Kavanagh v. Fowler, 9879.

• Decision Date: 29 January 1945
• Docket Number: No. 9879.,9879.
• Citation: 146 F.2d 961
• Parties: KAVANAGH, Collector of Internal Revenue, et al. v. FOWLER et al.
• Court: U.S. Court of Appeals — Sixth Circuit

146 F.2d 961 (1945)

KAVANAGH, Collector of Internal Revenue, et al. v. FOWLER et al.

No. 9879.

Circuit Court of Appeals, Sixth Circuit.

January 29, 1945.

Paul R. Russell, of Washington, D. C. (Samuel O. Clark, Jr., Sewall Key, Helen R. Carloss, and Paul R. Russell, all of Washington, D. C., and John C. Lehr, of Detroit, Mich., on the brief), for appellants.

Leonard F. Donaldson, of Detroit, Mich., for appellees.

Before HICKS, ALLEN, and MARTIN, Circuit Judges.

ALLEN, Circuit Judge.

Appellees, chiropodists duly licensed under Sections 14.661 to 14.671, inclusive, Michigan Statutes Annotated, to practice chiropody, brought an action praying that a writ of mandamus issue directing the appellant Kavanagh, collector of internal revenue for the District of Michigan, to accept appellees' applications for reregistration and to reregister them under the provisions of Section 1 of the Harrison Narcotic Act, 26 U.S.C.A.Int.Rev.Code, §§ 2550 et seq., 3220 et seq., and for other appropriate relief. By amendment the prayer of the petition asked for an injunction restraining the collector from refusing to accept the applications of the appellees for reregistration, and by motion appellant Oyler, narcotic district supervisor for District No. 8, was made a party defendant.

The appellees had been previously registered by the collector of internal revenue for the fiscal year July 1, 1942, to June 30, 1943, and in accordance with Section 1 of the Harrison Narcotic Act tax stamps had been issued to them as evidence of their registration and of their right to have possession of and to dispense narcotic drugs. The appellees applied for reregistration and tendered the proper fees for tax stamps for the fiscal year 1943 — 4. Their applications were denied upon the ground that they were not licensed by the Michigan Board of Pharmacy or the Michigan Board of Medical Registration to use or handle narcotics in the State of Michigan. It appears that this denial was in accordance with a ruling of the attorney general of Michigan that a practitioner of chiropody is not a physician within the purview of the Michigan Uniform Narcotic Drug Act entitled to administer drugs and narcotics.

Treasury Regulations 5, 1938 edition, Art. 5, provides in substance that all such applications for registration be referred by the collector to the appropriate narcotic district supervisor for investigation, report and recommendation, and that in the case of applications which have been so referred, "the collector shall not issue a special tax stamp in connection with any registration until information has been submitted to him, by the narcotic district supervisor, that the applicant is properly licensed or otherwise lawfully entitled to engage in the activity in the district in which he seeks registration."

The narcotic district supervisor, appellant Oyler, reported on the basis of the ruling of the attorney general of Michigan that the appellees were not properly licensed or otherwise lawfully entitled to use or handle narcotics in the district. The collector refused to reregister the appellees, and this suit was instituted.

The District Court, upon a careful consideration of the Michigan statutes, decided that under the provisions of the Michigan Chiropody Act and the Michigan Uniform Narcotic Drug Act, chiropodists are authorized by law to use narcotic drugs in their practice, and ordered the collector to register the appellees.

In our opinion an insuperable objection to granting the relief prayed for here lies in the fact that the appellees, whether wrongly or not, are not licensed under the state...