Perry v. Larson, 9025.

• Decision Date: 23 June 1939
• Docket Number: No. 9025.,9025.
• Citation: 104 F.2d 728
• Parties: PERRY v. LARSON, Collector of Internal Revenue.
• Court: U.S. Court of Appeals — Fifth Circuit

104 F.2d 728 (1939)

PERRY v. LARSON, Collector of Internal Revenue.

No. 9025.

Circuit Court of Appeals, Fifth Circuit.

June 23, 1939.

Lacy Mahon and Moe B. Safer, both of Jacksonville, Fla., for appellant.

Herbert S. Phillips, U. S. Atty., of Tampa, Fla., and Harry G. Taylor, Sol. Asst. to the U. S. Atty., of Miami, Fla., for appellee.

George Couper Gibbs and Marvin C. McIntosh, both of Tallahassee, Fla., amicus curiae.

Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.

SIBLEY, Circuit Judge.

The Florida Legislature by Chapter 12286 of the Acts of 1927 provided for the practice of naturopathy as a branch of therapeutics and for the licensing of practitioners. The Act says naturopathy is "the use and practice of Psychological, Mechanical and Material health sciences to aid in purifying, cleansing and normalizing human tissues for the preservation or restoration of health, according to the fundamental principles of anatomy, physiology and applied psychology, as may be required. Naturopathic practice employs, among other agencies, Phytotherapy, Dietetics, Psycho-therapy, Suggesto-therapy, Hydro-therapy, Zone-therapy, Bio-chemistry, External Applications, Electro-therapy, Mechanotherapy, mechanical and electrical appliances, hygiene, first aid, sanitation and Heliotherapy. Provided, however, that nothing in this Act shall be held or construed to authorize any Naturopathic Physician licensed hereunder to practice Materia Medica or Surgery or Chiropractic * * *." Section 1. In 1933, the Legislature enacted a Narcotic Drug Act, Chapter 16087, which controls the dispensers of such drugs, but excepts "a registered physician, dentist or veterinarian in the course of his professional practice." Sects. 2, 3. "`Physician' means a person authorized by law to practice medicine in this State and any other person authorized by law to treat sick and injured human beings in this State and to use, mix or otherwise prepare narcotic drugs in connection with such treatment." Sect. 1. The question to be answered is whether W. T. Perry, holding a license as a naturopathist, is a "physician" within the meaning of the Florida Narcotic Act authorized to administer narcotic drugs, so as to be entitled to register, pay a tax, and dispense such drugs under the federal Narcotic Act, 26 U.S.C.A. § 1383 et seq. Perry has in fact registered and holds a stamp showing payment of his federal tax, but the Attorney General of Florida has given an opinion that a naturopath under the Florida law cannot dispense narcotic drugs, and the Collector was demanding surrender of the stamp and the federal order forms, when Perry, alleging his right to register and dispense the narcotics, and irreparable damage if denied the right, sought but was refused an injunction against the Collector. By stipulation the want of remedy at law and irreparable damage were conceded, and the appeal is narrowed to the question of Perry's right to dispense.

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