21 S.D. 515 | S.D. | 1907
Upon a showing deemed sufficient to invoke the original jurisdiction of this court, a writ of habeas corpus directed to the sheriff of Minnehaha county was issued, and the question presented for review on the obedient return of that officer is whether the statute authorizes the process under which the petitioner is detained.
Omitting formal requisites of the complaint sworn to by the food and dairy commissioner before a justice of the peace by whose warrant the petitioner was' apprehended, the 'supposed public offense is described as follows: “That on the 2d day of December, A. D. iqoy, at the city of Sioux Falls, in said county R. F. Brown did he then and there being, and being then and there a druggist engaged in the business of selling drugs and medicines, wilfully, wrongfully, and unlawfully offer, expose for sale, and unlawfully sell to the said A. H. Wheaton certain prepared medicines, towit, one bottle ofPeruna, one bottle of Hamburger’s Drops, one bottle of Chamberlain’s Diarrhoea Remedy, one bottle of Piso’s Cure for Consumption, one bottle of Kodol for dyspepsia, and one bottic of Dr. King’s New Discovery, all of said prepared medicines being then.and there misbranded, in that none of the said medicines bore a qualitative statement of what it was composed, and each and all of said medicines not being then and there such drugs as are recognized in the United States Pharmacopce and the National Formulary.” Whether the act complained of constitutes a public offense depends upon judicial powers to supply certain terms claimed to have been inadvertently omitted by the Legislature, and which subject the petitioner to the operation of a penal statute in which the word “druggist” does not appear.
To sustain the assertion that a druggist who has sold prepared medicines containing no qualitative statement or analysis of contents is guilty of as misdemeanor, punishable by fine or imprisonment, we are directed to what is commonly called the “pure food law,” being chapter 151, p. 322, Lav® 1907, entitled, “An act to
It was orally argued and urged in the brief of counsel for the food and daily commissioner that to carry out the intention of section 10, and make it broad enough to justify this prosecution, we should insert the phrase “or drugs” in the first sentence thereof, but that would require a most glaring invasion of the legislative prerogative, and amount to a judicial attempt to amend a statute definitely expressed in words of common speech. The headnote prepared by this court in Landauer v. Conklin, 3 S. D. 462, 52 N. W. 322, is as follows: '“A fundamental rule of interpretation
There being no legal authority for the process under which the petitioner is restrained of his liberty nor general law to justify a conviction, his application to this court for a discharge on habeas corpus is granted.