Argued January 19, 1914. Decided February 24, 1914.
This court will not disregard the construction placed upon a state statute by the highest court of the State especially if it involves giving the statute one meaning for the purpose of determining whether the acts in question are within its terms and another meaning for the purpose of escaping the Federal question. A State may classify and regulate itinerant vendors and peddlers, Emert v. Missouri, 156 U.S. 296, and may also regulate the sale of drugs and medicines. The statute of Louisiana of 1894, prohibiting sale of drugs, etc., by itinerant vendors or peddlers, is not unconstitutional under the Fourteenth Amendment either as denying due process of law by preventing a citizen from pursuing a lawful vocation or as denying equal protection of the law.
Mr. Thomas D. O'Brien, with whom Mr. John A. Barnes was on the brief, for plaintiff in error:
The act cannot be sustained if interpreted to prohibit the mere selling of drugs by an itinerant while permitting such selling by all others.
The enforcement of the statute would unwarrantably deprive plaintiff in error of liberty.
The business and occupation attempted to be prohibited is lawful.
The statute denies to plaintiff in error equal protection of the laws.
The statute is equally obnoxious under the construction placed upon it by the Supreme Court of Louisiana.
In support of these contentions see Allgeyer v. Louisiana, 165 U.S. 578; Butchers Union Co. v. Crescent City Co., 111 U.S. 746; Barbier v. Connolly, 113 U.S. 27; C., B. Q.R.R. Co. v. Chicago, 166 U.S. 226; Kentucky v. Payne Medicine Co., 138 Ky. 164; Cotting v. Kansas City Stock Yards, 183 U.S. 79; Civil Rights Cases, 109 U.S. 23; Chicago v. Netcher, 183 Ill. 104; Carrollton v. Bazzette, 159 Ill. 284; Ex parte Virginia, 100 U.S. 347; Food and Drug Regulations, Louisiana Board of Health, July 1, 1913; Gundling v. Chicago, 177 U.S. 183; Hovey v. Elliott, 167 U.S. 409; Holden v. Hardy, 169 U.S. 366; In re Jacobs, 98 N.Y. 98; Lochner v. New York, 198 U.S. 45; Lawton v. Steele, 152 U.S. 133; Mugler v. Kansas, 123 U.S. 623; Noel v. People, 187 U.S. 587; Natl. Cotton Oil Co. v. Texas, 197 U.S. 129; People v. Wilson, 249 Ill. 195; Price v. People, 193 Ill. 114; Scott v. McNeal, 154 U.S. 34; State v. Donaldson, 41 Minn. 74; Schollenberger v. Pennsylvania, 171 U.S. 1; Second Revised Laws of Louisiana, p. 1232; State v. Loomis, 115 Mo. 313; State v. Ashbrook, 154 Mo. 375; Spiegler v. Chicago, 216 U.S. 114; State v. Scougal, 3 So. Dak. 55; State v. Bayer, 34 Utah 257; State v. Judge, 105 La. 371; Wynne v. Judge, 106 La. 400; Pettigrew v. Hall, 109 La. 290; People v. Gilson, 17 N.E. 343 (N.Y.); 34 Stat. 768, Food and Drugs Act; Williams v. State, 99 Ark. 149; Westervelt's Pure Food and Drug Laws; Yick Wo v. Hopkins, 118 U.S. 356.
Mr. R.G. Pleasant, Attorney General of the State of Louisiana, and Mr. G.A. Gondran for defendant in error, submitted.
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 Fourteenth Amendment, to forbid the sale by itinerant vendors 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), 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 vendors 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 vendors or peddlers of drugs or medicinal compounds, objects plainly within the power of government to regulate.