This appeal brings here for consideration a challenge to the constitutionality of Section 3 of Chapter 124 of the Laws of 1951, Section 67-9-15 of 1953 Comp.
Defendant, R. D. Collins, on the 6th day of September, ' 1954, was charged’ in a criminal information with a violation of the above’section of the act which provides:
“Restrictions on use of designated terms — Emergency drugs dispensed by physicians, dentists or veterinarians. — No person shall carry on, conduct, or operate a drug store or pharmacy, or transact any business under a name which contains as a part thereof the words ‘pharmacist,’ ‘pharmacy,’ ‘apothecary,’ ‘apothecary shop,’ ‘chemist’s shop,’ ‘drug store,’ ‘druggist,’ ‘drugs,’ ‘drug sundries,’ ‘prescriptions,’ or any word or words of similar or like import, or in any manner by advertisement, circular, poster, sign, or otherwise describe or refer to the place of business conducted by him by the terms ‘pharmacy,’ ‘apothecary,’ ‘apothecary shop,’ ‘chemist’s shop,’ ‘drug store,’ ‘drugs,’ ‘drug sundries,’ ‘prescriptions,’ or any word or words of similar or like import, unless the place of business so conducted is a drug store or pharmacy in which a registered pharmacist' is constantly employed on a regular basis.”
The defendant (appellee) moved to dismiss the information on the following grounds: (1) That it is a deprivation of private property without due process or compensation; (2) it constitutes an unreasonable exercise of the police power without reaspnable regard toward the health, morals and welfare of the public; (3) it is discriminating in scope and tends to create a monopoly by the pharmacists. On June 29, 1955, the court made and entered its decision which reads as follows:
“* * * 1. That it is the decision of the Court that the defendant’s motion herein be sustained.
“2. The court is rather reluctant to make this decision, as any Court is reluctant to declare a law unconstitutional. However, the Court can see only one reason for the existence of this law. It would have to come under the Police power of the State to preserve the health and safety of the public. The Court can see no way in which the law does this, and on the other hand, it is an unreasonable restraint of trade, and takes property without due process of the law, and is therefore unconstitutional.”
On July 12, 1955, the court, based on its decision, made and entered an order dismissing the information, and the State appeals.
It was stipulated by and between the parties: “That the defendant at the time of the filing of the information, and on the date alleged in the information, was operating a retail store * * * under the name and style of ‘Packaged Drug Sundries’, and that he displayed a sign or signs advertising the name of the store under that name and style; that he was open and engaged generally in the retail business, * * * and sold various items such as aspirin, anacin, milk of magnesia, castor oil, vitamin capsules, nose drops, and the ■usual patent medicines like that, but sold in unbroken packages; that it is not contended by the State that he was compounding prescriptive medicines, and that neither is it contended that he was selling patent medicines from broken packages, and further that he did not at that time have on duty a regularly licensed prescription druggist.”
“Mr. Watts: I don’t believe he is charged with operating a drug store. He is only charged with operating a business under the name that contained the words ‘Drug Store,’ or ‘Drug Sundries,’ and did not have employed a registered pharmacist on duty, and that is the section of the statute I am prepared to argue.”
The State contends, and correctly so, that the provision of the Act in question does not violate any constitutional provision of either the Constitution of the United States or the Constitution of the State of New Mexico.
We regard the business of selling drugs and medicines as so intimately connected with and having such a vital relationship to the health, safety and welfare of the public that there ought not to be any doubt that its regulation falls within the authority of the Legislature in the exercise of its police power. A determination of what is reasonably necessary for the preservation of the public health, safety and welfare of the general public is a legislative function and should not be interfered with, save in a clear case of abuse.
By enacting the present statute, which comes peculiarly within the province of the police power, the Legislature has determined that to properly safeguard the health, safety and welfare of the public it is necessary to prohibit any person from using the words “drug store” or “drug sundries” or any words of similar or like import in advertising their place of business, unless the place of business so conducted is a drug store or pharmacy in which a registered pharmacist is constantly employed on a regular basis. That determination must be given great weight. Every presumption is to be indulged in favor of the validity of the statute.
The statute is neither discriminatory nor in restraint of trade and does not tend to create a monopoly by the pharmacists as contended by the appellee. Section 67-9-15, supra, further provides: “That nothing in this act contained shall be construed * * * to prevent the sale of non-narcotic, non-poisonous, or non-dangerous patent or proprietary medicines by non-registered persons or stores, when sold in original packages.” This proviso evinces a purpose to permit the sale of certain medicines usually found in legitimate drug stores by persons not conducting a drug store or who have these medicines for sale as an incident to the sale of other merchandise, provided they do not advertise their place of business under the words “drug store” or “drug sundries” or words of similar or like import. The field is left wide open to every one to sell exempted medicines, subject only to the inhibition of the use of such words as connote the establishment to be a drug store.
We held in the case of Arnold v. Board of Barber Examiners, 45 N.M. 57, 109 P.2d 779, that the question of monopoly and restraint of trade must yield to a more important consideration, that of reasonably exercising the police power of a business or profession having a vital relationship to public welfare and health, and we reaffirm that holding.
It is undoubtedly the right of every citizen to follow any lawful calling, business or profession he may choose, subject only to such restrictions as are imposed upon all persons. State v. Spears, 57 N.M. 400, 259 P.2d 356, 39 A.L.R.2d 595. This right may in many respects be considered as a distinguishing feature of our republican institutions. All businesses, trades and professions are open to every one on like conditions. All may be pursued as sources of livelihood. The interest, or, as it is sometimes termed, the estate in them, that is the right to continue their prosecution, is often of great value to the possessors, and cannot be arbitrarily taken from them, any more than their real or personal property can thus be taken. But there is no arbitrary deprivation of such right where its exercise is not permitted because of a failure to comply with conditions imposed by the State for the protection of the public. The power of the state to provide for the general welfare of its people authorizes it to prescribe such regulations as in its judgment are reasonably calculated to secure the public against deception and fraud. So long as they bear a valid relationship' to the evil sought to be prohibited, no objection to their validity may be successfully interposed. It is only when they have no relation to such business or profession that they can operate to deprive one of his right to pursue a lawful business or vocation. Appellee insists that by being prohibited from advertising his place of business as “Packaged Drug Sundries” he is deprived of a vested right without due process of law. We perceive nothing in the Act which indicates an intention of the legislature to deprive him or any one else of his or their rights.
The offense with which the defendant is charged falls literally within the language of the proscribed act. “No person shall * * * transact any business under a name which contains as a part thereof the words * * * 'drug sundries,’ * * * or any word or words of similar or like import, * * * unless the place of business so conducted is a drug store or pharmacy in which a registered pharmacist is constantly employed on a regular basis.” 1953 Comp. § 67-9-15 (Emphasis ours.)
No doubt the legislature had in mind prohibiting not alone the open and blatant advertising -of a business enterprise as á ‘vdrug store”, when it was not, but as well sought to minimize the opportunities for establishments, not drug stores, to mislead the public into believing they were or that they had a department which could fill prescriptions and supply other services of a well regulated drug store or apothecary shop. This he was not permitted to do without the services of a registered pharmacist “constantly employed on a regular basis.”
We entertain no doubt about the act’s validity so far as the challenges here made against it are concerned. It offends neither the state nor the federal constitution in the respects urged in the motion to dismiss nor in the decision of the trial court.
In reaching the decision we do, we have not overlooked the case of Pike v. Porter, 126 Mont. 482, 253 P.2d 1055, but to the extent that our holding herein conflicts with the views expressed in that case, we decline to follow it. We do not share the apprehension expressed in that opinion that the act will give a monopoly to the registered pharmacists in the sale of patent medicines. Indeed, the defendant in the case at bar might very easily have framed a sign indicating the sale of packaged patent medicines without violating the provision of the act in question.
For the reasons stated, the judgment of the trial court will be reversed and the cause remanded for further proceedings in conformity with the views herein expressed.
It is so ordered.
COMPTON, C. J., and SADLER, J., concur. KIKER and McGHEE, JJ., dissenting.