Annotate this Case

98 S.E.2d 497 (1957)

246 N.C. 398


No. 524.

Supreme Court of North Carolina.

June 7, 1957.

*500 Lewis P. Hamlin, Jr., Clarence Kluttz, Salisbury, for plaintiff appellee.

David S. Sykes, Baltimore, Md., C. Theodore Leonard, Jr., W. T. Shuford, Salisbury, for defendant appellant.

WINBORNE, Chief Justice.

Assuming that the court below properly overruled the motion of defendant, made upon special appearance, to quash the service of summons, as hereinabove related, there arises, upon exception to the denial of defendant's motions for judgment as of nonsuit, assigned as error, the basic question as to whether the provisions of the statute, G.S. § 90-77, are applicable to the facts of this case, and available to plaintiff for support of a cause of action against defendant as alleged in the complaint.

As to this question, the history of the statute considered in context as shown by the original act, and subsequent codifications, on which it is founded, indicate a legislative intent to restrict its provisions to the profession of pharmacy, and its relation to pharmaceutics,the science of preparing, using and dispensing of medicines, and not to the manufacture and sale of paint products for commercial purposes. The intent and spirit of an act controls in its construction. Dyer v. Dyer, 212 N.C. 620, 194 S.E. 278.

The statute G.S. § 90-77 comprises in substantial conformity Sections 20 and 28 of Chapter 108 of 1905 Public Laws. This act is entitled "An Act to Revise, Consolidate and Amend the Pharmacy Law." By the enactment of it (thirty-one sections), the General Assembly created the North Carolina Pharmaceutical Association and declared its object "to unite the pharmacists and druggists of this State for mutual aid, encouragement and improvement, to encourage scientific research, develop pharmaceutical talent, to elevate the standard of professional thought and ultimately restrict the practice of pharmacy to properly qualified druggists and apothecaries." Public Laws 1905, c. 108 § 2. It declared the responsibility of persons engaged in the sale and dispensing of "drugs, chemicals and medicine." Public Laws 1905, c. 108, § 3. And in general the act prescribed rules and regulations for the Association and the ethical practice of the profession in keeping with the declared object.

When the Act of 1905 was codified Section 20 became Revisal Section 4489, under part VII entitled "Pharmacists" in *501 Chapter 95 entitled "Health". And Section 28 became Revisal 3655 under part XXVII entitled "Professions" in Chapter 81 entitled "Crimes". And in codification in Consolidated Statutes of 1919, Revisal Sections 4489 and 3655 were consolidated into C.S. 6671, under part 2 (entitled "Dealing in Specific Drugs Regulated") of Article 3 (entitled "Pharmacy") of Chapter 110 (entitled "Medicine and Allied Occupations"). Part 1 of Article 3 of Chapter 110 is captioned "Practice of Pharmacy." And when codified in the General Statutes, C.S. 6671 became G.S. § 90-77, under identical captions.

Moreover, in the codifications it is noted that the word "oxide" appearing in the last proviso of Section 20 of the 1905 Act is spelled "dioxide". But read in context it is seen that this last proviso clearly relates to medicinal dosage of poisonous substances, and such products as are dispensed by pharmacists.

Decisions of this State are uniform in holding that if the meaning of a statute is in doubt reference may be had to the title and context as legislative declarations of the purpose of the act. State v. Woolard, 119 N.C. 779, 25 S.E. 719; Champion Shoe Machinery Co. v. Sellers, 197 N.C. 30, 147 S.E. 674; Dyer v. Dyer, supra; State v. Keller, 214 N.C. 447, 199 S.E. 620; Smith v. Davis, 228 N.C. 172, 45 S.E.2d 51, 174 A.L.R. 643; In re Hickerson, 235 N.C. 716, 71 S.E.2d 129; State v. Lance. 244 N.C. 455, 94 S.E.2d 335.

In State v. Woolard, supra, Clark, J., later C. J., said: "* * * the title is part of the bill when introduced, being placed there by its author, and probably attracts more attention than any other part of the proposed law; and, if it passes into law, the title thereof is consequently a legislative declaration of the tenor and object of the act. * * * Consequently, when the meaning of an act is at all doubtful, all the authorities now concur that the title should be considered."

The text writers say that the construction and operation of statutes relating to poison are governed by the general principles applicable to all statutes; and such statutes, where penal in nature, are strictly construed and will not be extended by implication beyond their express terms. Indeed the doctrine of ejusdem generis applies in construing a statute pertaining to the labeling of products containing poison. 72 C.J.S. Poisons § 4, pp. 164-165. That is, "in the construction of laws, wills, or other instruments, the ejusdem generis rule is that where general words follow an enumeration of persons or things, by words of a particular or specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned." Black's Law Dictionary 3rd Ed. See also Wachovia Bank & Trust Co. v. Wolfe, 245 N.C. 535, 96 S.E.2d 690.

And it is stated in 72 C.J.S. Poisons § 4, p. 165 that "statutes requiring the labeling of poisons ordinarily do not apply to articles of merchandise in the manufacture of which poison is incidentally used." Furthermore, "a statute requiring persons selling medicine belonging to a class known as poisonous to mark the package with the word `poison' has been held to apply only to the sale of poisons usually sold by druggists and apothecaries and not to poisonous articles other than medicine * * *." Boyd v. Frenchee Chemical Corp., D.C.N.Y., 37 F. Supp. 306; McClaren v. G. S. Robins & Co., 349 Mo. 653, 162 S.W.2d 856.

In the Boyd case, supra, this headnote epitomizes the opinion: "2. The purpose of Pennsylvania statute providing for regulation of the practice of pharmacy was to regulate the compounding of physicians' prescriptions, preparing drugs, and dispensing them, or other products of the apothecary's calling, including poisonous substances, as an incident to the practice of pharmacy, and not to regulate or control *502 the sale of a cleaning preparation which happened to be poisonous." And it is held in this case that "Although definition of `poison' contained in Pennsylvania statute regulating the practice of pharmacy was broad enough to embrace a commercial shoe cleaner, the statute taken as a whole could not be construed as intended to regulate the sale of such products having no connection with pharmacy so as to require that cleaner be labeled as poison in accordance with statute."

Moreover in the McClaren case, supra, the Supreme Court of Missouri held that an Illinois statute penalizing "every druggist who sells and delivers any arsenic * * * or `other substance * * * usually denominated as poisonous' without having the word `poison' does not under the `ejusdem generis' rule manifest an intent to include `carbon tetrachloride' therein, which is not a drug, but a grease solvent, sold commercially as a cleaning fluid, and hence the sale of such substance by manufacturer without labeling it as poison did not constitute negligence."

The reasoning of these cases is deemed sound and persuasive.

Hence in the light of the caption and context of the statute in hand, G.S. § 90-77, read in connection with the whole act entitled "Pharmacy" this Court holds as a matter of law that the sale and delivery of a lead compound, such as lead monoxide or litharge, used in commercial paints, does not come within the purview of the provisions of the statute requiring the labeling of containers in which it is sold by the manufacturer with the word "poison".

Therefore, the motion of defendant for judgment as of nonsuit should have been allowed.

Judgment reversed.

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