*1 Argued January petition rehearing affirmed June June denied OREGONNEWSPAPER PUBLISHERS ASSOCIATION
et PETERSON al v et al .
Keith D. Shelton, the cause and respondents cross-appellants. a brief for filed and Before Chief Justice, McAllister, Perry, Jus- Holman Sloan, Goodwin, Denecke, Schwab, tices. *3 J.
GOODWIN, appeal appeal an This is and a cross from a declar atory decree which struck down administrative regulation ‹ Pharmacy prohibit of the Board of prescription drugs. ing public advertisement of the August Pharmacy 1961, the Board On State question. of adopted regulation the The immediate ‹ Oregon Rules, Ch Administrative 50-060. “RESTRIC any phar TIONS ON It shall be for ADVERTISING. unlawful Oregon macy, pharmacist, or of licensee the State Board of Pharmacy, who furnishes to the ultimate consumer directly by any affecting pub advertise, indirectly, or media the any legend appliance bearing lic, drug, or medicine the “Caution: prohibits dispensing prescription” Federal Law without whose Nothing prescription by Oregon to a in this sale regulation restricted law. prohibit furnishing professional informa shall the of practitioners.” tion to medical regulation cancellation the the was effect of drug which had stores of number of newspapers. placed plaintiff with the newspapers and their trade association
Plaintiff regulation opposed level, and, at the administrative the receiving attacked Board, from the no satisfaction brought declaratory proceedings regulation by under (part Procedure of the Administrative OSS 183.510). interposed The Board ORS 183.010 Act, standing objecting catalogue to the defenses, ripeness controversy plaintiffs sue, controversy. justiciable want of a and the for decision, question moot, asserted that the was Board also by sovereign immunity, was barred and, that the action regulation was a valid exercise merits, on 689.620. › powers granted the under Board ORS foregoing ap- is renewed defenses on Each of appeal, urge peal. plaintiffs, in their cross error to the trial court’s refusal to invalidate with reference grounds, disputed Amendment on First alleged improper rule refusal on the ad- its adopted procedure which the Board ministrative challenged regulation. agree with trial court that
We the contro justiciable, “ripe” versy and that it was for deei- › may: 689.620. “The board necessary protection regulations, “(1) Make practice pharmacy pertaining public, performance and the lawful to the of its duties. Regulate Regulate pharmacy. “(2) “(3) practice poisons. sale of for amend or ing nates as “(8) *4 carrying to the [*] * ** % Make such dangerous drugs. # repeal sale of out ORS 453.010 to 453.170 % ‡ ifc [99] regulations, as are Drug Advisory Council and make necessary and 689.010 to regulations feasible desig- relat- 120 newspaper druggists instead of the If retail
sion. regulation, challenging proprietors were in court question ripeness. An no there would be serious judicial ripe when the inter determination issue is subjected plaintiff immi to or are fact ests of the injury. nently Ad Davis, with substantial threatened Cry. Mfgs. Oregon (1959). ministrative Law 394-395 (1938), P2d is cited White, v. Ass’n Or controversy proposition character that a this for the attempt ripe made for review until some is not Assuming challenged regulation. that such enforce the purposes, fi generality it is be accurate for some drug point at that the out in the case bar sufficient to a direct result as did cancel their stores regulation. enforcement thereby accomplished. that the are satisfied We justiciable controversy both now before us was ripe for decision. question.
Standing presents It is difficult more standing newspapers plaintiff argued have no any they are not bound because in this case promulgated Board of Phar- macy. authorizes courts to render validity declaratory judgments of administra- on the section is silent with certain cases. The rules in tive plaintiffs standing. in the case Since reference to directly in a “contested involved case,” are at bar they provisions judicial review within do not come any remedy all, have at If 183.480. of ORS under 183.400. available fi situations, presence regulation could, its mere in certain A right of a constitutional books, exercise so inhibit the on the any attempt prior subject challenge, at enforcement.
to be Pfister, 85 S Ct 14 L e.g., 380 US See, v. Dombrowski (1965). Ed 2d
121 challenging purposes a rule under of For substantially any person who would be OES aggrieved ought have to of the rule the enforcement challenge standing a “substantial” rule. is What degree. question a of be, cases, will in close interest Franzke exist. See all cases does not A formula to fit Oregon Act, May, Procedure Administrative The and Cooper, (1960), 2 1 L 263 Willamette J 233, standing (1965). The Law 536 535, Administrative specific depend upon person aggrieved a an need Standing grows standing. legislative grant out directly injury allegation result a substantial ing challenged governmental action. See from the Society Ct Sisters, Pierce v. 45 S US (1925). alleges who L ALR One 69 Ed adversely substantially that he is or has been standing by governmental have action should affected judicially challenge reviewable action if it supra at all. 398. Davis, Law, at Administrative See bystanders, plaintiffs, standing of these directly complicated are not the fact that agency by, jurisdictionally answerable to, named They may, seek nonetheless, which the rule. made judicial agency’s fact harmful relief if acts are in (the agency action their interests. The substantial challenged regulation) produced an immediate eco plaintiffs it when induced the nomic effect advertising drug cancel their contracts. We stores to injury plaintiffs have shown sub believe the They standing challenge interest. have stantial To like under these circumstances. Board, v. Milk Control American Can Co. see effect, (1942) (container-manu NE2d 542 156, 46 313 Mass punitive regulation placing challenge of a facturer’s paper containers). price milk on sold differential that after its chal Board next contends promulgated, lenged the enactment (1964), 352(n) Congress (1962), of 76 Stat 791 21 USC requires technical in disclosure of certain which advertising, prescription-drug renders all formation in controversy present be true moot. "While printed not now be canceled could federally required in modification to"include without moot. fact not render the issue this does formation, *6 purports prevent regulation all such to The Board’s satisfy might including advertising, federal that which requirements. present that the suit, Board next contends
The stop governmental attempts is barred action, which interpret immunity. by sovereign as we ORS Since, exactly legislature to allow has consented summarily reject challenge, we this sort of immunity. For a critical dis reliance Board’s immunity governmental doctrine of cussion Byse, judicial denying ground' see Non- review, a statutory Review, 1479, Harv L Rev 1484 75 Judicial (1962). judicial review of exercise of role of
The
uniformly
legislative powers
delegated
has
been
not
in
but our more recent cases
decisions,
in our
defined
open
range
nar
to review is
of issues
dicate
Law,
Administrative
Contours
Parker,
row. See
of
(1960). Only questions of con
L 145,159
J
Willamette
statutory authority,
prerequi
stitutionality,
and basic
Angelos
proof
Den
v. Board
can be raised.
of
sites
of
(1966).
414 P2d 335
Examiners,
tal
244 Or
whether the
the critical
issue is
merits,
theOn
promulgate
authority
un-
of the Board
sufficiently
(2)
broad to
and
is
der
advertising.
regulation of
include
Legislative
health,
In
interest of public
concerning
enact statutes
Assembly
could
presumably
poisons
and
of
advertisement
public promotion
drugs. fl
Congress
States
United
dangerous
That
sale
done
as noted above.
has
so,
health and
intimately
public
is
involved with
that
the Assembly
denied.
If we assume
safety
even to proscribe
regulate,
has the
itself to
power
of dangerous drugs,
altogether
public advertising
that
delegate
with
also,
it could
proper
safeguards,
its own creation.
question
an
power
agency
authorized the
Assembly
ORS 689.620
has
is,
We hold
Pharmacy
regulate advertising?
Board
it has not.
In the absence of a statute (cid:176)
which
grants
pre
administrative
validity
regulations,
sumption
agency
administrative
when its
must,
rule-making
its
falls
show
challenged,
clearly
statutory
authority.
within
defined
grant
v.
Bd.
Stores
Safeway
Or
Agriculture,
for cases
power government to commer to constitutionality with reference legislation limiting advertising, of cial and the advertising separate opinion open question. See remains 498, J., concurring, States, Douglas, United 358 US Cammarano v. (1959). 524, 533, 2d 79 S Ct L Ed (cid:176) See, (Vernon, (F) Ann, e.g., Rev Art Tex Civ Stat 7880-3c districts). 1954) (dealing with water-control expand scope operations perhaps of their is
natural as nature’s well-known abhorrence of a highly may vacuum. But no matter how motivated tendency be, to make law without a clear direction by overriding to do so must be curbed constitu requirement changes tional in substantial solely by Legislative Assembly, law be made people. – Oregon § Art 1. Ac Constitution, IV, cordingly, unless OBS 689.620 can be said to be a delegation Pharmacy power to the Board of claimed Board this in does not case, exist.
Nothing in OBS 689.620 or elsewhere in the chapter suggests advertising same was contem plated proper subject regulation. aas The sale of consumption may reg certain chemicals human be but the law is silent ulated, the manner in which such merchandise be advertised. by examining chapter practice note,
We on the dentistry, OBS 679.010 to that the control 679.991, advertising specifically is covered 679.140. We note also that the Board of Dental Examiners in- is bring orderly structed to make rules to about fair and policies Chapter administration of the set forth in 679. Again, chapter practice optometry, in the on the 688.010 to we 683.990, OBS note that under 683.140 grounds suspension one of the for the aof license in a manner which violates the section. Optometry given, by The Board in of Examiners rule-making power carry OBS out the policies Chapter set forth 683. – For finding delegation federal cases valid without either intelligible policy principles congres “standards” or defined in grants rule-making power, sional of administrative see cases col Davis, (1958,
lected in Administrative Law and 1965 §2.04 Supp).
135 appear, when the Assem- therefore, It would advertising bly connection control has to intended expressed calling, such particular it has awith statutory language. In instances specific intent in delegates appropriate Assembly board the then the necessary interpret only make rules statutory policy en- forth in the set and enforce abling legislation. chapter regulating phar- can find in the
Since we advertising, pharmacists no mention of macies and Assembly express did not we must conclude that the attempt, policy in that connection. The Board’s beyond regulate was therefore, authority scope in the Board. The trial vested correctly challenged ruled court therefore regulation was void. attempted we hold that the
Because beyond scope authority conferred necessary it is not 689.620, Board consider grounds asserted of other news- merits regulation. striking papers down the Affirmed. dissenting.
SLOAN, J.,
majority depend
Safeway
Stores v.
on
Agriculture,
Bd.
198 Or
analysis
delegation problem
Cooper,
in 1
Administrativé Law
Ch
will
III,
disclose no
parallel to the restrictive limitations found
the
in
Safe-
way
opinion.
accepts
Stores
No one
the narrow view
agency
an
that
administrative
“who claims that au-
thority
delegated
himto
to enter the order under
challenge
place
finger upon legislation
must
his
express
nonambignons
couched
language.
in
In
it
fact, must he
in
worded
terms so clear ‘that no
”
reasonably
doubt can
public.’
arise in the mind of the
page
Actually, need we look no further than our decision Ripper Liquor in Van v. Com., Cont. Or 581, Safeway 365 P2d find Stores ease was ignored Language, and contradicted. like the follow- ing, squared from the decision cannot be with the Safeway opinion: Stores “Obviously writing in commission, rules and enforcing anything can them, not undertake con-
trary to the statute itself. But it can fill in inter- legislation (Gouge stices in the supra) v. David, thereby accomplish pur- aid statute to its poses. legislature, drafting in an act, can not always developments foresee the that will occur agency by proceeds when an created to admin- juncture ister the act. Such was the of events that legis- occurred in the ease now before us. Since peer they may lators can not far into the future agency confer to which entrust by administration of the act enacted them write the needed rules when crises threatens purview is within the of the act. if* * * * * interpretation by agency “The of an act en- generally given trusted with its administration is Gouge careful consideration v. courts, David, supra. There can be no doubt but that the com- Liquor of Alcoholic ‘Sale construes mission duty enjoining upon it the act as Drink’ Individual that lurked prevent of the evils the recurrence to the saloon. alco- we have noted, latter, In objects beverages, were of sale, if not the sole
holic pp. objects 591- principal thereof.” 228 Or at the 593. including the Van and discussed, cited The cases § Supplement Ripper to 2.15 in the 1965 case, provide further evi- Davis, of Professor treatise cited Safeway rule followed Stores dence case untenable. Ripper,
Although involved in Van the statute activating Chapter Amend- Constitutional *10 liquor § sale of Article for the I, ment, platitudes, about the evils 472.030, drink contains ORS power granted in the to saloon”, that “lurked regulations substantially liquor to make is commission considering. now as the statute we are ORS the same liquor (5) delegates to the commission the 471.730 power: necessary adopt regulations as are “To such provisions carrying of this for out
feasible repeal regulations. chapter or such and to amend they regulations adopted are shall have When such the full force and effect law.” authority (2) (d). repeated at same is ORS 472.060 explicit respect in to the are no more however,
These, Ripper than are at in issue Van Pharmacy. respect thé Board of Pharmacy (8) gives Board of authority to:
same necessary as are “Make such carrying out to 453.170 for ORS 453.010 feasible repeal regu- amend or such and 689.010 regulations relating and make lations, to the sale of Drug Advisory designates Council ” ‘dangerous drugs.’ as regulates ORS 453.010 to 453.170 the sale and control poisons. regulate prescription The need to the sale of some drugs may not be attended with the same strictness necessary liquor be in the control of the anyone trade. doubtful However, is could poisons, example, claim that sale of narcotics and for liquor. is a less serious than business the sale of quoted portion Ripper opinion is Van similar in context to a statement Professor Jaffe beginning page at 35 of his cited text. He makes this suggestion purpose, as one condition or at least, delegation legislative power:
** every delegation' statute a Indeed, is lawmaking power agency appointed to the power ‘Jurisdiction,’ enforce it. to declare the applicable power apply law to a is case, general specific to a formula situation. This judiciary ordinarily when exercised called discovery interpretation legislative in- tention. We need not enter the debate to whether as quest bootless as the search for the Holy lawyer Even the traditional G-rail. most will admit that under the Act a court Sherman has no choice but to formulate its standards as monopoly *11 is a restraint of trade or a what express that the formulation must the court’s no- policy. Act tions of Sherman is an extreme great judge all statutes force the case but at some point be he ever or so to devise other, reluctant, of the a ‘common-law’ statute. We have from it authority legislative good draftsman on (for reasons) deliberately tactical fails to occasion explicit provision a make for foreseen case. .But experience Language and inevitable. failure is divinely comprehensive as to be so never alike can provision future cases. for all clear make delegating to admin- for “The occasions variously enumerated. have been officers istrative generalization. single compassed They can be agree- delegated there is where be Power should performed cannot and it be a task must ment that be legislature effectively performed without expendi- delegate without of a or the assistance neglect great lead to the time so as to ture of Delegation com- equally important monly most business. regulated be the relations to where indicated regulation highly re- where their technical or are (Footnotes quires a course of continuous decision.” omitted.) suggestion apply Professor Jaffe’s we
If should products, be hard to find indeed, it would, then regulated, are more which needs be sale of requires “highly where a course technical pharma decision” than in the sale of of continuous study of other know from our cases ceuticals. We (Lewis 413 P2d Baker, 1966, v. Or complexity drugs— multiplicity one) that the many highly dangerous properly if not used them astounding speed. growing This is acknowl with —is any given edged by who have attention to the mat all certainly considered to have been in ter and must be legislature delegated when broad the mind of Pharmacy. appears powers given It to the Board of prohibition challenged regulation to me prescription drugs forbidding practice legitimate and intended essential of pharmacy. must be remembered that And it regulations, the Board to “make directs public, necessary protection pertaining for the perform- pharmacy practice of and the lawful to the *12 prescription drugs anee of its duties.” The sale of practice pharmacy. the ultimate function of the The sale of the is an essential need for the public good. Creating buy an inducement to is not. Certainly, public protected drug- would not be if gists by advertising, public could, excite demand for example. pharmacists narcotics, If were to adver- generally tise of the benefits derived from various drugs, many already of which are in sometimes clan- public outraged, destine would demand, be protected. significant It is to me that none of the pharmacists thousands of that there in must be this joined attacking regulation. state have this I can only assume that think wholesome and desir- able.
And because this is a desirable function in the re- prescription drugs, of the sale of I striction take it to necessary part regulation be a desirable and practice pharmacy. It is not an unwarranted authority by usurpation and unlawful the Board Pharmacy. should be sustained. joins in J., this dissent. Denecke,