Snyder's Drug Stores v. Taylor, 15295

• Citation: 227 F.2d 162
• Decision Date: 22 December 1955
• Docket Number: 15296.,No. 15295,15295
• Parties: SNYDER'S DRUG STORES, Inc., and Marquette Drug Company, Appellants, v. Angus H. TAYLOR, Harold H. Carpenter, Harry W. Carlsen, Ivan E. Peterson, John S. Harms, and Frank W. Moudry, Appellees. ELKON Inc., and Virgil M. Elliott, Appellants, v. Angus H. TAYLOR, Harold H. Carpenter, Harry W. Carlsen, Ivan E. Peterson, John S. Harms, and Frank W. Moudry, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

227 F.2d 162 (1955)

SNYDER'S DRUG STORES, Inc., and Marquette Drug Company, Appellants, v. Angus H. TAYLOR, Harold H. Carpenter, Harry W. Carlsen, Ivan E. Peterson, John S. Harms, and Frank W. Moudry, Appellees.

ELKON Inc., and Virgil M. Elliott, Appellants, v. Angus H. TAYLOR, Harold H. Carpenter, Harry W. Carlsen, Ivan E. Peterson, John S. Harms, and Frank W. Moudry, Appellees.

Nos. 15295, 15296.

United States Court of Appeals Eighth Circuit.

November 15, 1955.

Rehearing Denied December 22, 1955.

Harry H. Peterson, Minneapolis, Minn. (Roy A. MacDonald, St. Paul, Minn., with him on the brief), for appellants.

William W. Essling, Special Asst. Atty. Gen., of Minnesota (Miles Lord, Atty. Gen., with him on the brief), for appellees.

Before GARDNER, Chief Judge, and JOHNSEN and VAN OOSTERHOUT, Circuit Judges.

JOHNSEN, Circuit Judge.

These are suits by different drug-store operators — all citizens of the State of Minnesota — against the members and the executive secretary of the Minnesota State Board of Pharmacy. Both cases seek the same relief — a declaration of invalidity and the issuance of an injunction,¹ as to some regulations promulgated by the Board claimed to be violative of due process and equal protection under the Fourteenth Amendment, in their application to the situations and rights of the plaintiffs.

The District Court, by a single-judge order,² dismissed the suits, without prejudice, on motion of the defendants, and the plaintiffs have appealed.

The regulations would seem, on their contents and consequences, to present a substantial federal question of constitutional validity, if they are within the scope of the Board's state-authorized powers. By the regulations, the Board provided that it would not grant licenses for the operation of any pharmacies or drug stores, other than those already existing, except to individuals who were registered pharmacists in the State of Minnesota and to corporations which were owned and controlled by such pharmacists; that it would deny all applications "for licenses to conduct pharmacies or drug stores in open market places, super-stores, or super-markets, self-service stores and other similar establishments"; that it would "refuse to register or grant a license for any pharmacy which sells or proposes to sell therein any article of merchandise in a manner like or similar to the manner in which merchandise is sold in super-markets or other stores commonly known as self-service stores"; and that no pharmacist or other employee in a registered pharmacy should "sell to any person any drug to which such person has served himself."

The statutes from which the State Board of Pharmacy derives its powers, in their here pertinent provisions, Minn. S.A. §§ 151.06, 151.19, 151.20, authorize the Board to "regulate the practice of pharmacy"; to "regulate the sale of drugs, medicines, chemicals, and poisons"; to "regulate the quality of all drugs and medicines dispensed", under the standards of the U. S. pharmacopeia and national formulary; to "examine and register as pharmacists all applicants whom it shall deem qualified to be such"; to "suspend or revoke pharmacist or assistant pharmacist licenses issued by it", on citation, notice and hearing, for certain specified causes (not within the regulations here involved); to "perform such other duties and exercise such other powers as the provisions of the act may require"; and "for the purposes aforesaid * * * to make and publish * * * regulations not inconsistent herewith for carrying out and enforcing the provisions of the statute".

The complaints in the suits, beyond alleging that the regulations were violative of the Fourteenth Amendment, for arbitrariness, capriciousness, oppressiveness, and lack of sound relationship to the selling of drugs, to a regulating of the retail drug business as such, or to a protecting of the public health and safety, had also initially charged that the regulations were "not within the statutory authority possessed by the Minnesota State Board of Pharmacy, and that by reason thereof said regulations are illegal and unauthorized by law."

When, however, the defendants urged, upon the court's consideration of their motions to dismiss, that the question of the Board's power or right, under the Minnesota statutes, to adopt the regulations, was one which ought, in the proper respecting of state prerogative and the unnecessary uttering of federal opinion, on a matter of local public-nature, to be relegated to the Minnesota state courts for answer, the plaintiffs asked, and were given leave, to eliminate from the complaints the charge that the regulations were beyond the Board's statutory authority. But the elimination was not made on the basis that the charge was lacking in legal substantiality, and the plaintiffs have protectively made it clear, in a so-called "declaration of assertion of only federal constitutional questions", filed in connection with the appeals, that what they did was simply "for the purpose of this case".

On what the plaintiffs thus had legally exposed and were undertaking to preserve for...