44 N.Y.S. 1077 | N.Y. App. Div. | 1897
The defendants were convicted for having retailed medicines in violation of chapter 502, Laws 1879, as amended by Laws 1886, c. 272, § 1, which reads:
“It shall be unlawful * * * for any person, unless a registered pharmacist, within the meaning of this act, to open or conduct any pharmacy or store for retailing, dispensing, or compounding medicines or poisons, or for any one not a registered pharmacist, or registered assistant pharmacist, to prepare physicians’ prescriptions, except under the immediate supervision of a registered pharmacist, or registered assistant pharmacist, in the county of Kings.”
Section 6 provides that a registered pharmacist shall not be responsible for the quality of drugs or medicines sold by him in the original packages of the manufacturers, and also those known as “patent medicines”; and section 8 provides that the act does not apply to the business of wholesale dealers, except as to certain parts not now in question. Section 9 of the act, as amended in 1886, contains, among other clauses, the further provision that “any person not registered who sells, compounds or dispenses drugs, medicines or poisons, * * * except under the immediate supervision of a registered pharmacist, * * * shall, for every such offense, be deemed guilty of a misdemeanor.”
The record shows that these exhibits were at first marked for identification only, but at a later stage of the trial they were treated as exhibits, were certified by the police justice to the county court, went up to the county court with the papers in the case, and are now in the possession of the clerk of this court. Some question having arisen as to the identity of the bottlés, counsel for both parties, at a date subsequent to the argument of the appeal, were requested by the court to appear before it, and it was then conceded by both counsel that the bottles were the ones used at the trial. It was also conceded on the trial “that the defendants are not registered pharmacists, and that these articles were not sold under the immediate supervision of a registered pharmacist.” The prosecution admitted that the bottles were sold by the defendants in the original packages of the manufacturer, and on the argument it was further conceded that these bottles were original packages, not put up by Abraham & Straus. It is not claimed that the defendants “dispensed or compounded any medicine”; and the question arising on this appeal is whether the defendants conducted a store for the retailing of medicines, or sold or retailed medicines, within the meaning and purpose of the statute.
At common law, the retailing of medicines was not a crime; and, so far as the city of Brooklyn is concerned, only the statute in question makes the act of the defendants criminal. The general rule for the construction of penal statutes is that they should be construed strictly, and not extended by implication; but where the statute is made for the public good, although it be penal, it should receive an equitable construction. 9 Bac. Abr. 254.
In the case of People v. Bartow, 6 Cow. 290, the act to prevent un
“Among other things, it is well settled that a statute which is made for the good of the public ought, although it be penal, to receive an equitable construction. When it is considered that this statute was intended to strike at an existing evil, deemed to be of serious injury to the community, it cannot well be doubted that its enactment was to promote the public good.”
The case of Sickles v. Sharp, 13 Johns. 497, involved the violation of an act to protect the fishing in Hudson river, which forbade fishing be ween sunset on Saturday and sunrise on Monday, and the court held:
“The rule that penal statutes are to be construed strictly when they act on the offender, and inflict a penalty, admits of some qualification. Tn the struction of statutes of this description, it has been often held that the plain and manifest intention of the legislature ought to be regardeu. A sunme, which is penal, to some persons, provided it is beneficial generally, may be equitably construed.”
In both these cases the indictment was sustained by an equitable, and not by a strict, construction of the act.
The Hew York City consolidation act of 1882 uses almost the same language as the statute in question, embodying the words “retailing, dispensing or compounding of medicines or poisons.” The case of People v. Rontey (Sup.) 4 N. Y. Supp. 235, was an appeal from a conviction under that act; and the court, at page 238, in affirming the conviction, said:
“The statute was in the nature of a police regulation aimed at greater safety to the people, by requiring that drugs should be dispensed only by experienced persons, to whom alone that duty should be assigned, and who alone should be permitted to discharge it. The appellant, therefore, was not justified in openly disregarding the provisions of the statute, which required important and substantial forms to be observed before attempting to sell drugs and medicines. Public safety must be regarded as superior to any private rights, and his business must yield to the necessities recognized by proper legislation.”
It makes little difference, under these decisions, whether the statute be construed strictly or equitably, because under either construction the defendants were conducting a store for, and were selling or retailing, medicines, not under the supervision of a licensed or registered pharmacist, although the medicines were in the “original packages of the manufacturer.” It is to be observed that this exception in the sixth section relates only to sales by registered pharmacists, and not to those by general merchants.
The appellants contend that the word “retailing” involves the opening of the ultimate original package, and the dividing of its contents in connection with the ordinary dispensing or compounding of medicines, and that this word must be interpreted in connection with the words “dispensing and compounding,” on the principle of noscitur a sociis. The three words have three separate meanings; at least, the word “retailing” differs radically in meaning from the other two words of the collocation, and has additional meaning. “To retail” is differentiated from “to wholesale,” and there can be no doubt that the selling of one bottle is a clear sale at retail. The defendants contend that, while dispensing and compounding require the experience and skill of
We are therefore forced to the inevitable conclusion that the act of the defendants was a clear violation of the statute, and that the judgment of the county court must be affirmed. All concur.