Maine Pharmaceutical Ass'n v. Board of Com'rs of Profession of Pharmacy

• Decision Date: 06 September 1968
• Citation: 245 A.2d 271
• Parties: MAINE PHARMACEUTICAL ASSOCIATION et al. v. The BOARD OF the COMMISSIONERS OF the PROFESSION OF PHARMACY et al.
• Court: Maine Supreme Court

Page 271

245 A.2d 271

MAINE PHARMACEUTICAL ASSOCIATION et al. v. The BOARD OF the COMMISSIONERS OF the PROFESSION OF PHARMACY et al.

Supreme Judicial Court of Maine.

Sept. 6, 1968.

Sumner T. Bernstein, Portland, for plaintiff.

Leon V. Walker, Jr., Asst. Atty. Gen., Augusta, August C. Flamman, Orland, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN and WEATHERBEE, JJ.

WILLIAMSON, Chief Justice.

On report. The Maine Pharmaceutical Association, organized under our laws, composed of pharmacists licensed to practice in Maine, and three Maine residents who are duly licensed and practicing pharmacists within the State, seek: (1) to enjoin the Board of Commissioners of the Profession of Pharmacy and its Secretary from giving the examination required under the statute for the practice of pharmacy to one Thomas D. Smith, who has intervened as a defendant herein; and (2) to have the Resolve ¹ authorizing Mr. Smith to take the examination and any action proposed by or undertaken by the Board pursuant thereto declared to be invalid and unconstitutional.

The defendants agree that Mr. Smith does not qualify to take the examination unless the Resolve is valid and constitutional. They join in the prayers for determination of the validity and constitutionality of the Resolve and for the dismissal of the complaint.

The Board, in December 1967, voted inter alia,

'That therefore the Board will permit Thomas D. Smith to take the next regularly scheduled examination for the practice of pharmacy on June 19, 1968'.

By agreement, the examination will not be given pending decision herein.

The Legislature in the plainest words sought to remove Mr. Smith from the necessary requirements for examination. The standards of education expressly established by the Legislature in § 2902 were thus intended to apply to everyone except Mr. Smith.

We hold the 1967 Resolve is unconstitutional on two grounds. In so doing we recognize the full strength of the principle that every presumption is in favor of the constitutionality of acts of the Legislature. State v. Fantastic Fair and Karmil, 158 Me. 450, 466, 186 A.2d 352 (1961); First National Bank of Boston v. Maine Turnpike Authority, 15o Me. 131, 171, 136 A.2d 699 (1957).

If, however, the act of the Legislature falls clearly beyond the limits of constitutional authority the Court must not hesitate to declare such action void. In so doing we have no concern with the policy of the Legislature or the reasons underlying its decision. It is the Constitution, and the Constitution alone, against which we measure the action of the Legislature.

Our Constitution reads:

'The Legislature * * * with the exceptions hereinafter stated, shall have full power to make and establish all reasonable laws and regulations for the defense and benefit of the people of this state, not repugnant to this Constitution, nor to that of the United States.' Art. IV, Part Third, § 1. 'The Legislature shall, from time to time provide, as far as practicable, by general laws, for all matters usually appertaining to special or private legislation.' Art. IV, Part Third, § 13.

The meaning of § 13 was stated by Governor Connor in his inaugural address in 1876 in language quoted and approved by the Justices in an Opinion to the House of Representatives, as follows:

'The title of 'Special and Private Laws', which includes so large a portion of the laws of former Legislatures, is an obnoxious one, conveying suggestions of privilege, favoritism, and monopoly; though happily these evils have not, in fact, stained the character of our legislation, they should not be suffered to have, even in the form of our laws, any grounds of suspicion that can be removed. Other weighty objections to special laws for private benefit are, that they are obtained at the public expense, and in their passage distract the attention of legislators from matters of public interest. The opportunity is now afforded and the duty enjoined upon you, by the amendment, to restrict the necessity for such laws to the narrowest possible limits.' Opinion of the Justices, 146 Me. 316, 322, 80 A.2d 866, 868 (1951)

Obviously general legislation controlling the profession of pharmacy with the examination and licensing of pharmacists is practicable. The special legislation favoring Mr. Smith is stopped by the bar of § 13. Opinion of the Justices, 157 Me. 98, 108, 170 A.2d 657 (1961) The Resolve for this reason is unconstitutional.

However, apart from § 13 the exemption of the defendant Smith violates the equal protection of the laws guaranteed by both State and Federal Constitutions. In Lewis v. Webb, 3 Me. 326 (1825) the Court held to quote the headnote, that

'The Legislature of this State have no authority by the Constitution, to pass any act or resolve granting an appeal or a new trial in any cause between private citizens, or dispensing with any general law in favor of a particular case.'

Chief Justice Mellen in the opinion said in language fresh and clear after 143 years:

'All public laws, from their very nature and effects,...