In Re Hixson

Petitioner, a licensed pharmacist doing business in the city of Los Angeles, asks a discharge on habeas corpus from imprisonment under a sentence convicting him of filling a prescription for alcoholic liquor in violation of an initiative measure adopted by the electors of the city and commonly known as the Gandier ordinance. The ordinance was adopted prior to the ratification of the eighteenth amendment and the passage of the national prohibition law. A complaint was filed in the police court charging petitioner with filling a physician’s prescription calling for more than eight ounces of alcoholic liquor, in violation of the city ordinance. He was convicted in that court, and on his appeal to the superior court the judgment of conviction was affirmed on June 5, 1922—all of which antedated the state law commonly known as the Wright Act. The single question presented for decision is whether the ordinance, in so far as it relates to the filling of prescriptions by licensed pharmacists, is valid and enforceable since the adoption of the eighteenth amendment and the enactment of the national prohibition law, commonly known as the Volstead Act.

The G-andier ordinance, so far as its…

I concur in the judgment, but I am not in accord with the views expressed by the majority opinion in making disposition of the first point discussed therein. Considering the importance of the question mentioned, it is proper that I should state the grounds upon which I decline to concur in those views, presenting them in outline only and not with the assiduity which characterizes the treatment of the subject in the majority opinion. I shall then state with great brevity the reasons which impel me to concur in the judgment.

If any proposition of law is well settled, in most jurisdictions, at least, it is that every person has the constitutional right to resort to such established and legalized school or system of healing as he pleases for relief from his ailments. When men differ in opinion merely as to the efficiency of different schools or systems, it is not a proper subject of legislation to attempt to control or limit the right of any to act pursuant to his opinions or beliefs by resorting to the school or system of his choice (Eastman v. State, 109 Ind. 278 [ 58 Am. Rep. 400 , 10 N. E. 97 ]; State v. Liffring, 61 Ohio St. 39 [ 76 Am. St. Rep. 358 , 46 L. R. A. 334, 55 N. E.…