10 N.J. Misc. 641 | N.J. | 1932
The plaintiff below demanded of the defendant “the sum of fifty dollars, one penalty for violation of section two of an act of the legislature of the State of ISTew Jersey entitled ‘An act to regulate the practice of pharmacy in this state/ approved March nineteenth, nineteen hundred and one, for that whereas, heretofore, to wit, on the eighteenth day of March, nineteen hundred and thirty, at Gloucester, in the county of Camden and State of ISTew Jersey, said Chesley Hutchin was the owner and proprietor of a certain store, and that whereas, one Raymond Hutchin being on said last mentioned day in the employ of said defendant, at said store, did on said last mentioned day retail and dispense drugs, medicines and poisons, to wit, the said Raymond Hutchin
This writ brings up for review the proceedings and judgment for the defendant entered upon the verdict of a jury in the Camden City District Court.
The only question raised on this record is whether or not the judge should have directed a verdict for the state board.
It is claimed that he should have done so because there was no dispute in the evidence that the employe sold the essence of peppermint and sweet spirits of nitre, and that they were medicines.
The sole contention of the defendant was and is that these were not medicines, and that there was testimony tending to show they were not medicines.
Expert witnesses called by the board testified that sweet spirits of nitre is a medicine and prescribed by doctors to produce sweating, to allay fever, to dilate the blood vessels' to lower high blood pressure; that essence of peppermint is a medicine, and is prescribed by physicians as a carminative for the expulsion of gas from the stomach and as a local anesthetic action to overcome nausea.
We do not find any testimony that they were not medicines. The defendant said that he kept essence of peppermint and syreet spirits of nitre for flavoring and as household remedies.
We think the only rational inference to be drawn from the evidence in this case was that these articles were medicines, and that required the direction of a verdict for the state board.
The defendant says that section 2 of the Pharmacy act (Comp. Stat., p. 3944) is unconstitutional because it is unreasonably discriminatory because of this language contained in section 9 of the act: “And nothing in this act shall be construed to apply to or in any manner interfere * * *
with the sale of simple non-poisonous domestic remedies by retailers in rural districts.”
It seems to us that the act is not unreasonably discriminatory in that regard, and moreover in this case there certainly was no interference with the sale of simple non-poisonous domestic remedies by a retail dealer in a rural district, for this sale was made not in a rural district, but at 711 Market street, Gloucester City, and so the defendant is not concerned with the provision of the act upon which he relies.
Because of failure of the trial judge to direct a verdict for the board on the undisputed evidence at the trial, the judgment under review will be reversed, and a new trial awarded— costs to abide the event.