E. Fougera & Co. v. City of New York

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] In a controversy submitted on an agreed statement of facts, judgment has been rendered permanently enjoining the enforcement of sections 116 and 117 of the Sanitary Code adopted by the board of health of the city of New York.

Those sections provide in substance that there shall be no sale of patent or proprietary medicines in the city of New York unless "the names of the ingredients of every such medicine to which the therapeutic effects claimed are attributed, and the names of all other ingredients except such as are physiologically inactive, shall be registered in the department of health." There is an exception where medicines are prescribed by a physician. The names of the ingredients when registered are to be "regarded as confidential and shall not be open to inspection by the public or by any persons other than the official custodian of such records in the department of health, such persons as may be authorized by law to inspect such records, and those duly authorized to prosecute or enforce the federal statutes, the laws of the state of New York, both criminal and civil, and the ordinances of the city of New York, but only for the purpose of such prosecution or enforcement." With the names there must be filed a copy of all advertising matter sold or distributed in connection with the medicine. Any proprietary or patent medicine shall be deemed to be misbranded if the names of its ingredients are omitted or mistated. Medicines are also to be deemed misbranded if the package or label contains "any statement, design, or device, regarding the drug or its ingredients, or regarding its or their action on diseased conditions, which statement, design, or device shall be false or misleading in any particular." Misbranding may also result from other acts and omissions, not now important. In addition to misbranding, the ordinance prohibits and defines adulteration. One who violates the ordinance may be punished as for a misdemeanor, and is also liable to a penalty of $50 to be recovered in a civil action (Charter, New York City, sec. 1222).

The plaintiff is engaged in the importation and sale, both wholesale and retail, of proprietary and patent medicines. The names of many of the medicines are stated in the record. For some, the plaintiff is the exclusive importer and sole distributor in the United States. A large stock of drugs was on its shelves when the ordinance was passed. It does not know the names of the ingredients and cannot ascertain them. They are secrets closely guarded by the foreign manufacturers. In these circumstances, it insists that the ordinance is void. There have been two lines of attack. The ordinance is said in the first place to infringe rights secured to the plaintiff by the state and the federal Constitution. If not subject to that criticism, it is said to go beyond the scope of the powers which the legislature has delegated to the city's local officers.

Most of the objections to the ordinance, we reject as inadequate. For the moment, we put aside the consideration of its effect upon existing stores of merchandise. We deal with it at the outset in its relation to merchandise to be acquired in the future.

The argument is made that the ordinance is an abitrary exercise of the power of government. We do not think so. Its purpose and effect are well within the limits of the police power. The purpose is the preservation of the public health and safety (Savage v. Jones, 225 U.S. 501; State v. Aslesin,50 Minn. 5, 8; State Bd. of Pharmacy v. Matthews, 197 N.Y. 353). The form of protection is publicity. There must be disclosure of the truth to responsible officials who will prevent or punish the sale of fraudulent or noxious compounds. If that is not a legitimate public aim, we are at a loss to know where one may be found. It is not important that the ordinance fails to compel disclosure to all the world. Laws are not invalid because they fall short of the maximum of attainable efficiency. Disclosure to all the world, as in Savage v. Jones (supra), might make the protection more complete, but it would also make the hardship more severe. Something less, therefore, has been exacted. Disclosure is to be made to the health officers of the city, and to them only. If fraud or other wrong is discovered, then and then only exposure will result. "No man has a constitutional right to keep secret the composition of substances which he sells to the public as articles of food" (State v. Aslesin, supra). If that is true of food, it is even more plainly true of drugs. A danger exists, and the only question is whether the means of correction are appropriate. We cannot say that the means have no relation to the end. The public health is safeguarded by disclosure to public officers charged by law with its protection. We are not called upon to approve the wisdom of the ordinance. We stop when we satisfy ourselves that it has a reasonable relation to the end to be attained.

It is said that the effect of the ordinance is to compel the dealers in patent medicines to give evidence against themselves in violation of section 6 of article I of the Constitution of the state. The basis of that argument is a stipulation in the record "that the admitted object of defendants in the enactment of said revised Sanitary Code and regulations is to secure information on which to base prosecutions for violations of law, if in their opinion the facts disclosed in accordance therewith shall so warrant." We are not bound by stipulations in respect of the purpose of legislation. Laws are not to be declared invalid upon the consent of parties. We must determine their purpose and tendency for ourselves. But if the stipulation were to be accepted as accurate, the result would not be changed. The sale of medicines is a business subject to governmental regulation. One who engages in it is not compelled by this ordinance to expose himself to punishment for any offense already committed. He is simply notified of the conditions upon which he may do business in the future. He makes his own choice. To such a situation, the privilege against self-accusation has no just application (People v. Rosenheimer, 209 N.Y. 115; Ex parteKneedler, 243 Mo. 632, 641; People v. Henwood, 123 Mich. 317; Wigmore Ev. § 2264).

It is said again that prosecution may follow if any statement in respect of the curative action of the drug is false, and that to permit this is to inflict punishment for mere error of opinion (Am. School of Magnetic Healing v. McAnnulty, 187 U.S. 94). We have no doubt, however, that the word "false" as used in the ordinance means willfully false or fraudulent. If this construction is adopted, the objection vanishes (Seven Cases v.U.S., 239 U.S. 510). Willful fault is generally, though not invariably, the determining mark of crime (Wharton Crim. L. [11th ed.] § 151; Tenement House Dept. N.Y. v. McDevitt, 215 N.Y. 160,168). We will not assume that less was intended where the result of exacting less would be to render a law invalid. But the objection, in any event, is premature. The provision assailed is separable from those which say that a statement of the ingredients must be filed, and that the omission to file it will be punished. The defect, if it exists, does not reach the whole law.

Other objections are based upon a supposed conflict between the ordinance and the federal Constitution. It is said that if applied to transactions of interstate or foreign commerce, the act is an infringement of the exclusive power of Congress. We think this objection is answered bySavage v. Jones (225 U.S. 501). The ordinance is an exercise of the police power of the state for the protection of the lives of its inhabitants (Savage v. Jones, supra; McDermott v.Wisconsin, 228 U.S. 115; Crossman v. Lurman, 192 U.S. 189;Hall v. Geiger-Jones Co., 242 U.S. 539, 558; People v.Schmidt, 218 N.Y. 256). Such legislation may be permitted, though it affects incidentally interstate or foreign commerce, until Congress has disclosed a purpose to supersede the police power of the states, and to take exclusive possession of the field. It is said that Congress has disclosed that purpose by the adoption of the Food and Drugs Act (34 Stat. 768; 37 Stat. 416). To that objection, Savage v. Jones (supra) again supplies the answer. It was there held that there is nothing in the Food and Drugs Act which curtails the power of the states "to prevent imposition upon the public by making a reasonable and non-discriminatory provision for the disclosure of ingredients" (See also Sligh v. Kirkwood, 237 U.S. 52). It is true that there are some requirements of this ordinance which merely repeat prohibitions of the Food and Drug Act. That is true, for illustration, of the definition of adulterated products. If prosecution is attempted for the violation of those requirements as a result of any transaction of interstate or foreign commerce, the question will have to be determined whether the state can thus add to the penalties of the federal law. But such provisions, if we assume them to be invalid, are separable from the others (Dollar Co. v. Canadian C. F. Co., 220 N.Y. 270,280; Comm. v. Kimball, 24 Pick. 362). The dominant scheme of the ordinance is disclosure of ingredients. That disclosure may be compelled, and the failure to make it punished, without trespassing upon the field which has been occupied by Congress.

One other objection to the ordinance is yet to be considered. We think it points to a real defect, though one that amendment may correct. The ordinance does not except existing stores of merchandise in the hands of druggists or other dealers who do not know the ingredients and cannot state them. That is the plaintiff's plight. Before the adoption of the ordinance, it had imported large quantities of drugs; it does not know the ingredients; and the foreign manufacturer will not reveal them. In effect, therefore, an absolute prohibition is laid upon the sale of its existing stock. Between absolute prohibition and a condition impossible of fulfilment, the distinction may be nominal. A different case would be presented if the ingredients were known. The dealer then would have himself to blame if he refused to state them. A different case would also be presented if he had acquired the stock after the ordinance was in force. He would then have made the purchase with knowledge of the restriction. That is not the situation in which the Fougera Company finds itself. It is not at fault, and it has had no warning. It has bought drugs which from their long years of use may fairly be presumed to be legitimate articles of commerce. Without warning and without fault, its right of property has been forfeited. There must be many others in a like predicament. We do not need to say that there is no power even in the legislature to work this forfeiture. On the one side, stand such cases asWynehamer v. People (13 N.Y. 378); People ex rel. McPike v.Van De Carr (178 N.Y. 425); People ex rel. Isaacs v. Moran (206 N.Y. 670); on the other, such cases as Halter v.Nebraska (205 U.S. 34, 40); Rust v. Van Deman (240 U.S. 342, 363); Tanner v. Little (240 U.S. 369); L. N.R.R. Co. v. Mottley (219 U.S. 467); Mugler v. Kansas (123 U.S. 623). (See also Freund on the Police Power, §§ 537, 538.) Where the line is to be drawn will have to be determined when the question arises. At present, the question is not here. What is before us now is not an act of the legislature. It is an ordinance of the department of health. The ordinance has been adopted under a general grant of power (Charter N.Y. City, § 1172) to publish "additional provisions for the security of life and health in the city of New York." We are satisfied that this grant of power was not intended to embrace the prohibition of all traffic in existing stores of merchandise (Matter of Stubbe v. Adamson, 220 N.Y. 459; FireDept. of N.Y. v. Gilmour, 149 N.Y. 453; Haynes v. City ofCape May, 50 N.J.L. 55; Merrill v. Monticello, 138 U.S. 673;People ex rel. City of Olean v. Western N.Y. P. TractionCo., 214 N.Y. 526, 528). It would be different if only noxious merchandise were affected. But the ordinance is not so limited. It strikes the good and the bad alike. The board of health is a subordinate agency of local government. Wide powers of regulation it doubtless has (Charter N.Y. City, supra; General City Law, L. 1913, ch. 247, section 20, subd. 13). But the power to regulate is not always equivalent to the power to destroy (Hall v. Geiger-Jones Co., 242 U.S. 539; Adams v. Tanner,244 U.S. 590, 594). Authority more specific must be found before a great mass of property, commonly reputed useful, may be declared contraband altogether, and excluded from the field of commerce.

The defect is so far reaching, it is so deeply wrought into the substance of the law, that there is no opportunity to sever the good from the bad (U.S. v. Ju Toy, 198 U.S. 253, 262, and cases cited; Hatch v. Reardon, 204 U.S. 152, 160; Butts v.Merchants M. Transp. Co., 230 U.S. 126, 136; Ill. Cent. R.R.Co. v. McKendree, 203 U.S. 514, 530; Employers' LiabilityCases, 207 U.S. 463; People ex rel. Isaacs v. Moran, supra). To do that, we should have to rewrite the ordinance. It does not classify or except or excuse (People v. Beakes Dairy Co., 222 N.Y. 416,432). It touches all who sell. It does not err in some minor incident or in its effect upon a few. Its fault is inherent in its scheme and extends to many. There must be few druggists who can state the composition of every patent medicine upon their shelves. Even in such circumstances, the courts wait before pronouncing a law void until some one within the range of the illegal provision has set their processes in motion. But when such a one has invoked their aid, they do not say that an inseparable law is void as to him and valid as to others. They strike it down altogether (Hatch v. Reardon, supra). If less is ever done, it is only where the result of severance is to leave the substance unimpaired (Dollar Co. v. Canadian C. F.Co., supra). There can be no severance here that does not mutilate and destroy.

On the ground that the ordinance in its application to merchandise previously acquired fails to save the rights of dealers unable to comply with its requirements, we hold that the board of health has exceeded the powers delegated to it.

The judgment should be affirmed without costs to either party.

HISCOCK, Ch. J., CUDDEBACK and HOGAN, JJ., concur; CHASE, COLLIN and McLAUGHLIN, JJ., being of the opinion that the ordinance and regulations have a relation to the public health too remote to constitute them constitutionally valid, concur in the result only.

Judgment affirmed.