Moore v. District Court In and For City and County of Denver, 26138
| Decision Date | 28 January 1974 |
| Docket Number | No. 26138,26138 |
| Parties | John P. MOORE, Attorney General of the State of Colorado, et al., Petitioners, v. The DISTRICT COURT IN AND FOR the CITY AND COUNTY OF DENVER et al.,Respondents. |
| Court | Colorado Supreme Court |
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., William Tucker, Asst. Atty. Gen., Denver, for petitioners.
Ireland, Stapleton, Pryor & Holmes, P.C., Benjamin F. Stapleton, Hardin Holmes, William G. Imig, Denver, for respondents.
This is an original proceeding brought pursuant to C.A.R. 21. We issued our rule to show cause why the relief prayed for in the petition should not be granted. We now make the rule absolute.
Dillon Companies, Inc., a Kansas corporation, doing business as King Soopers, Inc. (King Soopers), commenced an action in the Denver district court for a declaratory judgment and injunctive relief, praying that the court declare unconstitutional and restrain the enforcement of Rules 5 and 6 of section 48--1--2(d). 1 of the rules and regulations of the Colorado State Board of Pharmacy (Board), which had been interpreted to prohibit advertising of prices of prescription drugs and medicines.
The trial court entered a temporary restraining order on July 27, 1973, restraining the Board 'from taking, or threatening to take, any punitive, retaliatory, or other action against plaintiff or plaintiff's pharmacy employees, agents or representatives motivated by or on account of plaintiff's course of action in making available to its customers and the public, information as to prescription drugs and medicine prices.' After a hearing and argument on August 7, 1973, the court denied the Board's motion to dismiss and dissolve the restraining order, and granted King Soopers' motion for a preliminary injunction, whereupon this original proceeding was commenced by petitioners.
The trial court did not reach the merits of the alleged unconstitutionality of the above rules under King Soopers' claim for declaratory relief and that issue is not before us.
The question here is whether the district court was proceeding without or in excess of its jurisdiction in restraining the Board from enforcing the rules under consideration.
The Colorado State Board of Pharmacy is an administrative agency and pursuant to statutory rule-making authority it conducted hearings and adopted rules in accordance with the Administrative Code, among which were Rules 5 and 6. This declaratory judgment and injunction action was commenced July 27, 1973, approximately four years after the adoption of the rules in question.
The record further shows that King Soopers owns and operates approximately twenty-two licensed pharmacies within Colorado, and sells a variety of drugs and medicines that are available for purchase at other competing pharmacies. The complaint alleged that most of the prescription drugs and medicines dispensed by King Soopers were sold at prices generally lower than those prevailing at other drug stores.
On July 27, 1973, King Soopers announced its intention to the Board to advertise to the public, commencing July 29, its prescription drug and medicine prices. The Board, by resolution adopted by its members, advised King Soopers that making public information concerning its drug and medicine prices would violate Rules 5 and 6 of the Board's rules and regulations, and that the Board intended to enforce its rules by suspension of pharmacy licenses if King Soopers proceeded with its planned advertising program. Specific authorization to impose such sanctions is found in 1969 Perm.Supp., C.R.S.1963, 48--1--3(1) (d). This position of the Board precipitated the district court action to enjoin the Board from enforcing the rules and to have them declared unconstitutional.
The record is clear that the Board had not instituted any administrative action or judicial proceeding to restrain King Soopers from carrying out its advertising program at the time King Soopers commenced this action against the Board. It is also clear that King Soopers had not in the past been advertising its prescription drug and medicine prices and that its intention to do so was prospective only.
As an administrative agency statutorily created and endowed with specific enumerated powers and duties delegated pursuant to the police power of the state, the Board's exercise of those powers within the scope of its authority is entitled to a presumption of validity and constitutionality. Hynes v. Grimes Packing Co., 337 U.S. 86, 69 S.Ct. 968, 93 L.Ed. 1231; P.U.C. v. Dist. Court, 163 Colo. 462, 431 P.2d 773; Asphalt Paving v. County Com., 162 Colo. 254, 425 P.2d 289; Geer v. Susman, 134 Colo. 6, 298 P.2d 948. Here, specific authority is delegated to make rules and regulations as may be necessary for the regulation of the practice of pharmacy and the lawful performance of the duties of the Board, including the regulation of the sale of drugs and medicines. C.R.S.1963, 48--1--2(1)(d) and (e). The presumption of validity of the rules regularly promulgated is not to be lightly cast aside by mere allegations in a complaint of unconstitutionality, and the burden is upon the party challenging the constitutionality to establish by a clear and convincing showing beyond a reasonable doubt the asserted invalidity. This requires more than a mere assertion of a claim.
In the posture of this case, where there has been no judicial declaration of invalidity, we find an unlawful judicial restraint by injunction imposed upon the Board's proper function of...
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