Ex Parte Hallawell

HENSHAW, J.

Petitioner was convicted of a violation of ■section 8 of an act entitled “An act regulating the sale of poi.sons in the state of California and providing a penalty for the violation thereof.” (Stats. 1907, p. 124.) His contention is that the act is void. He had made previous application ■for his discharge to the court of appeals for the second appellate district, and was remanded to custody. The opinion and •conclusion of the court of appeals is reported in 8 Cal. App. 563, [97 Pac. 320], With what is there said we are in full accord. Petitioner urges other considerations not discussed

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by the court of appeals, which he insists show the invalidity of the law in question. These may be briefly considered.

Thus, he urges that while the sale or disposition of poisons may be subject to reasonable regulation by the state, the act in question is not reasonable, since it regulates merely the sale of poisons, declaring that they shall be sold only upon physicians’ certificate, and does not at all prohibit the giving of them away. To this it may be answered that the legislature doubtless had not perceived that the extravagant generosity of pharmaceutists in giving away their poisonous drugs had reached an evil calling for prohibitory legislation. Only when such a time arrives will there be need for laws to meet the peril.

As illustrating the hardship and injustice of the existing law, petitioner points out that, “if a party comes to the druggist who has his little store in a little hamlet, where no doctor resides, and, perhaps, there is no local physician within miles, and his child is suffering with the toothache or earache, or his wife may be suffering with intense pain, or his horse may have an acute attack of colic, and he comes to this druggist and he calls for laudanum, the druggist who sells it to him has violated the law”; but, if he gives it to him, he has not violated the law. In the very harrowing picture which is thus portrayed may be found another reason why the legislature did not see fit to prohibit the giving away of the pain-soothing poison. Becognizing that no druggist could resist such an appeal, and that, to alleviate such suffering, he would certainly dispense his anodyne, it empowered him to do so without violating the law by giving it away, trusting to his commercial sense to see that this practice of gift-giving did not grow into a state evil.