State Board of Pharmacy v. Gasau

Laughlin, J.: The defendant has been convicted for selling cream of tartar not of the standard of strength, qtiality or purity prescribed in the United States Pharmacopoeia. Section 40 of article 3 of the. Public Health Law has not been amended since its original enactment.. It defines the terms “ food ” and “ drug ” as follows: “ The term, food, when used herein, shall include every article of food and every beverage used by man and all confectionery; the term, drug, when so used, shall include all medicines for external and internal use.” Section 41 of the same article of the Public Health Law, entitled “ Adulterations,” provides, among other things, as follows : “ Ho person shall, ivithiri the State, .manufacture, produce, compound, brew, distill, have, sell' or offer for sale any adulterated food or drug. An article shall be deemed to be adulterated within the meaning of this act: A. In . the case of drugs : “ 1. If when sold under or by a name recognized in the United States pharmacopeia, it differs from the standard of strength, quality or purity laid down therein. “ 2. If, when sold under or by a name not recognized in the United States pharmacopeia, but which is found in some other pharmacopeia or other standard work on materia medica, it differs materially from the standard of strength, quality or purity laid down in. such work.”' This part of section 41 has not been amended. Subdivision “ D ” of said section provides that every person violating' any provision of the section shall forfeit to the people of the State the sum of $100 for every such violation. Cream of tartar is a drug within the statutory.definition already quoted. Article 11 of the Public Health Law,, as originally enacted, con-, tains no provision defining the adulteration of drugs or imposing a penalty therefor. It conferred authority upon the State Board of Pharmacy to license pharmacists and assistant pharmacists, and in section 186* it prohibited any person from practicing as a pharma [805] cist without- such license. ' By section 187, defining the application of article 11, it excluded from its operation, among other articles, “ the sale of the usual domestic remedies by retail dealers in the rural districts.” This section was amended by chapter 297 of the Laws of 1897, and sales by retail dealers or merchants of cream of tartar, among other things, were exempted from the operation of the provisions of .that article. At this time it is quite clear that the pui'pose of the Legislature in exempting the sale of cream of tartar from the operation of the provisions of article 11 was to render it unnecessary for the seller to procure a license as pharmacist or assistant pharmacist or to employ a licensed pharmacist or assistant pharmacist in the sale thereof, and the sale of adulterated drugs was left subject to the operation of the provisions of article 3. The Legislature also prescribed in article 11, which originally related wholly, if not principally, to sales without a license, a penalty for a violation thereof (§ 190*) and authorized an action by the State Board of Pharmacy to recover the same. In 11)00 the Legislature; by chapter 667, materially amended the provisions of article 11 of the Public Health Law and added, among other provisions, section 197, which provides as follows : “Adulteration or substitution of drugs, chemicals and medicines. —Subdivision 1. Hnless otherwise prescribed for or specified by the customer all pharmaceutical preparations, sold or dispensed in a pharmacy, dispensary, store or place, shall be of the standard, strength, quality aud purity established by the latest edition of the United States Pharmacopoeia. “ Subdivision 2. Every proprietor of a wholesale or retail drug store, pharmacy, or other place where drugs, medicines or chemicals are sold, shall be held responsible for the quality and strength of all drugs, chemicals or medicines sold or dispensed by him except those sold in original packages of the manufacturer, and those articles or preparations known as patent or proprietary medicines. “ Subdivision 3. Any person who shall knowingly, wilfully or fraudulently, falsify or adulterate any drug, medical substance or preparation, authorized or recognized in the said Pharmacopoeia, or used or intended to be used in medical practice, or shall knowingly, wilfully or fraudulently offer for sale, sell or cause the same to be [806] sold, shall be guilty of a, misdemeanor; all drugs, medical, substances or preparations, so falsified or adulterated shall be forfeited to the board and by the board destroyed.” The application of the article which had previously been defined by. section 187 was, by the amendment, defined in section 199 as follows : “'§ 199. Application of article limited.—This article shall not apply to the practice of a practitioner of medicine, who is not the proprietor of a store-for the dispensing or retailing of drugs, medicines and poisons, or who is not in the employ of such a proprietor, and shall not prevent practitioners of medicine from supplying their patients with such articles as they may deem proper, and except as to the labeling of poisons it shall not apply to the sale of medicines or poisons at wholesale when not for the use or consumption of the purchaser, -or to the sale of paris green, white hellebore and other poisons for destroying insects, or any substance for use in the arts, or to the manufacture and sale of proprietary medicines, or to the sale by merchants of ammonia, bicarbonate of soda, borax, camphor, castor oil, cream of tartar, dye stuffs, essence ginger, essence peppermint," essence wintergreen, non-poisonous flavoring essence or extracts, glycerine, licorice,' olive oil, sal ammoniac, sált-petre, sal soda "and sulphur, except as herein provided. Provided, however, that .in the several towns of this State outside of incorporated villages, physicians may compound medicines, fill prescriptions, and sell poisons, ■ duly labeling the .same as required 6y this act, and merchants and retail dealers may sell the ordinary non-poisonous domestic remedies.” * The contention of the learned counsel for. the appellant is that his client, in selling cream of tartar, .was subject to the operation of the provisions of sections 46 and 41 of article 3 of the Public Health Law, the material parts' of which, so far as applicable, have been stated, and that he was exempt from the operation of the provisions of article 11, and from the penalty now prescribed in section 201 for a violation of said article. It is to be observed, that by the provisions of the Public Health Law as they existed prior to the. amend, ment of 1900, the sale by merchants of cream of tartar was .wholly excluded from the operation of the provisions of article 11, but that [807] by the provisions of section 199, added by said amendment, this exemption was modified by the following clause: “Exceptas herein provided.” It is manifest, therefore, that the Legislature intended that some part of article 11, as amended in 1900, should be applicable to merchants selling cream of tartar. An examination of the provisions of the original statute, as amended, indicates that the Legislature intended to continue to permit the sale of cream of tartar, among other things, by merchants without procuring a license or employing a licensed pharmacist or assistant pharmacist. It is also evident, I think, that with respect to violation of the law by selling adulterated drugs, the Legislature deemed it advisable to devolve upon the State Board of Pharmacy the duty of enforcing the law and to confer upon it the right to collect the penalties, and to that end section 197 was enacted, defining, so far as applicable to the question now under review, the standard of purity of drugs substantially the same as defined in section 41 of article 3. I am of opinion, therefore, that the clause “ except as herein provided,” in section 199, leaves the provisions of section 197 applicable to merchants selling cream of tartar, and that they may be prosecuted by the State Board of Pharmacy for the penalty prescribed in section 201. It may be more pointedly observed, as already indicated, although the question is not presented for decision, that the effect of the amendment is to relieve those selling adulterated drugs from the application of the provisions of sections 40 aiid 41 of article 3 and to subject them only to the penalty prescribed in section 201 for a violation of the provisions of article 11, for it is not likely that the Legislature would prescribe, assuming that it has the power, two penalties for such an offense, to be prosecuted and recovered in separate actions by different parties, (See Excelsior Petroleum Co. v. Lacey, 63 N. Y. 422.) It follows that the determination should be affirmed, with costs. Soott and Lambert, JJ., concurred ;• Patterson, P. J., and Houghton, J., dissented. Footnotes [*] Amd. by Laws of 1895, chap. 896. —[Rep. [*] Amd. by Laws of 1899, chap, 364,— [Rep, [*] Amd. by Laws of 1901, chap. 648, and since amd. by Laws of 1907, chap. 224.—[Rep.