Concurring opinion by
Smith, J.,January 18, 1897:
In all essential facts, there is substantial identity between the case of Com. v. Johnson, 144 Pa. 377, and the present case. In the former, however, the defendant was indicted for “ engagr ing as manager ” in the business of a pharmacist, under section 6 of the act of May 24, 1887, P. L. 189. In the present case, the defendant is indicted for “carrying on as manager” the same business, under section 1 of the same act, as amended by the act of June 16, 1891, P. L. 313.
In Com. v. Johnson, the meaning of the word “manager,” as used in the act, was judicially' settled. It is applied and restricted to the person who immediately conducts, directs or manages the- business, — who personally dispenses medicines and compounds prescriptions.
The statute regulates the practice of pharmacy by requiring that drugs be sold and prescriptions compounded by a person qualified as therein provided. Section 1 forbids any unqualified person to “open or carry on, as manager,” the business described; section 6 forbids such person to “ engage as manager ” in the business. The first provision apparently relates to an owner who may act as manager, while the second as evidently relates to an employee engaged as manager; and these are obviously the only methods in which the business can be conducted. The act further distinguishes between ownership and management, in providing (section 8) that “ no person shall be allowed by the proprietor or manager,” etc.
Whether the legislature may, under the constitution, forbid ownership of the property mentioned in this statute may be seriously questioned. The statute, however, does not forbid ownership. Nor does it forbid any person to open or carry on the business described, provided he does not act as manager. It merely forbids any unqualified person to open or carry on as manager the business in question, or to engage as manager therein. The ground of the distinction is obvious. The pub-*275lie are in nowise interested in the ownership of a drug store, or in its financial management. They are interested only in having that branch of its management affecting life and health — the sale of drugs, the compounding of prescriptions, etc. — conducted by a properly qualified person. It is only this department of the business that the act assumes to regulate. The part taken by the defendant in the business, as found by the special verdict, was not within its prohibition.
If the amendment by the act of 1891 could be construed as forbidding ownership, and the carrying on of the business through a properly qualified manager, its constitutionality might well be questioned. A statute by which a business is forbidden to one class of persons while permitted to another class equally within the reason of the prohibition, so far as relates to that protection of the public at which the statute aims, cannot be regarded otherwise than as class legislation, and as such unconstitutional. Hence the act of 1891 must be held ineffective as a prohibition of the acts in which the defendant engaged; and as section 1 of the act of 1887 provides no penalty for its violation, any sentence would be erroneous.
In this view of the two statutes the defendant has committed no punishable offense, and the judgment should be reversed.