Anderson v. Farr , 97 Or. 137 ( 1920 )

McBRIDE, C. J.

Before proceeding to discuss the principal and most difficult question raised on this appeal, we will dispose of those questions which we deem easy of solution.

1. The objection that the act in question contravenes Article I, Section 20, of our state Constitution has been decided adversely to plaintiffs’ contention in State v. Miller, 54 Or. 381 (103 Pac. 519), and need not be further considered. We are satisfied that both by plaintiffs’ own pleadings and the testimony, plaintiffs are “itinerant venders” of drugs, etc., within the meaning of the law.

2. The claim that the act in question embraces more than one subject is also negatived by the same decision.

Neither does the act violate Section 1 of the Fourteenth Amendment to the Constitution.of the United States: Baccus v. Louisiana, 232 U. S. 337 (58 L. Ed. 627, 34 Sup. Ct. Rep. 439, see, also, Rose’s U. S. Notes); Ex parte Gilstrap, 171 Cal. 108 (152 Pac. 42, Ann. Cas. 1917A, 1086).

3. In view of our construction of the act itself, it is unnecessary to consider its constitutionality in other respects, for, conceding without deciding that it is perfect constitutionally in all respects, we are of the opinion that plaintiffs are expressly excepted from its operation by Section 12 thereof.

It seems to be clearly shown by the testimony that plaintiffs are engaged in the general business of selling and dealing in proprietary or patent medicines in the original packages, properly labeled and purchased from manufacturers outside the state. The fact that they are also selling extracts, soaps, and perhaps other articles cuts no figure in the case.

Section 19 of the act, as it stood at the date of filing this complaint, is as follows:

“Any itinerant or traveling vender or hawker of any drug, nostrum, ointment or application of any kind for the treatment of any disease or injury, before offering any such drug, nostrum, ointment or application for sale shall pay to the treasurer of the Oregon Board of Pharmacy an annual fee of two hundred dollars ($200) upon the receipt of which the secretary of the board shall issue a license for one year from the date of said payment; one half of all such license fees shall be devoted to defraying the expenses of the board and the remainder shall be paid as it is received by the treasurer of the Oregon Board of Pharmacy into the state school fund. Itinerant venders under the meaning of this act shall include all persons who carry on the business above described by passing from house to house, or by haranguing the people on the public streets or in public places, or use the various customary devices for attracting crowds and therewith recommending their wares and offering them for sale. Any violation of this section shall be a misdemeanor and any person shall upon conviction thereof pay a fine- of not less than two hundred dollars ($200) nor more than three hundred dollars ($300), and in default of such payment shall be imprisoned in the county jail for the period of one day for each two dollars ($2.00) of such fine. In case of prosecution under this section it need not be proven that the defendant has not a license, but the fact that he has a license may be a matter of defense; provided, however, that nothing in this act shall be construed to prevent the collection of any tax or license tliat may be imposed by any county or municipal authority. ”

If this section stood alone without qualification, its provisions would amply justify the prosecutions instituted and threatened by the state; but, perhaps unfortunately for the public, it is qualified by Section 12, which, among other provisions, contains the following:

“Nothing in this act shall apply to or interfere with any practitioner of medicine or dentistry who is duly registered as such by their respective State Board of Examiners of this state, with supplying his own patients, as their physician or dentist and by them employed as such, with such remedies as he may desire, and who does not keep a pharmacy, open shop or drugstore, advertised or otherwise, for the retailing of medicines or poisons; nor does this act apply to the exclusively wholesale business of any dealer, nor to the manufacture or sale of proprietary medicines or patent medicines, or to the sale of any household remedies and medicines, by general dealers not druggists, in the original packages, when properly labeled.”

These plaintiffs are clearly “general dealers — not druggists,” engaged in selling “household remedies in original packages properly labeled,” and are within the language of the exception. As pointed out by counsel for plaintiff, the exception goes to the whole act, and not to the particular section in which it is found, and we would be compelled to construe the exception as meaning something entirely different from what the language used imports in order to hold these defendants guilty of an offense. Sections 12 and 19 may, without any distortion of language, be construed together without necessary conflict, because there may be itinerant venders of drugs, nostrums, and remedies not proprietary and not put up in original packages and not properly labeled, and who therefore, would incur the penalties denounced in Section 19.

Counsel for the state ably and plausibly argue that the exception in Section 12 was not intended to apply to the venders required by Section 19 to take out a license, and this may be true; but it is dangerous to attempt to extend the operations of a penal law by construing it beyond its plain language. The framers of the law may have intended to confine the operation of the exception in Section 12 to that particular section, or to some other sections, but they have in fact and by express language made it applicable to the whole act, and we must take the act as we find it, leaving to the legislature the correction of supposed errors. ?

The decree of the Circuit Court will be reversed, and a decree entered here, restraining further prosecutions of these plaintiffs for sales of proprietary or patent medicines, or household remedies, in original packages properly labeled.

REVERSED AND DECREE ENTERED.