State v. Stephens

• Decision Date: 28 May 1936
• Docket Number: 7541.
• Citation: 59 P.2d 54,102 Mont. 414
• Parties: STATE v. STEPHENS.
• Court: Montana Supreme Court

59 P.2d 54

102 Mont. 414

STATE v. STEPHENS.

No. 7541.

Supreme Court of Montana

May 28, 1936

Appeal from District Court, Yellowstone County; Robert C. Stong Judge.

I. W Stephens was convicted of a misdemeanor, and he appeals.

Reversed and cause remanded with directions to dismiss the complaint.

H. L Myers, of Billings, for appellant.

Raymond T. Nagle, Atty. Gen., and Enor K. Matson, Asst. Atty. Gen., for the State.

ANDERSON Justice.

Defendant was found guilty of a misdemeanor and has appealed to this court from the judgment of conviction. He was a retail grocer in the city of Billings, and was charged with selling an original package of asperin without having a license so to do and not being a physician, wholesale dealer, or registered pharmacist, or having a registered pharmacist in charge of his store.

The amended complaint alleges the violation of section 3170, Revised Codes 1921, and chapter 104 of the Laws of 1931. The facts are not in dispute. It was stipulated in the district court between counsel for the respective parties that the cause was tried entirely upon the question of the constitutionality of sections 3170 and 3181 of the Revised Codes of 1921 and chapter 104 of the Laws of 1931. The trial court held these statutes constitutional, found the defendant guilty, and imposed a fine of $10. By appropriate specifications of error it is sought to review the ruling of the trial court holding these statutory provisions to be constitutional. It is the contention of the defendant that these acts operate to deprive him of his property without due process of law in violation of the Fifth and Fourteenth Amendments to the Federal Constitution, and section 27, article 3, of our State Constitution. As we understand the arguments of counsel, it is conceded that in order to sustain these enactments it must appear that they are a valid exercise of the police power of the state which must in some manner tend to promote or preserve public health.

Section 3170 provides: "It shall hereafter be unlawful for any person other than a registered pharmacist, as hereinafter defined, to retail, vend, compound, or dispense drugs, medicines, poisons, chemicals, or pharmaceutical preparations, in the state of Montana, or to institute, conduct, or manage a store, shop, pharmacy, or institution for the selling, vending, compounding, or dispensing of drugs, medicines, poisons, chemicals, or pharmaceutical preparations in the state of Montana, unless such be a registered pharmacist as in this act provided, or unless a registered pharmacist is placed in charge of such store, pharmacy, shop, or institution for the retailing, vending, compounding, or dispensing of drugs, medicines, poisons, chemicals, and pharmaceutical preparations."

The pertinent part of section 3181 reads as follows: "Any proprietor of a pharmacy, or any other person who shall permit the compounding or dispensing of physicians' prescriptions, or the vending of drugs, medicines, poisons, chemicals, or pharmaceutical preparations in his store or place of business, except by a registered pharmacist, in the meaning of this act, or under the immediate supervision of a registered pharmacist, *** shall, for each and every offense, be liable to a fine of not less than twenty-five dollars nor more than two hundred and fifty dollars; provided, that nothing in this act shall interfere with the keeping, distributing, or handling of drugs, acids, or poisons by merchants or corporations, for use in their business, when kept in original and plainly labeled packages; provided, also, that nothing in this act shall interfere with any physician in his regular practice, nor with the wholesale business of any dealers, nor with the business of merchants in towns where there is no regularly licensed pharmacist when selling drugs, medicines, pharmaceutical, or proprietary medicinal preparations in original and plainly labeled packages, as the public may require; provided, also, that nothing herein shall be construed to prevent the sale of any patent or proprietary medicine in the original package, when plainly labeled, nor such non-medicinal articles as are usually sold by general merchants."

We also deem it important in the consideration of this case to notice the provisions of the first sentence of section 3184, which declares: "The proprietors of all pharmacies will be held responsible for the quality of all drugs, medicines, and chemicals sold or dispensed at their respective places of business, except patent and proprietary preparations, and articles sold in the original packages of the manufacturer."

Chapter 104 of the Laws of 1931 declares it to be unlawful for any person to sell or vend drugs, medicines, and remedies as provided for under chapter 227 of the Revised Codes of 1921 (which includes sections 3170, 3181, and 3184), unless such person has secured a license from the state. This act excludes physicians, in their practice, wholesale dealers as such, and the distributing, keeping, or handling of drugs, acids, or poisons by merchants or corporations for use in their own business when kept in the original plainly labeled package. Another section of the same act provides that a license shall not be required for the sale of patent or proprietary medicines, fungicides, insecticides, and germicides for agricultural or horticultural uses, or sold in original packages or containers.

It was testified at the trial that asperin is a drug, which was not denied, and is usually held to be a medicine not proprietary or patent within the meaning of similar acts. State ex rel. Missildine v. Jewett Market Co., 209 Iowa, 567, 228 N.W. 288.

In some jurisdictions similar acts have been upheld as being constitutional; in others, they have been declared unconstitutional. In most of the acts which have been upheld, a list of simple and harmless drugs and remedies are usually excluded from the provisions of the act by name. No such exceptions appear in our act. However, none of the courts in upholding the constitutionality of these acts have in any manner stressed these specific exceptions as a reason for their conclusions.

All of the decisions agree that enactments licensing druggists and prohibiting the sale of drugs and medicines which are compounded by the vendor or sold in any other manner than in the original package of the manufacturer by others than licensed pharmacists or under their control are properly within the realm of the police power of the state. The diversity of opinion arises among the decisions as to such acts with reference to patent or proprietary medicines and drugs sold in the original package of the manufacturer. We shall first review the decisions upholding the constitutionality of such acts as apply to the two classes of drugs and medicines enumerated supra.

In the case of State Board of Pharmacy v. Matthews, 197 N.Y. 353, 90 N.E. 966, 968, 26 L.R.A. (N.S.) 1013, an unlicensed person had sold tincture of iodine, tincture of arnica, and spirits of camphor. The court in upholding the constitutionality of the act, and thereby sustaining a conviction of an unlicensed person who had sold these drugs or medicines, recorded its reasons for so doing in the following language: "As has already been suggested there are strong reasons relative to the public welfare which make it proper that regulations concerning the sale of...