Suprex Drugs Corp. v. State Bd. of Pharmacy, 32

• Decision Date: 05 December 1963
• Docket Number: No. 32,32
• Citation: 372 Mich. 22,125 N.W.2d 13
• Parties: SUPERX DRUGS CORPORATION, a Michigan corporation, Plaintiff, v. The STATE BOARD OF PHARMACY and David M. Moss, Director of Drugs and Drug Stores, Defendants.
• Court: Michigan Supreme Court

Page 13

125 N.W.2d 13

372 Mich. 22

SUPERX DRUGS CORPORATION, a Michigan corporation, Plaintiff, v. The STATE BOARD OF PHARMACY and David M. Moss, Director of Drugs and Drug Stores, Defendants.

No. 32.

Supreme Court of Michigan.

Dec. 5, 1963.

Mandamus to require board of pharmacy to issue a license to operate pharmacy. The Supreme Court held that plaintiff was entitled to order directing State Pharmacy Board to grant proper license.

Writ issued.

Black, Souris and Kavanagh, JJ., dissented.

Dickinson, Wright, McKean & Cudlip, Detroit (Edgar C. Howbert, William G. Warren, John E. S. Scott, on the brief), for plaintiff.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Solicitor Gen., Joseph B. Bilitzke, Maurice M. Moule, Asst. Attys. Gen., Lansing, for defendants.

MacLean, Seaman & Laing, Lansing, Edward F. Draugelis, Plymouth, of counsel, amicus curiae for Mich. State Pharmaceutical Ass'n.

Before the Entire Bench.

BLACK, Justice.

Executive as well as Legislative attempts to interfere with, trespass upon, or even coerce the judicial department are nothing new in the history of tripartite government. On account thereof the judiciary, sworn as it is to uphold and maintain the constitutionally requisite prerogatives of each department, has on historic occasion been compelled to meet head-on all such attempted invasions and, doubtless, will be so compelled as long as three-divisional government endures. This case, regrettably, confronts us with just such an occasion.

During President Jefferson's administration Congress 'actually closed down the Supreme Court for a year.' ¹ Later on President Jackson 'commented,' upon one of the Court's decisions: 'Well, John Marshall has made his decision; now let him enforce it.' ² And Jefferson continued unto death his effort to subordinate the court to the other constitutionally coequal departments. In that oft-quoted Jarvis letter ³ Jefferson wrote: 'Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is 'Boni judicis est ampliare jurisdictionem'; and their power is the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.' And in another letter Jefferson characterized the opinions of the Court this way: ⁴

'An opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty chief judge, who sophisticates the law to his mind, by the turn of his own reasoning.'

President Roosevelt's unprecedented court-packing bill of 1937, and the modern drumfire of attacks upon the Supreme Court in and out of Congress, ⁵ have proved again and again that the judiciary must defend--sternly and promptly--its separational independence. That it has done so is both history and good for a country which reveres and prospers under a system of departmental separation, the case-hardened core of which is that each of the constitutional divisions must be kept completely independent of the others, so that the acts of each shall not be controlled by, or subjected to, directly or indirectly, the coercive influence of either of the others.

This Court, too, on one notable occasion where the essayed opening wedge was small but the principle great, did not hesitate (even in the absence of a pending action or proceeding) to advise the Executive and Legislative departments that it would countenance no trespass upon or interference with the judicial power, by such other departments. See 'Letter from the Judges to the Governor,' dated and signed in our court room April 12, 1881 by Michigan's nationally distinguished Justices Cooley, Campbell, Marston and Graves (Matter of Head-Notes, 43 Mich. 641, 8 N.W. 552). ⁶ And see Dearborn Township v. Dearborn Township Clerk, 334 Mich. 673, 682, 55 N.W.2d 201, 205, where, relying principally on Justice Cooley's opinion of People ex rel. Sutherland v. Governor, 29 Mich. 320, the seated Court declared unanimously that 'In many decisions this court has upheld and jealously guarded the right to keep distinctly separate one department from another.' Such guardianship is due from this Court--now.

We cannot blink the sordid fact that this has become a 'political' case. It was made so last March by successive partisan intrusions, each gratuitous and wholly unwarranted, first by a Republican Governor and then by a retorting Democratic State Chairman, Mr. Ferency; all while the Court awaited due pleadings and orderly submission of the case. Now that a decision is due, we may no longer ignore such intrusions lest more of the same are encouraged by that silence which, in matters political, seems always to be taken as cowed submission or, worse, total indifference. Now may any member of this Court pretend that he lives and works so far from the world of reality as to know nothing about the Governor's hosanna-heralded entry into this yet pending case, and nothing about Chairman Ferency's immediate and equally indefensible counter-entry therein. It is true today, as formerly, that 'Courts are not supposed to be blinded bats,' and that 'What all know the courts must judicially know.' ⁷ There is a point, indeed, where judicial purblindness ends and judicial notice begins.

This case is before us upon invocation of the Court's original jurisdiction. No circuit judge ever could have decided it. Nor could any such judge adjudicate any issue the parties so far have presented by their pleadings and briefs. And no one, the Governor included, was ever possessed of right--either in fact or law--to conclude that Judge Coleman's special report to us, a report supposedly made for our exclusive consideration and appraisal, might or could be regarded as a judicial decision or judgment of any kind. Such reports are sought by this Court solely for aid and explanation in original cases, and the right and duty to accept or reject them is committed solely to our determination. Let that sink in.

So when the Governor, somehow advised of the content of Judge Coleman's report prior to the very existence thereof being known to the Justices, ⁸ proceeded in public print to attack the defendant drug director upon alleged strength of that report, he opened and fully unleashed Pandora's box of politics upon this Court and upon a pending case with respect to which both he and chairman Ferency should have kept still until, by judgment entered here, the judicial function is brought to due end. (At that time, of course, free speech and acid comment will become the right of everyone, Governors and political chairmen included).

And when the Governor threatened in front page headlines to remove the defendant drug director, for grounds allegedly found in Judge Coleman's report, he erred in another direction, this time in grievous fact. That report, as we find upon careful scrutiny thereof, provides no ground for judicial animadversion against the drug director distinguished from the defendant State Board of Pharmacy. Nor did Judge Coleman hint any such reproach against or censure of the director. The fact is that the director has no right to vote upon any matter which the statute commits to the board for administrative decision, and this record discloses conclusively that the director acted only in accordance with instructions of his own superintendent, that is, the defendant board. Hence, if judicially cognizable error was committed by anyone, against this plaintiff in the course of these administrative proceedings, the error was that of the board; not the director.

It is not amiss at this juncture to observe that the Governor did himself no credit by openly taking one side of this case when his appointed legal adviser, Mr. Van Dusen, was upon judicially noticeable record a member of this plaintiff's law firm. See each annual issue of the Martindale-Hubbell Law Directory, starting with the year 1959 (1963 issue Vol. II at page 3005); also the official and current State Bar roster (42 MSBJ, No. 6, p. 185). And Chairman Ferency, himself a member of the Bar and familiar with what is orderly and what is not with respect to a judicially pending case, should have maintained silence no matter what the Governor did. The two are equally censurable.

These successive and unseemly performances have left the Court in what may be described--in minimal terms--as an embarrassing position. No matter the sincerity of repeated protestation that appellate court Justices are never coerced or influenced by the pulls and hauls of partisan politics, these highly stationed intruders have, by their acts, forced the Court to decide between opponent litigants the respective causes of which have been publicly and controversially argued, pendente, by the 2 official spokesmen for the 2 great political parties. And the unhappy fact of all this is that the case is a public one, the ultimate result of which is bound to affect--for better or worse--the public health as well as the rights and interests of hundreds of citizens not represented today at our bar. That factor, aside from the strict and controlling limitations which determine grant or denial of our most extraordinary writ, ⁹ is the salient reason for conviction of the undersigned that all of the legal and factual issues (quoted post) plaintiff would have determined should come first to complete and orderly submission before and determination of the defendant board.

Now, save only by this second-in-our-history 'Letter' to the Governor, there is no way to avoid the appearance, that odious if false appearance, that some voting here to give this plaintiff--peremptorily--everything it demands, and some voting here to remand for complete administrative submission and determination as a condition of rightful judicial review, have been influenced either way by applied partisan pressures. And...