Ex parte Shen
Before: Paterson
Synopsis
Constitutional Law— Municipal Ordinance—Regulating Sale of Opium— Prescription of Physician — Consistency with General Laws.—Order 2035 of the board of supervisors of the city and county of San Francisco, regulating the sale of opium in such city and county, while differing from the acts of the legislature of April 16, 1890, and March 11,1891, prohibiting the sale of opium in certain eases, in that it provides that no opium shall be sold without a prescription of a physician, is not in conflict with such acts, and is Warranted by section 11 of article XI. of the constitution, authorizing any county, city, town, or township to make and enforce within its limits “all such local, police, sanitary, and other regulations as'are not in conflict with general laws.”
Id.—Provisions of Local Ordinance Differing from State Laws.—An ordinance or by-law of a municipal corporation is not inconsistent with general laws of the state merely because it makes another and different regulation for the sale of an article of commerce than that provided by the state law, where there is no direct conflict between its terms and the provisions of the state law.
Id.—Criminal Law—Once in Jeopardy.— Where the offenses under a state law and a municipal ordinance are different, there is no violation of the constitutional inhibition against putting one twice in jeopardy for the same offense.
Municipal Ordinances—Repeal by Implication—Smoking Opium—Prescription of Physician.—A municipal ordinance covering all kinds of opium, and prohibiting the sale thereof without the prescription of a physician, repeals by implication a prior ordinance licensing the sale of smoking opium, without requiring such prescription, and the court cannot say as matter of law or fact, that no respectable physician would give a prescription for smoking opium.
Paterson, J. The petitioner was convicted in the police court of the city and county of San Francisco of selling opium without a physician’s prescription under order No. 2085 of the board of supervisors, approved July 18, 1889. Section 1 of the ordinance provides that “It shall be unlawful for any apothecary .... or any person whatever to sell .... to any person in the city and county of San Francisco any opium .... except upon written prescription or written order of a practicing physician, as provided in this order, and- except upon the day of the date of said prescription or order.” Section 2 of the order provides that every person selling opium, etc., must keep a book and record therein the sale, the name, age, sex, color of the person receiving the poison, the name and quantity thereof, as well as the name of the physician and the name and residence of the patient, and that there shall be attached-to the bottle or parcel containing the article the name thereof, together with the name of the physician, the name of the druggist or other person who sells the article, and his place of business. Section 3 provides that the prescription or order must be dated and signed by a physician, who must be a graduate in medicine, with a diploma from a regularly constituted medical institu[683]tion, and must contain the name and residence of the patient and the residence or office of the physician. Section 9 makes it a misdemeanor to violate any provision of the order, punishable by fine, not exceeding five hundred dollars, or by imprisonment, not exceeding six months, or by both such fine and imprisonment.
An act to regulate the sale of certain poisonous substances, approved April 16, 1880, provided that it shall be unlawful for any person to retail certain poisons, including opium, without labeling the bottle or other package, with the common name of the article, together with the word “poison,” and the name and place of business of the seller. The act makes it unlawful for any person to retail any of the poisons named, unless upon due inquiry it is found that the person receiving the same is aware of its poisonous character, and that it is to be used for a legitimate purpose. The act also requires a record to be kept stating substantially the facts required by the order above named, and in addition thereto, requires the seller to ascertain whether the name and address given by the person receiving the poison are the true name and address, and for that purpose to insist upon the person being identified. Any violation of this act is made a misdemeanor, and is punishable as such. (Stats. 1880, p. 102.)
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