Linder v. United States/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 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 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 (38 Stat. 785, c. 1 [Comp. St. §§ 6287g-6287q])-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.'

'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.

'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, shall make all needful rules and regulations for carrying the      provisions of this act into effect.'

'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. * *  * '

'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.'

'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 (Comp. St. Ann. Supp. 1919, § 6287g). This increased the special annual tax to $24 on importers, manufacturers, producers and compounders, $12 on wholesale dealers, $6 on retail dealers, and $3 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 section 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, 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, 42 S.C.t. 303, 66 L. Ed. 619, the sufficiency of the indictment is clear.

'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 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, 402, 36 S.C.t. 658, 60 L. Ed. 1061, Ann. Cas. 1917D, 854. 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, 316 423, 4 L. Ed. 579; License Tax Cases, 5 Wall. 462, 18 L. Ed. 497; United States v. De Witt, 9 Wall. 41, 19 L. Ed. 593; Keller v. United States, 213 U.S. 138, 29 S.C.t. 470, 53 L. Ed. 737, 16 Ann. Cas. 1066; Hammer v. Dagenhart, 247 U.S. 251, 38 S.C.t. 529, 62 L. Ed. 1101, 3 A. L. R. 649, Ann. Cas. 1918E, 724; Child Labor Tax Case, 259 U.S. 20, 42 S.C.t. 449, 66 L. Ed. 817. 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 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 section 8 cannot be avoided unless limited to persons who are required to register by section 1. Mere possession of the drug creates no presumption of guilt as against any other person.

In United States v. Doremus, 249 U.S. 86, 93, 95, 39 S.C.t. 214, 63 L. Ed. 493, 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 section 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 section 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, 99, 39 S.C.t. 217, 63 L. Ed. 497, 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 pervision of meaning that no discussion of the subject is required.' The lower 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, 42 S.C.t. 303, 66 L. Ed. 619, 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, 194, 41 S.C.t. 98, 65 L. Ed. 214, 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 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, 253, 254, 42 S.C.t. 301, 66 L. Ed. 604, holds:

'It is very evident from a reading of it [section 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, 287, 42 S.C.t. 303, 66 L. Ed. 619, came up under the Criminal Appeals Act (Comp. St. § 1704). 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?'

'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.

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 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.