Kentucky Board of Pharmacy v. Cassidy

74 S.W. 730, 115 Ky. 690, 1903 Ky. LEXIS 149

• Court: Court of Appeals of Kentucky
• Decided: May 28, 1903
• Status: Published

Opinion

Opinion of the court by

JUDGE BARKER

Affirming.

This is an agreed case in equity, instituted in the Fayette circuit court for the purpose of obtaining an adjudication of the effect of an act to “regulate the practice of pharmacy in the Commonwealth of Kentucky, and to establish a board of pharmacy, and define the powers and duties thereof,” which constitutes article 2, c. 85, Ky. St. 1899, upon the business of appellees. The act in question establishes a board of pharmacy, and regulates the sale of drugs and medicines by retail and the compounding of physicians’ prescriptions in the State of Kentucky. Section 2621 prescribes how the Kentucky Board of Pharmacy shall be appointed and organized. Section 2622 enumerates the duties of the board, among which is the following: “It shall be the duty of the said board to examine all applicants for registration submitted in proper form; to grant certificates of registration to such persons as may be entitled to same under the provisions of this act; to investigate complaints, and to cause the prosecution of all persons violating the provisions of this act.” The qualifications of applicants, and the manner in which they may receive certificates as registered pharmacists, and their rights and duties after having received certificates, are prescribed in sections •2624-2628. By section 2619 it is provided that “Except as in this act provided, it shall hereafter be unlawful, in the Commonwealth of Kentucky, for any person who is not a registered pharmacist, within the meaning of this act, to vend at retail, compound or dispense any drug, medicine, chemical poison, or pharmaceutical preparation for medical use, or compound and dispense physicians’ prescriptions. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be liable to a fine of not less than twenty nor more than fifty dollars for each and every offense.” Section 2620: “Any owner of a pharmacy, or retail drug store, who not being a registered pharmacist, shall fail or neglect to place in charge of such pharmacy or drug store á registered pharmacist, or any such proprietor who shall by himself, or any other person, permit the compounding or dispensing of prescriptions, or the vending at retail of drugs, medicines, poisons or pharmaceutical preparations in his store or place of business, except by or in the presence and under the immediate supervision of a registered pharmacist, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be liable to a fine of not less than twenty-five nor more than one hundred dollars, and each week that he shall cause or permit said pharmacy or retail drug store to be so conducted or managed shall constitute a separate and distinct offense, and render him liable to separate prosecution' and punishment therefor.” Section 2629 forbids the adulteration of drugs, and provides for the prosecution of offenders against the provision. Section 2630: “No person shall sell at retail any poisons, except as herein provided, without affixing to the bottle, box, vessel, or package containing the same, a label printed or plainly written, containing the name of the article, the word 'Poison,’ and the name and place of business of the seller, with the common name of two or more readily accessible antidotes, nor shall he deliver poison to any person without satisfying himself that such poison is to be used for legitimate purposes. A poison in the meaning of this act shall be any drug, chemical or preparation, which according to standard works on medicine or materia medica, is liable to be destructive to adult human life in quantities of sixty grains or less. It shall be the further duty of any one selling or dispensing poisons, which are known to be destructive to adult human life in quantities of five grains or less, before delivering them, to enter into a book kept for that purpose the name of the seller, the name and residence of the buyer, the name of the article, the quantity sold or disposed of, and the purpose for which it is said to be intended, which book of registry shall be kept for at least two years and shall at all times be open to the inspection of the coroner of the court in which the same may be kept. Oil of tansy, oil of savin, ergot, and its preparations, cotton root and its preparations, and all other active emmenagogues or abortives, shall be sold at retail or dispensed only upon the written prescription of a legally qualified physician. The provisions of this section shall not apply to the dispensing of poisons in not unusual quantities, or doses, on physicians’ prescriptions, nor to the sale to agriculturists or horticulturists, of such articles as are commonly used by them as insecticides. Every person failing to comply with the requirements of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall pay a fine of not less than ten dollars.” Section 2631: “Any person, or persons, not a registered pharmacist, may open, own, or conduct a drug store or pharmacy, if he or they keep constantly in charge of the same a registered pharmacist; but shall not himself or themselves sell or dispense drugs or medicines, except proprietary or patent medicines in original packages.” Section 2632: “Nothing in this act shall be construed so as to apply to, or in any manner interfere with the sale of the usual non-poisonous domestic remedies and medicines, and patent or proprietary medicine, by county stores in small places or rural districts. Nothing in this act shall apply to, or in any manner interfere with, the business of any licensed practicing physician, or prevent him from supplying to his patients such articles as may seem proper to him, or with his compounding his own prescriptions.”

The agreed facts show that the appellees are engaged in the business of vending at wholesale and retail a certain proprietary medicine known as “Vitae-Ore,” in Lexington, Ky., which is a kind of sub-acid drink, possessing, as it claims, valuable medicinal qualities; that they are, and have been for a number of years, engaged in the business of vending and selling at retail in this State various patent and proprrietary medicines, manufactured and compounded, both in and out of this State; that these medicines are sold at retail in the original packages or bottles in which they are put up by the manufacturer and proprietor, without breaking the seal, or in any way changing or adding to the medicine or composition. Appellees are not registered pharmacists, nor entitled to be registered as such. They are not druggists, and do not keep, own, or conduct a drug store, pharmacy, or county store in a small place or rural district; nor do they compound drugs, medicines, or physicians’ prescriptions, or employ a registered pharmacist in superintendence. It is the usual practice or custom of druggists in this Commonwealth, who are not registered pharmacists, to sell at retail patent and proprietary medicines in the same manner with reference to the quantity of the medicine and the package in which the same is sold ' as the appellees carry on their business. The term “original package,” as applicable to the sale of patent and pro-pr-ietary medicines, means, and is so understood 'by all persons, the small individual package or bottle as prepared for retail,' and not the large box or package in which the small packages’ may have been shipped by the manufacturer. There are many more agreed facts contained in the written stipulations between the parties to this action, which are not thought necessary to be set out herein; the real question for adjudication being whether or not the sale of patent and proprietary medicines in the manner shown by the agreed facts which are set out violates the provisions of the statute under discussion.

It can not be questioned that the language of sections 2619 and 2620 would include within their scope patent and proprietary medicines, unless that conclusion is forbidden by the language of other sections of the statute to be noticed hereafter. Nor can the constitutionality of the act be successfhlly assailed. The right of the Legislature to enact laws necessary to protect the lives and health of the citizens- from the acts of incompetent and unskilled pharmacists, under the police power of the Commonwealth, is so well settled as hardly to need either argument or citation of authority to support it. This very act, or similar acts preceding it, have been recognized, approved, and enforced in numerous cases by this court. Commonwealth v. Fowler, 96 Ky., 166, 16 R., 360, 28 S. W., 786, 33 L. R. A., 839; State Board of Pharmacy v. White, 84 Ky., 626, 8 R., 678, 2 S. W., 225; Kentucky Board of Pharmacy v. Lordier (109 Ky., 119, 21 R., 621), 58 S. W., 531. From the case of State v. Heinemann, 80 Wis., 253, 49 N. W., 818, 27 Am. St. Rep., 34, we make the following quotation as containing a most admirable presentation of the right of the State, in the exercise of its police power, to enact laws to preserve and protect the health and lives of the citizens from the consequences of unskilled compounding of dangerous- and deadly drugs: “Was it not within the power of the Legislature to fhus protect the health and lives of citizens throughout the State from improper, dangerous,, and destructive compounds, put up by incompetent or inefficient persons? All courts agree that the police power of the State extends to all regulations affecting the lives, limbs, health, comfort, goor order, morals, peace, and safety of society, and hence may be exercised on many subjects and in numerous ways. Baker v. State, 54 Wis., 372 [12 N. W., 12]; State v. Ryan, 70 Wis., 681 [36 N. W., 823]. In speaking of such power, Mr. Justice Field, in- a recent case, said: ‘The'possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed, by the governing authority of the country, essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint, under conditions essential to equal enjoyment of the same right by others. It is then liberty regulated by law.’ Crowley v. Christensen, 137 U. S., 89 [11 Sup. Ct., 13, 34 L. Ed., 620]. This principle has been applied in many ways, and to a variety of vocations. Thus it has been held that a State may require locomotive engineers therein to be examined and licensed by a board created for that purpose, and make it unlawful to operate without such license. Smith v. Alabama, 124 U. S., 465 [8 Sup. Ct., 564, 31 L. Ed., 508]; Nashville, etc., Ry. Co. v. Alabama, 128 U. S., 96 [9 Sup. Ct., 28, 32 L. Ed., 352]. So it has been held that a State may lawfully regulate the manufacture and sale of 'oleomargarine. Powell v. Penn., 127 U. S., 678 [18 Sup Ct., 992, 1257, 32 L. Ed., 253], affirming Powell v. Commonwealth, 114 Pa., 265, 7 Atl., 913, 60 Am. Rep., 350; Commonwealth v. Weiss, 139 Pa., 247 [21 Atl., 10, 11 L. R. A., 530], 23 Am. St. Rep., 182; People v. Arensberg, 105 N. Y., 123 [11 N. E., 277], 59 Am. Rep., 483. So it has been held that the State may lawfully require every practitioner of medicine therein to obtain a license from a State board created therefor, as evidence of his qualification to so practice, and make it unlawful to practice without first obtaining such license. Dent v. West Virginia, 129 U. S., 114 [9 Sup. Ct., 231, 32 L. Ed., 623]; Eastman v. State, 109 Ind., 278 [10 N. E., 97], 58 Am. Rep., 400; Williams v. People, 121 Ill., 86 [11 N. E., 881]. A similar rule has been applied to dentistry. Gosnell v. State, 52 Ark., 228 [12 S. W., 392]; State v. Vandersluis, 42 Minn., 129 [43 N. W., 789, 6 L. R. A., 119]; State v. Creditor, 44 Kan., 565 [24 Pac., 346], 21 Am. St. Rep., 306. Also to persons engaged in the business of plumbing. Singer v. State, 72 Md., 464 [19 Atl., 1044, 8 L. R. A., 551]. The case at bar was, in effect, recently decided in New Hampshire, where it was held that a statute of that State which required the retailers of drugs, medicines, etc., to submit to an examination and procure a license is within the police power of the State, and is not a tax on the business, nor does it deprive of property without, due process of law. State v. Forcier, 65 N. H., 42, 17 Atl., 577. In that case, as here, it was claimed that the fee required to be paid by the act rendered the same illegal, but the court said: ‘The fee of five dollars to be paid by the applicant for a license to engage in the business of an apothecary and druggist is merely an equivalent for the service rendered by the commissioners in making the examination and issuing the license, and can not be considered as a tax upon the business, or as depriving the applicant. of his property without due process of law.’ State v. Forcier, 65 N. H., 42 [17 Atl., 577] .To the same effect are Smith v. Alabama, 124 U. S., 465 [8 Sup Ct., 564, 31 L. Ed., 508]Nashville, etc., Ry. Co. v. Alabama, 128 U. S., 96 [9 Sup. Ct., 28, 32 L. Ed., 352].”

Tiedeman, in his work on Limitations of Police Power, says: “The ordinary police regulations of employments and professions is most Gertainly within the power of the State governments.”

This court, in numerous cases, has upheld laws prescribing the qualifications of persons desiring to practice law,, medicine, and dentistry. In the case of Driscoll v. Commonwealth, 93 Ky., 393, 14 R., 376, 20 S. W., 431, it was said: “We see no reason for denying the right of the Legislature to enact laws for the protection of the people by requiring those who undertake to practice a profession to give evidence of their qualications and skill by the exhibition of a license from those who, in the legislative judgment, are competent to determine whether or not the applicant has the necessary qualifications to practice the particular profession. The citizen, of necessity, when diseased, must employ the physician, and the lawyer when his right of person or property has been violated. The entire public is interested in knowing, or having the means of ascertaining, whether the physician he desires to employ has a sufficient knowledge of medicine to enable him to practice his profession; and for the welfare and safety of the citizens the Legislature may say that you shall not practice medicine unless you have the indorsement of a board skilled in the profession. The patients of the physician must rely on his knowledge of medicine and the mode of administering it, and, the entire public being interested in having physicians learned in the profession, it is competent for the Legislature to prescribe the mode of determining the qualifications of those who propose to embark in the practice. The constitutional question has been raised and decided by many courts, all holding that, when the conditions imposed upon the profession by the lawmaking power before one can enter upon the practice are reasonable, they must be complied with, or the penalty imposed will be enforced. The Supreme Court, in. the case of Dent. v. West Virginia, reported in 129 U. S., 114 [9 Sup. Ct., 231, 32 L. Ed., 623], has determined the constitutionality of such laws in a case where the statute of West Virginia was very much like that of this State. The right of a State to enact such laws proceeds from the inherent power to prescribe such rules as will protect the health and. safety of the people. State v. Gregory, 83 Mo., 123, 53 Am. Rep., 565; State v. State Medical Ex. Board, 32 Minn., 324 [20 N. W., 238], 50 Am. Rep., 575; Case of Bauer (Pa.), 4 Atl., 913; Harding v. People (Colo. Sup.), 15 Pac., 727.”

The question before us is not only the right of the Legislature to forbid the sale of patent and proprietary medicines except by registered pharmacists, but whether it has done so in the statute. It is manifest, from an inspection of the language of sections 2619 and 2620, that the protection of the citizens from the acts of unskilled pharmacists in the compounding and sale of dangerous medicines is the primary object of the statute. ■ It must occur 'to every one who reflects upon the subject that there does not exist the same reason for requiring the service of a skilled pharmacist in the sale of patent and proprietary medicines as for the ordinary retailing of drugs and the compounding of physicians’ prescriptions. Patent and proprietary medicines are put up upon uniform prescriptions, and placed upon the market ready for use by the consumer. They are sold upon their known or supposed reputation as curative agents. Those who handle and sell them make no change in their composition or ingredients, and there is, therefore, no danger arising from unskilled compounding or mistakes as to ingredients. Undoubtedly, much of it is worthless, perhaps more is harmful;, but ignorance in the compounding does not enter into their manufacture. Tie statute requires no duty of the registered pharmacist in reference to these medicines. He sells them on the call of his customers, just as they are' prepared by the proprietors for retail, and it requires no more scientific skill to do so than to sell soap, or perfumery, or any other like articles usually kept by druggists.

Much was said in the argument at bar, and is said in the brief of counsel for appellant, as to the duty of the pharmacist to apply the provisions of section 2630 to patent and proprietary medicine sold by him. This section forbids the sale of poisons at retail without affixing to the bottle, box, vessel or package containing the drug a label printed or plainly written containing the name of the article, the word “Poison,” and the name and place of business of the seller, with the common name of two or more readily accessible antidotes; or the delivery of poison to any person without assurance that it is to be used for legitimate purposes. It is insisted that the section relates to the sale of patent and proprietary medicines as well as other drugs, and this is done to show the necessity for the superintendence of a pharmacist in the matter of their sale. There is little doubt but the provisions of this section apply alone to such deadly poisons as produce immediate harm or death, and not to patent or proprietary medicines, which, if harmful at all, do not at once produce disastrous effects on the human system. We think these medicines do not come within the meaning of the pharmacy act, and that this is shown by the language of sections 2631 and 2632, which are the only parts of the statute in which they are mentioned by name. The first of these expressly authorizes owners of drug stores who are not registered pharmacists, but who employ one in their business, to themselves sell such medicines; and section 2632 authorizes the owners of county stores .to keep them in stock for sale. The language of these two sections shows that , the Legislature did not regard these medicines as coming within the scope of the statute, and seem to have been inserted for no other purpose than to place this beyond question.

There can be no reason for denying to appellees the right to sell the medicines in question, and according it to the owners of drug stores and county stores who possess no greater scientific skill in the knowledge of pharmacy. The lives and health of the customers of the owners of county stores and of the customers of such druggists as are authorized to sell patent and proprietary medicines by section 2631 are as sacred in the estimation of the lawmakers as are those of the customers of other drug stores, and, if it had been thought necessary for the protection of the latter to limit the sale of the medicines in question to registered pharmacists, undoubtedly the same protection would have been thrown around the former. The learned chancellor below was of opinion that the act does not apply to the sale of patent and proprietary medicines, and in this we concur.

The judgment is affirmed.

Whole court sitting.