North Carolina Bd. of Pharmacy v. Lane

• Decision Date: 09 April 1958
• Docket Number: No. 172,172
• Citation: 102 S.E.2d 832,248 N.C. 134
• Court: North Carolina Supreme Court
• Parties: NORTH CAROLINA BOARD OF PHARMACY v. W. Ronald LANE T/A Lane's Brooklyn Pharmacy and John W. Baldwin.

Page 832

102 S.E.2d 832

248 N.C. 134

NORTH CAROLINA BOARD OF PHARMACY v. W. Ronald LANE T/A Lane's Brooklyn Pharmacy and John W. Baldwin.

No. 172.

Supreme Court of North Carolina.

April 9, 1958.

J. H. Ferguson, Wilmington, for defendants, appellants.

Bailey & Dixon, Raleigh, for plaintiff, appellee.

BOBBITT, Justice.

The agreed facts, on which the case was submitted, constitute the sole basis for decision. Eason v. Dew, 244 N.C. 571, 94 S.E.2d 603; Edwards v. City of Raleigh, 240 N.C. 137, 81 S.E.2d 273; City of Greensboro v. Wall, 247 N.C. 516, 522, 101 S.E.2d 413. Do these facts support the court's conclusions of law and judgment?

Statutory provisions regulating the practice of pharmacy in North Carolina comprise G.S. Ch. 90, Art. 4.

'Where the practice of a profession or calling requires special knowledge or skill and intimately affects the public health, morals, order, or safety, or the general welfare, the legislature may prescribe reasonable qualifications for persons desiring to pursue such profession or calling, and require them to demonstrate their possession of such qualifications by an examination on the subjects with which such profession or calling has to deal as a condition precedent to the right to follow such profession or calling.' State v. Ballance, 229 N.C. 764, 770, 51 S.E.2d 731, 735, 7 A.L.R.2d 407, and cases cited.

Unquestionably, the General Assembly, in the exercise of the police power of the State, may regulate the practice of pharmacy. 17A Am.Jur., Drugs and Druggists Sec. 13; 28 C.J.S. Druggists § 2. As to this, decisions in other jurisdictions are in full accord. State v. Collins, 61 N.M. 184, 297 P.2d 325; Louisiana Board of Pharmacy v. Smith, La.App., 65 So.2d 654; Beeman v. Michigan Board of Pharmacy, 323 Mich. 390, 35 N.W.2d 354; Rosenblatt v. California State Board of Pharmacy, 69 Cal.App.2d 69, 158 P.2d 199; Stewart v. Robertson, 45 Ariz. 143, 40 P. 2d 979; Ex parte Gray, 206 Cal. 497, 274 P. 974; Reppert v. Utterback, 206 Iowa 314, 217 N.W. 545; State v. Wood, 51 S.D. 485, 215 N.W. 487, 54 A.L.R. 719; Tucker v. New York State Board of Pharmacy, 127 Misc. 538, 217 N.Y.S. 217; state v. Hamlett, 212 Mo. 80, 110 S.W. 1082; State v. Hovorka, 100 Minn. 249, 110 N.W. 870, 8 L.R.A.,N.S., 1272; Kentucky Board of Pharmacy v. Cassidy, 115 Ky. 690, 74 S.W. 730; State v. Heinemann, 80 Wis. 253, 49 N.W. 818; State Board of Pharmacy v. Matthews, 197 N.Y. 353, 90 N.E. 966, 26 L.R.A.,N.S., 1013; People v. Roemer, 168 App.Div. 377, 153 N.Y.S. 323; State v. Kumpfert, 115 La. 950, 40 So. 365; State v. Forcier, 65 N.H. 42, 17 A. 577; State v. Foutch, 155 Tenn. 476, 295 S.W. 469, 54 A.L.R. 725; Commonwealth v. Zacharias, 181 Pa. 126, 37 A. 185.

In Thomas v. Board of Pharmacy, 152 N.C. 373, 67 S.E. 925, and McNair v. North Carolina Board of Pharmacy, 208 N.C. 279, 180 S.E. 78, in which the plaintiff, in his efforts to obtain license, sought a writ of mandamus to require the Board of Pharmacy to perform certain acts, the constitutionality of the legislation was not challenged. However, in Thomas v. Board of Pharmacy, supra, Clark, C. J., said [152 N.C. 373, 67 S.E. 926]: 'The selling of drugs is an important matter to the health and lives of the public. The Legislature has carefully guarded it by the provisions to be found in Rev. 1905, §§ 4471-4490.'

Nothing appears in the record to indicate that either defendant at any time sought to obtain license as a registered pharmacist or assistant pharmacist. Defendants' assignments of error, purporting to attack broadside the constitutionality of G.S. Ch. 90, Art. 4, are without merit. G.S. § 90-85.1, the only specific provision challenged by defendants, is considered below.

Defendants' primary position is that the practice engaged in by Baldwin, the unlicensed employee, and caused or permitted by Lane, the employer-owner, of which the specific transaction of August 5, 1954, is typical, does not violate G.S. §§ 90-71 and 90-72.

G.S. § 90-71, in pertinent part, provides:

'It shall be unlawful for any person not licensed as a pharmacist or assistant pharmacist within the meaning of this article to conduct or manage any pharmacy, drug or chemical store, apothecary shop or other place of business for the retailing, compounding, or dispensing of any drugs, chemicals, or poison, or for the compounding of physicians' prescriptions, or to keep exposed for sale at retail any drugs, chemicals, or poison, except as hereinafter provided, or for any person not licensed as a pharmacist within the meaning of this article to compound, dispense, or sell at retail any drug, chemical, poison, or pharmaceutical preparation upon the prescription of a physician or otherwise, or to compound physicians' prescriptions except as an aid to and under the immediate supervision of a person licensed as a pharmacist or assistant pharmacist under this article. Provided, that during the temporary absence of the licensed pharmacist in charge of any pharmacy, drug or chemical store, a licensed assistant pharmacist may conduct or have charge of said store. And it shall be unlawful for any owner or manager of a pharmacy or drugstore or other place of business to cause or permit any other than a person licensed as a pharmacist or assistant pharmacist to compound, dispense, or sell at retail any drug, medicine, or poison, except as an aid to and under the immediate supervision of a person licensed as a pharmacits or assistant pharmacist.'

G.S. § 90-72 provides:

'If any person, not being licensed as a pharmacist or assistant pharmacist, shall compound, dispense, or sell at retail any drug, medicine, poison, or pharmaceutical preparation, either upon a physician's prescription or otherwise, and if any person being the owner or manager of a drugstore, pharmacy, or other place of business, shall cause or permit anyone not licensed as a pharmacist or assistant pharmacist to dispense, sell at retail, or compound any drug, medicine, poison, or physician's prescription contrary to the provisions of this article, he shall be deemed guilty of a misdemeanor, and fined not less than twenty-five nor more than one hundred dollars.'

The General Assembly has prescribed the requirements an applicant must meet to become licensed as a registered pharmacist. G.S. §§ 90-61, 90-63, 90-64. with two exceptions (G.S. §§ 90-61, 90-64), not relevant here, a person eligible therefor must submit to and pass an examination prepared and furnished by the Board of Pharmacy 'as to his qualifications for registration as a licensed pharmacist.' G. S. § 90-61.

After January 1, 1939, the Board of Pharmacy had no authority to issue 'an original certificate to any person as a registered assistant pharmacist'; but a person registered as an assistant pharmacist prior to that date was permitted to continue to practice as such registered assistant pharmacist. G.S. § 90-63. (Note: Ch. 52, Public Laws of 1921, provided for the licensing of registered assistant pharmacists. However, except as to those who were licensed as registered assistant pharmacists prior to January 1, 1939, this provision was eliminated by Ch. 402, Public Laws of 1937, now G.S. § 90-63.)

The fact that Baldwin, prior to August 5, 1954, had had over fourteen years' experience in filling and compounding prescriptions as an aid to and under the supervision of registered pharmacists, is beside the point. This is not a proceeding to establish his right to be licensed as a registered pharmacist or assistant pharmacist.

Since it was agreed that the tablets called for in the prescription 'are a drug within the meaning of the use of that term' in G.S. §§ 90-71 and 90-72, we put aside as irrelevant the fact that the tablets were prescribed by the trade name of the manufacturer and that all Baldwin did was to remove tablets from the duly labeled stock bottle, place them in a small container and deliver them to the ultimate consumer.

G.S. §§ 90-71 and 90-72, which relate to the same subject matter, are to be construed in pari materia. State v. Hill, 236 N.C. 704, 73 S.E.2d 894, and cases cited.

These statutes, when so construed, provide that it shall be unlawful (G.S. § 90-71) and a misdemeanor (G.S. § 90-72) for any person not licensed as a pharmacist or assistant pharmacist to compound, dispense or sell at retail any drug, etc., upon the prescription of a physician or otherwise, 'or to compound physicians' prescriptions except as an aid to and under the immediate supervision of a person licensed as a pharmacist or assistant pharmacist under this article.' G.S. § 90-71. (Our italics.) Although the punctuation is inexact, we think it clear that the exception (italicized words) applies to dispensing drugs and selling drugs at retail as well as to compounding physicians' prescriptions. This view is supported by this further provision: 'And it shall be unlawful for any owner or manager of a pharmacy or drugstore or other place of business to cause or permit any other than a person licensed as a pharmacist or assistant pharmacist to compound, dispense, or sell at retail any drug, medicine, or poison, except as an aid to and under the immediate supervision of a person licensed as a pharmacist or assistant pharmacist.' G.S. § 90-71.

Defendants contend that, notwithstanding no registered pharmacist was present in person, Baldwin should be deemed 'under the immediate supervision' of registered pharmacists, namely, the registered pharmacists then on duty in Lane's other stores, whom he could contact by telephone or by messenger for advice and directions. This contention poses the basic question for decision.

If defendants' said contention were accepted, the unlicensed person, in deciding whether he needed the advice or directions of a registered pharmacist, would necessarily be the sole judge of his own qualifications and competency. The exception relating to an unlicensed person contemplates that his service is to be rendered 'as an aid to' as well as ...