Sashihara v. State Board of Pharmacy

CRAIL, J.

Plaintiffs petitioned for a writ of mandate to compel the California State Board of Pharmacy to permit

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them to take the examination for Licentiate in Pharmacy. The trial court sustained a general demurrer to the petition ■without leave to amend, and plaintiffs appeal therefrom.

It is admitted that the plaintiffs are not citizens and are ineligible to become citizens of the United States. Sections 2 and 3 of the Pharmacy Act forbid the registration of all persons, irrespective of moral standing, training, qualifications and experience, who are not “citizens of the .United States” etc.

Plaintiffs contend, first, that sections 2 and 3 of the Pharmacy. Act conflict with the terms and provisions of the Treaty of Commerce and Navigation between the United States and the nation of which petitioners are subjects, and are to that extent invalid, and, second, that said sections constitute an abuse of the police power and create an arbitrary and discriminatory classification and deny to such aliens the equal protection of the laws.

The pertinent part of such treaty reads as follows: “The citizens or subjects of each of the High Contracting Parties shall have liberty ... to carry on trade, wholesale and retail, to own . . . shops . . . and generally to do anything incident to or necessary for trade upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there established.” (Vol. 37, U. S. Statutes at Large, part 2, p. 1504.)

The whole matter resolves itself down to the question: Is the occupation of being a pharmacist a trade or is it a profession? If the practice of pharmacy is a trade the treaty is violated; if it is a profession the treaty is not violated. In this connection we must keep in mind the distinction between the business or trade of a druggist as the owner or operator of a drug store and the practice of pharmacy as such. A pharmacist may compound prescriptions. While he is so doing he is exercising his knowledge of the science of pharmacy in compounding drugs; thereafter he or someone else may sell the medicine to a customer. If he does so he becomes, in the doing of said act, a clerk or merchant. The statute which is under discussion does not prevent aliens from operating or owning drug stores or working as clerks therein; it merely prohibits them from being registered as pharmacists and from acting as such. Webster’s New International Dictionary in defining the word “trade” says: “The