State v. Zotalis

Dibble, J. The defendant Avas convicted of the violation of G. S. 1923, § 5814, Avhich prohibits anyone not a registered pharmacist or a dealer having such a pharmacist in charge of his place of business from retailing drugs or medicines or poisons, excepting, hoAvever, 23 articles of common use. He appeals from the judgment. The defendant conducts a confectionery store in Minneapolis. He is not a pharmacist and does not employ one. He sold aspirin and for selling it Avas convicted under the statute. The aspirin was in a container, with a label stating that it contained five-grain aspirin tablets, that a dose was one or two tablets, and that it was distributed by a designated laboratory and chemical company of Minneapolis. *133 G. S. 1923, § 5805, provides that the term “drugs, medicines and poisons” shall include all substances commonly kept in drug stores and used in compounding medicines or sold for medicinal purposes. Aspirin is a coal tar product commonly kept in drug stores and is used and sold for medicinal purposes. It is a drug or medicine within the statute. It is not a proprietary or patent medicine. The statute should be sustained if enacted with reasonable reference to public health or welfare. If intended merely to give a monopoly to pharmacists or druggists by restricting sales to them it is not sustainable. It is only sustainable as a police measure. The legislature thought that the dangers incident to its sale justified regulation and that a restriction of sales to pharmacists or to those under their supervision was effective. It is true that no technical skill is required in making a sale. This does not prove the statute invalid. As remarked by the trial court, the pharmacist knows where to procure a pure and genuine article and his prescribing physicians will require him to furnish a pure drug. It is not questioned that the sale of drugs, medicines and poisons may be regulated in the exercise of the police power. State v. Donaldson, 41 Minn. 74 , 42 N. W. 781 ; State v. Hovorka, 100 Minn. 249 , 110 N. W. 870 , 8 L.R.A.(N.S.) 1272, 10 Ann. Cas. 398; 19 C. J. pp. 772-774, §§ 5-13. The restriction of the sale of aspirin as provided by the statute is within the legislative discretion. State Board v. Matthews, 197 N. Y. 353 , 90 N. E. 966 , 26 L.R.A.(N.S.) 1013; People v. Smith, 231 N. Y. 531 , 132 N. E. 876 ; State Board v. Bellinger, 138 App. Div. 12 , 122 N. Y. S. 651. It may be mentioned that G. S. 1923, § 5805, permits the sale of a commonly used medicine put up for sale by a registered pharmacist when the shop of the seller is more than two miles from a drug store. This provision was held valid in State v. Donaldson, 41 Minn. 74 , 42 N. W. 781 . Judgment affirmed.