If there be any cause of action against this defendant, I think it is in favor of the People to recover the penalty of $100 provided by the Public Health Law for the sale of an adulterated food or *808fd-rug,, and that no cause of action exists in-favor of this plaintiff to- ■ recover the $25 penalty prescribed by the Pharmacy Act.
General merchants who sell “ cream of tartar,” “ olive oil,” “ castor oil,” “ammonia,” and the■ other articles enumerated, to my.mind, are plainly excepted by section 199 from the provisions of the Pharmacy Law. The primary object of articlp 11-of the Public Health Law, which is entitled “ Pharmacy,” is to regulate druggists and the preparation and sale of medicines. The article does, not in express terms prohibit the sale of impure drugs. Subdivision 1 of section 197 prescribes that “pharmaceutical preparations” must be of the purity and strength established by the United States Pharmacopoeia.' I-n order that .the plaintiff may recover the penalty imposed by subdivision 4 of section 201, “ cream of tartar,” “ olive oil,” “ castor oil,”'and the like, must be deemed “ preparations ” of that character. A “pharmaceutical -preparation” is primarily a combination -of drugs compounded for medicinal uses.
Recognizing • this strict meaning, but realizing also that many harmless drugs and chemical preparations need not be sold under the supervision of expert- pharmacists, the Legislature, by section 187 of the act of 3,893 (Chap. 661) excepted from the provisions of. the pharmacy article the “usual domestic remedies” when sold by dealers in rural districts, and specified what were deemed such remedies. This exemption section was remodeled by chapter 297 of the Laws of 1897. By such amendment retail dealers and merchants, wherever trading, were permitted to sell various specified articles, including “ cream of tartar,” and were excepted .from the operation of the Pharmacy Law. Retail dealers in the rural districts were still permitted to sell the “ usual domestic remedies,” but the articles which they could sell were reclassified. For example, they were still permitted to sell “ aloes,” “ myrrh,” “ arnica,” and like remedies; but “ borax,” “ camphor,” “ sulphur,” and other articles which were enumerated in the law of 1893 as .properly sold by rural dealers, were shifted to the. list of articles • which general merchants, wherever located, might sell. The amendment of 1897 clearly shows that the Legislature intended to allow general retail merchants to sell the articles specified, and not to confine their sale to drug stores in charge of licensed pharmacists: Such merchants must sell pure drugs, as provided by section 41 of *809the Public Health Law, and were subject to the penalty of $100 in an action brought by the People if they did not, but the provisions of the Pharmacy Act did not apply to them at all, for they were expressly exempted from its provisions.
I do not think the words “ except as herein provided ” in section 199 (as amd. by Laws of 1900, chap. 667) had the effect of bringing merchants within the provisions of the Pharmacy Law or under the jurisdiction of the State Board of Pharmacy. There is found in the section itself sufficient to which these words can relate, without construing them to apply to the broad provisions of the Pharmacy Act, the principal object of which is to regulate the sale of medicinal “ pharmaceutical preparations.” . There is no punctuation, aside from a comma, from the beginning of the section to the end of the words. Several exemptions are provided. “Paris green” may be sold only for destroying insects, but “ any substance for use in the arts ” and “ dye stuffs,” whether poisonous or not, may be sold. Many substances used in the arts and in paints and dye stuffs are poisonous and, ii so, they are required to be labeled when sold.' The words “except as herein provided” do not relate exclusively to the exemption of merchants selling the specified articles, but-they relate to all the exemptions of the section, and find ample scope for their application. “Cream of tartar” and “olive, oil” and “licorice” and “essence of peppermint” are not in any proper sense “pharmaceutical preparations,” and the prescribed standard of purity for such preparations does not apply to them, and there is no reason why it should.
If the defendant has violated the Public Health Law by selling' an impure food or drug, he can be prosecuted by the People'for such act, but I do not think this plaintiff lias any cause of action against him. Any other construction tends to drive the sale of essences and ordinary articles used in cooking and in the household into drug stores, instead of permitting their sale-by merchants of varióus kinds. The Legislature could not have intended any such thing.
I think the judgment should be reversed.
Patterson, P. J., concurred.
Determination affirmed, with costs.