State v. Wheelock

• Decision Date: 10 October 1895
• Citation: 95 Iowa 577,64 N.W. 620
• Parties: STATE v. WHEELOCK.
• Court: Iowa Supreme Court

95 Iowa 577

64 N.W. 620

STATE

v.WHEELOCK.

Supreme Court of Iowa.

Oct. 10, 1895.

Appeal from district court, Shelby county; A. B. Thornell, Judge.

The defendant was convicted of the crime of being an itinerant vendor of drugs and nostrums, and publicly professing to cure diseases and injuries, without a license. From the judgment, which imposed a fine of $100, he appeals. Affirmed.Pfau & Young and Whitney Bros., for appellant.

Milton Remley, Atty. Gen., and Thos. A. Cheshire, for the State.

ROBINSON, J.

The conviction of the defendant was had under section 10 of chapter 75 of the Acts of the 18th General Assembly, as amended by section 2 of chapter 137 of the Acts of the 19th General Assembly and section 3 of chapter 83 of the Acts of the 21st General Assembly, which contains the following: “Any itinerant vendor of any drug, nostrum, ointment or appliance of any kind intended for the treatment of diseases or injury, who shall by writing or printing or by any other method publicly profess to cure or treat diseases or injury or deformity by any drug, nostrum, or manipulation, or other expedient shall pay a license of one hundred dollars per annum, to be paid to the treasurer of the commission of pharmacy. * * * Any person violating this section shall be deemed guilty of a misdemeanor and shall upon conviction pay a fine of not less than one hundred and not more than two hundred dollars.” In July, 1894, the defendant was engaged in the business of selling on commission proprietary medicines which were manufactured in the state of Minnesota by J. R. Watkins, and were owned by him until sold. He was a resident of Minnesota, and the medicines were placed in glass bottles, securely corked, sealed, and capped, and were brought into the state, and sold in the original packages in which they were placed by the manufacturer. The medicines as prepared, and as received in this state by the defendant, were a legitimate subject of commerce, and were not injurious to the public health. They were transported by Watkins from the place where they were manufactured to Harlan, in this state, where they were received by the defendant, and there offered for sale. In making the sales he traveled from place to place with a team and wagon, and, while so engaged, sold one of the packages to one M. B. Howe, in Shelby county, in the condition in which it was sent from Minnesota. He did not at that or any other time represent himself to be a physician, nor assume to determine the ailments of the people; but he distributed printed circulars of Watkins', which represented the medicines to be a cure for certain diseases named in the circulars, and the defendant represented that the medicine sold by him was as stated in the circular. At the time the business described was carried on, and the sale specified was made, the defendant did not have a license as contemplated by the statute, nor was he a physician or registered pharmacist. At that time, Howe was a resident of this state.

The appellant contends that the acts under which he was convicted are repugnant to that part of section 8 of article 1 of the constitution of the United States which provides that the congress shall have power to regulate commerce among the several states, and the only question we are required to determine is whether the claim thus made is well founded. The record clearly shows that it must be regarded, for the purposes of this case, as conceded that the defendant was an itinerant vendor of drugs and nostrums, without a license, within the meaning of the statutes of this state which we have set out, and that the medicines he sold were in the original packages in which they were shipped into this state. It is true that the power vested in congress to regulate commerce among the several states is a power complete in itself to prescribe the rules by which that commerce is to be governed: that it is coextensive with the subject on which it acts, and cannot be stopped at the external boundary of a state, but enters it, and is capable of authorizing a disposition of articles of commerce so that they become a part of the common mass of the property within the state. Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681. But it has been held that state laws which do not discriminate between residents and products of a state and those of another state; which are not designed to interfere in any manner with interstate commerce, as those which are in the nature of a simple tax upon sales of merchandise, imposed alike upon all persons, whether residents or nonresidents of the state,--are not repugnant to the constitutional provision in question. Thus, in Hinson v. Lott, 8 Wall. 148, a statute which imposed a tax of 50 cents per gallon on each gallon of spirituous liquors offered for sale in the state, to be paid by the dealer introducing it, was sustained, it appearing that a like tax on such liquors produced in the state was exacted. In Woodruff v. Parham, Id. 123, a tax imposed by the city of Mobile on auction sales and sales of merchandise...