Case 84 — Test Case Between tiie Board of Pharmacy, &C., against R. J. Cassidy, &c., for an Adjudication of the Effect of an Act to “Regulate tiie Practice of Pharmacy in the Commonwealth of Kentucky.”

May 28.

#### Kentucky Board of Pharmacy, &c. v. Cassidy, &c.

APPEAL, FROM FAYETTE CIRCUIT COURT.

Prom the .Judgment the Board Appeals.

Affirmed.

Registered Pharmacists — Sale of Patent and Proprietary Medicines.

Hold: Kentucky Statutes, 1899, Section 2619, provides that except as provided in the act, it shaill be unlawful for ©me not a •registered pharmacist to' vend at retail, compound, or diispense any drug, medicine, poison, or pharmaceutical preparation for medical use. Section 2620 declares guilty of a misdemeanor an *691owner of a drug store, not a registered pharmacist who -shall fail to place -a registered pharmacist in charge, or stem peiim-ii the compounding of prescriptions or the vending at retail of drugs, medicines, poisons, or pharmaceutical preparations, except under the immediate supervisión of a registered pharmacist. Section 2630 provides that no one shall retail poison except under a label bearing tbe word “Poison,” and giving the naimeis of antidotes, and in certain cases keeping a reclord. Section 2631 -provides that any person not a registered pharmacist may conduct a< drug store if he keep a registered pharmacist in charge, hut shall mot himself sell or dispense drugs or medicines, except proprietary or patent medicines. Section 2632 provides that the aet shall not interfere with the sale -of the usual non-poisonoius domestic remedies and medicinéis and patent or proprietary medicines by county stores in small places or rural districts. Hem>, that the act does mot prevent any ond selling patent or proprietary medicines.

HELM, BRUCE *&*HELM, for ai-pellakts.

This agreed case was made up for the (purpose of having determined the constitutionality of the Act -of March 5, 1898, known as the Pharmacy Aot, Kentucky Statute®, 1899 edition, sections 2619-2635, inclusive.

The judgment below was -against tbe validity of the aot, and the Board of Pharmacy prosecutes this appeal.

The police power has been so often_recognized, applied and upheld in this country that it would seem absurd to cite authorities to establish its existence, and .it would be equally unnecessary to -argue Iso plain a proposition as that' thei ©ale of drugs which may or may not contain ingredients poisonous in their nature and dangerous to life, falls within the police power. Indeed, it is submitted that tbe exercise -of tbe police power finds here a typical ease, so plain that -the bare statement of tbe proposition is sufficient.

It is, therefore, .apparent that whether the judgment appealed from be correct or not depends not upon whether the State ha© the right to exercise its police powers touching the sale of drugs or compounds, but whether this particular statute violates the provisions of the Constitution.' We have undertaken to show that the section relied on has no application to this case, but it may not be out of place to state that ithel court will never feel itself at liberty to hold an aet obviously intended to. protect public health to be unconstitutional without feeling itself constrained to do so by the most obvious and irreconcilable conflict between the act and tbe Constitution. The Legislature -in *692such cases must, in the public linteries-t, be given practically a •free hand ,and before such an ¡act can be held umcomsiiBitatoiosiial the conflict must be obvious.

It miay not be improper to say now a few words om the necessity for such regulation, -though i-t is submitted that thiet court should presume, in the absence of knowledge, that such a' ¡necessity did .exit or the act would never have been adopted.

There .are a number of these patent remieldlefe) which contain substances deleterious to health. For instance, -in Bull’s Gough Syrup, a remedy in common use for coughs and colds, there is contained, a large amount of morphine and quite a number of people have been injured by taking the syrup. Ely’s Cream Balm, and almost all of the extracts .of cocoa contain cocaine. The -taking of these remedies is very much to he regretted because ¡they -tend to proiduce the cocaine habit. A number of other proprietary remedies contain cocaine, and i-t is certainly a matter of public knowledge and experience- that, nothing so-undermines one’s constitution and character: as to become addicted to the cocaine habit. A registered .pharmacist knowing the fact -that -cocaine is .included in these remedies is, by the sixth section -of -the -act of last winter, approved -March 20, 1902, pages 81 to 84, inclusive, forbidden to sell these remedies *except upon the prescription of physicians.*The section) reads:

“Cocaine ¡or its salts .shall be sold at -retail or dispensed only upon the written prescription of a legally qualified physician or1 dentist, and such prescription shall not be refilled. Each -prescription, containing cocaine or -its salts, filled by a registered pharmacist, s-hall have written upon its face- the .name of -the. palieniij, the date it is filled, and the prescription file -of each registered pharmacist Shall be open to the inspection of the. members of -the Kentucky Board of Pharmacy, or its authorized ¡inspector.” I-t is -also provided by that section that “every person failing to comply with .its requirements sha)U bo -deemed guilty of a misdemeanor .and upon -conviction shall pay a fine of not less than fifty dollars.” And it is further provided tb-at any physician or dentist who shall prescribe, buy for or sell or dispense to -any person for .any purpose- other than legitimate use, -or otherwise deal in cocaine or its salts than ¡as) herein provided sh-aill thereby render himself amenable to the, penalties hereinbefore in this section provided, and it is further provided that “any registered pharmacist who violates any provision's of the section, or who by any subterfuge, sells or’ dispenses cocaine or its salts otherwise than as provti-ded im the Election shall tin -addition to paying the fine imposed, on the second -convictiont, forfeit his certificate as registered pharmacist, raind hi® *693name shall be stricken from the register.” And this secttam was regarded as so important to public health as to) be .made the basis for an immediate taking effect of the act.

To permit then people, other than registered pharmacists, to handle these various proprietary remedies containing cocaine with its dangerous tendency to public .health and morals, is to deliberately tear away thei safeguards to public health deliberately erected by the Legislature.

The sale of Birney’s headache powder in ¡this State is said to have increased very largely on .account of the cocainei in it. ■This also has the effect of fixing the cocaine habit.

Ayer’s Cherry Pectoral, according to its analysis, contains tartar-emetic and morphine, both of which are poison, and there is a whole line of such proprietary medicines which do contain poison. A registered pharmacist knowing of this provision would not sell them without taking the necessary precautions. All cough medicines contain morphine to a greater or less degree, and some of the preparations contain .opium and a great many contain mercury. Especially is this true of the so-called blood ¡purifiers. In addition to that there are many of the coal tar remedies as cephalgine that are ¡heart depressants, and when taken by a person with defective heart become quite daingerous.

Now the registered pharmacist who attends to his duties as prescribed by the ¡statute, is able to avoid- these dangers!, and if the presumption is indulged that they do noil analyze these medicines, still the analysis is published continually of all of them in the various pharmaceutical journals, and in that way the pharmacists who keep up with their business arel in constant touch with the various proprietary remediesi and -their dangers.

In conclusion we submit that the court can not wlithofit ■great danger to the public health and safety hold this act to be unconstitutional. We therefore respectfully ask that the judgment he reversed with directions to enter a judgment for the Kentucky Board of Pharmacy.

ADDENDA.

1. The pharmacy act was passed under the police power-a-nd ¡must be enforced, unless it he obviously lin conflict with the Constitution. This court will not, except on, ¡the gravest com sideration, hold an act adopted for preservation of the public health unconstitutional.

2. The Constitution providing against exclusive privileges, has no application to this case. Sarris v. Commonwealth, 83 Ky., 328.

*694T. l. 'EDELEN, for appellants.

POINTS AND CITATIONS.

1. A critical examination of the pharmacy act (Acts 1898, p. 164) will show;

(a) That it was the intention of • the Legislature to limit the sale of patent and proprietary remedies to registered pharmacists (this seems to be conceded).

(b) An examination will further show that the provisions •with reference to the sale of patent and proprietary remedies can mot be separated from the remainder of the aot, because the provisions with reference to the sale of poii'sons, spirituous 11-,quors and emmenagogues, would thereby become a deiad letter.

2. It is competent for the Legislature to pass an act regulating the practice of pharmacy. Lafferty v. Huffman, &c., 99 Ky., 80; Com. v. Shelton, Id., 120; Com v. Hardin Co Ct., Id., 188; Gucken-helimer v. Sellers, 81 Fed Rep., 997; McGregor v. Cone, 104 Iowa, 465; 39 L. R. A., 484; Rhodes v. Iowa, 170 U. S., 412; May v. New Orleans, 178 U. S., 496; Mitchell v. Com., X0“6 Ky., 602; Marshall v. Donovan, 10 Bush, 681; C. & O. Ry. Co. v. Barren Co. Ct., 10 Bush, 604; Thompson v. Carr, 13 Bush, 215; Com. v. Wright, 79 Ky., 22; Burnside v. Lincoln Co. Ct., 86 Ky., 423; Cooley Const. Li-m., 164; 3 Am. *&*Eng, Ency. of Law, 676, mote 3; Bullitt v. City -of Paducah, 8 Ky. Law Rep., 870; Driscoll v. Com., 93 Ky., 393; Hargan v. Purdy, Id., 424; State Board of Pharmacy v. White, 84 Ky., 626; Kentucky Board of Pharmacy v. Lordier, 22 Ky. Law Rep., 621; State v. Heinomann, 80 Wis., 253; 27 Am. St. Rap., 35; State V. Forcier, 65 N. H., 42; People v. Moorman, 86 Mich., 433; Dent v. State of West Virginia, 129 U. S., 114; Brooks v. State, 88 Ala., 124; -State v. Webster, 150 Ind., 616; 41 L. R. A., 217; Craig v. Examiners, etc., 12 Mont., 211; State v. Call, 121 N. 'C., 646; France v. State, 57 O. St., 23; .State v. Randolph, 23 Ore., 82, 37 Am. St. Rep., 658, 17 L. R. A., 472; People v. Hospronck, 11 Utah, 302; State v. Carey, 4 Wash., 430; Gosnell v. State, 52 Ark., 232; -State v. Creditor, 44 Kan., 567, 21 Am. St. Rep., 30S; Gunding v. Chicago, 177 U. S., 183 (44 L. ed., 725); Pettit v. Minnesota, 177 U. S., 164 (44 L. ed., 7Í6); Barbier v. Connolly, 113 U. S.. 27 (28 L. ad., 923); -Slaughter House Casas (16 Wall.), 21 L. ed., 394; Higgins v. Rinker. 47 Tex., 381; State v. Gurney, 37 Me., 156; State v. Dow, -53 L. R. A., 314; State v. Ah Chew, 16 Nev., 50.

3. The oases of Theo. Noel v. People -of the State of Illinois, 187 111., 587 (52 L. R. A., 287), and State v. Donaldson, 41 Minn., 74, are not, when examined in the light of -the statutes construed, either against the conteaitiom here made, but if they *695are, then they are not in line With the overwhelming current of authority hath to. this State andl in other jurisdictions.

J. EMBRY ARLEN, attorney eor appellee.

This action was hnoughit upon thfe agreed state’ of facts, set out in the record by the appellee against the 'appellant in the Payette circuit court, for the purpose of testing ‘the validity amS constitutionality of the act of the Kentucky Reigislaiture known as the Kentucky Pharmacy Raw, and entitled “An aot to, regulate the practice of pharmacy in the Commonwealth of Kentucky and, to establish a hoard of pharmacy -amid, define- the powers and duties thereof,” which passed without the govern- or’s signature at the session of 1898, and is now conltaltoed in sections 2619 to 2635, inclusive, of the 1899 edition of the Kentucky Statutes. The appellees have been for years engaged in the sala of patent and proprietary medicines -as a means of livelihood, and being prevented and prohibited by thifi acit; fro-m carrying on their business, have brought -this suit to test-the validity of the act. The lower court thought their couitentiion a valid one and held the act to he void and unconstitutional to so far as it prohibited' appellees from -engaging to the business of selling and vending patent: or proprietary medicines, from which judgment the appellant has appealed.

The first, thirteenth and fourteenth seotionls of the act are the only ones which we think material to this controversy.

Section 1 reads as follows: “That except as to this acit provided it shall hereafter be unlawful to the Commonwealth of Kentucky for any person, who is not a, -regisitereld pharmacist within the meaning of this act, to vend at retail, compound or.1 dispense any drug, medicine, chemical, poison, or pharmaceutical preparation for medical use, or compound and dispense physicians’ prescriptions. Any person violating the iprov-islions lof this section shall be guilty of a misdemeanor, and, upon convicción thereof, shall be liable to a fine of no-t lelss ithan twenty nor more than fifty dollars for each and every offense.”

Sections 2 to 12 inclusive define the powers of the board and prescribe how a i>erson may become a registered pharmacist, etc.

Section 13 reads as follows: “Any person, or persons, not a registered pharmacist, may open, own or conduct -a drug -store or pharmacy, if he or they keep constantly in charge of the same a registered pharmacist; but shall no-t himself or themselves sell or dispense drugs oír medicines, *except proprietary or patent medicines in original packages.”*

Section 14. Nothing to -this aot shall be construed so as to-apply to, or in- any manner' interfere with, the sale of the usual *696mon-poisonous, domestic remedies and medicines, and potent or proprietory medicine hy county stores in small places or rural districts.

The Bill of Rights declares: “All men are, by nature, free ¡and equal, an'd have certain inherent and inalienable rights, ¡among which may be reckoned . . .- the right of acquiring and protecting property.”

¡Section 3 of the Constitution declares "... and no grant ¡of exclusive, separate public emoluments or privileges ¡shall be Imade to any man or set of men, except in oon/sjlderationi of public services . . .”

We hold that the pharmacy law is in violation of the Constitution of Kentucky and of thei United States, for three reasons:

1. The State has no power to restrict or deny the natural Tight of man to engage in any lawful occupation unless such re(strictton or denial become necessary for the generall good, which We call the exercise of the police power, .and we claim that in, this case there is no good or advantage resulting to the general public in any way from .the restriction placed by this aot upon th,e sale of patent and proprietary medicine.

2. Bvem if the State has the right to restrict or ireiguilaite the manner of engaging in certain business it must exercise this power in a way that will regulate *all*the people and not just a partf of them. It must he a regulation that ¡applies to and affects alike all persons under similar circumstances and who stand in ¡the same position and attitude before the law with respect to the subject of the regulation. And Itlhe ¡State can, not make a general law or .police ¡regulation and them, by a pro■visOi except a certain class of individuals from its ¡operation. If that he done the whole act becomes void.

3. If the subject matter be .one about which ¡the State has a right to make polioe|. regulations, yet if the aot shows1 on its ■face that it restricts or abridges private rights, and at the same time does not, and could not, protect public health, life, morals, comfort, oh otherwise tend to help the public good, it is the duty of thie| .court to declare the act invalid and) unconstitutional.

AUTHORITIES CITED.

•Bill of Rights; section 3, ¡Constitution of Kentucky; lfthi Amendment, ¡Constitution of the United States; Andrew’s! American Law, 458; Atkinson v. 'Goodrich Trans: Co., 60 Wlis., Ill; 50 Am. Rep., 352; North Chicago Ry. Co. v. Lake View, 106 111., 211; Richie v. People, 155 111., 98; *In re*Jacobs, 98 N. Y., 98-114; State v. Monroe, 104 N. C., 714; 17 Am. St. Rep., 698; Austin v. Murray, 16 Pick, 121-6; Watertown v. Mayo, 109 *697Mass., 315; Coe v. Schultz, 47 Barb., 64; State v. Donaldson, Minn., 42 N. W„, 781-3; Noel v. People, 111., 58 N. E1., 618; Eden v. People, Hi., 43 N. E., 1108; Cooley’s Const. Dim., 1st ed., 393; Prorer v. People, 141 111., 171, 31 N. E., 395; Chicago v. Netcher, 183 111., 113; 55 N. B., 707; Com. v. Fowler, 96 Ky., 166; Barbier v. Connelly, 113 U. 'S. Supreme Court Reports, 920.

Opinion of the court by

JUDGE BARKER

Affirming.

This is an agreed case in equity, instituted in the Fayette circuit court for the purpose of obtaining an adjudication of the effect of an act to “regulate the practice of pharmacy in the Commonwealth of Kentucky, and to establish a board of pharmacy, and define the powers and duties thereof,” which constitutes article 2, c. 85, Ky. St. 1899, upon the business of appellees. The act in question establishes a board of pharmacy, and regulates the sale of drugs and medicines by retail and the compounding of physicians’ prescriptions in the State of Kentucky. Section 2621 prescribes how the Kentucky Board of Pharmacy shall be appointed and organized. Section 2622 enumerates the duties of the board, among which is the following: “It shall be the duty of the said board to examine all applicants for registration submitted in proper form; to grant certificates of registration to such persons as may be entitled to same under the provisions of this act; to investigate complaints, and to cause the prosecution of all persons violating the provisions of this act.” The qualifications of applicants, and the manner in which they may receive certificates as registered pharmacists, and their rights and duties after having received certificates, are prescribed in sections •2624-2628. By section 2619 it is provided that “Except as in this act provided, it shall hereafter be unlawful, in the Commonwealth of Kentucky, for any person who is not a registered pharmacist, within the meaning of this *698act, to vend at retail, compound or dispense any drug, medicine, chemical poison, or pharmaceutical preparation for medical use, or compound and dispense physicians’ prescriptions. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be liable to a fine of not less than twenty nor more than fifty dollars for each and every offense.” Section 2620: “Any owner of a pharmacy, or retail drug store, who not being a registered pharmacist, shall fail or neglect to place in charge of such pharmacy or drug store á registered pharmacist, or any such proprietor who shall by himself, or any other person, permit the compounding or dispensing of prescriptions, or the vending at retail of drugs, medicines, poisons or pharmaceutical preparations in his store or place of business, except by or in the presence and under the immediate supervision of a registered pharmacist, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be liable to a fine of not less than twenty-five nor more than one hundred dollars, and each week that he shall cause or permit said pharmacy or retail drug store to be so conducted or managed shall constitute a separate and distinct offense, and render him liable to separate prosecution' and punishment therefor.” Section 2629 forbids the adulteration of drugs, and provides for the prosecution of offenders against the provision. Section 2630: “No person shall sell at retail any poisons, except as herein provided, without affixing to the bottle, box, vessel, or package containing the same, a label printed or plainly written, containing the name of the article, the word 'Poison,’ and the name and place of business of the seller, with the common name of two or more readily accessible antidotes, nor shall he deliver poison to any person without satisfying himself that such poison is to be *699used for legitimate purposes. A poison in the meaning of this act shall be any drug, chemical or preparation, which according to standard works on medicine or materia medica, is liable to be destructive to adult human life in quantities of sixty grains or less. It shall be the further duty of any one selling or dispensing poisons, which are known to be destructive to adult human life in quantities of five grains or less, before delivering them, to enter into a book kept for that purpose the name of the seller, the name and residence of the buyer, the name of the article, the quantity sold or disposed of, and the purpose for which it is said to be intended, which book of registry shall be kept for at least two years and shall at all times be open to the inspection of the coroner of the court in which the same may be kept. Oil of tansy, oil of savin, ergot, and its preparations, cotton root and its preparations, and all other active emmenagogues or abortives, shall be sold at retail or dispensed only upon the written prescription of a legally qualified physician. The provisions of this section shall not apply to the dispensing of poisons in not unusual quantities, or doses, on physicians’ prescriptions, nor to the sale to agriculturists or horticulturists, of such articles as are commonly used by them as insecticides. Every person failing to comply with the requirements of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall pay a fine of not less than ten dollars.” Section 2631: “Any person, or persons, not a registered pharmacist, may open, own, or conduct a drug store or pharmacy, if he or they keep constantly in charge of the same a registered pharmacist; but shall not himself or themselves sell or dispense drugs or medicines, except proprietary or patent medicines in original packages.” Section 2632: “Nothing in this act shall be construed so as to apply to, or in any manner interfere *700with the sale of the usual non-poisonous domestic remedies and medicines, and patent or proprietary medicine, by county stores in small places or rural districts. Nothing in this act shall apply to, or in any manner interfere with, the business of any licensed practicing physician, or prevent him from supplying to his patients such articles as may seem proper to him, or with his compounding his own prescriptions.”

The agreed facts show that the appellees are engaged in the business of vending at wholesale and retail a certain proprietary medicine known as “Vitae-Ore,” in Lexington, Ky., which is a kind of sub-acid drink, possessing, as it claims, valuable medicinal qualities; that they are, and have been for a number of years, engaged in the business of vending and selling at retail in this State various patent and proprrietary medicines, manufactured and compounded, both in and out of this State; that these medicines are sold at retail in the original packages or bottles in which they are put up by the manufacturer and proprietor, without breaking the seal, or in any way changing or adding to the medicine or composition. Appellees are not registered pharmacists, nor entitled to be registered as such. They are not druggists, and do not keep, own, or conduct a drug store, pharmacy, or county store in a small place or rural district; nor do they compound drugs, medicines, or physicians’ prescriptions, or employ a registered pharmacist in superintendence. It is the usual practice or custom of druggists in this Commonwealth, who are not registered pharmacists, to sell at retail patent and proprietary medicines in the same manner with reference to the quantity of the medicine and the package in which the same is sold ' as the appellees carry on their business. The term “original package,” as applicable to the sale of patent and pro-*701pr-ietary medicines, means, and is so understood 'by all persons, the small individual package or bottle as prepared for retail,' and not the large box or package in which the small packages’ may have been shipped by the manufacturer. There are many more agreed facts contained in the written stipulations between the parties to this action, which are not thought necessary to be set out herein; the real question for adjudication being whether or not the sale of patent and proprietary medicines in the manner shown by the agreed facts which are set out violates the provisions of the statute under discussion.

It can not be questioned that the language of sections 2619 and 2620 would include within their scope patent and proprietary medicines, unless that conclusion is forbidden by the language of other sections of the statute to be noticed hereafter. Nor can the constitutionality of the act be successfhlly assailed. The right of the Legislature to enact laws necessary to protect the lives and health of the citizens- from the acts of incompetent and unskilled pharmacists, under the police power of the Commonwealth, is so well settled as hardly to need either argument or citation of authority to support it. This very act, or similar acts preceding it, have been recognized, approved, and enforced in numerous cases by this court. Commonwealth v. Fowler, 96 Ky., 166, 16 R., 360, 28 S. W., 786, 33 L. R. A., 839; State Board of Pharmacy v. White, 84 Ky., 626, 8 R., 678, 2 S. W., 225; Kentucky Board of Pharmacy v. Lordier (109 Ky., 119, 21 R., 621), 58 S. W., 531. From the case of State v. Heinemann, 80 Wis., 253, 49 N. W., 818, 27 Am. St. Rep., 34, we make the following quotation as containing a most admirable presentation of the right of the State, in the exercise of its police power, to enact laws to preserve and protect the health and lives of the citizens from the conse*702quences of unskilled compounding of dangerous- and deadly drugs: “Was it not within the power of the Legislature to fhus protect the health and lives of citizens throughout the State from improper, dangerous,, and destructive compounds, put up by incompetent or inefficient persons? All courts agree that the police power of the State extends to all regulations affecting the lives, limbs, health, comfort, goor order, morals, peace, and safety of society, and hence may be exercised on many subjects and in numerous ways. Baker v. State, 54 Wis., 372 [12 N. W., 12]; State v. Ryan, 70 Wis., 681 [36 N. W., 823]. In speaking of such power, Mr. Justice Field, in- a recent case, said: ‘The'possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed, by the governing authority of the country, essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint, under conditions essential to equal enjoyment of the same right by others. It is then liberty regulated by law.’ Crowley v. Christensen, 137 U. S., 89 [11 Sup. Ct., 13, 34 L. Ed., 620]. This principle has been applied in many ways, and to a variety of vocations. Thus it has been held that a State may require locomotive engineers therein to be examined and licensed by a board created for that purpose, and make it unlawful to operate without such license. Smith v. Alabama, 124 U. S., 465 [8 Sup. Ct., 564, 31 L. Ed., 508]; Nashville, etc., Ry. Co. v. Alabama, 128 U. S., 96 [9 Sup. Ct., 28, 32 L. Ed., 352]. So it has been held that a State may lawfully regulate the manufacture and sale of 'oleomargarine. Powell v. Penn., 127 U. S., 678 [18 Sup Ct., 992, 1257, 32 L. Ed., 253], affirming Powell v. Commonwealth, 114 Pa., 265, 7 Atl., 913, 60 Am. Rep., 350; Com*703monwealth v. Weiss, 139 Pa., 247 [21 Atl., 10, 11 L. R. A., 530], 23 Am. St. Rep., 182; People v. Arensberg, 105 N. Y., 123 [11 N. E., 277], 59 Am. Rep., 483. So it has been held that the State may lawfully require every practitioner of medicine therein to obtain a license from a State board created therefor, as evidence of his qualification to so practice, and make it unlawful to practice without first obtaining such license. Dent v. West Virginia, 129 U. S., 114 [9 Sup. Ct., 231, 32 L. Ed., 623]; Eastman v. State, 109 Ind., 278 [10 N. E., 97], 58 Am. Rep., 400; Williams v. People, 121 Ill., 86 [11 N. E., 881]. A similar rule has been applied to dentistry. Gosnell v. State, 52 Ark., 228 [12 S. W., 392]; State v. Vandersluis, 42 Minn., 129 [43 N. W., 789, 6 L. R. A., 119]; State v. Creditor, 44 Kan., 565 [24 Pac., 346], 21 Am. St. Rep., 306. Also to persons engaged in the business of plumbing. Singer v. State, 72 Md., 464 [19 Atl., 1044, 8 L. R. A., 551]. The case at bar was, in effect, recently decided in New Hampshire, where it was held that a statute of that State which required the retailers of drugs, medicines, etc., to submit to an examination and procure a license is within the police power of the State, and is not a tax on the business, nor does it deprive of property without, due process of law. State v. Forcier, 65 N. H., 42, 17 Atl., 577. In that case, as here, it was claimed that the fee required to be paid by the act rendered the same illegal, but the court said: ‘The fee of five dollars to be paid by the applicant for a license to engage in the business of an apothecary and druggist is merely an equivalent for the service rendered by the commissioners in making the examination and issuing the license, and can not be considered as a tax upon the business, or as depriving the applicant. of his property without due process of law.’ State v. Forcier, 65 N. H., 42 [17 Atl., 577] .To the same effect are Smith *704v. Alabama, 124 U. S., 465 [8 Sup Ct., 564, 31 L. Ed., 508]Nashville, etc., Ry. Co. v. Alabama, 128 U. S., 96 [9 Sup. Ct., 28, 32 L. Ed., 352].”

Tiedeman, in his work on Limitations of Police Power, says: “The ordinary police regulations of employments and professions is most Gertainly within the power of the State governments.”

This court, in numerous cases, has upheld laws prescribing the qualifications of persons desiring to practice law,, medicine, and dentistry. In the case of Driscoll v. Commonwealth, 93 Ky., 393, 14 R., 376, 20 S. W., 431, it was said: “We see no reason for denying the right of the Legislature to enact laws for the protection of the people by requiring those who undertake to practice a profession to give evidence of their qualications and skill by the exhibition of a license from those who, in the legislative judgment, are competent to determine whether or not the applicant has the necessary qualifications to practice the particular profession. The citizen, of necessity, when diseased, must employ the physician, and the lawyer when his right of person or property has been violated. The entire public is interested in knowing, or having the means of ascertaining, whether the physician he desires to employ has a sufficient knowledge of medicine to enable him to practice his profession; and for the welfare and safety of the citizens the Legislature may say that you shall not practice medicine unless you have the indorsement of a board skilled in the profession. The patients of the physician must rely on his knowledge of medicine and the mode of administering it, and, the entire public being interested in having physicians learned in the profession, it is competent for the Legislature to prescribe the mode of determining the qualifications of those who propose to embark in the practice. *705The constitutional question has been raised and decided by many courts, all holding that, when the conditions imposed upon the profession by the lawmaking power before one can enter upon the practice are reasonable, they must be complied with, or the penalty imposed will be enforced. The Supreme Court, in. the case of Dent. v. West Virginia, reported in 129 U. S., 114 [9 Sup. Ct., 231, 32 L. Ed., 623], has determined the constitutionality of such laws in a case where the statute of West Virginia was very much like that of this State. The right of a State to enact such laws proceeds from the inherent power to prescribe such rules as will protect the health and. safety of the people. State v. Gregory, 83 Mo., 123, 53 Am. Rep., 565; State v. State Medical Ex. Board, 32 Minn., 324 [20 N. W., 238], 50 Am. Rep., 575; Case of Bauer (Pa.), 4 Atl., 913; Harding v. People (Colo. Sup.), 15 Pac., 727.”

The question before us is not only the right of the Legislature to forbid the sale of patent and proprietary medicines except by registered pharmacists, but whether it has done so in the statute. It is manifest, from an inspection of the language of sections 2619 and 2620, that the protection of the citizens from the acts of unskilled pharmacists in the compounding and sale of dangerous medicines is the primary object of the statute. ■ It must occur 'to every one who reflects upon the subject that there does not exist the same reason for requiring the service of a skilled pharmacist in the sale of patent and proprietary medicines as for the ordinary retailing of drugs and the compounding of physicians’ prescriptions. Patent and proprietary medicines are put up upon uniform prescriptions, and placed upon the market ready for use by the consumer. They are sold upon their known or supposed reputation as curative agents. Those *706who handle and sell them make no change in their composition or ingredients, and there is, therefore, no danger arising from unskilled compounding or mistakes as to ingredients. Undoubtedly, much of it is worthless, perhaps more is harmful;, but ignorance in the compounding does not enter into their manufacture. Tie statute requires no duty of the registered pharmacist in reference to these medicines. He sells them on the call of his customers, just as they are' prepared by the proprietors for retail, and it requires no more scientific skill to do so than to sell soap, or perfumery, or any other like articles usually kept by druggists.

Much was said in the argument at bar, and is said in the brief of counsel for appellant, as to the duty of the pharmacist to apply the provisions of section 2630 to patent and proprietary medicine sold by him. This section forbids the sale of poisons at retail without affixing to the bottle, box, vessel or package containing the drug a label printed or plainly written containing the name of the article, the word “Poison,” and the name and place of business of the seller, with the common name of two or more readily accessible antidotes; or the delivery of poison to any person without assurance that it is to be used for legitimate purposes. It is insisted that the section relates to the sale of patent and proprietary medicines as well as other drugs, and this is done to show the necessity for the superintendence of a pharmacist in the matter of their sale. There is little doubt but the provisions of this section apply alone to such deadly poisons as produce immediate harm or death, and not to patent or proprietary medicines, which, if harmful at all, do not at once produce disastrous effects on the human system. We think these medicines do not come within the meaning of the pharmacy act, and that this is shown by the language of sections 2631 and 2632, which are the only parts of the statute in which they are mentioned by *707name. The first of these expressly authorizes owners of drug stores who are not registered pharmacists, but who employ one in their business, to themselves sell such medicines; and section 2632 authorizes the owners of county stores .to keep them in stock for sale. The language of these two sections shows that , the Legislature did not regard these medicines as coming within the scope of the statute, and seem to have been inserted for no other purpose than to place this beyond question.

There can be no reason for denying to appellees the right to sell the medicines in question, and according it to the owners of drug stores and county stores who possess no greater scientific skill in the knowledge of pharmacy. The lives and health of the customers of the owners of county stores and of the customers of such druggists as are authorized to sell patent and proprietary medicines by section 2631 are as sacred in the estimation of the lawmakers as are those of the customers of other drug stores, and, if it had been thought necessary for the protection of the latter to limit the sale of the medicines in question to registered pharmacists, undoubtedly the same protection would have been thrown around the former. The learned chancellor below was of opinion that the act does not apply to the sale of patent and proprietary medicines, and in this we concur.

The judgment is affirmed.

Whole court sitting.