Hynson, Westcott & Dunning, Inc. v. Commissioner of Public Health

• Decision Date: 06 January 1964
• Citation: 346 Mass. 606,195 N.E.2d 74
• Parties: HYNSON, WESTCOTT & DUNNING, INC. v. COMMISSIONER OF PUBLIC HEALTH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 74

195 N.E.2d 74

346 Mass. 606

HYNSON, WESTCOTT & DUNNING, INC. v.COMMISSIONER OF PUBLIC HEALTH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 4, 1963.

Decided Jan. 6, 1964.

Franklin N. Cunningham, Boston (George B. Rowell, Boston, with him), for plaintiff.

Benjamin Gargill, Asst. Atty. Gen., for defendants.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and SPIEGEL, JJ.

WILKINS, Chief Justice.

A manufacturer of drugs and pharmaceutical and biological health products in Maryland, the State of its incorporation, brings this bill in equity against the Commissioner of Public Health and the Attorney General for a declaratory decree and to enjoin the enforcement of G.L. c. 94, § 187F, inserted by St.1961, c. 603, which requires a license for shipping into this Commonwealth 'harmful drugs' as defined in G.L. c. 94, § 187A(as amended through St.1960, c. 200).The case is reported without decision by a single justice upon the pleadings and a statement of agreed facts which amounts to a case stated.

The plaintiff has one manufacturing plant, which is located in Baltimore, and sells its products in various States including Massachusetts.It maintains no place of business, office, warehouse, stock of merchandise, or salesmen within the Commonwealth.Sales are effected by orders by mail, telegraph, and telephone from customers here to the plaintiff's place of business in Baltimore.Orders are filled by shipments from without the Commonwealth by common carriers.The customers include wholesalers, hospitals, physicians, and pharmacists.The plaintiff has one 'detail man' who calls upon doctors, dentists, hospitals, and clinics chiefly in the Boston area, in order to explain the use of the plaintiff's products and to recommend their use.He occasionally calls upon wholesalers for his purpose.He does not solicit orders but, when from time to time in isolated instances orders are given to him, he transmits them to the home office for acceptance or rejection by the company.

The plaintiff's plant is operated under the standards laid down pursuant to the Federal Food, Drug and Cosmetic Act, and is inspected from time to time by representatives of the Food and Drug Administration.It is licensed by the Division of Biologics Standards of the National Institutes of Health with respect to certain of its biological products, and is inspected from time to time by representatives of that division.It is also licensed by the Drug Commissioner's office of the State of Maryland and is inspected from time to time by the officials of that office.By amendments to the Federal Food and Drug Act in 1962 all companies manufacturing drugs, even for sale only in intrastate commerce, are subject to registration and inspection under the Federal Food and Drug Act.

The defendant Commissioner of Public Health does not presently contemplate the creation of a force of inspectors to inspect the premises of persons who may be licensed or seek to become licensed pursuant to § 187F.He contemplates that such inspections and investigations of plants of out-of-State manufacturers, such as the plaintiff, as are necessary to give information for the enforcement of the statute will be obtained either through officials of the Food and Drug Administration of the United States, or by a force of inspectors within the Department of Public Health should one hereafter be created.

The plaintiff refuses to become licensed, contending that § 187F lays an unreasonable burden upon interstate commerce and discriminates against out-of-State manufacturers in violation of the Federal Constitution, art. I, § 8, and the Fourteenth Amendment.

Section 187F provides: 'A manufacturer, wholesaler, jobber, dealer or compounder in drugs or druggist located outside the commonwealth who ships any harmful drugs, as defined in section one hundred and eighty-seven A, into the commonwealth shall first obtain a license from the department.Such license shall apply only to one place of business of each such person outside the commonwealth, and shall expire one year from the date of issue.The fee for each such license and for each renewal thereof shall be twenty-five dollars.The department may revoke, suspend or refuse to renew the license of any such person for violation of any provision of this section or of any rule or regulation made by the department in connection herewith.No person within the commonwealth shall receive any such harmful drugs from a manufacturer, wholesaler, jobber, dealer or compounder in drugs or druggist located outside the commonwealth, who is not licensed under the provisions of this section.Any person within the commonwealth who violates any provision of this section shall be punished by a fine of not more than two thousand dollars or by imprisonment in a house of correction for not more than six months, or both.'

The corresponding statute for the Commonwealth applies only to manufacturers, and there is but one license fee whatever the number of places of business.Statute 1961, c 509, inserting § 187E in c. 94, provides in part: 'No person shall manufacture any harmful drug as defined in section one hundred and eighty-seven A without a license to do so from the department of public health.The fee for such license shall...