State ex rel. Iowa Commission of Pharmacy v. Gouss

85 Iowa 21

Opinion

Given, J.

I. We first inquire whether said section 2532 of McClain’s Code

Footnotes

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* is in conflict with section 6, article. 1, of the constitution of Iowa. Said section 6 is as follows: “All laws of a general nature shall have a uniform operation. The general assembly shall not grant to any citizen or class of citizens privileges or immunities which, upon the same terms, shall not equally belong to all citizens.”

Appellant’s contention is that section 2532 “discriminates in favor of the citizens of one city, and 1. Constitutional Law: uniformity in operation of statutes: itinerant vender of drugs: license. against all other resident merchants of Iowa,” and cites in support City of Marshalltown v. Blum, 58 Iowa, 184, and Town of Pacific Junction v. Dyer, 64 Iowa, 38. In the former case, an ordinance which imposed a license upon persons whose business it was to sell merchandise at 'retail upon, the streets, or from house to house, with a proviso that it should not apply “ to persons retailing their own productions or of their own manufacture, if they reside in, and the goods are manufactured in, Marshall county,” was held to be unconstitutional because of the proviso. In the latter case, an ordinance providing that transient merchants should paya license, and defining transient merchants to be “every non-resident person who shall sell, exchange, or dispose of any goods, wares, or merchandise of his own or of other non-resident owners,” was held to be unconstitutional because of the discrimination in favor of resident merchants and against all others.

Section 2532, so far as applicable to the question before us, is as follows: ‘ ‘ Any itinerant vender 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 any other method, publicly profess to cure or treat diseases, or injury, or deformity, by any drug, nostrum, manipulation, or other expedient, shall pay a license of one hundred dollars per annum.”

This law is of uniform operation. It applies alike to all such itinerant venders, and its privileges and 2. Itinerant Vender of Drugs: license: physician's certificate. immunities are open to all persons upon the same terms. There is no discrimina-i*1 favor of the citizens of one city as against another, nor against resident merchants of any place in Iowa. ' All resident merchants may sell proprietary medicines and domestic remedies without being registered as pharmacists, as authorized in section 2534, and are alike protected from competition with itinerant venders. It will be readily seen that there is no such discrimination in this law as in the ordinances referred to. Indeed, we fail to discover any feature of discrimination in this law. It operates upon all persons and places alike, and grants no privileges or immunity to any citizen or class of citizens that does not equally belong to all citizens. It is argued that, taken in connection with section 2534, it discriminates in favor of domestic remedies, and against all others. Under section 2534, any person may sell, at his established place of business, domestic remedies of any kind that do not contain intoxicating liquors or poison, without 'registering as a pharmacist; but, if he becomes an itinerant vender thereof, he must pay license as required by section 2532. The regulation is as to all domestic remedies. No question is made in argument under the constitution of the United States, and we think no such question is involved in the case.-

II. We are of the opinion that a physician’s certificate does not exempt one who is an itinerant vender, 3. __ as defined in section 2532, from the provisions of that section. That he may dispense his own prescriptions without being registered as a pharmacist, as provided in section 2534, or that he may remove to another county, and practice medicine by having his certificate recorded, does not give him the right to pursue the business of an itinerant vender without paying license as such.

III. There can be no doubt but that, under section 2534, any person may keep and sell at his place of 4. ___ business proprietary medicines and other domestic remedies specified without being a physician or registered pharmacist. It is equally clear that if he “ make said sales from town to town to all persons indiscriminately, professing to cure and treat diseases with such remedies,” he is an itinerant vender, and subject to the provisions of section 2532.

IY. Under the facts stated in the fourth question certified, we are in no doubt but that a person so pursuing the business is an itinerant vender, within the meaning of section 2532. A certificate authorizing him to practice medicine in the state does not authorize him to become- an itinerant vender, as' defined in section 2532, nor exempt Mm from liability as such. The right of a physician, given in section 2534, to dispense his own prescriptions without being a regular pharmacist, and the right to remove to another county to practice, upon having his certificate recorded, as authorized under section 2549, does not make him any the less an itinerant vender, as defined in section 2532, if he conducts the business as stated in the fourth question certified. As to who are itinerant venders, see Snyder v. Closson, 84 Iowa, 184.

The judgment of- the district court is afpirmed.

See sec. 10, ch. 75, Laws of the 18th Gen. Assembly; sec. 2, ch. 137, Laws of 19th Gen. Assembly; and sec. 3, ch. 83, Laws of 21st Gen. Assembly.