In Re Potter

HENSHAW, J.

Petitioner is held under arrest by virtue of two criminal complaints, the one charging him with a violation of the so-called “Poison Act,” the other with a violation of a resolution and regulation prescribed by the state board of pharmacy under and by virtue of certain provisions of the Poison Act. The legal questions presented under the two applications are intimately related and may be considered together.

The so-called “Poison Act” is “An act to regulate the sale of poisons in the state of California and providing a penalty for the violation thereof.” It was approved March 6, 1907. (Stats. 1907, p. 124.) It has been amended in 1909 (Stats. 1909, p. 422), and again in 1911 (Stats. 1911, p. 1106). But these amendments do not affect the original act as to any of

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the legal questions herein to be considered. The Poison Act enumerated many poisonous, deleterious and injurious drugs and other substances in a list called “schedule A.” It regulated the sales of the articles in schedule A, and in section 4 provided:

“When in the opinion of the state board of pharmacy, it is in the interest of the public health, they are hereby empowered to further restrict, or prohibit, the retail sale of any poison by rules not inconsistent with the provisions of this act, by them to be adopted, and which rules must be applicable to all persons alike. It shall be the duty of the board, upon request, to furnish any dealer with a list of all articles, preparations and compounds, the sale of which is prohibited or regulated by this act.”

A violation of any of the provisions of the act was declared to be a misdemeanor and an appropriate penalty was prescribed. Standing at the head of the list enumerated in schedule A is “arsenic, its compounds and preparations.”

The “Pharmacy Act,” “An act to regulate the practice of pharmacy in the state of California,” was originally adopted in 1905. (Stats. 1905, p. 535.) It declared in section 1: “From and after the passage of this act it shall be unlawful for any person to manufacture, compound, sell, or dispense any drug, poison, medicine or chemical, or to dispense or compound any prescription of a medical practitioner, unless such person be a registered pharmacist, or a registered assistant pharmacist within the meaning of this act, except as hereinafter provided.” Amongst the powers conferred upon the board of pharmacy created thereby, was the power “to regulate the sale of poisons.” In 1909 (Stats. 1909, p. 1013) section 16 of the act was amended. This amendment contained much new matter. Thus, it made provision for the board of pharmacy to issue a permit to general dealers in rural districts to sell drugs and ordinary household remedies until such time as “a registered pharmacist shall establish a pharmacy within three miles by the shortest road from the place of business of such general dealer,” when no further permit was to be granted. It then provided (and this is the provision bearing upon the questions before the court) that “the following drugs, medicines and chemicals may be sold by grocers and dealers generally without restriction.” Then fol