Webb v. United States/Opinion of the Court

This case involves the provisions of the Harrison Narcotic Drug Act (Act Dec. 17, 1914, c. 1, 38 Stat. 785; Comp. St. §§ 6287g-6287q), considered in United States v. Doremus (No. 367, just decided: 249 U.S. 86, 39 Sup. Ct. 214, 63 L. Ed. 496. 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 (section 37, Penal Code [Act March 4, 1909, c. 321, 35 Stat. 1096; Comp. St. § 10201]) 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 (section 1 of the act) for a prohibited purpose.

'If section 2, rightly construed, forbids sales to a     non-registrable 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 section 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 cus tom 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      section 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      section 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 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 section 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 section 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 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.