Morris v. Municipal Court

WOOD (Fred B.), J.

E. S. Morris has appealed from a judgment of the superior court which denied his petition for a peremptory writ to prohibit the municipal court from further proceeding in an action against him upon a complaint filed February 20, 1950. The complaint charged three violations of section 26286 of the Health and Safety Code, the dissemination of false advertisements of drugs.

The judgment was entered upon the sustaining of a general demurrer to the petition. The petition states that appellant duly objected to the jurisdiction of the municipal court upon the ground, asserted by him, that thé statute is unconstitutional, and that the municipal court has threatened to and will proceed with the trial of the cause. The petition is silent on the question whether or not the representations made in the advertisements were true or false in fact.

Appellant contends: (1) section 26286 prohibits, but does not define, the dissemination of a false advertisement of

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a drug; (2) section 26271 of the Health and Safety Code declares false the advertisement of any drug if represented to have an effect in certain enumerated diseases or ailments, irrespective of the truth or falsity in fact of the representation, thus creating (contrary to the due process clauses of the state Constitution and the Fourteenth Amendment to the Constitution of the United States) a purely arbitrary presumption which the accused is not permitted to dispel; (3) the complaint charges violations of section 26271 because it alleges that appellant advertised that certain drugs had an effect in ulcers of the stomach, goiter, and dental caries, diseases or ailments enumerated in section 26271; (4) therefore, because of the asserted unconstitutionality of section 26271, the complaint does not charge a public offense.

The vice of this argument inheres in the fact that it ignores section 26270 of the Health and Safety Code (in the same article as section 26271), which declares that an advertisement of a drug is deemed “false if it is false or misleading in any material particular.” The first count of the complaint presents issues of fact under section 26270, none under section 26271. It does not charge that appellant represented a drug as having an effect in any of the diseases or ailments enumerated in section 26271. Manifestly, the petition does not challenge or put in issue the jurisdiction of the municipal court to proceed under the first count. This alone is sufficient to require denial of the petition.