Commonwealth v. Zacharias

Opinion by Mr. Justice Williams, This was a proceeding by indictment in the quarter sessions. The defendant was charged with a misdemeanor. The duty of proving the guilt of the defendant under the provisions of the act of June 16, 1891, was on the commonwealth, and the defendant entered upon his trial clothed with the presumption of innocence. In criminal proceedings, the presumptions continue to favor the defendant, while guilt must be shown by competent evidence. What was shown in this case appears by the special verdict which presents the facts on which the defendant was held guilty. By turning to the statute we can at once determine the sufficiency of the special verdict. The statute forbids any person to “ open or carry on, as manager,” in the state of Pennsylvania, any retail drug or chemical store, or to be engaged in the business of compounding or dispensing medicines, without having obtained a certificate of competency and qualification so to do, from “the state Pharmaceutical Examining Board, and having been duly registered as herein provided.” The special finding of facts is defective in at least two particulars. It does not find that the defendant was engaged in carrying on any retail drug store in any capacity. It is the retail [130] drug store alone that the statute is directed against. Again, the verdict does not ascertain that the defendant was conducting a drug store “as manager.” Yet it is the “ management ” of the drug store that the statute seeks to regulate. The obvious purpose of the statute is to protect the public by requiring of one who manages such a business an adequate knowledge of the powerful medicines he deals out to customers. All that the special verdict finds against the defendant to justify his conviction is that he was a part owner in three drug stores, and received part of the profits made by them; that he employed registered pharmacists to sell the drugs and put up the prescriptions, and that he, who was not a registered pharmacist or assistant, sold no drugs and compounded no 'prescriptions. Whether he has any actual contact with the business, exercised any control as manager over it or any supervision over the purchases made for it does not appear. In the absence of proof the contrary is to be assumed. It is thus apparent that the verdict of guilty cannot be supported by the special verdict and must fall. This case is ruled by Com. v. Johnson, 144 Pa. 377. The constitutional question raised over the exception in behalf of the. widows, administrators and executors of registered pharmacists is not necessarily involved in this case. The general scope and provisions of the act of June 16, 1891 are within a proper exereis.e of the police power. Their object is the protection of the public health. The requirement that one conducting such a trade should have such chemical and pharmaceutical knowledge as to qualify him to handle intelligently the dangerous commodities in which he deals is reasonable. It can be supported without regard to the exception which is a repeal pro tanto of the prohibition which it was the purpose of the statute to make. The exception makes a discrimination between equally unqualified parties, giving to one exemption from the operation of a rule enforced against the other. This, is not protection to the public; but rank injustice to individuals. There is no more reason why the administrator or widow of a pharmacist should be permitted to manage a business of which he or she knows nothing than why any other administrator or widow should be allowed to do so. If the reason of the exception is sympathy for a widow then all widows are prima facie equally entitled to sympathy and have the same reason to claim exemp [131] fcion from tbe operation of the law. The exception would seem to fall squarely under the rule laid down in Sayre Boro. v. Phillips, 148 Pa. 488. It is a discrimination made between those who are equal under the law. It is an arbitrary gift to one, and an arbitrary denial to another, which cannot be upheld. It declares that all widows except the widow of a pharmacist shall he subject to tbe prohibition of tbe statute. All administrators and executors except they represent the estate of a deceased registered pharmacist shall be within the prohibition. Thejr must show their qualifications to conduct the trade, or re-' tire from it. If, however, the deceased proprietor was competent under the law, his widow, administrator or executor, may conduct the business, no matter how grossly incompetent he or she may he. But this question is not before us in this case. The assignments of error to the judgment of the Superior Court are not sustained, and the judgment of the court is now affirmed.