The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1892-04-16
MANAGERS" KNOCKED OUT.
Only the Proprietors of Drug Stores
Are Practicing Pharmacists.
Judge Van Fleet Renders an Import
ant Decision-State Board of
Pharmacy Upheld.

Thomas Y. Tallman, the manager of
Gogings' drug store on j street, applied
to the State Board of Pharmacy for GER
tificate of registration as a "practicing
pharmacist" but was refused it on the
ground that he was not what he claimed
to be-that he was simply conducting
place for another TalIman then brought
suit in the Superior Court for writ of
mandate to compel the board to issue the
desired certificate.
THE COURTS RULING.
Judge Van Fleet denies the writ.
The court says: Section of the Act en-
titled AN Act to regulate the practice of
pharmacy and sale of poisons in the State
of California provides that any person
in order to be registered pharmacist
must be graduate of pharmacy a icen-
tate IN pharmacy or a practicing phar-
macist.' Section 3 defines practicing
| pharmacists as persons who, at the pass
age OF this Act, are conducting pharma-
cles in this State for compromising and
dispensing of prescriptions of medical
practitioners, and for the sale of medi-
cines and poisons.' The only question
OF difference between the parties is as to
the construction to be put upon the Ian
guage, persons who are con-
Quoting pharmacies; that is, who are
deemed to be conducting pharmacies,
within the perview of the Act in question.
1t appears that the petitioners applica-
ton to the Board of Pharmacy disclosed
the fact that he was not the proprietor or
owner of the pharmacy he claimed to be
conducting, but simply an employe of the
person owning the same, and it was held
by the board that this did not bring pc
tltioner within the class which are emit
tied, under the above definition, to GER
titicates as practicing pharmacists, their
contention being that the term con-
plates and implies proprietorship, or
ownership, with the right of ultimate
control in the applicant in order to entitle
him to registration as practicing phar-
macist.'
TALLMAN's CONTENTION.
1.-The contention of the petitioner on
the other hand,' continued the court, sis
that the term 'conducting,' as here used,
does not imply anything of the kind, but
is used in its broadest and most ordinary
sense, and that man is conducting a
pharmacy within the meaning fthe Act, if
he is running it or managing it at the en-
ployment OF another without reference to
the TACT whether he owns any interest or
has entire control of the business. / was
at first inclined somewhat to this latter
view, and, taking the language of Section
3 by itself, it might sustain that construc-
tion-in an instance where, as here it ap-
peared that the applicant was employed
to manage the business and superintend
its details to so great an extent, as is the
the case with petitioner. But looking at
the whole Act with its various provisions,
and having in view the purposes evil
IDENTIFY sought to be accomplished by the
Legislature, | am constrained TO the
conclusion that the Interpretation put
upon it by the respondents is the correct
one.
''The evident intent and purpose of the
law is to secure the better protection of
the public against the dangerous mistakes
OF incompetent and unskilled persons in
the compromising and sale of drugs,
medicines and poisons. 1t contains pro-
visions for bringing within its control
several enumerated classes of persons
engaged in or connected with the business
Of carrying on pharmacies or drug
stores, and reading the Act in its entirety
leads one to the ineVita BILE conclusion that
| it was in contemplation by the law-mak-
ers 10 include all classes of those engaged
in or carrying on this character of trade,
in whatever capacity connected there
with. While the words owner or proprie-
tor nowhere appear in the Act, it is not to
be readily concluded that in legislating so
conprehensively upon the subject as was
apparently the purpose of the Act, it was
the intention to exempt from it's provis-
efficient working of the law as the owner
or proprietor or person in control of the
business.
THAT such was not the intent of the
Legislature is obvious from the reading
of Sections and II OF the Act, wherein
certain duties and penalties are prescribed.
Section 8 provides that Every registered
pharmacist shall file, or cause to be filed,
all physicians prescriptions compounded
or dispensed in has pharmacy or store
and makes a violation of the provision a
| mlsdemeanor. Section IL provides that
ANY registered pharmacist who shall
permit the compromising and dispensing
of prescriptions OF medical practitioners
al ms store by person not registered ETC.,
shall be guilty of a misdemeanor.
employees NOT INCLUDED.
''These provisions cannot be construed
as referring to mere subordinates or en-
ployes, but must have reference to pro-
prietors or those having ultimate control
of the store or business, otherwise it is
apparent that they would be largely in
operative. They could not be enforced,
since, as suggested by counsel, an en-
ploye might violate the law with i'm
puniry, because the Act would not be COM
mltted in his pharmacy store but in that
OF his employer.
Taking the whole Act together I am
satisfied that the Legislature, in using the
expression persons who at the passage
OF this Act are conducting pharmacies
intended and had reference to those haV-
ing the ultimate control Of the business
This construction is in harmony with
that given by the Supreme Court of Iowa
to substantially the same expression
found in the statute of that State making
1t unlawful for any person not registered
pharmacist to conduct any pharmacy or
drug store If the person conducting
drug store was the defendant say the
court, then he was engaged in an unlaw-
full business, for he was not a registered
pharmacist. But ne contends that it was
his clerk and not himself who was con-
Quoting drug store, and that had he
been allowed to show that his clerk was
registered pharmacist he would have
shown that the business of the drug store
was lawful. There is no doubt but that a
person may lawfully become the pro-
prietor of a stock of drugs without being
registered pharmacist. But being such
proprietor is quite different from con-
Quoting q drug store. A room in the
building in which the business of selling
drugs is conducted is drug store, and
THE CONDUCTOR OF THE STORE,
Within the meaning of the statute, is, we
think, the person who has the ultimate
right to control the business in respect to
Its continuance or discontinuance, the en-
ployment of clerks, the fixing of prices,
etc. 1t matters not with what power a
mere clerk may be clothed he cannot be
said to be the conductor of the store when
his powers are merely derivative' State
VS.. Norton, % Iowa, Gill;
so, in this case, the petitioner cannot,
in the sense OF the statute. be held to be
the conductor of the pharmacy or store
IN which he is employed. He is engaged
TO manage the business of the store for
his employer with. it is true, considerably
enlarged powers over the ordinary drug
clerk. but nevertheless, as the evidence