232 U.S. 334

34 S.Ct. 439

58 L.Ed. 627

J. C. BACCUS, Plff. in Err.,

No. 170.

Argued and submitted January 19, 1914.

Decided February 24, 1914.

This writ of error was directed to a district court of the state of Louisiana, as that court had jurisdiction, in last resort, over the conviction sought to be reviewed. The information upon which the conviction was based charged that the accused had, in violation of § 12 of act 49 of the Laws of Louisiana for 1894, illegally, as an itinerant vender or peddler, 'sold drugs, ointments, nostrums, and applications intended for the treatment of diseases and deformity.' A motion was made to quash on the following grounds: First, because the statnte upon which the charge was based provided for no offense; second, because if it did, the acts charged were not, generally speaking, within the statute, and especially were not embraced by its provisions because the sale of drugs or proprietary preparations put up in sealed packages with directions for use did not constitute the practice of medicine; third, because if the statute embraced, as asserted, the acts charged, it was in conflict with the state Constitution, since it permitted all persons to sell drugs, ointments, etc., except itinerant venders; fourth, because if the statute operated as contended for, it was repugnant to the 14th Amendment to the Constitution of the United States '(a) because it prevents a citizen from pursuing a lawful vocation; (b) it denies to other citizens rights enjoyed by all others in the state, and . . . is class legislation in its effect, as it gives to the local dealer a monopoly in the sale of such drugs, etc., and deprives the itinerant vender or dealer of the privilege to sell such articles . . .' The motion to quash having been overruled, the case was submitted to the court without a jury, upon an agreed statement of facts to the following effect: 1st, 'that the defendant was an itinerant vender of drugs, nostrums,' etc., and as such had sold the articles 'intended for the treatment of diseases, as alleged in the information.' 2d, 'that the drugs so sold by the defendant as an itinerant vender were compounded and prepared by the Rawleigh Medical Company of the state of Illinois, and that said remedies, drugs, nostrums, ointments, and applications were put up in sealed packages or bottles ready for use, with printed directions on the packages or bottles, and that defendant was an itinerant vender of same in original packages and bottles, and prepared by the proprietors.' 3d, 'that all persons except itinerant venders have the right to sell said remedies; that is, patent and proprietary drugs, nostrums, ointments, and applications, intended for the cure of diseases.' By requests to charge which were overruled, and to which exceptions were reserved, the defenses based both upon the state and the United States Constitution, embodied in the motion to quash, were reiterated, and on conviction and sentence after an unsuccessful effort by certiorari to procure as an act of grace, a review of the case by the supreme court of the state, this writ of error was sued out.

Messrs. Thomas D. O'Brien and John A. Barnes for plaintiff in error.

Mr. R. G. Pleasant, Attorney General of Louisiana, and Mr. G. A. Gondran for defendant in error.

Statement by Mr. Chief Justice White:

Mr. Chief Justice White, after making the foregoing statement, delivered the opinion of the court:


We accept the construction affixed by the court below to the statute, and upon which alone it could in reason have held that the acts charged were embraced by its provisions. We hence disregard an intimation made in the argument of the defendant in error, that the statute is susceptible of a different interpretation, and therefore that the claim of Federal right which was made below, and which was necessarily passed upon, need not be here considered. It is inconceivable that the statute should mean one thing for the purpose of determining whether the acts charged were within its terms, and should then be held to mean another, for the purpose of escaping the Federal question. Thus considering the case in its true aspect, the single issue to be decided is, Did the state have power, without violating the equal protection or due process of law clause of the 14th Amendment, to forbid the sale by itinerant venders of 'any drug, nostrum, ointment, or application of any kind, intended for the treatment of disease or injury,' although allowing the sale of such articles by other persons? That it did have such authority is so clearly the result of a previous ruling of this court (Emert v. Missouri, 156 U. S. 296 39 L. ed. 430, 5 Inters. Com. Rep. 68, 15 Sup. Ct. Rep. 367), or, at all events, is so persuasively made manifest by the authorities cited and the reasoning which sustained the ruling of the court in the case just stated, as to leave no room for controversy on the subject (pp. 306, 307) Moreover, the power which the state government possessed to classify and regulate itinerant venders or peddlers, exerted in the statute under consideration, is cumulatively sustained and made, if possible, more obviously lawful by the fact that the regulation in question deals with the selling by itinerant venders or peddlers of drugs or medicinal compounds,—objects plainly within the power of government to regulate.



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