Plaintiffs since 1925 have been operating a store under the name of Superior Drug Store at Superior. They sell household drugs, confections, paints and miscellaneous merchandise, but do not fill prescriptions or conduct a pharmacy as that term is defined by law. They do not provide a registered pharmacist in the store. They applied to defendant board for a store license in July 1950 and tendered the required fee which was refused because they were using the word “drug” in the name of their business, contrary to R. C. M. 1947, sec. 66-1522. Thereafter plaintiffs sought a review of the action of the board in *483 the district court. The court found in favor of defendants and this appeal followed.
R. C. M. 1947, sec. 66-1522, provides: “It shall be unlawful for any person to carry on, conduct or transact a retail business under a name which contains as a part thereof, the word, ‘drugs’, ‘drug store’, ‘pharmacy’, ‘medicine’, ‘apothecary’, or ‘chemist shop’, or any abbreviations, translations, extension or variation thereof; or in any manner by advertisement circular or poster, sign or otherwise, describe or refer to the place of business conducted by such person by such term, abbreviations, translation, extension or variation unless the place so conducted is a pharmacy within the meaning of this act, and duly licensed as such and in charge of a registered pharmacist.’’
It is well settled that the legislature may in the exercise of its police power impose reasonable restrictions on the sale of drugs and medicines. 28 C. J. S., Druggists, see. 2b, p. 501. This authority in some jurisdictions extends also to patent or proprietary medicines as well as harmless household remedies. Id. Whether because of State v. Stephens,
R. C. M. 1947, see. 66-1508, expressly authorizes the board of pharmacy to license “stores other than a pharmacy wherein may be sold ordinary household or medicinal drugs prepared in sealed packages or bottles by a manufacturer, qualified under the laws of the state wherein such manufacturer resides. * * * nothing herein shall be construed to prevent any vendor from selling any patent or proprietary medicine in the original package when plainly labeled, nor such non medical articles as are usually sold by such vendors. ’ ’
And R. C. M. 1947, sec. 66-1525, provides, “nothing in this *484 act shall prevent the sale of common household preparations and other drugs, provided stores selling same are licensed under the terms of this act.”
Hence it is clear that plaintiffs holding a license under the Act in question had the right to sell everything which they do sell even though the store is not in charge of a registered pharmacist.
Can they be deprived of the use of the name “drug” in advertising their business? We think not, because we believe the means employed by the legislature, viz., the attempt to prevent the use of the name “drug” in its advertising has no reasonable relation to the public health or safety but tends merely to create a monopoly in the sale of drugs.
It attempts to give to registered pharmacists the right to sell the drugs in question by the use of the word “drug” in advertising and excludes that right from every other person. It 'makes no requirement that the registered pharmacist who may use the name and sell the drugs make any analysis, inspection or examination of the drug to be passed on by him to the purchasing public.
This case is open to the same objection pointed out by the court in Noel v. People,
*485 There is nothing in the statutes that requires those who are authorized to use the name “drug”’ in advertising household remedies to in anywise protect the public or to give advice that would tend to promote their safety, health, or welfare.
The provision excluding those who are not registered pharmacists from the use of the word “drug” in advertising household drugs bears no reasonable relationship to the protection of human life, health or safety but merely discriminates in favor of a certain class and is in consequence unconstitutional and invalid.
The judgment is reversed and the cause remanded with directions to enter judgment for plaintiffs.