
    State Board of Pharmacy, Respondent v. Melvin E. Bellinger, Appellant.
    Second Department,
    April 22, 1910.
    Public health — sale of drugs by unlicensed pharmacist—penalty — party — judicial notice of State Board of Pharmacy — constitutional law — statute creating State Board.
    Where in an action to recover penalties from the owner of a pharmacy who permitted one not a licensed pharmacist to sell medicines in violation of the Public Health Law, it appears that the three articles in question were sold as ■ one transaction to the same person for an aggregate sum, but one penalty can be recovered.
    The action may be maintained in the. name of the State Board of Pharmacy and need not be brought in the names of the individuals composing the Board.
    In such action the court will'take judicial notice of the existence of the Board and the plaintiff need not prove the title to office .of its members.
    The statute creating the State Board of Pharmacy, although it provides that the members shall be elected by . a restricted electorate of licensed pharmacists, does not violate section 2 of article 10 of the State Constitution providing that all Officers whose election or appointment is not provided for shall b.e elected by the people or appointed' as the. Legislature may direct.
    While the statute uses the word “ election,” the method of selection amounts in legal effect to an appointment.
    The fact that the statute divides the State into sections for the selection of thfe members of the Board and the administration of its duties does not make it a “local.act” within the meaning of section 16, article 3 of the Constitution.
    Although the disposition of the surplus money collected by the Board in the eastérn section of the State, which is directed to be paid to certain educa-tional corporations, may be unconstitutional, the whole'statute does not, therefore, fall.'
    A statute is not to be held unconstitutional in whole because some minor or incidental part is so.
    Appeal by the defendant, Melvin E. Bellinger, from a judgment of 'the Municipal Court of the city of New York, borough of Brooklyn, in .favor of the plaintiff, rendered on the 8th day of N ovember, 1909..
    
      Robert S. Conklin, for the appellant.
    
      Jerome Steiner and Joseph H. Kohan, for the respondent
   Carr, J.:

The appellant is the owner of a pharmacy in the borough of Brooklyn. He appeals from a judgment recovered against him in the Municipal Court of the city of New York for an alleged violation of the Public Health Law, in that he permitted one who was not a licensed pharmacist to sell medicines in his store. The drugs or medicines so sold were “ Tincture of Iodine,” “ Camphor Liniment,” “ Chloroform Liniment ” and “ Spirits of Camphor.” On the trial he offered no evidence in his defense, relying upon certain propositions of law which he then raised and now repeats on this appeal. There can be no question, on the proof in this case, that the person who sold these medicines was not a licensed pharmacist. There is evidence of an express admission of that fact by the defendant himself to one" of the plaintiff’s witnesses, in addition to other proof.

That the statute in question may forbid the sale of these articles by other than licensed pharmacists, except as therein prescribed, has but recently been settled conclusively under similar provisions of the former statute. (State Board of Pharmacy v. Matthews, 197 N. Y. 353.) The exceptions do not seem to apply to this case. Section 238 of the Public Health Law (Consol. Laws, chap, 45 ; Laws of 1909, chap. 49) makes the owner of the pharmacy “equally liable'as principal” whenever the prohibited sale takes place. The penalty provided for such a violation is the sum of twenty-five dollars, collectible in an action which may be maintained in the name of the.State Board of Pharmacy. (Public Health Law, §.239.)

In the case at bar all the articles in question were sold as a part of one transaction to the same person for the aggregate sum of fifty-five cents. The question arises whether the defendant was liable for a separate penalty for each article sold, on the theory that for e'ach article there was a separate and distinct violation of the statute. The learned trial court awarded judgment for fifty dollars, no doubt on the theory that there were at least two violations shown. The language of the statute creating the penalty provides it “ for every such violation,” but we think that one transaction of sale is not to be divided into its separate elements in order to multiply penalties. There was here but one sale of several articles, and properly but one violation of the statute, and, therefore, but one penalty recoverable. (United States Condensed Milk Co. v. Smith, 116 App. Div. 15.)

Where the transactions of sale are distinct and separate the accumulated penalties for each violation are recoverable. ' (Suffolk County v. Shaw, 21 App. Div. 146; State Board of Pharmacy v. Matthews, supra.) The judgment appealed from should be modified by striking out the amount of twenty-five dollars awarded as a separate penalty.' As to the appellant’s objection that the action should have been brought in the namés of the individuals who compose the State Board of Pharmacy and not in the name of the Board itsfelf, we think that it is without merit. The' statute; itself "gives the right to maintain the action in the name .of the Board, A similar contention has been raised before and decided adversely to the appellant’s claim. (Board of Health v. Valentine, 57 Hun, 591; 11 N. Y. Supp. 112.)

Again, the claim of the. appellant that the plaintiff must prove, every time it brings such an action as this, the title to office of those who are its members, and thus submit that title to collateral attack in every action for a penalty, has neither reason nor authority to sustain it. The statute having created the thing which it. calls the State Board of Pharmacy, the courts will, in actions like this, take judicial notice of its existence, apart from the titles to office of its individual members, 'which may be inquired into under other and appropriate circumstances. ' '

We are brought now to a consideration, of certain objections made by the appellant as to the constitutionality of the.statute which created the State Board o'f Pharmacy. The present statute (Public Health Law, art. 11) is a re-enactment of chapter .667 of the Laws of 1900 (amdg, Public Health Law [Gen. Laws, chap. 25 ;. Laws of 1893, chap. 661], art. 11), as amended. It creates a body for a public purpose tó be known as the State Board of Pharmacy, and clothes' it with certain powers and duties, all of which are public in character. For the purpose of determining its individual membership it divides the entire State into three sections, from each of which five members of the- State Board are to be selected.' The members so- selected it makes.public officers. The supposed conflict between the statute and the Constitution is stated to consist in the fact that the statute prescribes the “election ” of the members-of the Board from each of three sections, not by the citizens generally in each seetionj but by á restricted electorate, consisting in the eastern section of licensed pharmacists and druggists who are residents of a prescribed district therein and members of prescribed incorporated pharmaceutical associations and societies, and in the other sections of licensed pharmacists and druggists generally, residing in the particular section. (See Public Health Law, § 230 et seq.) It is contended that this method of election is in violation of section 2 of article 10 of the Constitution. Membership in the State Board of Pharmacy is a public office, and the office in question was created by the Legislature after the adoption of the present Constitution. The Constitution (Art. 10, § 2) prescribes the methods by which all public offices named in it shall be filled, and provides that “ All other officers whose election or appointment is not provided for by this Constitution, and all officers whose offices may hereafter be created by law, shall be elected by the People, or appointed, as the Legislature may direct.” The election contemplated by the Constitution is an election by the people ; ” that is, all the legal electors of the State or locality, and the method of selecting the members of the State Board of Pharmacy, as prescribed by the statute, does not, concededly, answer the requirements of the Constitution as to an election. Yet the statute is not to be construed narrowly simply for the purpose of destroying it. The present constitutional provision is but a redeclaration of a similar provision in the Constitution of 1846 (Art. 10, § 2), and, as such, must be construed as has been the former provision. The present statute, in prescribing the method of selection, is like the act of 1853, which created the Board of Commissioners of Pilots for New York harbor. (Laws of 1853, chap. 467.) That statute provided for the election of five pilot commissioners, as follows: Three by the members of the Chamber of Commerce of New York city, and two by the presidents and vice-presidents of the marine insurance companies of the city of New York, composing or represented in the board of underwriters of said city. As amended by chapter 243 of the Laws of 1857, it forbade the hiring of pilots not licensed by the Commissioners, and prescribed penalties for the violation of its provisions. It was held that the act was constitutional because that, while the statute used the word “ election,” it was not used in the sense of the Constitution, and that the method of selection prescribed amounted, in legal effect, to an appointment according to the direction of the Legislature. (Sturgis v. Spofford, 45 N. Y. 446.) This authority is decisive on the point now raised. Hor is there, as the appellant contends, anything in Fox v. Mohawk & H. R. Humane Society (165 N. Y. 517) which is to the contrary. There the question of constitutionality arose under other and different sections of the Constitution, and the question here ai bar was neither raised nor considered, nor, in fact, in any way involved. In one. aspect of the present controversy this later authority may be deemed in point, but, if so, it is with relation to another ground urged by the appellant, which will be discussed later.

It is likewise urged by the appellant that the statute now under consideration, because it divides the State into sections for the selection of members of the State Board of Pharmacy and the administration of its duties, must be considered a local act ” as distinguished from a general act, and that, being so considered, it is in -violation of section 16 of article 3 of the Constitution, in that it contains more than one subject which is not indicated- in its title. This objection is wholly destitute of merit and scarcely needs discussion. (People ex rel. Einsfeld v. Murray, 149 N. Y. 367; Matter of Fuller, 62 App. Div. 428; Matter of Wallace, 71 id. 284.)

We.come now to a consideration of the last objection to the Constitutionality of 'this statute, urged by the appellant, which is important enough for a brief consideration, ' The statute in question prescribes for the licensing of pharmacists and druggists and the payment of license fees to the State Board, and for the collection of penalties by that Board for the violation of-its provisions. In subdivision 5 of section 239 it provides for the disposition of the moneys so received as follows: To “ apply the same to the payment of the lawful expenses' of such board and the necessary expenses incurred in carrying out the provisions of this article,” and whatever surplus remains in the eastern section, prescribed by statute, to be paid over, three-fifths to the College of Pharmacy of the City of New York, and two-fifths- to the Brooklyn College of Pharmacy; in the . other two sections prescribed by the statute, any surplus after defraying the lawful expenses, is to be paid into the State treasury. It is urged that the provision for the payment of the surplus in the eastern section to the educational corporations named is a violation of the constitutional prohibition against the appropriation of public moneys for a private purpose (Const, art. 8, §§ 9,. 10, 14), and Fox v. Mohawk & H. R. Humane Society (supra) is cited as an authority. It is not necessary, however, nor would it be proper ' in this case to decide1 whether the provisions of this statute in relation to payments to these two colleges of pharmacy should be upheld or overturned. Assuming, for the sake of argument, that they cannot be upheld, then the whole statute would not fall, because these provisions are not an integral part of the statute, but are merely incidental or subsidiary, and being cut off, would still leave the main legislative purpose in undiijninislied force. A statute is not to be held unconstitutional in whole because some of. its minor or incidental parts may be unconstitutional-. This is a commonplace of constitutional law, so well settled as to need no present citation of authority. It is only when the court, viewing the whole statute and finding a part vicious, can see that such part is so integral to the whole legislative purpose that it must be deemed that the Legislature would not have made the-enadtment without preserving the vicious part, that the whole enactment can be deemed unconstitutional. Such was the case in the statute considered in Fox v. Mohawk & H. R. Humane Society (supra), but such is undeniably not the case here.

The judgment appealed from should be -modified by reducing it to the sum of thirty-seven dollars, and as so modified affirmed, without costs.

Hirsohberg, P. J., Burr, Thomas and Rich, JJ., concurred.

Judgment of the Municipal Court modified by reducing it to the sum of thirty-seven dollars, and as so modified affirmed, without costs.  