Where one has been sued for compounding a prescription, he not having a license to practice pharmacy, and alleges in his defense that he is a legally qualified physician, the burden of proving the allegation rests upon him. Suffolk Co. v. Shaw, 47 N. Y. Supp. 349, 21 App. 146.

The provision of the statute requiring the pharmacist to label the poisons sold or dispensed by him does not apply to the prescriptions of physicians. Wise v. Morgan, 45 S. W. 971.

Where the law requires that every pharmacy shall be in charge of a legally qualified pharmacist, the provision is not satisfied by showing that the owner employs such a pharmacist, when it appears that the latter resides at another town and is present at the store only two or three times a week. State v. Jordan, 87 Mo. App. 420.

The sale of intoxicating liquors by the druggist is a matter to which the attention of the courts has been frequently called. It has been held that to protect a druggist in selling intoxicating liquors, the prescription must be preserved as the statute prescribes. State v. Davis, 76 Mo. App. 586.

Under Rev. St., C. 28, par. 5, authorizing druggists to keep all medicines and poisons authorized by the U. S. dispensary as of recognized medicinal utility, intoxicating liquors are included. Pollard v. Allen, 96 Me. 455, 52 Atl. 924.

Under the statute prohibiting the selling, with

out license, of intoxicating liquors, the sale of medicinal preparations containing such a percentage of alcohol that, if drunk to excess, it will produce intoxication, is unlawful. Colwell v. State, 37 S. E. 129; 112 Ga. 75; Johnson v. State, 66 S. W. (Tex. Crim.) 552.

In a district where a special local option law is in force, a druggist cannot obtain a license to sell liquor, unless the law contains an exception in favor of druggists. Eastham v. Commɔnwealth, 20 Ky. Law Rep. 1639, 49 S. W. 795; (1899); Storms v. Commonwealth, 105 Ky. 619, 49 S. W. 451; 20 Ky. Law Rep. 1434; Commonwealth v. Powell, 62 S. W. 19; 22 Ky. Law Rep. 1932.

It is also held that where a local option law is in force, a license to sell "pure alcohol" does not protect a druggist in the "sale of rye whiskey."

It has been decided that under the law authorizing the recovery of a penalty for every violation of the act by practicing without a license, there may be a recovery of accumulated penalties. Suffolk Co. v. Shaw, 47 N. Y. Supp. 349, 21 App. Div. 146.

It is interesting to note that, when one has been acquitted in a prosecution for the alleged violation of any provisions of these acts regulating the practice of pharmacy, no appeal lies by the people. It comes under the general provis ion as to criminal cases. People v. York Co., 80 Ill. App. 162.

CHAPTER VI.

CONSTITUTIONALITY OF LAWS REGULATING THE PRACTICE OF PHARMACY.

When the Thirteen American colonies renounced their allegiance to Great Britain and established their independence, the political status of each was that of an independent, sovereign state or nation, possessing legal capacity for the exercise of the full powers of sovereignty as of inherent right. Chief Justice Black, in the opinion delivered by him in a leading Pennsylvania case, said "In the beginning the people held in their own hands all the power of an absolute government. The transcendent powers of Parliament devolved on them by the revolution; (Bonaparte v. Camden etc. R. R. Co. 1 Bald. 220; Fed. Cases No. 1617; Johnson v. McIntosh, 8 Wheat 584; 5 L. Ed. 681, 2 U. S. Notes 201; Wilkinson v. Leland, 2 Pet. 656; 7 L. Ed. 542; 2 U. S. Notes 883.) Antecedent to the adoption of the federal constitution, the power of the state was supreme and unlimited (Farmers & Mechanics Bank vs. Smith, 3 Serg. & R. 68; 6 Wheat 131, 5 L. Ed. 224, 2 U. S. Notes 65.) If the people of Pennsylvania had given all the authority which they themselves possessed, to a single person, they would have created a despotism as absolute in its control over life, liberty, and property, as that of the Russian autocrat. But they dele

gated a portion of it to the United States, specifying what they gave, and withholding the rest. The powers not given to the government of the Union were bestowed on the government of the state, with certain limitations and exceptions, expressly set down in the state constitution. The federal constitution confers powers particularly enumerated; that of the state contains a general grant of all powers not excepted. The construction of the former instrument is strict against those who claim under it; the interpretation of the latter is strict against those who stand upon the exceptions, and liberal in favor of the government itself. The federal government can do nothing but what is authorized expressly or by clear implication; the state may do whatever is not prohibited." The principles so clearly stated in this opinion are applicable with equal force to each and every state in the Union, and present in brief form the plan upon which the rights or powers, originally residing in the people, have been divided between the three parties to the great compact-the people, the State and the Union.

First, for mutual protection and advantage, the thirteen new States entered into a coalition based upon the Articles of Confederation, and finally, upon the present Constitution of the United States, they proceeded "to form a more

1 Sharpless v. Mayor of Philadelphia, 21 Pa. St. 160-164, 2 Am. Law Reg. 29, 85; 59 Am. Dec. 759 and note.

perfect Union," which resulted in the permanent establishing of our present system of government.

This "more perfect Union," has now gone into history as a sovereign nation, complete and indissoluble, and the theory of a confederate body of independent states, as applicable thereto, has become practically obsolete. It must not be forgotten, however, that the sphere of sovereignty enjoyed by the federal government is limited by what is expressed or implied in the Constitution, and that the Constitution is a grant of powers from the people of the States, and "whatever is not conferred is withheld and belongs to the sev eral States or to the people thereof." This thought is worthy of reiteration, and should be kept uppermost in the mind while pursuing an inquiry as to the constitutional status of any Congressional or legislative act. As indicated by the cases herewith cited, as well as by numerous others reported, the principle stated lay for more than half a century directly in the line of constitutional litigation. It was thus first carved out by consummate judicial reasoning, before being finally placed beyond discussion on simple constitutional principles, by being incor

1 Calder v. Bull, 3 Dall. 386; 1 L. Ed. 648, 1 U. S. Notes 57; Gibbon v. Odgen, 9 Wheat. 1, 187; 6 L. Ed. 23, 2 U. S. Notes 213; Briscoe v. Bank of Kentucky, 11 Pet. 257; 9 L. Ed 709, 3 U. S. Notes 675; Gilman v. Philadelphia, 3 Wall. 713; 18 L. Ed. 96, 6 U. S. Notes 556; U. S. v. Cruikshank, 92 U. S. 542550, 23 L. Ed. 588, 8 U. S. Notes 837.