"These provisions cannot be construed as referring to mere subordinates or employees, but must have reference to proprietors or those having ultimate control of the store or business, otherwise it is apparent that they would be largely inoperative. They could not be enforced, since, as suggested by counsel, an employee might violate the law with impunity, because the act would not be committed in his pharmacy or store, but in that of his employer. "Taking the whole act together, I am satisfied that the Legislature, in using the expression persons who at the passage of this act are conducting pharmacies,' intended and had reference to those having the ultimate control of the business. This construction is in harmony with that given by the Supreme Court of Iowa to substantially the same expression found in the statute of that State, making it unlawful for any person not a registered pharmacist to conduct any pharmacy or drug store.' 'If the person conducting a drug store was the defendant,' says the court, then he was engaged in an unlawful business, for he was not a registered pharmacist. But he contends that it was his clerk and not himself who was conducting a drug store, and that had he been allowed to show that his clerk was a registered pharmacist, he would have shown that the business of the drug store was lawful. There is no doubt but that a person may lawfully become the proprietor of a stock of drugs without being a registered pharmacist. But being such proprietor is quite different from conducting a drug store. A room in the building in which the business of selling drugs is conducted is a drug store, and THE CONDUCTOR OF THE STORE, within the meaning of the statute, is, we think, the person who has the ultimate right to control the business in respect to its continuance or discontinuance, the employment of clerks, the fixing of prices, etc. It happens not with what power a mere clerk may be clothed, he cannot be said to be the conductor of the store when his powers are merely derivative.' State vs. Norton, 67 Iowa, 641. "So, in this case, the petitioner cannot, in the sense of the statute, be held to be the conductor of the pharmacy or store in which he is employed. He is engaged to manage the business of the store for his employer with, it is true, considerably enlarged powers over the ordinary drug clerk; but nevertheless, as the evidence discloses, without that right of final direction which would make him other than the clerk or agent of his employer, subject to dismissal at all times. This being so, he does not fall within the definition of one entitled to a certificate as a practising pharmacist."—From the Pharmaceutical Record. THE PEOPLE vs. MICHIGAN. SUPREME COURT OF THE STATE OF MICHIGAN. EDWIN R. MOORMAN. Filed July 3, 1891. Morse, J. October 30, 1889, at the Village of Belding, in Ionia county, James H. Kinnane, employed by the State Board of Pharmacy to prosecute violations of the pharmacy law, went into the drug store of Spencer Bros., and asked for an half ounce of aloes and myrrh, which was furnished him by the respondent. Neither of the Spencer Bros. were present, nor was a registered pharmacist or a registered assistant pharmacist in the store at he time this tincture was put up. A short time afterward on the same day Kinnane again went into the store, and called for an ounce of tincture of iodine and one ounce of carbolic acid, the same being in the language of the record "drugs, medicines and poisons." The tinctures were put up for him by the respondent. Kinnane afterward saw respondent and asked him if he was a registered pharmacist or registered assistant, and he said he was not; that he was a practicing physician, and registered as such, and considered that he had a right to dispense such drugs without being registered as a pharmacist, and that the laws of Michigan would protect him in so doing. The Court refused to direct a verdict of not guilty, on these facts, upon a trial of the respondent, in the Ionia Circuit Court, upon appeal from Justice Court, where he was tried and convicted of violating the pharmacy law. The respondent Moorman in his defense admitted the facts stated, and showed that he was a reputable physician of three years' practice, now registered in Ionia county; that he had ten years' experience as a pharmacist years ago; that he sold the drugs without any wilful intent to violate the law, but relying upon his right to do so, because of being a registered physician; that Kinnane was not his patient and he did not furnish him the drugs as a patient. He testified that any reputable physician should be able, and is able, to compound medicines and poisons and prepare his own prescriptions and, the prescriptions of any other physician; and that the sale of patent medicines is no part of the business of a practicing pharmacist. In this he was corroborated by the testimony of Henry Fremaysu, a practicing physician for fifteen years, residing at Ionia, who also testified that the tincture of iodine and carbolic acid was not used in coloring and in tanning. Charles Thompson, a registered pharmacist, residing at Ionia, testified that the sale of patent medicines was not necessarily any part of the business of a pharmacist; that any one who could read could sell them as well as a person who had three years' experience, or any other term of years; that proprietary and patent medicines are usually kept in pharmacies. This is the substance of all the testimony. The counsel for the respondent at the close of the evidence requested the Court to direct a verdict of not guilty on the ground that the law was unconstitutional and void. This request was refused and the Court instructed the jury that if they found that respondent sold the tincture of iodine and carbolic acid, and that the same were not used for coloring and tanning, then they should find a verdict of guilty. The jury returned a verdict of guilty, and the case came here upon exceptions before judgment. It is admitted by the counsel for the defendant in his argument in this court that a law regulating the practice of pharmacy in this State is needed, and the right of the Legislature to pass such an act is not denied. The constitutionality of the present law is however attacked upon several grounds. We shall take them up in the order named in defendant's brief. 1. The law provides that no person shall vend patent or proprietary medicines by retail unless he has been in the business of vending and retailing such medicines three years or more. 3 How. Stat., § 2287, c. 8, p. 3204. It is claimed that the selling of such medicines is not necessarily any part of the business of a pharmacist. That the confining of the sale of patent medicines to pharmacists and retail dealers of three years' experience grants a monopoly to a favored few and for no adequate reason. And that it is also an object in the law not embraced in the title which reads, "An act to regulate the practice of pharmacy in the State of Michigan." See Hypophosphites and Borax cases, 42 N. W. R., 781 (Minn). There is much force in both these ohjections to this provision of the law; but it is not shown that the respondent was charged with vending patent or proprietary medicines, or that the drugs sold by him were such medicines. If this provision were eliminated from the act, it would have no effect whatever upon the conviction of the respondent, as the remainder of the act would not be invalidated thereby. Under the law as originally enacted in 1885, the sale of patent and proprietary medicines was expressly excepted from the act. In 1887 the law was amended so as to exempt only those retail dealers in these medicines who had sold them for three years or more. If this amendment should be declared unconstitutional, it would leave the law of 1885 in force. REPORT ON LEGISLATION. 383 2. It is claimed that the law authorizes the Pharmacy Board to fix the license fees arbitrarily, and to make a distinction in their discretion between different individuals. We do not think the act is open to this objection. It is provided that, “The said Board may grant, under such rules and regulations as it may deem proper, at a fee not exceeding one dollar, the certificate of registered assistants, to clerks or assistants in pharmacy not less than 18 years of age." §6, P. A., 1885, p. 135; 3 How. Stat., § 2287, c. 4. Section 7 of the act provides for a yearly fee to be paid said Board, which shall not exceed one dollar for a pharmacist and fifty cents for an assistant, such registration fee to be fixed by the Board. Neither of these sections contemplate that the Board may charge one person one cent and another one dollar, as contended by respondent's counsel. The fee must be uniform, applying to all persons of each class alike, and there is no evidence in the record that the practice of the Board has been otherwise. 3. The main objection to the act, and the only one which in this case concerns the respondent, is that the law deprives a registered physician of the right to compound, put up and sell drugs and medicines, which it must be considered from the nature of his profession he is thoroughly competent to do. It is also claimed that he has a vested right to do this which the Legislature cannot destroy. So much of the act as applies to physicians reads as follows: "Nothing in this act shall apply to or in any manner interfere with the business of any practicing physician, who does not keep open shop for the retailing, dispensing or compounding of medicines and poisons, or prevent him from supplying to his patients such articles as may seem to him proper." § 10, P. A., 1883, p. 136; 3 How. Stat., § 2287, c. 8, p. 3204. Under this act if a physician wishes to keep open shop, or, in other words, a drug store, he must come under the same regulations as other persons, and he has no more right than any other person to step into a drug store and to compound or sell drugs, medicines or poisons to one not his patient. It may be that he is as competent to do this as a registered pharmacist or his registered assistant, but he has no vested right to do so. The law as I understand it does not interfere with him in the legitimate practice of his profession in which he is registered. If he wishes to do more than this he must comply with all the reasonable regulations of the Pharmacy Act. The right to regulate the practice of pharmacy certainly rests upon as good reason and as sound principle as the right to regulate the practice of medicine. This latter right was sustained by this Court in People vs. Phippen, 70 Mich., 6, and in that case a law was upheld which must be said in its provisions to be more arbitrary and unreasonable than the one now before us. And in People vs. Pippen, supra, it was substantially held that no person, no matter how long he had been in the practice of his profession, had a vested right to practice medicine in Michigan. Consequently, a physician having no right to practice his own profession in the State unless registered and conforming to the regulations prescribed by the Legislature, cannot claim to have any vested right to compound or sell drugs and medicines to one not his patient, contrary to the will of the same body. This must be now considered the settled law of this State. The question of the wisdom of such legislation is now relegated to the will of the people. The courts have no concern with it. It is also claimed that the law is unconstitutional because it prohibits an assistant pharmacist, though registered, from owning or carrying on a drug store on his own account, or from managing a pharmacy. This is also a provision that does not concern the respondent in this case, and one which, if unconstitutional, would not destroy the balance of the act. It is not necessary, therefore, to express any opinion as to the validity of this prohibition. The verdict of the jury must be sustained, and the Circuit Court of Ionia county is directed to proceed to judgment upon such verdict. The other Justices concurred. STATE OF MICHIGAN, SS. IN THE SUPREME COURT. I, Charles C. Hopkins, Clerk of the Supreme Court of the State of Michigan, do hereby certify that the annexed is a true and correct copy of the opinion of the Court now on file in said Court in said cause; that I have compared the same with the original, and that it is a true transcript therefrom, and the whole of said original. [SEAL] In testimony whereof, I have hereunto set my hand and affixed the seal of said Supreme Court, at Lansing, this 15th day of July, A. D. 1891. CHAS. C. HOPKINS, Clerk. ENTERTAINMENTS AT THE FORTIETH ANNUAL MEETING. 385 ENTERTAINMENTS AT THE FORTIETH ANNUAL MEETING. MOST of the members and delegates who attended this meeting followed the advice of the Local Secretary and the Committee on Arrangements, that Boston be considered the gathering point for those whose route of travel would permit. On Saturday, July 9, the members began to arrive there, nearly all stopping at the Hotel Vendome, Commonwealth Avenue and Dartmouth street, where elegant quarters had been provided. A Committee on Entertainment and a number of special committees, representing the pharmacists and druggists of Boston and Massachusetts, took charge of the visiting members and their ladies, and were unremitting in their attentions. For Monday, July 11, excursions had been planned to Bunker Hill Monument and Charlestown, to Cambridge and Harvard University, to Concord, Lexington, Plymouth and Salem, each one being conducted by a special committee. Tuesday was set apart for a harbor excursion on the steamer City of Jacksonville, starting from Battery Wharf and landing at Bass Point, where a sumptuous fish dinner was served. Returning to the city shortly after noon, the remaining portion of the day was devoted to a carriage drive, starting from the Vendome at about 3 o'clock. Many places of interest in the city and suburbs were visited, and in the evening a delightful reception was tendered to the visitors at the Vendome, with music and refreshments, the company separating towards midnight. On the following morning, Wednesday, the journey to the place of meeting was undertaken in a special train, which landed the excursionists at Alton Bay on Lake Winnipesaukee, where a steamer was in waiting, with a committee of the New Hampshire pharmacists, who vied with their Massachusetts brethren in entertaining the visitors while on their way to the Profile House. Music had been provided, as well as an excellent luncheon and other enjoyments, and before the company disembarked at Weirs, President Finlay gave expression to the high appreciation of the constant courtesies shown, closing with a propositon for three cheers for the generous hosts, which was heartily endorsed, and ardently carried out. The last portion of the trip was made by rail through the Pemigewasset Valley to Bethlehem Junction, and thence to the Profile House, arriving there about supper time. The arrangements had been made with such foresight that, on arrival at the hotel, every one of the party found the baggage, which had been sent by a different route, already in the room assigned for his or her occupancy during the next five or six days. During the days of their stay at the Profile House, the members visited the places of interest in the neighborhood. Within easy walking distance |