The herald-advance. (Milbank, S.D.) 1890-1922, 1908-01-10
PURE FOOD KNOCKED OUT.
Full Text Of Opinion by the Supreme
Court Of South Dakota.

application OF r. +. Brown, a whole
sole druggist of Sioux Falls, complete
ly sets aside the contention Of State
Food Commissioner Wheaton that the
amended law of 1907 requires patent
medicines to have printed on the bot.
ties or packages a formula of the con-.
tents.
The court holds in effect as follows
on the contentious in the case:
The complaint shows that on the
Cd day of December, 1907, at the City
of Sioux Falls, r. +. Brown did then
and there, being a druggist engaged in
the business of selling drugs and med,
icines, wilfully, wrongly, and unlaw.
fully offer and expose for sale, n un-
lawfully sell to A. H. Wheaton, Ger.
tain prepared medicines. to-wit: One
bottle of Peruna, one bottle of Ham.
burger drops, n bottle of Chamber.
lain's Diarrhoea remedy. one bottle OF
PisO's consumption cure, n bottle OF
kodol, and one bottle of DR.. Kings
new discovery, all of said prepared
medicines being then and there mis-.
branded, in that none of the said
medicines bore a qualitive statement
Of what It was composed.
whether the act complained Of con.
stitutes a public offense depends upon
judicial power to supply certain terms
claimed to have been inadvertently
omitted by the legislature, and which
subject the petitioner to the operation
of a penal statute, in which the word
druggist does not appear.
Section 2 authorizes such food and
dairy commissioner to appoint and
fix the compensation OF the depart.
ment analyst, and such inspectors and
office assistants as he may deem nee.
essary to carry out the provisions OF
the act. Sections 3, 4 and 5, define
duties of the force. and provide for
their payment.
without any reference to either
drugs Or medicines, the four succeed.
Ing sections of the act are devoted to
a legislative definition of the term
food" and a recital of what consti-
tutes it's ad~ulteration or ~misbranding,
and Immediately following is section
10, which reads as follows: 1T shall
be unlawful for any person acting for
himself or as h servant or agent of
any other person, firm or corporation,
to manufacture, sell, offer or expose
for sale any article of food which is
adulterated or misbranded within the
meaning of this act. The possession
by any innkeeper, hotelkeeper, restau.
r~antkeeper, or boarding housekeeper
of any food or drug which is adulter.
ated or misbranded within the mean.
ing Of this act, shall be deemed to be
the keeping of such food or drug for
sale
Neither the term druggist nor
medicine was employed by the legis.
lature in this provision and the I'M.
lawful possession Of the adulterated
or m~isbranded drug mentioned only
in the final sentence is u~naccountably
limited to the dispensers of food.
Section So, consisting of eight sub.
divisions, is declarative merely Of
what conditions are essential to con.
stitute m~isbranded or adulterated
drugs or articles of food, but nc
language Is used therein tending in
the slightest degree to evidence a
legislative intent to make anything
unlawful or justify the infiction of a
penalty for the sale of prepared med.
icine bearing no qualitive statement
of what it is composed
While this section regulates moth.
ing and is merely descriptive OF the
articles of food and medicine men.
toned therein and is incapable OF
transgression by any person, the pro.
vision Immediately following, besing
section &c, declares that Any person
violating any of the provisions of the
preceding section Of this act shall be
deemed guilty of a misdemeanor, and
upon conviction thereof shall be pun.
ished by a fine of not less than ten
nor more than n hundred dollars or
by imprisonment in the county Jail
not to exceed thirty days, or both such
fine and Imprisonment for such of.
fense.'
Were 1t to be assumed, as contend.
ed by the counsel for the food and
dairy commissioner, that the express.
sion, preceding section might be au.
thoritively changed to preceding
sections this prosecution would not
Uo mdluIdiLdDlC IOT the reason that
there is nothing in section 10, nor in
any other provision of the pure food
law authorizing the arrest of a drug.
gist or making anything that is charg.
ed In the complaint a penal offense,
According to the elementary rule of
construction, the statutory
ton of persons of the same class by
specific terms, such as inn. hotel. res.
taurant or boarding house, must be
restricted to that class of individuals.
n 40 consideration of the mischief
to be remedied by the passage of the
act Is sufficient to justify the inter.
probation required to bring within it's
operation another class of persons
whose business Is distinctly different.
There being no legal authority fro
the process under which the petitioner
Is restrained of his liberty nor general
law to justify a conviction, his appli.
cation to this court for a discharge on
1abeas corpus is granted" i
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