JH Covington UPHELD Harrison 'Narcotic' Act

JAMES HARRY COVINGTON

(May 3, 1870 – February 4, 1942)

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INTERNAL REVENUE

(T.D. 2489.)

Narcotic Law - Decision of Court

Refusal of writ of mandamus, directed to the Commissioner of Internal Revenue and Secretary of the Treasury of the United States, as not being the proper remedy to abrogate a regulation (T.D. 2309, dated March 11, 1916), issued under authority of the act of December 17, 1914, to carry into effect the provisions of section 6 of said act, which regulation was issued in the exercise of official discretion.  Demurror by relator to answer of respondent to rule to show cause overruled.

TREASURY DEPARTMENT
Office of Commissioner of Internal Revenue
Washington, D.C. May 11, 1917

The appended decision of Covington, Chief Justice in the Supreme Court of the District of Columbia, in the case of United States ex rel George B. Ashley v William H. Osborn and W.G. McDoo, is published for the information of internal revenue officers and others concerned.

IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA

United States ex rel George B. Ashley, relator, vs. William H. Osborn and W. G. McAdoo, respondents

(at law no 5995)

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T. D. 2309 SUSTAINED

Chief Justice Covington of the Supreme Court of the District of Columbia last Saturday overruled the demurrer of the relator to the answer of the respondents in the case of United States ex rel George B. Ashley, relator, vs. William H. Osborn and W. G. McAdoo, respondents. This means that the court did not sustain the contentions of Mr. Ashley on the questions of law placed in issue. Counsel for Mr. Ashley thereupon noted their intention to plead over, which will raise questions of fact and permit testimony to be adduced in support thereof.

This is the case testing the right of the Secretary of the Treasury and Commissioner of Internal Revenue through Treasury Decision No. 2309 to prohibit the refilling of a prescription calling for a preparation containing a narcotic drug in a proportion exempted by section 6 of the Harrison act when mixed with ingredients of medicinal virtue and used in good faith for medicinal purposes. The opinion of the court will not be analyzed, or commented on in detail at this time. It follows:

This is a petition for a writ of mandamus, directed to the Commissioner of Internal Revenue and the Secretary of the Treasury of the United States, commanding them to abrogate and cancel Treasury Decision No. 2309 and all other decisions or regulations in conflict with and in derogation of the act of congress of December 17, 1914, commonly called and known as the "Harrison Narcotic Law," and commanding them also to make hereafter only such needful rules and regulations as may be necessary to carry the provisions of that act into effect. A rule to show cause was issued and the respondents have answered the rule. To this answer the relator has demurred. The petition, answer, and demurrer, have brought the proceeding to such issue that the question whether or not the relator is entitled to the mandamus as prayed for in the petition is squarely before the court for decision.

The petition states in substance that the relator, suffering from a serious cough, consulted professionally a regular practicing physician in the District of Columbia, who prescribed for him certain drugs to be used to alleviate the cough, and wrote the same out on one of his regular prescription blanks. That prescription was as follows:

"Ammonium chloride, 1 dram; morphine sulphate, one-fourth grain; syrup of scillae, one-half ounce; and syrup .of pruni, virg., one and one-half ounces; dose, one teaspoonful every two hours."

The relator, it is alleged, then had the prescription filled at the store of a registered druggist of the District of Columbia, and thereafter took the medicine in the doses prescribed by the physician until the quantity prescribed for him was exhausted. He then went to the drug store from which he had purchased the original quantity of medicine prescribed for him by the physician, and asked the druggist to refill the prescription. This the druggist declined to do, stating that he could not legally refill it because of the operation of Treasury Decision No. 2309, relating to the "Harrison Narcotic Law." Section 6 of the "Harrison Narcotic Law" provides:

"That the provisions of this Act shall not be construed to apply to the sale, distribution, giving away, dispensing, or possession of preparations and remedies which do not contain more than two grains of opium, or more than one-fourth of a grain of morphine, or more than one-eighth of a grain of heroine, or more than one grain of codeine, or any salt or derivative of any of them in one fluid ounce, or, if a solid or semi-solid preparation, in one avoirdupois ounce; or to liniments, ointments, and other preparations which do not contain cocaine or any of its salts or alpha- or beta-eucaine or any of their salts or any synthetic substitute for them: Provided, That such remedies and preparations are sold, distributed, given away, dispensed, or possessed as medicine and not for the purpose of evading the intentions and provisions of this Act. The provisions of this Act shall not r.pply to decocainized coca leaves, or preparations made therefrom, or to other preparations of coca leaves which do not contain cocaine."

Section 1 of that law provides, among other things: "That the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall make all needful rules and regulations for carrying the provisions of this Act" into effect."

In pursuance of section 1 of the law, as just quoted, the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, issued on March ll, 1916, Treasury Decision No. 2309, which is as follows:

"Section 6 of the Act of Congress approved December l7, 1914, does not apply to extemporaneous prescriptions unless written for preparation or remedy as hereinafter defined. The exemptions in that section apply exclusively to ready-made preparations and remedies prepared in accordance with the United States Pharmacopoeia, National Formulary, or other recognized or established formula. . . . Preparations and remedies within the intent of Section 6 are hereby defined to be readymade compound mixtures prepared in accordance with a recognized or established formula as indicated above, which contain not more than one of the enumerated drugs in a quantity not greater than that specified, together with other active medicinal drugs in sufficient proportions to confer upon such preparations or remedies valuable medicinal qualities other than possessed by the narcotic drugs if dispensed alone."

This decision, the relator alleges in his petition, has been issued by the respondents in contravention of law, in that it is not a regulation in harmony with, and merely for the purpose of carrying into effect, the provisions of the law, but is in fact a regulation clearly beyond the scope, power, and intent of the law. And the relator then alleges in his petition that by section 6 of the "Harrison Narcotic Law" he was entitled to have refilled as many times as might be necessary for medicinal purposes the doctor's prescription which was given to him as recited in the petition. And the relator then alleges that, as the refusal to refill the same by the druggist to whom he applied was based upon the Treasury Decision No. 2309, and that decision having been promulgated by the Commissioner of Internal Revenue and the Secretary of the Treasury contrary to the provisions of the "Harrison Narcotic Law," and being an arbitrary abuse of the authority vested in them, the relator is entitled to have a writ of mandamus issue out of this court commanding the Commissioner of Internal Revenue and the Secretary of the Treasury to abrogate Treasury Decision No. 2309 and hereafter to make only such needful regulations as may be necessary to carry the "Harrison Narcotic Law" into effect.

Before considering at all the validity of Treasury Decision No. .2309 in connection with section 6 of the "Harrison Narcotic Law," it is of first importance to determine whether or not the relator has actually such a private legal interest in the proper enforcement of the law as to give him the right to institute proceedings to secure such enforcement by the writ of mandamus.

A general duty to the public is not a special duty to the relator, or a duty which he can require the performance of through resort to the courts. Every citizen and every taxpayer is interested in the enforcement of law, in the proper administration of law, but the general interest is not a private interest, and is not sufficient to authorize private citizens to institute mandamus proceedings to secure from the appropriate officials the legal administration of such law. The mere fact, therefore, that the relator desired to become a purchaser of a combination of a narcotic drug with other drugs, and was refused them by a druggist because of the operation of Treasury Decision No. 2309, would, of itself, give the relator no sufficient private interest to proceed by way of mandamus to compel the officials charged with the enforcement of the "Harrison Narcotic Law" to abrogate existing regulations preventing such sale and purchase, even if those regulations are so arbitrary and so in contravention of the law as to constitute an abuse of official authority.

But the relator contends that the "prescription," given to him by a regular practicing physician for a combination of a narcotic drug with other drugs in proportions permitted in "preparations and remedies" as specified in section 6 of the law, operated to put him in possession of something in the nature of a property right, the interference with which gives him a peculiar and private interest in the proper enforcement of the law and enables him properly to institute these mandamus proceedings. But is his possession of a so-called "prescription" a property right? If so, it must be because the "prescription" is the formula of a "preparation or remedy" which does not contain more than the prohibited quantity of opium or other narcotic to the ounce of the preparation, within the meaning of section 6 of the narcotic law. His contention, therefore, resolves itself into the proposition that each time a physician, using his professional knowledge, evolves in his mind a particular combination of drugs that will benefit an immediate ailment of the patient, he creates a "preparation or remedy" within the ordinary acceptation of those terms in the drug trade. It seems to the court that such a contention is erroneous and would overturn the entire theory of the practice of medicine. The relator consulted a physician, and presumably gave him a history of his case. The physician diagnosed his case, and determined that the particular patient, the relator, with certain existing symptoms, needed in a certain quantity and for certain dosages a combination of drugs which included a narcotic drug. The physician might have given his directions for the medicine for his patient, the relator, directly to the druggist verbally if he chose to. The patient, the relator, acquired no property in the thing called the "prescription," and when he went a second time to the druggist to purchase the combination of drugs, including the narcotic drug, which the physician at a particular time prescribed for him to take in a given quantity, he was not in any different position from any one of the public who might have gone to the druggist to make the same sort of a purchase. The relator, therefore, has no private right involved with which the court can undertake to interfere.

However, apart from the right of the relator to institute the present mandamus proceedings, it seems clear that the duty imposed upon the respondents in relation to the "Harrison Narcotic Law" to "make all needful rules and regulations for carrying the provisions of this Act into effect," required in its performance the exercise of a high degree of judgment and discretion.

It is quite true that the law cannot be amended by a regulation issued by the respondents in virtue of the power conferred upon them under section l of the law. The regulations must be in harmony with the law and in an appropriate proceeding a mere arbitrary and unwarranted exercise of power by the respondents might be held invalid by the court .

In this case, however, the respondents have acted. They have exercised their judgment and discretion, and they have acted under the power given them to provide the appropriate administrative details for enforcing the "Harrison Narcotic Law," including, of course, section 6 of that law. The exercise of such a power certainly cannot be said to be ministerial. In Field vs. Clark, 143 U. S. 694, the court said: "The Legislature cannot delegate its power to make a law but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making powers, and must, therefore, be a subject of inquiry and determination outside of the halls of legislation."

If the existing regulations were abrogated by judicial order, and new ones, proper in the judgment and discretion of the officials, were promulgated, and they did not suit the petitioner, he would be again before the court for another writ of mandamus to compel the respondents to abrogate the new regulations and to promulgate still others. The mere statement of that proposition shows that the relator seeks the review of an act of official discretion by the prerogative writ of mandamus.

In the case of United States vs. Black, 128 U. S., 40, it was said by the court, speaking through Justice Bradley: "The court will not interfere by mandamus with the executive officers of the Government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law."

In the case of Louisiana vs. McAdoo, 234 U. S. 627, the court said: "There is a class of cases which hold that if a public officer be required by law to do a particular thing, not involving the exercise of either judgment or discretion, he may be required to do that thing upon application of one having a distinct legal interest in a doing of the act. Such an act would be ministerial only. But if the matter in respect to which the action of the official is sought is one in which the exercise of either judgment or discretion is required, the courts will refuse to substitute their judgment or discretion for that of the official entrusted by law with its execution. Interference in such a case would be to interfere with the ordinary functions of Government."

It is possible that in a case where Treasury Decision No. 2309 as a regulation in relation to section 6 of the "Harrison Narcotic Law" is to be construed by a court, the regulation may be found to be contrary to the law (although it is fair to say that it seems to this court to be in harmony with the law), but a proceeding to secure a writ of mandamus is certainly not the proper remedy. The court might compel the Commissioner of Internal Revenue and the Secretary of the Treasury to make regulations and enforce the act, if they had not acted, and if such were needed, but it cannot command them to exercise their discretion in formulating those regulations in a particular manner.

The writ being refused for the reasons given, it is unnecessary to discuss the other contentions of the relator made at the oral argument and presented in his brief.

The demurrer is overruled.

[Signed] J. Harry Covington,
Chief Justice.