
    The State v. Hutchinson.
    
      Pure food law — Authority of U. S. Pharmacopoeia — Provisions op statute — Interpretation of law.
    
    1. The United States Pharmacopoeia is adopted by the statute providing against the adulteration of food and drugs, (81 O. L. 67 and 87 O. L. 248) as an authoritative compilation comprising accepted and known articles of drugs, with a description of their characteristics and qualities, and an approved standard of their strength and purity.
    2. Whisky is recognized by that name in the Pharmacopoeia, where its proper standard of purity and strength is laid down, and is a drug within the meaning of the pure food and drug statute.
    3. While that statute is mainly designed for the better preservation and promotion of the public health, it is also directed against frauds resulting from the sale of inferior articles for prices which entitle the purchaser to those that are of the required standard.
    4. The provisions of the statute relating to the sale of drugs, are not limited in their application, to sales by druggists and pharmacists, nor to sales for medicinal or pharmaceutical use, but they extend to all persons without regard to their vocation, and make no distinction on account of the use intended to be made of the article.
    5. The sale of whisky which is adulterated within the meaning of the statute, is an offense against its provisions, though it be sold as a beverage or commercial commodity, and by one who is neither a druggist nor pharmacist.
    (Decided February 2, 1897.)
    
      Bill of Exceptions takenby the prosecuting attorney to the ruling of the court of common pleas of Franklin county.
    
    The defendant was prosecuted before a magistrate, for a violation of the statute providing against the adulteration of food and drugs. (81 O. L. 67 and 87 O. L., 248.) The affidavit charged him with having made an unlawful sale, on the 10th day of May, 1896, of whisky which was adulterated within the meaning of the statute, in that it was below the standard of alcoholic strength laid down in the United States Pharmacopoeia. It appears that the principal contention of the accused at the trial was, as it is here, that the statute does not apply to sales of whisky when made in a saloon, or as a commercial commodity, but' is applicable only when the sale is made by a druggist, or pharmacist, for medical or pharmaceutical purposes. The magistrate held otherwise, and instructed the jury, in substance,- that if they should find from the evidence, beyond a reasonable doubt, the accused sold the whisky as charged in the affidavit, • and that the whisky so sold was different, as charged in the affidavit, from the standard of alcoholic strength as laid down in the United States Pharmacopoeia, for whisky, the sale was a violation of the statute, though made in a saloon, and to be used as a beverage. The accused was convicted and sentenced, and the court of common pleas reversed the judgment for error in giving the foregoing instruction to the jury. The prosecuting attorney took the bill of exceptions here presented, to that ruling of the court of common pleas.
    
      F. S. Monnett, Attorney General; J. K. Bicharás and Charles Case, argued in support of the exceptions.
    
      Samuel Hambleton, and Edmund Smith, contra.
   Williams, G. J.

The question which the bill of exceptions presents for the decision of this court is one of some importance, and is, whether the sale of whisky, when made otherwise tnan by a druggist or pharmacist for use as a medicine, is within the condemnation of the statute under which the prosecution was instituted. The provisions of that statute which affect this question, are those contained in sections 1, and 2, and a part of section 3,and are as follows: “Section 1. That no person shall, within this state, manufacture for sale, or offer for sale, or sell any drug or article of food which is adulterated within the meaning of this act.” “Section 2. The term ‘drug,’ as used in this act, shall include all medicines for internal or external use, antiseptics, disinfectants and cosmetics.” “Section 3. An article shall be deemed to be adulterated within the meaning of this act: {a). In case of drugs: (1). If, when sold under or by a name recognized in the United States Pharmacopoeia, it differs from the standard of strength, quality or purity laid down therein.”

The Pharmacopoeia mentioned, is adopted by the statute as an authoritative compilation, comprising the accepted and known articles of drugs and medicines, with a description of their characteristics and qualities, andan approved standard of their proper degree of purity and strength. Whisky, by that name, is therein recognized and described, and its appropriate standard established ; and that article, it is well known, possesses important medicinal virtues, both in its internal and external use. It is none the less a medicine because it is sometimes taken as a beverage, or, like many other articles of medicine, may sometimes be applied to other than medicinal uses.

The statute is general in its terms, embracing every person in its inhibition against sales forbidden by its provisions, without distinction on account of the occupation of the seller, or the purposes of the sale, or on any account whatever.

It is contended, however, that a legislative intent to limit the application of the statute so far as it relates to drugs, to sales by pharmacists and druggists, is to be derived from the fact that on the same day the statute was passed, another statute was enacted providing for the examination and registry of persons engaging in business of that kind, and prohibiting the business being carried on except by, or under the supervision of, a registered pharmacist. (81 O. L., 61.) But the fact that these two statutes engaged the attention of the legislative body at the same time, affords strong ground for the inference that it was rather the intention of that body not to restrict the operation of the former act as suggested, for such restriction, if it had been intended, could easily have been made, and the necessity of employing appropriate language to express it, would readily occur to the legislative mind. That no such restriction is expressed, but the statute was left general in its terms, applicable alike to all persons, sufficiently indicates the intent that the statute should have general application according to its terms. A legislative intention to exclude the application of the statute to sales of whisky as an article of merchandise, is also sought to be derived from those statutory provisions which regulate the traffic in intoxicating liquors; which, it is claimed, constitute a distinct system of laws complete in itself, controlling the whole subject. The provisions referred to are those requiring the dealer to take out a government license, and pay a stipulated tax to the state ; and those providing for the inspection of liquors, and against their adulteration. They are embraced in sections 3249, and 3250, of the Revised Statutes of the United States, and in the Dow law, and sections 4330, 4332, 6950, and 7082 of the Revised Statutes of this state. But the right of traffic conferred on the dealer by the government license and payment of the state tax, is subject to such limitations and regulations as the state in the proper exercise of its legislative power, may from time to time impose. Neither the license, nor payment-of the tax gives him authority to make sales which are in violation of those regulations, nor relieves him from the penalties they impose for a failure of their observance. And druggists and pharmacists are amenable to those provisions which punish the adulteration of whisky, and its sale when adulterated, like every dealer in liquors as a commercial commodity merely. They cannot plead their avocation as an excuse for a transgression of those provisions, nor demand immunity from the penalties that are attached, on account of the character of the business in which they were engaged at the time of the violation. There is no repugnancy between these statutes and the one here under consideration. They may all stand together, and they operate alike upon all persons who come within their provisions. They all have in view the same general result, that of insuring-the most desirable and perfect standard-of purity and quality of articles which in their use might otherwise prove injurious to health. They are directed to the accomplishment of still another purpose scarcely less laudable, and that is the prevention of frauds resulting from the sale of an inferior article for a price which entitles the purchaser to one fully up to the proper standard. This statute is an additional regulation, designed for the more complete attainment of these salutory ends; and, that it might not prove ineffectual, it was deemed necessary that it should reach all persons who vend articles included in its provisions ; and it does so in plain terms. It contains no exception in favor of any person, class or business, and we are not aware of any authority of the court to engraft one of that character; or any other, upon it.

Exceptions sustained.  