State v. Wheelock

Oct 10, 1895
Reporters:
,
Before:
Robinson
Robinson, J.

1 The conviction of the defendant was bad under section 10 of chapter 75 of the Acts of the Eighteenth General Assembly, as amended by section 2 of chapter 137 of the Acts of the Nineteenth General Assembly and section 3 of chapter 83 of the Acts of the Twenty-first General Assembly, which contains the following: “Any itinerant vendor of any drug, nostrum, ointment or appliance of any bind intended for the treatment of diseases or injury, who shall by writing or printing or by any other method publicly profess to cure or treat diseases or injury or deformity by any drug, nostrum, or manipulation, or other expedient shall pay a license of one hundred dollars per annum, to be paid to the treasurer of the commission of pharmacy. * * * Any person violating this section shall be deemed guilty of a misdemeanor and shall upon conviction pay a fine of not less than one hundred and not more than two hundred dollars.” In July, 1894,. the defendant was engaged in the business of selling, on commission, proprietary medicines which were manufactured in the state of Minnesota by J. E. .Watkins, and were owned by him until sold. He was a resident of Minnesota, and the medicines were placed in glass bottles, securely corked, sealed, and capped, and were brought into the state, and sold in the original packages in which they were placed by the manufacturer. The medicines as prepared, and as received in this state by the defendant, were a legitimate subject of commerce, and were not injurious to the public health. They were transported by Watkins from the place where they were manufactured to Harlan, in this state, *582Where they were received by the defendant, and there offered for sale. In making the sales he traveled from place to place with a team and wagon, and, while so engaged, sold one of the packages to one M. B. Howe, in Shelby county, in the condition in which it was sent from Minnesota. He did not at that or any other time represent himself to be a physician, nor assume to determine the ailments of the people; but he distributed printed- circulars of Watkins’, which represented the medicines to be a cure for certain diseases named in the circulars, and the defendant represented that the medicine sold by him was as stated in the circular. At the time the business described was carried on, and the sale specified was made, the defendant did not have a license as contemplated by the statute, nor was he a physician or registered pharmacist. At that time, Howe was a resident of this state.

2 The appellant contends that the acts under which he was convicted are repugnant to that part of section 8 of article 1 of the constitution of the United States which provides that the congress shall have power to regulate commerce among the several states, and the only question we are required to determine is whether the claim thus made is well founded. The record clearly shows that it must be regarded, for the purposes of this case, as conceded that the defendant was an itinerant vendor of drugs and nostrums, without a license, within the meaning of the statutes of this state which we have set out, and that the medicines he sold were in the original packages in which they were shipped into this state. It is true that the power vested in congress to regulate commerce among the several states is a power complete in itself to prescribe the rules by which that commerce is to be governed; that it is coextensive with the subject on which it acts, and cannot be stopped at the external boundary of a state, but enters it, and is capable of *583authorizing a disposition of articles of commerce so that they become a part of the common mass of the property within the state. Leisy v. Hardin, 135 U. S. 100 (10 Sup. Ct. Rep. 681). But it has been held that state laws which do not discriminate between residents and products of a state and those of another state; which are not designed to interfere in any manner with interstate commerce, as those which are in the nature ©f a simple tax upon sales of merchandise, imposed alike upon all persons, whether residents or nonresidents of the state, — are not repugnant to the constitutional provision in question. Thus, in Hinson v. Lott, 8 Wall. 148, a statute which imposed a tax of fifty cents per gallon on each gallon of spiritous liquors offered for sale in the state, to be paid by the dealer introducing it, was sustained, it appearing that a like tax on such liquors produced in the state was exacted. In Woodruff v. Parham, 8 Wall. 123, a tax imposed by the city of Mobile on auction sales and sales of merchandise was sustained as to sales of property brought from other states, and sold at wholesale in unbroken packages. In Machine Co. v. Gage, 100 U. S. 676, a statute of the state of Missouri requiring all peddlers of sewing machines, without regard to the place of growth or production of material or manufacture, to pay a tax, was sustained as against a peddler who sold machines made in Connecticut. In Webber v. Virginia, 103 U. S. 344, it was said that there is no objection to state legislation requiring a license for the sale of sewing machines, by reason of the grant of letters patent for the invention, when there is no discrimination against nonresidents or their agents. In Brown v. Houston, 114 U. S. 622 (5 Sup. Ct. Rep. 1091), the power of a state to levy a tax on coal mined outside the state, and brought within it to be there sold, was affirmed. In Plumley v. Com., 155 U. S. 461 (15 Sup. Ct. Rep. 154), a statute of the state of Massachusetts which prohibited the manufacture and *584sale of imitation butter, in imitation of yellow butter produced from pure, unadulterated milk, or cream of such milk, was sustained, and held to apply to the prohibited article when brought for sale from another state, where it was manufactured. Some of these cases arose under the provision of the federal constitution which forbids states, without the consent of congress, to lay any imposts or duties on imports or exports, but all are applicable to the facts in this case. Some of the cited cases recognize the rule that state laws of the general nature of those approved are invalid so far as they discriminate in favor of the residents and products of the state, and against the residents and products of other states. There is no discrimination in the statutes of this state under consideration. They apply alike to itinerant vendors of drugs and nostrums produced in this state, and to those which come from without it; to residents and nonresidents of the state; to those who sell their own wares, and to those who act for others. The primary object of the acts is not to derive a revenue for the use of the state, but in large part, at least, to protect its citizens against solicitations and harmful practices of irresponsible and unknown traveling vendors of drugs and other articles intended for the treatment of diseases or injury, who, in carrying on their business, publicly profess to cure or treat diseases, injuries, or deformities, and thus promote the sale of their wares to the credulous. The prohibited act may be committed without any actual sale. State v. Bair, 92 Iowa, 28 [60 N. W. Rep. 486].

That the enactment of the laws in question was within the police power of the state is affirmed in principle by numerous authorities, some of which are of long standing, and cannot now be successfully questioned. In Re Rahrer, 140 U. S. 545 (11 Sup. Ct. Rep. 865), it was said that: “The power of the state to impose restraints and burdens upon persons and property, in *585conservation and promotion of the public health, good ■order, and prosperity, is a power originally and always belonging to the states, not surrendered by them to the general government, nor directly restrained by the constitution of the United States, and essentially exclusive. And this court has uniformly recognized state legislation, legitimately for police purposes, as not, in the sense of the constitution, necessarily infringing upon any right which has been confided expressly, or by implication, to the national government.” The cases of Bowman v. Railway Co., 125 U. S. 465 (8 Sup. Ct. Rep. 689, 1062), and Leisy v. Hardin, 185 U. S. 100 (10 Sup. Ct. Rep. 681), upon which the defendant relies in this case, were considered, and the fact noted that the laws on which they were based “inhibited the receipt of an imported commodity or its disposition before it had ceased to be an article of trade between one state and another, or another country and this.” In Plumley v. Com, supra, the case of Leisy v. Hardin was again considered, and held not to be an authority for the claim that oleomargarine — a recognized article of commerce —may be introduced into a state, and there sold in original packages, without any restriction being imposed by the state upon such sale. The recent case of Emert v. State (15 Sup. Ct. Rep. 367), fully sustains the conclusion we now reach. That case involved the validity of a statute of the state of Missouri which provided that no person should deal as a peddler without a license, as applied to a peddler of sewing machines manufactured in another state; and’ the review of the authorities, and the interpretation placed upon the constitutional provision involved, are in point.

*5863 *585The amount of the license fee required by the statutes under consideration is not excessive, and the regulations adopted by them are reasonable. The sale of drugs, nostrums, and other articles manufactured in another state, and brought into this state, whether *586•brought into this state in original packages or otherwise,-is not prohibited; but such medicines may be brought into the state, and sold freely. Their importation and sale are not in any manner prohibited. But if its owner select as its agent an itinerant, who, to-promote sales, publicly professes to cure and treat diseases, injuries, and deformities, it is proper that some ■evidence and guaranty of his responsibility be required. It was said in Brown v. Maryland, 12 Wheat. 443, that this right of sale may very well be annexed, to importation, without annexing to it, also, the privilege of using the officers licensed by the state to make sales in a peculiar way.” So it may be said in this case that the right to sell, in original packages, medicines brought into this state from another, does not include the right to have it sold by an unlicensed itinerant, who, to make sales, professes knowledge of the art of healing. The statutes which apply to such sales are not, in any sense, regulations of interstate commerce, but a reasonable exercise of the police power of the state, which may be applied as well to articles of interstate commerce in the hands of the vendor, and offered for sale in the original packages, as to articles produced within the state. We conclude that the judgment of the district court is right, and it is affirmed.