State v. Robinson

Gileillan, C. J.

This is an action to recover two penalties such as are imposed for violating Laws 1885, ch. 147, as amended by Laws 1891, ch. 104. The section the provisions of which are claimed to have been violated is section 12 as amended, and which provides: “Any registered pharmacist or other person who shall permit the compounding or dispensing of prescriptions or the vending of drugs, medicines or poisons in his store or place of business, except under the supervision of a registered pharmacist, or by a registered assistant * * * shall for each and every offense be liable to a penalty of fifty dollars.” The chapter contains elaborate provisions to secure on the part of registered pharmacists and assistants the requisite knowledge and skill in the business of conducting a drug store or transacting a pharmacy business.

(Opinion published 56 N. W. Rep. 594.)

As found by the court below, defendant had in his employment in his drug store, to clean up the store, sell cigars, soda water, patent medicines, and notions, one Fremstad, who was not a registered pharmacist or assistant. When he employed Fremstad he instructed him that he must not sell any drugs or poisons, or prepare any prescriptions. Defendant attended the business at his store, and was there during the greater part of the time, with short absences. During two of these absences Fremstad made the sales which.are charged against defendant as violations by him of section 12.

It is not found that he actually knew of or directly authorized the sales.

But it is claimed that he permitted the sales within the meaning of the section; that within its meaning the owner of a drug store permits on the part of his employes what he does not prevent. As always used, the word “permit” includes the element of assent. When used in a statute to describe an action made penal it must be held to include that element, unless there be something in the context clearly indicating the contrary. It is,, of course, necessary for druggists to employ in and about their stores persons who are not registered pharmacists or assistants. The statute (Sections 2 and 4) contemplates that they may have such for the purpose of learning the business. It would be hard upon the owners of such stores to make them liable penally for the acts of such persons done without their knowledge, and contrary to their instructions. There is nothing in the statute showing an intent to go so far as that.

Order reversed.

Note. On November 21, 1898, an order was entered affirming tbe refusal of the clerk of this court to tax costs against the State Board of Pharmacy.