is a danger to the public health by reason of unsupervised sales in supermarkets and other unlicensed outlets where the drugs are dispensed at self-service counters. The thrust of their case seems to be that, because these packaged drugs and medicines, when used in excessive dosages, may be harmful to the person taking them, their sale at unlicensed places constitutes a danger to the public health.

In order to determine the application of the provisions of c. 151 to the drugs in question, something should be said as to the nature and character of the ingredients in them and their effect upon the structure and function of the human body.

From the record it appears that Bromo Seltzer has as its ingredients acetanilid, sodium bromide, and caffeine. Acetanilid acts at the base of the brain and on the nervous system to produce relief from minor aches and pains. Its toxic effects are manifested chiefly in the circulation and, if taken in excessive doses, may cause destructive injury to the red blood cells and act as a depressant upon the heart and blood vessels. Sodium bromide is a hypnotic or sleep-producing drug and in ordinary dosages produces a depressant or dulling action upon the entire brain. This ingredient is counteracted by caffeine, which is used for its alerting or awakening effect upon the brain. Sodium bromide may induce a chronic state of drug intoxication inducing confusion, memory loss, and skin lesions. In large quantities it may produce death. The drug also contains sodium bicarbonate and citric acid, which when dissolved form sodium citrate. These latter ingredients are used as a vehicle for ingestion and, when diluted with water, cause an effervescence to make the drug more palatable.

The active ingredients of Anacin are acetophenetidin, aspirin, and caffeine. Acetophenetidin is described as an analgesic pain-relieving drug very much like acetanilid. Aspirin, acetylsalicylic acid, is also a pain-relieving drug. The dulling of the brain produced by acetophenetidin and aspirin is counteracted by caffeine. Large enough doses of acetophenetidin would result in respiratory paralysis. In large doses aspirin may remove normal alkali from body fluids and result in a type of acidosis which can lead to a marked increase in respiration. This condition of acidosis which might result from excessive consumption of large quantities of the drug 'can injure the brain, the kidney and the heart and death can occur in a convulsive phenomena during this acidosis if it is not relieved.'

The active ingredient of Aspergum...