*1 Jerry Irving BLOOM, Petitioner, PHARMACY,
TEXAS STATE BOARD OF Respondent.
No. A-10431.
Supreme Court of Texas.
March 1965.
Rеhearing April 21, Denied 1965. Wynne, Dallas, Tinsley, & Parker Jaffe Williams,
& Irving, petitioner. Waggoner Carr, Atty. Gen., Austin, C. J. Phy, Gen., Davis and Attys. Paul Asst. respondent.
SMITH, Justice. Respondent, The Texas State Board Pharmacy, hearing after notice and on day April, Jerry the 19th found Bloom, pharmacist, Irving registered guilty1 charge violating Article 4542a, 12(h), Annotated Section Vernon’s provides Statutes. 12(h) Section may can- in its discretion сel, suspend the revoke or license if the Board finds hearing engaged after that a licensee has dispensing the act of “substitution” drugs. The Act defines “substitution” “ * dispensing meaning than that or a brand of other prescribed which is ordered or express consent of the orderer or day April, 1963, pharmacist’s 11th came on “On the Tour certificate complaint years suspended to be heard the filed with be for three #11253 Pharmacy, charg days sixty (60) Texas State Board of all first violating ing you proba- suspension placed with the offense of said Article Statutes of Revised Civil tion under condition no viola- year Texas, (h), during Section 12 and Sub-sec tion occurs the three - and-; receipt period suspension. Upon And the Texas Statе having you your Board of heard cer- of this notice will return testimony regards your evidence and to the li- tificate No. 11253 and cense renewal charges complaints, At above and after office. #3540 you thereon, ’sixty (60) days, due did find cer- deliberation the end guilty said JERRY BLOOM IRVIN & tificate and renewal will be returned to you.” charged; accordingly And it ordered Board of the Texas State *2 Injunction” hear- pending final goes Temporary further to 12(h) scriber.” Section provide cause. of the ing hearing of August 26, after a On
“If the consent of the orderer or ren- merits, trial court by server substitution the licensee the cause on its permanent obtained, by granting a notation be made a judgment shall dered its against prescription stating injunction the licensee on the of Bloom and favor Board, that consent has been that Pharmacy holding such obtained by and reason- given, whom such consent was Pharmacy order was Board’s shall, addition, and such notation and supported by substantial evidence ably that specify drug or brand The trial court ordered was invalid. substituted.” Board Texas State “the Defendant еm- servants, agents Pharmacy, its and/or 3, 1963, May On Bloom filed in the Dis- be, hereby, restrained ployees they are County, appeal trict Court of his Dallas carrying enforcing enjoined from Pharmacy from the order sus- Board’s 19, 1963, April and from out its order of pending pharmacist’s his certificate. The Plain- cancelling suspending, revoking or petition alleged Pharmacy Board’s and license tiff’s certificate findings reasonably supported by were not pharmacy, evidence, substantial and that the evidence wholly failed to establish of the a violation Board, appeal to Pharmacy charged; law as action of Fifth Su- Appeals for the Civil Pharmacy arbitrary, illegal, Board was Texas, from preme District of won Judicial valid and of no effect in order order reinstating its a that Court only was support in substantial per- 19, 1963, April dissolving evidence, but to the evidence granted injunction been which had manent law, showed that he had not violated the charged; 1963. 382 by August that he good “had acted in the trial court on faith, had no intention to violate law or regulation governing Plaintiff’s conduct the Court of judgment of registered pharmacist
as a reverse the there We and that any complaint against was no basis for trial Appeals and affirm that Plaintiff.” There is no contention that court. druggist negligent any respect was prescription undisputed. that he filled the Bloom dis- by mistake. The facts pensed bottles two small substance 3, 1963, May On the trial court entered Cоmpany Robins representative of A. H. a temporary restraining order without no- by one-gallon pouring substance from a said tice to the Board based container, 5, bearing Exhibit Bloom’s application therefor, Bloom’s verified label. Company “Donnatal” A. H. Robins enjoining straining one-gallon container “Donnatal” 19, 1963, April Board enforcing from purchasеd by employer from been Bloom’s order. house; had never Bloom wholesale with, tampered or altered the contents May 10, Court, On after con- container; Bloom had no rea- the Donnatal sidering pleadings, Bloom’s any- son to that the bottle contained believe general denial and the evidence Donnatal; thing other and Bloom be- than parties, granted offered both a Writ dispensed was lieved that substance Temporary Injunction decreeing actually Donnatal. In addition to these May Restraining Order entered on facts, gives as a admitted “continued in force and effect emphasis quire to the fact that fifteen tests were intent to violate the made an Company A. H. Robins chemist the Legislature did not intend to make in making analysis dispensed an scienter an element. If intent is not re- substance, that, opinion quired, then the order is chemist, analyzed the substance substantial evidence. *3 “definitely imitations of Donnatal elixir.” question The answer to the turns our
The record shows that ten the fif- interpretation Statute, particularly the teen tests showed that the substance the meaning intended given by to be the analyzed was different from the A. H. Rob- Legislature to the word con- “substitution” Company ins specifications. elixir Donnatal tained in the Statute. We hold that when The chemist admitted that five of the tests the Legislature defined “ran the word “substitu- the same on the substance that came “ * * * tion” in the Act meaning as the out of Plaintiff’s Exhibit as run on Don- disрensing of a drug or a brand of natal.” The chemist testified on cross- other than that which is ordered or examination that the A. H. Robins Com- scribed express the consent of pany did ship not directly Donnatal prescriber,” the orderer pro- it meant to Pharmacy, Dorchester shipped it to a vide that guilty finding before a will be Dallas, Texas, wholesaler in and that hе stand, allowed to the evidence must estab- did happened not know “what this to bottle lish a conscious recog- substitution. We while it was in the hands of the whole- nize that province it is not the of this saler.”
Court to substitute itself for the principal contention of Bloom is that Board in the ad- determining wisdom or the evidence conclusively shows that he did visability question, of the оrder in but this violate the law in manner when Court only will sustain the order he prescriptions filled the describing drug determination that the known as “Donnatal.” The supported by conclusions are substantial position takes the sustaining evidence. In the especially Section 203 of Article cause, the recognize trial court in this we supra, provides practice rule Board’s order pharmacy in the State of Texas presumed is valid, is to be and the burden practice public fessional affecting the rests with Bloom to show that the Pharma- health, safety welfare, does not re- cy April Board’s order is not (1) sample fructose; 2. Fourteen of thse tests were: contained “this is en- test; (2) specific tirely elixir”); refractive index different from Donnatal gravity test; test; (3) pH. (4) (13) reducing sugar test; (14) absorbency test; (5) test; running Although color the taste of a tracer test. (6) test; (7) making the odor the alcohol test the chemist testified these (this per cent, tests, test was and was 22.9 he admitted that he could not de- specifications for within the Donnatal termine what substance was. elixir); (8) phenobarbital content (this milligrams рractice pharmacy test showed 14.0 test 3. “The in the State per cc’s., professional prac- and this was lower than of Texas is declared a specifications Company affecting safety, Robins minimum public health, tice milligrams); (9) subject regulation of 15.4 the alkaloid and welfare and is (this positive public test test was and normal and control in the interеst. It elixir); (10) optical public with Donnatal further declared to be a matter of test; optical rotation rotation interest and concern that again sixty (the pharmacy, Act, test after minutes first as defined optical test showed the rotation was merit and receive the confidence of optical degrees only qualified persons 23.2 secоnd rota- —the permitted practice pharmacy rotation minus tion test showed the degrees. 10.00 The chemist testified that the State of Texas. This Act shall be plus liberally carry for Donnatal would be lowest construed to out these ob- degrees); (the jects purposes.” the fructose test statement 1 L.Ed.2d supported reasonably evi- S.Ct. substantial our adminis- the Court dеnce. Under decisions an reasonable, a matter of
trative order
as
imposes
as
criminal sanctions
“the Act
law,
evi-
if it is
substantial
regulating activities
a means of
dence. The evidence in this case shows
dangerous to
welfare
conclusively that Bloom
no intention
exception
good faith
permit
one
for another.
substitute
person
his
A
at
ignоrance.
acts
cites
Statu-
Pharmacy Board
Sutherland
peril
field.”
in this
Construction,
Edition,
Sec-
tory
3rd
Vol.
were
Hohensee case
defendants
7202,4 pp. 397-398,
support of
causing the
indicted on nine counts for
this, that statutes such
contention
delivery
troduction
preserva-
protection
enacted
*4
interstate
commerce
misbranded
into
of
health,
liberally
public
of
should
Food, Drug
drugs
to
Federal
ob-
accomplish their
in order to
construed
Act,
1040,
52
21
and Cosmetic
Stat.
U.S.C.
contends
jectives.
The
Act,
U.S.C.,
seq.
21
321 et
“la-
defined
§
“
force
escape
no
from the
that Bloom has
* * *
beling” meaning
and
all labels
penalty
provides a
of the
which
written, printed,
graphic matter
other
or
violation,
he acted
merely because
for the
upon
any
any
article
of its con-
or
fault.
wrappers,
accompanying
or
or (2)
tainers
“(g)
drug means
such article.”
The term
expressed
adopt
*
to
view
* *
We decline
in the
(2) articles
for use
intended
Pharmacy Board that
this Statute
by the
cure,
treatment,
diagnosis,
mitigation,
or
require-
“dispenses
prevention
with
conventional
disease
of
in man or other
* *
*
prohibited
animals.” The Act
the “intro-
criminal
aware-
ment for
conduct
delivery
duction
for
into
“in the
wrongdoing”
that
ness of some
and
*
of any
interstate commerce
good
the bur-
larger
puts
interest of the
* * * that is adulterated or misbranded.”
person
acting
upon
at
den of
hazard
In addition
the label
to
on the
con-
standing
in relation
otherwise innocent
tainer,
defendants
delivered lectures
danger.”
ex-
public
This
the view
to a
was
printed
dealing
and distributed
material
pressed
v.
in the case of United States
with
in
most chronic diseases. The Court
Dotterweich,
64
(1943) 320 U.S.
holding
imposes
the Act
that
as a
sanctions
136,
by
134,
48,
adopted
88
and
S.Ct.
L.Ed.
regulating
danger-
means of
“activities so
case.
Appeals in this
the Court of Civil
publiс
permit
ous to the
welfare
to
of
as not
”
Board,
urging
this court
*
*
The
*
exception
good
faith
was con-
view,
adopt
the case of
to
its
lifts from
cerned with a different Act than involved
Hohensee,
(3
1957)
case,
present
Cir.
United States v.
in the
and
dealing
with a
976,
factual situation
371,
reflecting fraud and mis-
367,
cert.
353
77
den.
U.S.
F.2d
primarily penal
very early
have
such statutes
are
in nа-
courts
time the
“Since
frequently impose
giving
penal-
of
ture and
criminal
to
doctrine
been committed
proper
In most cases
enforce-
are
ties.
enacted
statutes
dependent upon
preservation
public
ment of health laws is
ad-
health
and
of
tection
agencies upon
extremely
officers
ministrative
liberal
an
construction
efficacy
objectives.
legislation
accomplishment
whom
such
is de-
of their
usually
pendent.
purposes
public
While the
such
courts have
and social
served
employed
rigid interpretation
greatly
legislation
a rather
incon-
exceed
granting
powers
hardship
imposed
statutes
to administra-
venience
individual,
agencies,
notably
this
tive
rule hаs
been
the former
therefore
interpretation
emphasis
problems
given
greater
relaxed
of statutes
in the
granting
powers
having
interpretation.
con-
courts
boards
Therefore
public
give
health.”
a lib-
trol over
statutes
inclined
health
interpretation
despite
fact
that
eral
representation
drug through
the use of
faith or
wrongdoing
unawareness
on the
misleading
part
false and
pharmacist.”
literature. The Court
States,
cited the case of Kordel v. United
Appeals
adopting
106,
335 U.S.
69 S.Ct.
93 L.Ed.
theory
this
in holding
that Bloom
support
holding.
The Kordel case
guilty,
should
says
be held
that such a
factually very
similar
the facts in
quite
policy is
consistent with
declared
Hohensee.
misbranding
Kordel the
con- by
Supreme
our
Griggs
Court in
Canning
sisted
pam-
statements
circulars or
Josey,
Co.
139Tex.
phlets distributed
“to consumers
the ven-
840, 142A.L.R. 1424. This case held that “a
products,
dors
relating
to their effi-
retailer who sells unwholesome food for
cacy.”
supplied
pamphlets
Kordel
consumption
human
is liable
the con
products
well as the
to the vendors. Of
consequences
sumer for the
under
im
an
twenty
cоunts
the information filed plied warranty imposed by
law as matter
Kordel,
against
charged
seven
policy,
though
even
the food is in
drugs
shipped
and literature were
in the
sealed
bearing
containers
the label of the
same cartons. The literature involved in manufacturer
retailer has no means
shipped “separately
other counts was
of knowing that the contents are unfit for
drugs
from the
and at different times—
consumption.”
human
We find no case in
both before
shipments
and after the
jurisdiction
other
applies
drugs
they
with which
were associated.”
*5
where,
this rule to a factual situation
presented
The main issue
in Kordel was the
here, all of the evidence establishes a com
question
separate shipment
of whether the
plete
unawareness
wrongdoing.
of
See
of
drugs
the literature saved
being
from
Whiteley
City,
(Fla.,
Webb’s
terfere with its action. GRIFFIN, NORVELL STEAK- wholly opin- I am accord with ablе LEY, JJ., dissenting. ion Appeals, of the Court of pretermit hence further CALVERT, (concurring). Chief Justice respectfully I discussion. dissent from I concur in entered. reversing order Appeals. Court Civil I agree proper that under a construction STEAKLEY, JJ., join GRIFFIN and statute, scienter, knowledge this dissent. substitution, is right essential *6 suspend Board to of a license licensee.
WALKER, J., joins in opinion.
NORVELL, (dissenting). Justice
I not agree do with approach the Court’s to this case nor decision herein which REPUBLIC NATIONAL BANK OF in effect responsibility reduces Petitioners, al., DALLAS et fessional of a mere label reader. This a criminal case but one ux., Charley Respondents. H. STETSON et involving designed protect a statute interest providing for a board No. A-10443. professionals govern and control the Supreme Court of Texas. practice of pharmacy. This Court has now April 28, 1965. portion re-written a of the statute defining statutory definition of the term Rehearing May 26, Denied “substitution” contained in Article § 12(h) by inserting “knowingly” the word
therein. This in itself is a substitution of my
sorts and to mind runs
clear intent the Legislature. It also readily
makes available the time honored
defense of “I loaded”, didn’t know was
and runs experience counter to the