Hyde v. State

• Decision Date: 20 March 1915
• Citation: 174 S.W. 1127,131 Tenn. 208
• Parties: HYDE v. STATE.
• Court: Tennessee Supreme Court

174 S.W. 1127

131 Tenn. 208

HYDE v. STATE.

Supreme Court of Tennessee.

March 20, 1915

Error to Criminal Court, Davidson County; A. B. Neil, Judge.

H. B Hyde was convicted of unlawfully prescribing morphine, and he brings error. Affirmed.

H. S Stokes and W. C. Cherry, both of Nashville, for plaintiff in error.

The Assistant Attorney General, for the State.

WILLIAMS J.

H. B Hyde, a practicing physician, was indicted and tried for an alleged violation of chapter 11 of the Acts of the First Extra Session of the General Assembly of 1913; one count of the indictment charging an unlawful sale, and the other an unlawful distribution, of morphine, a derivative of opium.

A motion to quash the indictment was made in behalf of accused, in which the constitutionality of the act was challenged, but it was overruled by the trial judge. The trial before a jury resulted in a verdict of guilty, and the defendant below moved for a new trial and in arrest of judgment, which motions were overruled, with consequent appeal to this court.

The act on which the prosecution was based may be partially quoted and partially outlined as follows:

"Section 1. Be it enacted by the General Assembly of the state of Tennessee, that, on and after the taking effect of this act, it shall be unlawful for any person in the state of Tennessee to sell, barter, distribute, or give away any opium or coca leaves, or any compound, manufacture, salt, derivative, or preparation thereof: Provided, that this shall not apply:

a. To the dispensing or distribution of any said drugs to any patient by a physician, dentist, or veterinary surgeon registered in the state of Tennessee under the provisions of the several acts regulating the practice of their profession: Provided, however, that said distribution or dispensing shall be in the course of his professional practice only, and that such physician, dentist, or veterinary surgeon shall personally attend such patient.

b. To the sale, dispensing, or distribution of any said drugs by pharmacists registered under the laws of the state governing the practices of the profession of pharmacy to a consumer under and in pursuance to a written prescription issued by a physician, dentist, or veterinary surgeon of the standing mentioned in 'a' above: Provided, however, that such prescription shall be dated as of the day on which signed, and shall be signed by the physician, dentist, or veterinary surgeon who shall have issued the same.

c. To the sale or distribution of any of the aforesaid drugs by any wholesale druggist, dealer, or jobber within the state to a retail dealer."

By section 3 of the act it is provided that the possession of any of the aforesaid drugs by persons, other than those excepted by sections 1 and 2, shall be presumptive evidence of a violation of the act.

Its section 6 provides that it is the duty of certain designated state officials to enforce the provision of the act, and that rules and regulations for its enforcement shall be made by them.

It may be observed, in passing, that the act is modeled after, and closely conforms to, the act of Congress later passed and approved December 17, 1914, effective on and after the 1st day of March, 1915, so far as the provisions of the congressional enactment can be made applicable to and regulate intrastate sales of the drugs affected.

Deeming that for the local act there is yet left a no inconsiderable field for operation, and that the act is the initial step in this state in the regulation of the sale of habit-forming drugs, we have examined with care the several assignments of error urged by the appealing physician.

The facts of the case appear to be: That one Allen, a detective, under employment by the pure food and drug department of the state, went to the office of Dr. H. B. Hyde, in Nashville, and requested a prescription for morphine for an alleged friend of his, Louise Walker, who he said lived on Russell street. No such woman existed, and there was no such street address as that given. Having obtained the prescription and paid for it, the detective took it to a pharmacy, where it was filled; the detective paying therefor.

The drug passed out on the prescription was morphine in the form of hypodermic tablets.

The first question duly raised is that the act in question does not come within the purview of the call of the Governor for the extra session of the Legislature of 1913, at which the act was passed. Included in the Governor's call for that session was the following as a measure to be considered:

"54. A bill to regulate the intrastate trade or sale of opium or coca leaves, or any compound, manufacture, salt, derivative or preparation thereof."

It is urged that the bill so passed, as far as appellant, Hyde, is concerned, was a regulation of the practice of medicine, and not a regulation of sale or sales. We think it quite obvious that the legislation is within the purview of the call. The practice of medicine is not undertaken by it to be regulated; it is affected at but a single and minor point, by way of incident to the distribution of the particular drugs a physician may find it necessary in his practice to prescribe. State ex rel. v. Woolen, 128 Tenn. 487, 161 S.W. 1006.

It is next claimed as error that the act violates the fourteenth amendment of the federal Constitution and article 1, § 8, of the state Constitution, the last of which provides that no man shall be deprived of his liberty or property but by the law of the land. The particular provision pointed out as working such denial is that of subsection (a) of the act, which is, in effect, that a physician can only prescribe the indicated drugs when he is in personal attendance on the patient; thus, it is claimed, arbitrarily curtailing his right to practice by prescribing according to methods formerly obtaining.

We think it clear that, in the exercise of the police power, it is competent for the Legislature to strictly regulate the sale and distribution of any drug of a poisonous nature the use of which tends to debauch the public in the formation of a habit that undermines the physical, mental, and moral constitution of its users. Matter of Yun Quong, 159 Cal. 508, 114 P. 835, Ann. Cas. 1912C, 969; Ex parte Mon Luck, 29 Or. 421, 44 P. 693, 32 L. R. A. 738, 54 Am. St. Rep. 804.

A statute prohibiting the sale of certain poisons except on the prescription of a practicing physician has been held to be constitutional. Ex parte Hallawell, 155 Cal. 112, 99 P. 490.

We are of opinion that the Legislature, in the act under review, validly specified the condition under which the prescription of such a physician may be issued. It is not unreasonable or arbitrary to hedge about their issuance by making it a condition that the physician "shall personally attend the patient"; since only by personal observation and diagnosis can the physician be sure that the drug is needed--that he himself is not being imposed on in an effort through him to defeat the very purpose the statute has in view. The assignment of error must therefore be overruled.

Several other errors are assigned attacking the constitutionality of certain other provisions of the act, to wit:

The provision of its section 6 that the pure food and drug inspector and the secretary of the state board of health shall make rules and regulations for the enforcement of the act is urged to amount to an...