Wisconsin Pharmaceutical Ass'n v. Lee

• Decision Date: 02 June 1953
• Parties: WISCONSIN PHARMACEUTICAL ASS'N et al. v. LEE et al.
• Court: Wisconsin Supreme Court

Page 700

58 N.W.2d 700

264 Wis. 325

WISCONSIN PHARMACEUTICAL ASS'N et al. v. LEE et al.

Supreme Court of Wisconsin.

June 2, 1953.

This is an action for a declaratory judgment brought by the plaintiffs for the purpose of securing an interpretation of certain provisions of ch. 151, Stats., commonly known as the 'Dangerous Drug Law.' The allegations of the complaint, as briefed by the plaintiffs in their statement of facts, are as follows:

The plaintiff Association includes over 1500 registered pharmacists comprising over 80% of all the pharmacists in Wisconsin, and the plaintiff Hammel is a pharmacist registered by the state of Wisconsin and licensed to practice. The plaintiff Hammel sues in his individual capacity and as representing all others similarly situated who are united in interest and whose rights and status are adversely affected by the facts alleged in the complaint. The plaintiff Association sues in a representative capacity on behalf of all its members pursuant to sections 260.12 and 269.56 to avoid multiplicity of suits and the necessity for the joinder of many hundreds of parties plaintiff. The defendants are joined individually and as members of the Wisconsin State Board of Pharmacy under section 151.05(2).

The complaint alleges that many Wisconsin physicians, individually and collectively, have asserted (and acted upon such assertion) that a physician has the right to delegate to an untrained office employee the process of selecting from the physician's stock a designated dangerous drug, measuring out a designated amount thereof, packaging and labeling the same in accordance with the statutory requirements and delivering it to the physician's patient, all upon his mere oral instruction. Appellants contend that the statute involved is not capable of any construction which would permit such acts.

It appears from the complaint that the plaintiff Association officially reported to the defendants some 18 alleged violations of ch. 151 by physicians and their employees in the manner above described; that by reason of the contention asserted by many physicians as above set forth, the defendants, before attempting to act, submitted the matter to the attorney general of Wisconsin for an opinion. Such an opinion was rendered by the attorney general under date of January 29, 1952 (a copy of which is annexed to the complaint) and appears to permit a physician to delegate to an unqualified person, orally or by a memorandum not constituting a prescription, the authority to select dangerous drugs from a general stock thereof, prepare for delivery a given amount thereof, package the same, label the package in conformity with the law, and deliver the same to a patient of the physician without his personal and immediate supervision.

Plaintiffs allege that the attorney general's opinion is in error and does not correctly interpret the law nor the legislative intent thereof for the reasons set forth in the complaint, all of which relate to the protection of public health in the sale and dispensing of dangerous drugs under the long established legislative and judicial policy of the state of Wisconsin in that respect. Plaintiffs further allege that the opinion of the attorney general results in an unreasonable and unlawful discrimination against pharmacists and denies to the public a free choice of pharmaceutical service to the detriment of the profession of pharmacy and the general public; that the interest of public health, welfare and safety, particularly in the dispensing of dangerous drugs, in the controlling of the sale and the use of habit-forming drugs, in the necessity for accurate labelling and the keeping of proper records, requires the strictest interpretation and enforcement of ch. 151, which the said opinion of the attorney general does not provide.

The prayer for relief demands:

'* * * Judgment, (1) construing the provisions of Section 151.07 of the Wisconsin Statutes to include within its terms and provisions unqualified persons employed by physicians' offices, and prohibiting such persons from preparing, compounding, dispensing or preparing for delivery to a patient, or any other person, any dangerous drug; (2) prohibiting such unqualified employees in physicians' offices from delivering any dangerous drug, except upon the written prescription of a physician or practitioner as defined in said Act; (3) prohibiting such unqualified employees in physicians' offices from refilling any containers with dangerous drugs; (4) prohibiting all persons, including practitioners, pharmacists and their employees, from delivering any dangerous drugs unless there is affixed to the immediate container a label disclosing the information required by Section 151.07(4); (5) declaring that no persons are exempt from the requirements of Section 151.07 unless specifically described in said Act; and (6) for such other or further construction of said Section 151.07 as the Court may deem necessary in the interest of justice, public health and welfare.'

The defendants demurred to the complaint on two grounds: (1) That the same does not state facts sufficient to constitute a cause of action, and (2) that there is a defect of parties defendant by reason of the omission of the physicians and their employees referred to in the complaint in that the sole object of the action is to settle the rights of these persons and others similarly situated with respect to the preparing, compounding, dispensing and delivery of dangerous drugs and that such persons are therefore necessary parties to the action. By order dated December 31, 1952, the demurrer was sustained on both grounds, and the plaintiffs appeal.

Herbert L. Mount, Milwaukee, H. B. Rogers, Portage, of counsel, for appellants.

Vernon W. Thomson, Atty. Gen., and Warren H. Resh, Asst. Atty. Gen., for respondents.

BROADFOOT, Justice.

A portion of the memorandum opinion of the trial judge reads as follows:

'The issues raised are whether the complaint states a cause of action and whether there is a defect in parties defendant.

'The case of State ex rel. La Follette v. Dammann, 220 Wis. 17, 264 N.W. 627 , sets forth the nature of the essential facts that must appear:

"The requisite precedent facts or conditions which courts generally hold must exist in order that declaratory relief may be obtained may be summarized as follows:

"(1) There must exist a justiciable controversy--that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it.

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