The first sentence of § 2 of the Narcotic Drug Act of December
17, 1914, c. 1, 38 Stat. 785, prohibits retail sales of morphine by
druggist to persons who have no physician's prescription, who have
no order blank therefor, and who cannot obtain an order blank
because not of the class to which such blanks are allowed to be
issued under the act. P.
249 U. S.
99.
This construction does not make unconstitutional the prohibition
of such sale.
Id., United States v. Doremus, ante,
249 U. S. 86.
If a practicing and registered physician issues an order for
morphine to an habitual user thereof, the order not being issued by
him in the course of professional treatment in the attempted cure
of the habit, but for the purpose of providing the user with
morphine sufficient to keep him comfortable by maintaining his
customary use, such order is not a physician's prescription under
exception (b) of § 2 of the act.
Id.
The case is stated in the opinion.
Page 249 U. S. 97
MR. JUSTICE DAY delivered the opinion of the Court.
This case involves the provisions of the Harrison Narcotic Drug
Act, considered in No. 367, just decided,
ante,
249 U. S. 86. The
case comes here upon a certificate from the Circuit Court of
Appeals for the Sixth Circuit. From the certificate, it appears
that Webb and Goldbaum were convicted and sentenced in the District
Court of the United States for the Western District of Tennessee on
a charge of conspiracy (§ 37, Penal Code) to violate the Harrison
Narcotic Law. While the certificate states that the indictment is
inartificial, it is certified to be sufficient to support a
prosecution upon the theory that Webb and Goldbaum intended to have
the latter violate the law by using the order blanks (§ 1 of the
act) for a prohibited purpose.
The certificate states:
"If § 2, rightly construed, forbids sales to a nonregistrable
user, and if such prohibition is constitutional, we next meet the
question whether such orders as Webb gave to applicants are
'prescription' within the meaning of exception (b) in § 2."
"We conclude that the case cannot be disposed of without
determining the construction, and perhaps the constitutionality, of
the law in certain particulars, and, for the purpose of
certification, we state the facts as follows -- assuming, as for
this purpose we must do, that whatever the evidence tended to show
in aid of the prosecution must be taken as a fact:"
"Webb was a practicing physician, and Goldbaum a retail
druggist, in Memphis. It was Webb's regular custom
Page 249 U. S. 98
and practice to prescribe morphine for habitual users upon their
application to him therefor. He furnished these 'prescriptions' not
after consideration of the applicant's individual case, and in such
quantities and with such direction as, in his judgment, would tend
to cure the habit or as might be necessary or helpful in an attempt
to break the habit, but with such consideration, and rather in such
quantities, as the applicant desired for the sake of continuing his
accustomed use. Goldbaum was familiar with such practice, and
habitually filled such prescriptions. Webb had duly registered and
paid the special tax as required by § 1 of the act. Goldbaum had
also registered and paid such tax, and kept all records required by
the law. Goldbaum had been provided with the blank forms
contemplated by § 2 of the act for use in ordering morphine, and,
by the use of such blank order forms, had obtained from the
wholesalers in Memphis a stock of morphine. It had been agreed and
understood between Webb and Goldbaum that Goldbaum should, by using
such order forms, procure a stock of morphine, which morphine he
should and would sell to those who desired to purchase and who came
provided with Webb's so-called prescriptions. It was the intent of
Webb and Goldbaum that morphine should thus be furnished to the
habitual users thereof by Goldbaum and without any physician's
prescription issued in the course of a good faith attempt to cure
the morphine habit. In order that these facts may have their true
color, it should also be stated that, within a period of eleven
months, Goldbaum purchased from wholesalers in Memphis thirty times
as much morphine as was bought by the average retail druggist doing
a larger general business, and he sold narcotic drugs in 6,500
instances; that Webb regularly charged fifty cents for each
so-called prescription, and within this period had furnished, and
Goldbaum had filled, over four thousand such prescriptions, and
that one Rabens, a user of the
Page 249 U. S. 99
drug, came from another state and applied to Webb for morphine
and was given at one time ten so-called prescriptions for one
drachm each, which prescriptions were filled at one time by
Goldbaum upon Rabens' presentation, although each was made out in a
separate and fictitious name."
Upon these facts, the circuit court of appeals propounds to this
Court three questions:
"1. Does the first sentence of § 2 of the Harrison Act prohibit
retail sales of morphine by druggists to persons who have no
physician's prescription, who have no order blank therefor, and who
cannot obtain an order blank because not of the class to which such
blanks are allowed to be issued?"
"2. If the answer to question one is in the affirmative, does
this construction make unconstitutional the prohibition of such
sale?"
"3. If a practicing and registered physician issues an order for
morphine to an habitual user thereof, the order not being issued by
him in the course of professional treatment in the attempted cure
of the habit, but being issued for the purpose of providing the
user with morphine sufficient to keep him comfortable by
maintaining his customary use, is such order a physician's
prescription under exception (b) of § 2?"
"If question one is answered in the negative, or question two in
the affirmative, no answer to question three will be necessary, and
if question three is answered in the affirmative, questions one and
two become immaterial."
What we have said of the construction and purpose of the act in
No. 367 plainly requires that question one should be answered in
the affirmative. Question two should be answered in the negative
for the reasons stated in the opinion in No. 367. As to question
three, to call such an order for the use of morphine a physician's
prescription would be so plain a perversion of meaning that
Page 249 U. S. 100
no discussion of the subject is required. That question should
be answered in the negative.
Answers directed accordingly.
For the reasons which prevented him from assenting in No. 367,
THE CHIEF JUSTICE also dissents in this case.
MR. JUSTICE McKENNA, MR. JUSTICE VAN DEVANTER, and MR. JUSTICE
McREYNOLDS concur in the dissent.