Stewart v. Robertson
| Decision Date | 11 February 1935 |
| Docket Number | Civil 3583 |
| Citation | 40 P.2d 979,45 Ariz. 143 |
| Parties | N. W. STEWART, Appellant, v. JACK M. ROBERTSON, SAM ENSMINGER, ANDREW P. MARTIN, H. A. TWINING, E. M. F. IVEY, C. C. NORRIS and L. EVANS, Jr., as Members of the State Board of Pharmacy of the State of Arizona, Appellees |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. Dave W. Ling, Judge. Judgment affirmed.
Mr George M. Sterling, for Appellant.
Mr Arthur T. La Prade, Attorney General, and Messrs. Moeur & Moeur, for Appellees.
This is an appeal by N.W. Stewart, hereinafter called plaintiff, from a judgment of the superior court of Maricopa county, in a case brought under the Declaratory Judgment Act (Laws 1927, chap. 10) for the purpose of determining the construction and validity of sections 2577 and 2577-B (), being part of chapter 58, article 12, of the Revised Code of 1928, which article is commonly known as the Pharmacy Act. The defendants in said action are the different members of the state board of pharmacy, whom we shall hereinafter refer to as the board. The trial court held the two sections whose validity was questioned to be constitutional, and from said judgment this appeal is taken.
The case was determined upon an agreed statement of facts which we may briefly summarize as follows: Plaintiff is a registered pharmacist and owner and operator of a drug store in Phoenix, Arizona, known as Washington Pharmacy No. 1, while the defendants constitute the board of pharmacy of the state of Arizona. In April, 1934, plaintiff notified the board that he intended to commence the operation of another drug store at a different location in the city of Phoenix, that he intended to advertise it as a drug store, and did not intend to have a registered pharmacist in active and personal charge at all times of the new store; that in the operation of such new store he intended to maintain a prescription department for the purpose of compounding and filling prescriptions, and intended to sell all merchandise, drugs and medicines such as are commonly sold in a drug store; that the entire business would be handled by unregistered clerks who are not pharmacists, except that plaintiff personally intended to fill all prescriptions taken to such store as he visited it from time to time. Upon the receipt of this information, the board notified plaintiff that, if he attempted to operate such new store in the manner that he had set forth, they would be obliged to proceed against him criminally for the violation of sections 2577 and 2577-B, aforesaid, it being their duty under the statutes to prosecute for violations of the Pharmacy Act. All of the parties admitted that the conduct which plaintiff indicated he intended to follow would be a violation of the literal terms of the two sections, but plaintiff contended that such sections, in so far as they denied him permission to perform the various acts above set forth, were unconstitutional and therefore void.
The question then before us is, Are sections 2577 and 2577-B, when properly construed, unconstitutional in so far as they prohibit plaintiff from conducting a business in the manner above set forth. These sections read as follows:
It will be seen thereby that the sections in reality attempt to prohibit three things: (a) The manufacturing, compounding, selling or dispensing of any drug, poison, medicine or chemical; or (b) the maintaining of a place of business for the dispensing and compounding of drugs, medicines or chemicals, except under the direct supervision of a registered pharmacist; and (c) the advertising of any place of business by the use of the words "drugs, drug store, drug shop, pharmacy, apothecary, dispensary, or drug department," or any similar language, except where the business conducted therein is in the personal charge of a registered pharmacist who is practically continuously at hand. It is the position of the board that these sections in all of their parts are a valid exercise of the police power of the state. It is the contention of plaintiff that they are not, for the reason that they grant special privileges to certain classes of the population, in violation of subdivision 13, section 19, article 4, of the Constitution of Arizona.
We have had before us in the case of State v Childs, 32 Ariz. 222, 257 P. 366, 54 A.L.R. 736, a question as to the validity of certain portions of the Pharmacy Act, and, in determining the particular point at issue therein, had occasion to discuss the principles which apply to acts of that nature. It is, of course, true that for the preservation of the public health and safety the state may regulate and place proper restrictions upon the practice of pharmacy and may prescribe qualifications to be possessed by those engaged in it. It is equally true that in the exercise of the police power it may regulate the sale of drugs, medicines and poisons, wherever such regulations tend in any way to protect the public health or safety, but it is also true that, where a regulation of this type does not in the slightest degree tend to protect the public, but in reality grants a monopoly of a legitimate business to one class of persons, it cannot be sustained under the police power. Louis K. Liggett Co. v. Baldrige, 278 U.S. 105, 49 S.Ct. 57, 73 L.Ed. 204. It follows that a statute which allows one class of persons to engage in what is presumptively a legitimate business, while denying such right to others, when the denial is not based upon a principle which may reasonably promote the public health, welfare or safety, is unconstitutional, and, while every presumption is in favor of the validity of a statute, yet, when it clearly appears that on no reasonable theory could it contribute to the public health or safety, it is the duty of the courts to so decree and set it aside as unconstitutional. In the Childs case, supra, the real question was whether anyone except a registered pharmacist might sell at retail what is commonly known as patent or proprietary...
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