PEEK, J. Petitioner herein seeks to compel the respondent State Board of Pharmacy to issue to him a renewal of his license as an assistant pharmacist.
By his petition it is alleged he was a duly licensed assistant pharmacist under the laws of this state and in accordance with the provisions of an act entitled “An Act to Regulate the Practice of Pharmacy.” (Stats. 1905, chap, cdvi, p. 535.) This act was amended from time to time, and in 1937 sections 4160 to 4162 were added to the Business and Professions Code as a part of the codification thereof, and which read:
“4160. Registered assistant pharmacists are persons who were registered as such under chapter 406 of the Statutes of 1905, relating to pharmacy, and who have paid all moneys due for renewal of registration as required by that statute, and are such other persons as are registered in accordance with the provisions of this article.
“4161. The board shall register as an assistant pharmacist any person who is in any one of the classes provided in this article.
“4162. Registration as an assistant pharmacist, Class A, shall be granted to any person at least 20 years of age, who:
“ (a) Has passed a written examination to the satisfaction of the board.
“(b) Has had three years of pharmaceutical experience.
[71]“(e) Has satisfactorily completed at least one-half of the course required for graduation in a school or college of pharmacy or a department of pharmacy of a university recognized by the board.”
Section 4135 of said code provided in part:
“Registration as a licentiate in pharmacy, class four, shaE be granted to any person at least 21 years of age, who: . . .
“(d) Has been registered as an assistant pharmacist for a period of two years prior to his application for examination as a licentiate in pharmacy.”
By the Statutes of 1943, chapter 510, page 2052, subsection (d) of said section was amended to read as foEows:
“Registration as a licentiate in pharmacy, class four, shaE be granted to any person at least 21 years of age, who has been registered as an assistant pharmacist in this State prior to September 1, 1943, and who has been actively engaged in the practice of pharmacy for the five years immediately preceding.”
At the same session, the Legislature repealed said chapter 9, article 7, sections 4160 to 4162 inclusive, relating to assistant pharmacists. (Stat. 1943, chap. 508, p. 2050; chap. 510, p. 2052.)
The stipulated statement of facts on file shows that petitioner was duly licensed as an assistant pharmacist on January 14, 1939, under the provisions of sections 4160 to 4162 inclusive, of chapter 9, article 7 of the Business and Professions Code, and that his license was renewed yearly.
On June 9, 1944, approximately nine months after the amendments to section 4135 and the repeal of sections 4160 to 4162 became effective, he transmitted his renewal fee to the Board of Pharmacy, and some time thereafter received a communication from the assistant director of the Department of Professional and Vocational Standards, informing him in part that “. . . Since the registration of assistant Pharmacists was abolished by law, effective September 1, 1943” the fee was refunded and the renewal license denied.
Two contentions are made by petitioner, first, that as the legislation attacked is retrospective and an attempt to deprive him of his previously acquired status as an assistant pharmacist, it is void, and second, that a license is issued to one who meets the requirements of the statute, and thereafter it is used by him as a means of gaining his livelihood, said [72]license therefore, becomes a vested right, and any attempted deprivation thereof is unconstitutional.
We find no merit in petitioner’s first contention. The mere fact that a statute is deemed to be retrospective or retroactive legislation is not fatal to the act. Neither the federal Constitution nor that of the State of California prohibit the enactment of such laws. (5 Cal.Jur. 747.) However, such a law may “be invalid if it deprives one of vested rights which are bound to be respected or protected by the state, or if it impairs the obligations of a contract. ’ ’ (American States W. S. Co. v. Johnson, 31 Cal.App.2d 606, 613 [88 P.2d 770].)
This brings us, then, to a consideration of the second issue raised by petitioner. At the time of the oral argument it was agreed by counsel that such contention was the sole question for determination by this court, counsel for respondent stating that if it be determined that the petitioner had acquired a vested right by virtue of the license issued to him in 1939 the writ should issue.
Because in one sense every right is vested (Stohr v. San Francisco Musical Fund Society, 82 Cal. 577 [22 P. 1125]), the term “vested right” has had prolific use and discussion. But although it has been used frequently, too often it has been used loosely, both in this state and elsewhere.
Therefore it becomes necessary at the outset of a consideration of the problem herein presented to distinguish between a right which arises as the result of a contractual obligation and a right acquired by a license granted under the inherent police power of the state.
It is conceded that every citizen has a right to follow any lawful business or profession which is not injurious to the public or a menace to the health, safety or welfare of society, free from regulation by the exercise of the police power of the state except in cases of necessity for such health, safety or welfare, and when its authority is so interposed in behalf of the public it must be by means reasonably necessary for the accomplishment of that purpose.
A determination of what is reasonably necessary for the public health, safety or welfare is a legislative function and should not be interfered with, only in ease of clear abuse. Where a statute is clearly such a measure, the fact that rights may be affected does not invalidate the act.
The power of a state to so provide for the general welfare of its citizens authorizes it to prescribe all reasonable [73]regulations as in its judgment will secure or tend to secure them against the consequences of ignorance or incapacity in the pursuit of various professions or callings. (Dent v. West Virginia, 129 U.S. 114 [9 S.Ct. 231, 32 L.Ed. 623].) Illustrative of, and as a means to this end, our Legislature has seen fit to demand and exact a certain degree of learning and skill in some score or more businesses and professions, by the enactment of regulatory statutes and the creation of agencies to administer such acts. (See, generally, Business and Professions Code.)
A license obtained by compliance with the statutes relating to any one of the many businesses and professions set forth in said code may become of great value to the possessor and cannot be arbitrarily taken from him any more than his real or personal property can thus be taken. “But there is no arbitrary deprivation of such right where its exercise is not permitted because of a failure to comply with conditions imposed by the State for the protection of society.” (Dent v. West Virginia, supra.) To this might well be added: or inability to comply with such conditions.
Clearly, the present act was to protect the health and safety of the people of this state from dangerous, and also what might be the fatal, effects of medicines and prescriptions improperly prepared through the inadequate learning and skill of assistant pharmacists. The Supreme Court stated in an early case that judicial notice could be taken of the evils demanding legislation, the mischief intended to be remedied and the importance of public interests thereby. (Ex parte Kohler, 74 Cal. 38 [15 P. 436]; 50 Am.Jur. § 291.)
If, then, the Legislature had the right under the police power of the state to impose restrictions upon assistant pharmacists to practice in the first instance, and it cannot be denied that such a subject is a proper one for legislative regulation (Reetz v. Michigan, 188 U.S. 505 [230 S.Ct. 390, 47 L.Ed. 563]; Gray v. Connecticut, 159 U.S. 74 [15 S.Ct. 985, 40 L.Ed. 80]; Dent v. West Virginia, supra; State v. Hovorka, 100 Minn. 249 [110 N.W. 870, 10 Ann.Cas. 398, 8 L.R.A.N.S. 1272]), it necessarily must follow that the correlative right 'to impose further restrictions for the same purpose is a necessary consequence of the initial power.
The general rule, established by the great weight of authority, appears to be that a license from the state issued [74]in the exercise of its police power permitting the doing of that which without the license would be unlawful, is not a contract and does not eonYey a vested right. (In re Carlson, 87 Cal. App. 584 [262 P. 792]; State v. Hovorka, 100 Minn. 249 [110 N.W. 870, 10 Ann.Cas. 398, 8 L.RA.N.S. 1272]; Reetz v. Michigan, supra; Hawker v. New York, 170 U.S. 189 [18 S.Ct. 573, 42 L.Ed. 1002]; State ex rel. Burroughs v. Webster, 150 Ind. 607 [50 N.E. 750, 41 L.R.A. 212]; State v. Gazlay, 5 Ohio 14, 15; Simmons v. State, 12 Mo. 268 [49 Am.Dec. 131].)
A license has none of the elements of a contract and does not confer an absolute right but a personal privilege to be exercised under existing restrictions and such as may thereafter be reasonably imposed.
In accordance with such general rule this court stated in the case of Gregory v. Hecke, 73 Cal.App. 268 [238 P. 787]:
“No person can acquire a vested right to continue, when once licensed, in a business, trade or occupation which is subject to legislative control under the police powers.” (Citing Hurtado v. California, 110 U.S. 516 [4 S.Ct. 111, 28 L.Ed. 232], See 12 Am.Jur. § 694, p. 371; 16 C.J.S. § 224, p. 647.) Again, in the case of People v. McCloskey, 76 Cal.App. 227, 230 [244 P. 930], we stated:
“No one can acquire a vested right to continue in possession of that which is a menace to the public safety.” In both eases petitions to have the respective causes heard in the Supreme Court were denied.
It is readily apparent if such was not held to be the rule, the right of a Legislature to enact statutes for the public welfare would be meaningless. Surely that was never the contemplation of the framers of our laws or of the courts in their interpretation thereof.
In summary and in accordance with the rule herein enunciated it may be said the granting of a license to engage in a particular calling subject to the police power of the state to regulate the same, is merely the means taken by the state in the exercise of that power to regulate and restrict the pursuit of said calling for the public good, and of itself confers upon the licensee neither contractual nor vested rights with the state upon the license so issued. The license received by petitioner as an assistant pharmacist was not for the benefit of himself but for the protection of the public, and was so accepted by him subject at all times to the paramount right [75]of the state at any time that the public good demanded, to further restrict his activities thereunder. If such restrictions and regulations were reasonably adopted for those purposes, they will be upheld even though they actually may prohibit him from further engaging in an occupation or profession under a license previously granted.
The writ is denied.
Thompson, J., concurred.