State v. Wood
| Decision Date | 11 October 1927 |
| Docket Number | 6331. [*] |
| Citation | 215 N.W. 487,51 S.D. 485 |
| Parties | STATE v. WOOD. |
| Court | South Dakota Supreme Court |
Appeal from Municipal Court of Mitchell; W. M. Herbert, Judge.
P. E Wood was charged in a criminal complaint with unlawfully wrongfully, and willfully selling certain drugs and medicines, not being a registered pharmacist or physician at the time. From a judgment dismissing the action, the State appeals. Affirmed.
Frank W. Mitchell, State's Atty., of Mitchell, Buell F. Jones Atty. Gen., and H. A. Linstrom, Asst. Atty. Gen., for the State.
H. G Giddings, of Mitchell, for respondent.
Defendant, P. E. Wood, on the 15th of May, 1926, was charged in a criminal complaint with unlawfully, wrongfully, and willfully selling "at retail to one Wood Smith, certain drugs and medicines, the same being patented and proprietary medicines, to wit:
"One bottle of Watkins' Lax-Tone and one bottle of Watkins' Pain-Oleum, contained in original package, as put up by the manufacturer; said P. E. Wood at the time of said sale not being a registered pharmacist under the laws of the state of South Dakota, and said P. E. Wood at the time of said sale not being a registered physician under the laws of the state of South Dakota."
The defendant demurred to the complaint upon the grounds that the complaint does not substantially conform to the requirements of the Code of Criminal Procedure; that it charges more than one offense, and more than one offense in one count or division thereof; that it does not describe a public offense, and the facts stated therein do not constitute a public offense. The demurrer was sustained, and the state appeals from a judgment dismissing the action.
While the defendant insists upon all the grounds of the demurrer, there are but two that merit consideration, namely, that the complaint does not describe a public offense, and that the facts stated do not constitute a public offense. It is the contention of respondent that the act under which the complaint is framed does not include within its meaning patent and proprietary medicines, or if the act is intended to and does include such medicine, that in so far as such medicines are included the act is unconstitutional and void.
The section under which the complaint was framed is section 7743, R. C. 1919. The portion of said section material to the issues of the case reads:
"It shall be unlawful for any person other than a registered pharmacist to retail, compound or dispense drugs, medicines or poisons, *** except as herein provided. ***"
The exceptions refer to registered physicians, and have no application to the issue involved in this case; otherwise, there are no exceptions. The statute is too plain to leave room for construction. It cannot be said that the act does not include patent and proprietary medicines. If the demurrer can be sustained, it must be on the ground that, so far as the act does include and apply to patent and proprietary medicines as applied to them, it is unconstitutional. Respondent claims that the law, so far as it includes patent and proprietary medicines, is an unreasonable exercise of the police power, and violates that portion of the Fourteenth Amendment to the Constitution of the United States, providing:
"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws,"
section 2, art. 6, a similar provision of the state Constitution, and section 18, art. 6, of the state Constitution, providing:
"No law shall be passed granting to any citizen, class of citizens or corporation, privileges or immunities which upon the same terms shall not equally belong to all citizens or corporations."
It has been said that the police power is "one of the most essential of powers, at times the most insistent, and always one of the least limitable of the powers of government" (Dist. of Columbia v. Brooke, 214 U.S. 138, 29 S.Ct. 560, 53 L.Ed. 941), and the only limit to its exercise in the enactment of laws is that they shall violate no provisions of the state and national Constitutions (State v. Moore, 104 N.C. 714, 10 S.E. 143, 17 Am. St. Rep. 696). But, while it extends to regulations promoting public health, morals, safety, convenience, and general welfare, it has its limits and must stop when it encounters the prohibitions of the Constitution. Eubank v. City of Richmond, 226 U.S. 137, 32 S.Ct. 76, 57 L.Ed. 156, 42 L. R. A. (N. S.) 1123, Ann. Cas. 1914B, 192. There can be no unwarranted interference with the business of a citizen, or his right to own and sell property under the guise of the police power, where the object sought has no reasonable relation to the means employed to effect the object. Unquestionably the object sought, namely, the protection of the public health and general welfare (if that be the real object), is a worthy one, and if the means employed, namely, restricting the sale of such medicines to pharmacists, is adapted to protect the public health and welfare, then the act is constitutional; otherwise, it is not.
It is universally held that the regulation of the practice of pharmacy is a legitimate exercise of the police power. It is generally conceded that the practice of pharmacy includes retailing, compounding, and dispensing drugs, medicines, and poisons, and it is not denied by the decisions that patent and proprietary medicines are subject to police regulations. In State v. Donaldson, 41 Minn. 74, 42 N.W. 781-783, a leading case, largely relied upon by respondent to support his contention, the court said:
"Undoubtedly the state has as much right to regulate the sale of patent medicines as any other, and in the exercise of that power may adopt any measures they see fit, provided only that they adopt such as would have some tendency to accomplish the desired end, to wit, the protection of the lives and health of the public."
In Noel v. People, 187 Ill. 587-593, 58 N.E. 616-618 (52 L. R. A. 287, 79 Am. St. Rep. 238) the court said:
"It is unquestionably true that the state has as much right to regulate the sale of patent and proprietary medicines and domestic remedies as it has to regulate the sale of any other kinds of medicines and remedies."
That such is the law is self-evident and needs no argument.
W. F Michel, on behalf of the State Board of Pharmacy and the South Dakota Pharmaceutical Association, filed a brief in this case as amicus curiae, and his brief has received very careful consideration, with the briefs of the parties. He points out that the provision of the Pure Food and Drug Act prohibiting written misbranding has been sustained, and says the statute in question is intended to prevent verbal misbranding. He points out that many patent medicines contain dangerous and poisonous ingredients, and asks whether a purchaser should be sold a dangerous drug simply because he asks for it. He says it is necessary, for the protection of the public health and to protect the public against fraud, that the goods be handled by some one who understands their properties, and says that the modern view and tendency is to recognize that the public are entitled to protection. This may all be conceded. And it is not a particularly modern view that the public is entitled to protection in health, against fraud, misbranding of goods, and the unregulated sale of dangerous and poisonous medicines. This principle is old, and it is well established that the state may protect the public by wholesome and effective laws. No argument is necessary to induce this court to uphold any valid exercise of the...
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