1. Any provision of an act of Congress ostensibly enacted under
power granted by the Constitution, not naturally and reasonably
adapted to the effective exercise of such power but solely to the
achievement of something plainly within the power reserved to the
states, is invalid and cannot be enforced. P.
268 U. S. 17.
2. Direct control of medical practice in the states is obviously
beyond the power of Congress. P.
268 U. S. 18.
3. Incidental regulation of such practice by Congress through a
taxing act, like the Narcotic Law, cannot extend to matters plainly
inappropriate and unnecessary to reasonable enforcement of a
revenue measure. P.
268 U. S. 18.
Page 268 U. S. 6
4. An act of Congress must be construed, if fairly possible, so
as to avoid not only the conclusion that it is unconstitutional,
but also grave doubts upon that score. P.
268 U. S. 17.
5. Section 2 of the Narcotic Law declares it unlawful for any
person to sell, give away, etc., any of the drugs mentioned in the
act except in pursuance of an order of the person to whom the
article, is sold, etc., written on an official blank, but does not
apply "to the dispensing or distribution of the aforesaid drugs to
patient by physician . . . registered under this Act in the course
of his professional practice only."
Held inapplicable to a
case where a physician, acting
bona fide and according to
fair medical standards, gives an addict moderate amounts of the
drugs for self-administration in order to relieve conditions
incident to addiction. P.
268 U. S. 16.
6. What constitutes
bona fide medical practice,
consistent with the statute, depends upon the facts and
circumstances of the case. P.
268 U. S. 18.
290 F. 173 reversed.
Certiorari to a judgment of the circuit court of appeals
affirming a conviction under the Narcotic Law.
Page 268 U. S. 10
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
The court below affirmed the conviction of petitioner by the
District Court, Eastern District of Washington, under the following
count of an indictment returned therein June 26, 1922. As to all
other counts, the jury found him not guilty.
"Count II. And the grand jurors aforesaid upon their oaths do
further present: That Charles O. Linder, whose other or true name
is to the grand jurors unknown, hereinafter in this indictment
called the defendant, late of
Page 268 U. S. 11
the County of Spokane, State of Washington, heretofore, to-wit,
on or about the 1st day of April, 1922 at Spokane, in the Northern
Division of the Eastern District of Washington, and within the
jurisdiction of this court, did then and there violate the Act of
December 17, 1914, entitled"
"An act to provide for the registration of, with collectors of
internal revenue, and to impose a special tax upon all persons who
produce, import, manufacture, compound, deal in, dispense, sell,
distribute, or give away opium or coca leaves, their salts,
derivatives, or preparations, and for other purposes,"
"as amended February 24, 1919, in that he did then and there
knowingly, willfully and unlawfully sell, barter and give to Ida
Casey a compound, manufacture, and derivative of opium, to-wit, one
(1) tablet of morphine and a compound, manufacture, and derivative
of coca leaves, to-wit, three (3) tablets of cocaine, not in
pursuance of any written order of Ida Casey on a form issued for
that purpose by the Commissioner of Internal Revenue of the United
States; that the defendant was a duly licensed physician and
registered under the Act; that Ida Casey was a person addicted to
the habitual use of morphine and cocaine and known by the defendant
to be so addicted; that Ida Casey did not require the
administration of either morphine or cocaine by reason of any
disease other than such addiction; that the defendant did not
dispense any of the drugs for the purpose of treating any disease
or condition other than such addiction; that none of the drugs so
dispensed by the defendant was administered to or intended by the
defendant to be administered to Ida Casey by the defendant or any
nurse, or person acting under the direction of the defendant, nor
were any of the drugs consumed or intended to be consumed by Ida
Casey in the presence of the defendant, but that all of the drugs
were put in the possession or control of Ida Casey with the
intention on the part of the defendant that Ida Casey
Page 268 U. S. 12
would use the same by self-administration in divided doses over
a period of time, the amount of each of said drugs dispensed being
more than sufficient or necessary to satisfy the cravings of Ida
Casey therefor if consumed by her all at one time; that Ida Casey
was not in any way restrained or prevented from disposing of the
drugs in any manner she saw fit, and that the drugs so dispensed by
the defendant were in the form in which said drugs are usually
consumed by persons addicted to the habitual use thereof to satisfy
their craving therefor, and were adapted for consumption --
contrary to the form of the statute in such case made and provided
and against the peace and dignity of the United States."
The Harrison Narcotic Law, approved December 17, 1914, c. 1, 38
Stat. 785 -- 12 sections -- is entitled:
"An Act to provide for the registration of, with collectors of
internal revenue, and to impose a special tax upon all persons who
produce, import, manufacture, compound, deal in, dispense, sell,
distribute, or give away opium or coca leaves, their salts,
derivatives, or preparations, and for other purposes."
Section 1 provides:
"That on and after the first day of March, nineteen hundred and
fifteen, every person [with exceptions not here important] who
produces, imports, manufactures, compounds, deals in, dispenses,
sells, distributes, or gives away opium or coca leaves or any
compound, manufacture, salt, derivative, or preparation thereof,
shall register with the collector of internal revenue,"
and shall pay a special annual tax of $1. Also:
"It shall be unlawful for any person required to register under
the terms of this Act to produce, import, manufacture, compound,
deal in, dispense, sell, distribute, or give away any of the
aforesaid drugs without having registered and paid the special tax
provided for in this section. . . . The Commissioner of Internal
Revenue, with the approval of the Secretary of the Treasury,
Page 268 U. S. 13
shall make all needful rules and regulations for carrying the
provisions of this act into effect."
Sec. 2 provides:
"That it shall be unlawful for any person to sell, barter,
exchange, or give away any of the aforesaid drugs except in
pursuance of a written order of the person to whom such article is
sold, bartered, exchanged, or given, on a form to be issued in
blank for that purpose by the Commissioner of Internal Revenue.
[The giver is required to retain a duplicate and the acceptor to
keep the original order for two years, subject to inspection.]
Nothing contained in this section shall apply --"
"(a) To the dispensing or distribution of any of the aforesaid
drugs to a patient by a physician, dentist, or veterinary surgeon
registered under this act in the course of his professional
practice only: Provided, that such physician, dentist, or
veterinary surgeon shall keep a record of all such drugs dispensed
or distributed, showing the amount dispensed or distributed, the
date, and the name and address of the patient to whom such drugs
are dispensed or distributed, except such as may be dispensed or
distributed to a patient upon whom such physician, dentist, or
veterinary surgeon shall personally attend, and such record shall
be kept for a period of two years from the date of dispensing or
distributing such drugs, subject to inspection, as provided in this
Act."
"(b) . . ."
"(c) . . ."
"(d) . . ."
"The Commissioner of Internal Revenue, with the approval of the
Secretary of the Treasury, shall cause suitable forms to be
prepared for the purposes above mentioned. . . . It shall be
unlawful for any person to obtain by means of said order forms any
of the aforesaid drugs for any purpose other than the use, sale, or
distribution thereof by him in the conduct of a lawful business in
said drugs or in the legitimate practice of his profession. . . .
"
Page 268 U. S. 14
Section 8:
"That it shall be unlawful for any person not registered under
the provisions of this Act, and who has not paid the special tax
provided for by this Act, to have in his possession or under his
control any of the aforesaid drugs, and such possession or control
shall be presumptive evidence of a violation of this section, and
also of a violation of the provisions of section one of this Act:
Provided, that this section shall not apply to any employee of a
registered person, or to a nurse under the supervision of a
physician, dentist, or veterinary surgeon registered under this
Act, having such possession or control by virtue of his employment
or occupation and not on his own account; or to the possession of
any of the aforesaid drugs which has or have been prescribed in
good faith by a physician, dentist, or veterinary surgeon
registered under this Act; or to any United States, state, county,
municipal, district, territorial, or insular officer or official
who has possession of any said drugs, by reason of his official
duties, or to a warehouseman holding possession for a person
registered and who has paid the taxes under this Act; or to common
carriers engaged in transporting such drugs: Provided further, that
it shall not be necessary to negative any of the aforesaid
exemptions in any complaint, information, indictment, or other writ
or proceeding laid or brought under this Act, and the burden of
proof of any such exemption shall be upon the defendant."
Section 9:
"That any person who violates or fails to comply with any of the
requirements of this Act shall, on conviction, be fined not more
than $2,000 or be imprisoned not more than five years, or both, in
the discretion of the court."
Section 1 was amended by the Act of February 24, 1919, c. 18, 40
Stat. 1057, 1130. This increased the special annual tax to
twenty-four dollars on importers, manufacturers, producers and
compounders, twelve dollars on wholesale dealers, six dollars on
retail dealers, and three
Page 268 U. S. 15
dollars on
"physicians, dentists, veterinary surgeons, and other
practitioners lawfully entitled to distribute, dispense, give away,
or administer any of the aforesaid drugs to patients upon whom they
in the course of their professional practice are in
attendance."
It also added a provision requiring that stamps -- one cent for
each ounce -- should be affixed to every package of opium, coca
leaves, any compound, salt, derivative or preparation thereof,
produced in or imported into the United States and sold or removed
for consumption or sale, and then the following paragraph:
"It shall be unlawful for any person to purchase, sell,
dispense, or distribute any of the aforesaid drugs except in the
original stamped package or from the original stamped package, and
the absence of appropriate tax paid stamps from any of the
aforesaid drugs shall be
prima facie evidence of a
violation of this section by the person in whose possession same
may be found, and the possession of any original stamped package
containing any of the aforesaid drugs by any person who has not
registered and paid special taxes as required by this section shall
be
prima facie evidence of liability to such special tax:
Provided, that the provisions of this paragraph shall not
apply . . . to the dispensing, or administration, or giving away of
any of the aforesaid drugs to a patient by a registered physician,
dentist, veterinary surgeon, or other practitioner in the course of
his professional practice, and where said drugs are dispensed or
administered to the patient for legitimate medical purposes, and
the record kept as required by this act of the drugs so dispensed,
administered, distributed, or given away."
Manifestly, the purpose of the indictment was to accuse
petitioner of violating § 2 of the Narcotic Law, and the trial
court so declared. Shortly given the alleged facts follow.
Petitioner, a duly licensed and registered physician, without an
official written order therefor, knowingly,
Page 268 U. S. 16
willfully and unlawfully did sell, barter and give to Ida Casey
one tablet of morphine and three tablets of cocaine; he knew she
was addicted to habitual use of these drugs and did not require
administration of either because of any disease other than such
addiction, and he did not dispense them for the treatment of any
other disease or condition; they were not administered by him or by
any nurse or other person acting under his direction, nor were they
consumed or intended for consumption in his presence; the amount
was more than sufficient to satisfy the recipient's cravings if
wholly consumed at one time; petitioner put the drugs into her
possession expecting that she would administer them to herself in
divided doses over a period of time; they were in the form in which
addicts usually consume them to satisfy their cravings; the
recipient was in no way prevented or restrained from disposing of
them.
Petitioner maintains that the facts stated are not sufficient to
constitute an offense. The United States submit that, considering
United States v. Behrman, 258 U.
S. 280, the sufficiency of the indictment is clear.
The trial court charged:
"If you are satisfied beyond a reasonable doubt that defendant
knew that this woman was addicted to the use of narcotics, and if
he dispensed these drugs to her for the purpose of catering to her
appetite or satisfying her cravings for the drug, he is guilty
under the law. If, on the other hand, you believe from the
testimony that the defendant believed in good faith this woman was
suffering from cancer or ulcer of the stomach, and administered the
drug for the purpose of relieving her pain, or if you entertain a
reasonable doubt upon that question, you must give the defendant
the benefit of the doubt and find him not guilty."
In effect, the indictment alleges that the accused, a duly
registered physician, violated the statute by giving
Page 268 U. S. 17
to a known addict four tablets containing morphine and cocaine
with the expectation that she would administer them to herself in
divided doses, while unrestrained and beyond his presence or
control, for the sole purpose of relieving conditions incident to
addiction and keeping herself comfortable. It does not question the
doctor's good faith nor the wisdom or propriety of his action
according to medical standards. It does not allege that he
dispensed the drugs otherwise than to a patient in the course of
his professional practice or for other than medical purposes. The
facts disclosed indicate no conscious design to violate the law, no
cause to suspect that the recipient intended to sell or otherwise
dispose of the drugs, and no real probability that she would not
consume them.
The declared object of the Narcotic Law is to provide revenue,
and this Court has held that whatever additional moral end it may
have in view must "be reached only through a revenue measure and
within the limits of a revenue measure."
United States v. Jin
Fuey Moy, 241 U. S. 394,
241 U. S. 402.
Congress cannot, under the pretext of executing delegated power,
pass laws for the accomplishment of objects not intrusted to the
federal government. And we accept as established doctrine that any
provision of an Act of Congress ostensibly enacted under power
granted by the Constitution, not naturally and reasonably adapted
to the effective exercise of such power, but solely to the
achievement of something plainly within power reserved to the
states, is invalid and cannot be enforced.
McCulloch
v. Maryland, 4 Wheat, 316,
17 U. S. 423;
License Tax
Cases, 5 Wall. 462;
United
States v. De Witt, 9 Wall. 41;
Keller v. United
States, 213 U. S. 138;
Hammer v. Dagenhart, 247 U. S. 251;
Child Labor Tax Case, 259 U. S. 20. In
the light of these principles, and not forgetting the familiar rule
that
"a statute must be construed, if fairly possible, so as to
avoid, not only the conclusion that it is
Page 268 U. S. 18
unconstitutional, but also grave doubts upon that score,"
the provisions of this statute must be interpreted and
applied.
Obviously, direct control of medical practice in the states is
beyond the power of the federal government. Incidental regulation
of such practice by Congress through a taxing act cannot extend to
matters plainly inappropriate and unnecessary to reasonable
enforcement of a revenue measure. The enactment under consideration
levies a tax, upheld by this Court, upon every person who imports,
manufactures, produces, compounds, sells, deals in, dispenses or
gives away opium or coca leaves or derivatives therefrom, and may
regulate medical practice in the states only so far as reasonably
appropriate for or merely incidental to its enforcement. It says
nothing of "addicts," and does not undertake to prescribe methods
for their medical treatment. They are diseased, and proper subjects
for such treatment, and we cannot possibly conclude that a
physician acted improperly or unwisely or for other than medical
purposes solely because he has dispensed to one of them, in the
ordinary course and in good faith, four small tablets of morphine
or cocaine for relief of conditions incident to addiction. What
constitutes
bona fide medical practice must be determined
upon consideration of evidence and attending circumstances. Mere
pretense of such practice, of course, cannot legalize forbidden
sales, or otherwise nullify valid provisions of the statute, or
defeat such regulations as may be fairly appropriate to its
enforcement within the proper limitations of a revenue measure.
United States v. Jin Fuey Moy, supra, points out that
the Narcotic Law can be upheld only as a revenue measure. It must
be interpreted and applied accordingly. Further, grave
constitutional doubts concerning § 8 cannot be avoided unless
limited to persons who are required to register by § 1. Mere
possession of the drug creates no presumption of guilt as against
any other person.
Page 268 U. S. 19
In
United States v. Doremus, 249 U. S.
86,
249 U. S. 93,
249 U. S. 95, a
registered physician was accused of unlawfully selling, giving away
and distributing 500 one-sixth grain tablets of heroin without
official written order. Another count charged selling, dispensing
and distributing 500 such tablets not in the course of regular
professional practice. The trial court held § 2 invalid because it
invaded the police power of the state. This Court declared:
"Of course, Congress may not, in the exercise of federal power,
exert authority wholly reserved to the states. . . . If the
legislation enacted has some reasonable relation to the exercise of
the taxing authority conferred by the Constitution, it cannot be
invalidated because of the supposed motives which induced it. . . .
We cannot agree with the contention that the provisions of § 2,
controlling the disposition of these drugs in the ways described,
can have nothing to do with facilitating the collection of the
revenue, as we should be obliged to do if we were to declare this
Act beyond the power of Congress acting under its constitutional
authority to impose excise taxes."
The sharp division of the Court in this cause and the opinion in
Jin Fuey Moy's case clearly indicated that the statute
must be strictly construed, and not extended beyond the proper
limits of a revenue measure.
Webb v. United States, 249 U. S.
96,
249 U. S. 99,
came here on certified questions. Two were answered upon authority
of
Doremus' case. The third inquired whether a regular
physician's order for morphine issued to an addict, not in the
course or professional treatment with design to cure the habit, but
in order to provide enough of the drug to keep him comfortable by
maintaining his customary use, is a "physicians prescription." The
answer was that
"to call such an order for the use of morphine a physician's
prescription would be so plain a perversion of meaning that no
discussion of the subject is required."
The lower
Page 268 U. S. 20
court had sought instruction in order that it might decide the
particular cause. The question specified no definite quantity of
drugs, nor the time intended for their use. The narrated facts show
plainly enough that physician and druggist conspired to sell large
quantities of morphine to addicts under the guise of issuing and
filling orders. The so-called prescriptions were issued without
consideration of individual cases and for the quantities of the
drugs which applicants desired for the continuation of customary
use. The answer thus given must not be construed as forbidding
every prescription for drugs, irrespective of quantity, when
designed temporarily to alleviate an addict's pains, although it
may have been issued in good faith and without design to defeat the
revenues. This limitation of the reply is confirmed by
Behrman's case,
258 U. S. 280,
infra decided three years later, which suggests at least
that the accused doctor might have lawfully dispensed some
doses.
In
Jin Fuey Moy v. United States, 254 U.
S. 189,
254 U. S. 194,
doctor and druggist conspired to sell opiates. The prescriptions
were not issued in the course of professional practice. The doctor
became party to prohibited sales.
"Manifestly the phrases 'to a patient' and 'in the course of his
professional practice only' are intended to confine the immunity of
a registered physician, in dispensing the narcotic drugs mentioned
in the Act, strictly within the appropriate bounds of a physician's
professional practice, and not to extend it to include a sale to a
dealer or a distribution intended to cater to the appetite or
satisfy the craving of one addicted to the use of the drug. A
'prescription' issued for either of the latter purposes protects
neither the physician who issues it nor the dealer who knowingly
accepts and fills it."
The quoted language must be confined to circumstances like those
presented by the cause. In reality, the doctor became party to
sales of drugs. He received a
Page 268 U. S. 21
fixed sum per dram under guise of issuing prescriptions. The
quoted words are repeated in
Behrman's case, which
recognizes the possible propriety of prescribing small
quantities.
United States v. Balint, 258 U.
S. 250,
258 U. S.
253-254, holds:
"It is very evident from a reading of it [§ 2] that the emphasis
of the section is in securing a close supervision of the business
of dealing in these dangerous drugs by the taxing officers of the
government, and that it merely uses a criminal penalty to secure
recorded evidence of the disposition of such drugs as a means of
taxing and restraining the traffic."
United States v. Behrman, 258 U.
S. 280,
258 U. S. 287,
came up under the Criminal Appeals Act. The indictment charged that
Behrman, a registered physician, did unlawfully sell, barter, and
give to one King, an "addict," 150 grains of heroin, 360 grains of
morphine, and 210 grains of cocaine, by issuing three
prescriptions. Further, that the drugs were not intended or
required for treatment of any disease or condition other than such
addiction, but for self-administration over a period of several
days. The question was: "Do the acts charged in this indictment
constitute an offense within the meaning of the statute?" And,
replying, this Court said:
"The district judge who heard this case was of the opinion that
prescriptions in the regular course of practice did not include the
indiscriminate doling out of narcotics in such quantity to addicts
as charged in the indictment. . . . In our opinion, the district
judge who heard the case was right in his conclusion, and should
have overruled the demurrer. Former decisions of this Court have
held that the purpose of the exception is to confine the
distribution of these drugs to the regular and lawful course of
professional practice, and that not everything called a
prescription is necessarily such. [
Webb v.
Page 268 U. S. 22
United States and
Jin Fuey Moy v. United States,
supra, are cited.] It may be admitted that to prescribe a
single dose, or even a number of doses, may not bring a physician
within the penalties of the Act; but what is here charged is that
the defendant physician, by means of prescriptions, has enabled one
known by him to be an addict to obtain from a pharmacist the
enormous number of doses contained in 150 grains of heroin, 360
grains of morphine, and 210 grains of cocaine"
-- 3,000 ordinary doses!
This opinion related to definitely alleged facts, and must be so
understood. The enormous quantity of drugs ordered, considered in
connection with the recipient's character, without explanation,
seemed enough to show prohibited sales and to exclude the idea of
bona fide professional action in the ordinary course. The
opinion cannot be accepted as authority for holding that a
physician who acts
bona fide and according to fair medical
standards may never give an addict moderate amounts of drugs for
self-administration in order to relieve conditions incident to
addiction. Enforcement of the tax demands no such drastic rule, and
if the Act had such scope, it would certainly encounter grave
constitutional difficulties.
The Narcotic Law is essentially a revenue measure, and its
provisions must be reasonably applied with the primary view of
enforcing the special tax. We find no facts alleged in the
indictment sufficient to show that petitioner had done anything
falling within definite inhibitions or sufficient materially to
imperil orderly collection of revenue from sales. Federal power is
delegated, and its prescribed limits must not be transcended even
though the end seems desirable. The unfortunate condition of the
recipient certainly created no reasonable probability that she
would sell or otherwise dispose of the few tablets intrusted to
her, and we cannot say that, by so dispensing
Page 268 U. S. 23
them, the doctor necessarily transcended the limits of that
professional conduct with which Congress never intended to
interfere.
The judgment below must be reversed. The cause will be remanded
to the district court for further proceedings in harmony with this
opinion.