dissenting:
We do not concur in the majority opinion. The judgment of the circuit court should be reversed. Appellee attacked the constitutionality of section 8 of the Medical Practice act, referred to in the majority opinion as paragraph 12, upon several grounds, all of which have not been noted. He also insisted if the section is constitutional it has been repealed by the Pharmacy act. We are of the opinion that the section is constitutional and has not been repealed by implication. This statute is designed to protect the public health and is a proper exercise of the police power of the State. The practice of medicine, which includes the itinerant vending of drugs and nostrums, is subject to legislative regulation and control. In People v. Blue Mountain Joe, 129 Ill. 370, this court passed upon the question whether or not sections substantially the same as the present sections 8 and 9 of the Medical Practice act were invalid for the reason that the title of the act was not broad enough to include the provisions of those sections. The title of the act was then, as it is now, “An act to regulate the practice of medicine in the State of Illinois and to repeal an act therein named,” and it was held in that case that the regulation of- the sale of drags and nostrums by itinerant vendors clearly fell within the purpose of the act as expressed in its title. Section 8 provides that any itinerant vendor of any drug, nostrum, ointment or appliance of any kind intended for the treatment of disease or injury, who shall, by writing or printing, or any other method, profess to the public to cure or treat disease or deformity by any drug, nostrum or application, shall secure a license before so doing; and the majority holds that this is not a valid exercise of the police power of the State for the reason that there can be no distinction between itinerant vendors of such ■drugs and such persons as have an established place of business and sell them at their permanent places of business. This is based upon the assumption that itinerant vendors of drugs, nostrums, ointments and appliances intended for the treatment of disease or inj,ury fall within the same class as vendors of the same preparations and appliances who have fixed and permanent places of business. This assumption is without foundation. A merchant with a permanent place of business deals, as a rule, with his regular customers and sells his wares to such as come to him to buy. He is not a stranger in the community, and his character, reliability and reputation are known. He has a business reputation to maintain and has a fixed abiding place at which he may be found. An itinerant vendor, on the other hand, is not bound by any rules which govern the local merchant. He may be an entire stranger to every member of the community in which he plies his trade. He has no business reputation to sustain. He is bound by no restraint in the representations he may make as to the particular drug or nostrum he offers for sale. He is here today and to-morrow is gone, perhaps never to be heard of again. The local dealer and the itinerant vendor of drugs and nostrums are of separate and distinct classes. To regulate the practice of medicine is clearly within the police power of the State, and to discriminate between peddlers or itinerant vendors of medicinal preparations and local dealers of the same preparations is not an abuse of that power. The local dealer, with his business reputation to sustain, is much less liable to deal in drugs or nostrums of questionable quality and efficacy than the itinerant vendor, and is also less liable to make misrepresentations in reference to the diseases and ailments for which the drug sold is a specific.
The facts in this case disclose that Porter’s Pain King was represented to be the best known remedy for almost every disease or ailment known to science of which man, beast or fowl may be afflicted, and specific directions were given for both external. and internal use for all such ailments, and satisfaction guaranteed. To say that the legislature may not restrict such men as appellee in plying their trade is to deprive the State of one of its most important powers. The majority opinion states that the vendor, on obtaining a license from the State Board of Health, is required to show no qualification whatever, and that whether he secures the license depends alone upon his ability to pay the fee. The act provides that the board may, for sufficient cause, refuse any such license. This provision does not give the board the arbitrary power, in its discretion, to refuse to issue a license in any case, but it does invest it with a proper and reasonable discretion, to be exercised to safeguard the public health, in granting or refusing a license.
It is pointed out that the license provided for by these two sections of the statute is so high as to be prohibitive upon the itinerant vendor of drugs and nostrums. This may or may not be true; but, conceding it to be true, the legislature, in the view we take, has the undoubted right to prohibit absolutely the sale of drugs and nostrums by itinerant vendors, and, that being true, it does not exceed its powers by fixing a license fee at such a sum as to be prohibitive.