State v. Miller

103 P. 519 | Or. | 1909

Mr. Justice Slater

delivered the opinion of the court.

1. The first objection raised by the demurrer to the sufficiency of the information is that it does not state the facts constituting an itinerant vender, or hawker, but pleads a conclusion of law. The allegation, so far as material, is that the defendant, “while being a traveling vender of a drug, * * did offer for sale and sell to Robert Stockdale, a drug, etc.” It is contended that the phrase “while being a traveling vender” is a conclusion of law, and does not state a fact. The general rule of pleading is that the indictment must contain a specific description of the offense, and it is not enough to state a mere conclusion of law. Wharton, Crim. Pl. & Pr. § 154.

2. When, however, a statute creates and defines a new offense, on the principles of common-law pleading, it may be said that it is sufficient to frame the indictment in the words of the statute, in all cases where the statute so far individuates the offense that the accused has proper notice from the mere adoption of the statutory terms what the offense he is to be tried for really is. Wharton, Crim. Pl. & Pr. § 220.

3. By an amendatory act of February 25, 1907 (Laws 1907, p. 281), the meaning of the term “itinerant vender,” as used in this act, is defined to include “all persons who carry on the business above described, by passing from house to house, or by haranguing people on the public street or in public places, or use the customary devices for attracting crowds and therewith recommending their wares, and offering them for sale.” By referring to the law on which the charge was brought, and of which the defendant is bound to take notice, he would' be informed as to what facts constituted an “itinerant vender.” The information, being in the language of the statute creating the offense, is sufficient. State v. Carr, 6 Or. 133; State v. Packard, 4 Or. 157; State v. Ah Sam, 14 Or. 347 (13 Pac. 303) ; State v. Lee, 17 Or. 488 (21 Pac. 455) ; State v. Shaw, 22 Or. 287 (29 Pac. 1028; State v. Thompson, 28 Or. 296 (42 Pac. 1002). See, also, State v. Foster, 21 R. I. 251 (43 Atl. 66) ; State v. Duncan, 9 Port. (Ala.) 260; Sterne v. State, 20 Ala. 43.

4. It is next urged that the act of February' 21, 1905 ( Laws 1905, p. 222), creating the crime charged, is void, because it contravenes in two particulars Section 20, Article IV, Constitution of Oregon, which requires that “every act shall embrace but one subject, and matters properly connected theréwith, which subject shall be expressed in the title.” The title of the act in question is as follows: “To amend Sections 3806 and 3812 of Bellinger and Cotton’s Annotated Codes and Statutes of Oregon,, and to provide for the licensing of itinerant venders of drugs, nostrums, ointments, and providing a penalty for violations thereof.” It will be seen that the subject matter of that part of the act now in controversy is sufficiently stated in the title of the act, and it must be conceded that there is but one question to determine, viz: Does the act embrace more than one subject, or are there two subjects embraced therein which are not germane each to the other? Section 3806 of the Code pertains to examination by the Board of Pharmacy to determine the qualification of applicants for registration, as pharmacists, and the issuance of certificates of registration, and Section 3812 to the regulation of the sale of poisons. Both of these sections are parts of the act of February 21, 1891 (Laws 1891, p. 157), the title of which is: “To regulate the practice of pharmacy and the sale of poisons in the State of Oregon.” In this country the business of a “pharmacist” and a “druggist” is one, and the person who prepares and compounds medicines also sells them, so that, in popular speech, the two are used interchangeably as practically synonymous, and it was with the regulation of pharmacy as an occupation, or business, in relation to the public, not only in compounding, but in selling drugs and medicines, that the act of 1891 dealt; and hence to regulate and prohibit the sale of drugs or medicines by others than druggists or pharmacists would be germane to the title and subject of the act. State v. Donaldson, 41 Minn. 74 (42 N. W. 781). The first section of the act of 1891 makes it unlawful for any person not a registered pharmacist to conduct any pharmacy, drug store, apothecary shop, or store for the purpose of retailing as well as compounding medicines or poisons. So, then, the independent title to the amendatory act of 1905, “to provide for the licensing of itinerant venders of drugs, nostrums, ointments, and providing a penalty for violations thereof,” does not introduce a new or different subject of legislation, but is further legislation upon the same subject. The act therefore, in that respect, is not in contravention of that provision of the constitution.

5. It is also suggested in the brief of defendant’s counsel, but not elucidated by argument, that such law violates Section 20, Article I, Constitution of Oregon, which provides that “no law .shall be passed granting to any citizen or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.” The recent decision of this court in State v. Wright, 53 Or. 344 (100 Pac. 296) is cited, and solely relied upon by the defendant to sustain the suggestion made; but the present case clearly comes within the exception to the general rules there announced. It was there held that the peddlers’ act of 1905 (Laws 1905, p. 339), requiring a license to peddle stoves, ranges, wagons, etc., operates unequally in that it requires one peddling two or three harmless and useful articles to pay a fee for the privilege, and indirectly permits peddlers of other articles, not named therein, whether harmful or not, to do so without restriction or limitation, and is void because it is arbitrary and class legislation; but it was also held that the State may impose a tax or require a license from persons engaged in certain callings or trades, without being bound to include all persons or all property that may be legitimately taxed for governmental purposes, but the classification must be on some reasonable basis, and the law, when enacted, must apply alike to all engaged in the business or occupation. The court was unable to discover in that case any reasonable basis for the distinction undertaken to be drawn by. the legislature between the right to peddle stoves, buggies, or fanning mills (which possessed no inherent danger to public health or morals, but were prohibited), and patent medicines, dynamite, and poisons (which are inherently dangerous, but the sale thereof impliedly permitted by peddlers) ; and hence it was termed an “arbitrary distinction.” Mr. Justice Bean, who delivered the opinion, was careful to state at the very threshold of the discussion of the question that it was important to note that the case he was considering did not involve the right of the State to regulate the sale of articles which are, or may be, injurious to the public health or morals.

6. It was expressly conceded that the legislature may in such laws divide peddlers into different classes; but it was held that the classification must be on some reasonable basis, and the law when enacted must apply alike to all engaged in the business or occupation. Reasonable regulation by law of the sale of drugs, medicines, and poisons by retailers has been uniformly upheld as a valid exercise of police power. 14 Cyc. 1079. The object of such laws is the protection of public health, Commonwealth v. Zacharias, 181 Pa. 126 (37 Atl. 185) ; and statutes requiring itinerant venders of drugs, who publicly profess to cure disease thereby, to pay a license fee, have been upheld upon the same grounds. 14 Cyc. 1083; State v. Gouss, 85 Iowa, 21 (51 N. W. 1147). There is certainly a reasonable distinction to be made between the sale of stoves ranges, wagons, carriages, fanning mills, on the one hand, and drugs, nostrums, ointments and applications for the treatment of diseases and injuries. The former are harmless and have no hidden power liable to injure public health, while the composition of the latter is generally secret, and frequently contains deleterious elements unknown to the purchasers. The distinction arises from the inherent quality of the articles vended, and not from the character of the persons vending them.

We are of the opinion that the classification made by the law is reasonable, and within the power of the legislature to make. The law is of uniform operation. It applies alike to all such itinerant venders, and its privileges and immunities are open to all persons, upon the same terms. So far as it relates to the objections suggested and considered herein, we are of the opinion that the act is a valid exercise of legislative power.

The judgment is affirmed. Affirmed.