Reppert v. Utterback

De Graff, J. The petitioners, Reppert and Veateh, are registered pharmacists, who, at the time in question and for many years prior thereto, were respectively engaged in the retail drug business in the city of Des Moines. Each of the petitioners was under an injunctional decree of the district court of Iowa in and for Polk County, restraining and enjoining him from keeping for sale, selling, or otherwise trafficking in intoxicating liquors in violation of law. On or about January 4, 1926, proceedings in contempt were commenced against each of the petitioners in said court, and, in response to a citation, trial was had. The court made a finding of facts and conclusions of law adjudging the petitioners to be in contempt, and imposed a.penalty therefor. It is to review this order and judgment that a writ of cértiorari was issued by a justice of this court. The separate actions by the petitioners are consolidated, for the purpose of review, as the same legal propositions are involved in each proceeding. There is but one question presented for determination. Are the petitioners herein guilty of contempt because, as registered pharmacists, they used government alcohol in their business as pharmacists, without first procuring a state manufacturer’s permit ? The practice of pharmacy in each state is regulated in the manner defined by the state legislature thereof, under the power commonly called the police power of the state, and is exercised *316 and defended on the ground of public welfare. The word “pharmacist” in modern legal nomenclature includes apothecary and druggist, and is all-inclusive. Bouvier’s Law Dictionary (Baldwin’s Century Ed.) 75. A registered pharmacist is one who has qualified by training, education, and experience, and is so certified. His license, issued by the state board of pharmacy, recites that: “He is a competent pharmacist fully qualified to conduct the business of compounding or dispensing’ drugs, medicines, ot chemicals for medicinal use or to compound’physicians’ prescriptions, ’ ’ etc. At the outset we ask, What powers and authority are prescribed by statute and conferred upon a registered pharmacist? With this matter defined, we then ask, What did the petitioners, as registered pharmacists, do, upon which a contempt could be predicated, with resulting penalty? It may first be observed that the instant petitioners were not engaged in the sale of intoxicating liquors, and the fact that neither petitioner had a permit, as a registered pharmacist, to keep and sell intoxicating liquors, under Title VI, Chapter 100, Code of 1924, is wholly immaterial to any issue involved. The trial court expressly found that there was no evidence of an illegal sale of intoxicating liquor, as such, by either petitioner. The evidence is just as conclusive that neither petitioner was in possession of alcohol with the intent to sell contrary to law, or that any mixture was made or compounded by them containing alcohol that could be used ás a beverage. Each of the petitioners did have a permit from the United States internal revenue department, issued under the National Prohibition Act and regulations thereunder. Each petitioner was authorized under this permit, subject to the limitations of state law, to use alcohol for non-beverage purposes: (1) In the making or compounding of preparations unfit for beverage purposes recognized and defined in the United States Pharmacopoeia or National Formulary; (2) in selling quantities not exceeding one pint to a person not holding permit to purchase, when medicated according to formulary set forth in Federal regulations; and (3) in compounding medicinal preparations on physicians’ prescriptions, or otherwise medicated according to the standards set forth under Federal regulations. *317 What are the provisions of our state law relative to the matter in issue 1 The Pharmacy Act of this state reads: “For the purpose of this title the following classes of persons shall be deemed to be engaged in the practice of pharmacy: 1. Persons who engage in the business of selling, or offering or exposing for sale, drugs and medicines at retail. 2. Persons who compound or dispense drugs and medicines or fill the prescriptions of licensed physicians and surgeons, dentists, or veterinarians.” Section 2578, Code of 1924. It is quite apparent, therefore, that, under both the Federal and the state law, the right of a pharmacist to use alcohol is recognized in the conduct of his business in compounding drugs and medicines and the ‘filling of prescriptions of licensed physicians, surgeons, dentists, or veterinarians. It is a matter of common knowledge that alcohol is required by a druggist as a solvent, preservative, or antiseptic, and the legislature recognized the fact that drugs and medicine require alcohol for purposes defined by medical and pharmaceutical authorities; so that the petitioners were clearly within the legitimate sphere of action as pharmacists in the use of alcohol in filling prescriptions and in compounding drugs and medicines. We need not stop here. The statute (Pharmacy Act) offers further definitions. Section 2580, Code of 1924 reads: “For the purposes of this chapter: 1. ‘Drugs and medicines’ shall include all substances and preparations for internal or external use recognized in the United States Pharmacopoeia or National Formulary, and any substance or mixture of substances intended to be used for the cure, mitigation, or prevention of disease of either man or animals.” The statute defines the term “United States Pharmacopoeia or National Formulary.” Section 3029 (7), Code of 1924. We turn to the “Pharmacopoeia of the United States” (Official Edition, Tenth Decennial'Revision, 1926), known as Exhibit 6 in this case, and we find that alcohol is an essential ingredient in the majority of substances or mixtures of substances intended to be used “for the cure, mitigation, or prevention of disease of either man or animals.” To illustrate *318 with some of the substances, mixtures, or tinctures compounded by the petitioners: “Spirit of camphor contains not less than 9.5 gm. and not more than 10.5 gm. of camphor in each 100 cc. Camphor 100 'gm. alcohol, a sufficient quantity, to make 1000 cc. Dissolve the camphor in about 800 cc. of alcohol and add enough alcohol to make the product measure 1000 cc.” Page 351., Again — “Liniment of soft soap * * * —tincture of green soap. Soft soap 650 gm., oil of lavender 20 cc., alcohol, a sufficient quantity, to make 1000 cc.” Page 205. We will not incumber this opinion further by a recital of the substances compounded by the petitioners, as shown by the record, which substances or mixtures had alcoholic content, but recognized by the United States Pharmacopoeia or National Formulary, such as spirit of ether compound (Hoffman’s Anodyne), compound spirit of myrcia (bay rum), tincture of aconite, elixir aromatic, etc. The United States Pharmacopoeia and the National Formulary are regarded by statute as the standard authority and official guide to a pharmacist in the compounding of drugs, medicines, and medicated preparations. The alcohol belonging to the petitioners herein, and seized, was alcohol in the possession of these registered pharmacists respectively, and held by them for purposes not only defined by the Federal law, but by the state law governing the practice of pharmacy; unless it may be said that the petitioners were “manufacturers,” and in contempt for the sole reason that neither of them had procured a manufacturer’s permit, as defined by Section 2164, Code of 1924. The interpretation given this law by the department of justice of Iowa and by the pharmacy commission of Iowa has been, until this proceeding was instituted, that a pharmacist was not required to have a state manufacturer’s permit to compound or dispense drugs, medicines, and medicated preparations, and to carry on the ordinary and usual retail business of a pharmacist. What was the legislative intent in the enactment of the law governing a manufacturer’s permit? It- would be practically impossible for a pharmacist to practice his profession and conduct his business without the use of alcohol. Must a pharmacist be recognized and classed as a manufacturer because he *319 compounds drugs, medicines or medicated preparations in which alcohol is used? Does the statute so intend? Section 2164 reads as follows: “Patent and proprietary medicines, tinctures, extracts, toilet articles, and perfume, and other like commodities, none of which are susceptible of use as a beverage, but which require as one of their ingredients alcohol or vinous liquors, may be manufactured within this state, provided a permit so to manufacture -is first obtained as hereinafter provided.” It is obvious that the legislature intended to classify, under this section, all persons, firms, and corporations that engage in the business of manufacturing, as such: that is, a person, firm, or corporation that manufactures for wholesale purposes, or with the intent of selling to retailers for the purpose of resale. No such intent or purpose on the part of either petitioner is disclosed in the instant record. The petitioners, as pharmacists, did not leave the zone of the business of pharmacy and enter that of a manufacturer. They compounded, sold, and dispensed only to their customers, in the ordinary and usual business of retail druggists. The legislature did not classify the pharmacist as a manufacturer, and the content and context of the act disclose the legislative intent. Section 2136, Code of 1924, authorizes wholesale drug corporations holding a liquor permit to sell alcohol to certain classes of persons, and classifies such persons according to the character of the business or the purpose for which said alcohol is used. This classification includes: (1) registered pharmacists, (2) manufacturers, (3) licensed pharmacist permit holders, (4) manufacturing and industrial establishments in giving first-aid treatment, (5) bona-fide hospitals or sanatoriums, (6) licensed physicians, etc. Section 2136 reads as follows: “The permit issued to a wholesale drug corporation shall authorize said corporation, under the limitations herein provided, to sell: 1. Alcohol for specified chemical and mechanical purposes to persons, firms, and corporations who have qualified, under Federal and state statutes and regulations, to purchase and use alcohol for such purposes. 2. Alcohol and wine for the purpose of manufacturing patent and proprietary medicines and *320 toilet articles and compounding medicines, tinctures, extracts, or other like commodities, none of which are susceptible of use as a beverage, to pharmacists who are registered under the laws of this state and who are actively engaged in this state in the retail drug business and in such compounding. 3. Alcohol and wine for the purpose of manufacturing patent and proprietary medicines and toilet articles and compounding medicines, tinctures, extracts, or other like commodities, none of which are susceptible of use as a beverage, to firms or corporations which are actively engaged in this state in the retail drug business and in compounding such medicines, tinctures, extracts, or other like commodities under the immediate supervision of a pharmacist licensed under the laws of this state. 4. Alcohol and wines for the purpose of manufacturing patent and proprietary medicines, tinctures, extracts, toilet articles, and perfume, or other like commodities, which require such liquors as an ingredient thereof, and which are not susceptible of use as a beverage, to persons, firms, and corporations who are holders of permits to so manufacture. 5. Intoxicating liquors to licensed pharmacists holding a permit to sell such liquors on prescription for medical purposes. 6. Intoxicating liquors to manufacturing and industrial establishments for the purpose of furnishing first-aid treatment to injured persons as defined by Federal statutes and regulations. 7. Intoxicating liquors for medical purposes, to bona-fide hospitals or sanatoriums engaged in the treatment of persons suffering from recognized diseases and ailments. 8. Intoxicating liquors for medical purposes to bonafide hospitals or sanatoriums engaged in the treatment of chronic alcoholism by the tapering-off method, 9. Intoxicating liquors to licensed physicians for the purpose of use by them in accordance with Federal statutes or regulations or in accordance with state statutes, for compounding such preparations as are necessary for use in their professional practice, and for sterilization and laboratory purposes. 10. Alcohol to licensed dentists for the purpose of sterilization, annealing gold, or other like non-beverage purposes. 11. Alcohol to licensed veterinarians for any legitimate non-beverage purpose. 12. Alcohol and other intoxicating liquors to any person, firm, or corporation located and doing business in any foreign state and legally entitled to purchase and receive such liquors under the laws of such foreign state.” *321 The legislature by. this classification clearly differentiates a registered pharmacist from a manufacturer, and indicates that the sale of alcohol may be made to registered pharmacists for the conduct of their business, as defined by law. Under Section 2136 (Subdivision 3) a wholesale drug corporation holding a permit to purchase and sell intoxicating liquor .may sell alcohol to firms and corporations which are actively engaged in this state “in the retail drug business and in compounding such medicines, tinctures, extracts, or other like commodities under the immediate supervision of a pharmacist licensed under the laws of this state.” This recognizes the fact that a retail drug business, as defined by law, may be conducted by a person, a firm, or a corporation; but, in the event that a firm or corporation is the owner and operator, a registered pharmacist must have immediate supervision of the business. Section 2136 (Subdivision 4) also authorizes the sale of alcohol “for the purpose of manufacturing patent and proprietary medicines, tinctures, extracts, toilet articles, and perfume, or other like commodities, which require such liquors as an ingredient thereof, and which are not susceptible of use as a beverage, to persons, firms, and corporations who are holders of permits to so manufacture,” as defined by Section 2164. This latter paragraph does not discriminate as between manufacturers, as such, and registered pharmacists. Subdivision 4 simply purports to take care of persons who are not registered pharmacists, and who are engaged in the manufacturing business. The latter must obtain a manufacturer’s permit. To hold otherwise would reduce Subdivision 4 to a nullity. It must be recognized that the compounding of tinctures, extracts, and medicated preparations is of the very essence of the pharmacy business, and has been throughout the history of the state. The pharmacist is a technical compounder. The statute expressly gives him the right to compound drugs, medicines, and medicated preparations “for. internal or external use * * for the cure, mitigation, or prevention of disease of either man or animals.” The word “compound” literally means “to place together.” The American Illustrated Medical Dictionary (14th Ed., 1927) defines the word as follows: “1. Made of two or more parts of ingredients. 2. Any sub *322 stance made np of two or more kinds of' materials.- 3. ‘In chemistry, a substance which consists of two or more chemical elements in-union.” As heretofore pointed out, the legislature of this state recognized the fact that drugs and medicines require alcohol, the function of which is a solvent^ preservative, or antiseptic. We therefore hold that the petitioners were within the law in doing, what they did do, as disclosed by the record. The writ heretofore, issued by this court is sustained, and the judgment entered by the trial court is —Reversed. Evans, - Albert, Kindig, and Wagner, JJ., concur. Faville, J., Stevens, C. J., and Morling, J., dissent.