delivered the opinion of the court.
This сase, involves the provisions of the Harrison Narcotic Drug Act, considered in No. 367, just decided, ante, 86. The case сomes here upon a certificate from the Circuit Court of Appeals for the Sixth Circuit. From the certificаte it appears that Webb and Goldbaum were convicted and sentenced in the District Court of the United Statеs for the Western District of Tennessee on a charge of conspiracy (§ 37, Penal Code) to violate the Harrison Narcotic Law. 38 Stat. 785; 6 U. S. Comp. Stats. 1916, § 6287g. While the certificate .states that the indictment is inartificial, it is certified to be sufficient to support a prosecution upon the theory that Webb and Goldbaum intended to have thе latter violate the law by. using the order blanks (§ 1 of the act) for a prohibited purpo'se.
The certificatе states: “If §2, rightly construed, forbids sales to a non-registrable user, and if such prohibition is constitutional, we next meet the quеstion whether, such orders as Webb gave to applicants are 'prescriptions,’ within the meaning of exception (b) in § 2.
“We conclude that the case cannot be disposed of without determining the construction and perhaps the- constitutionality of the law in certain particulars, and for the purpose of certification, we state the facts as follows,— assuming, as for this purpose we must 'do, that whatever the evidence tendеd to show in aid of the prosecution, must be taken as a fact:
“Webb was a practicing physician and Goldbаum a retail druggist, in Memphis. It was Webb’s regular cusr *98 tom and practice to prescribe morphine for habitual users upon their application to him therefor. He furnished these ‘prescriptions,’ not after consideration of. the applicant’s indiyidual cáse, and in such quantities and with such direction as, in his judgment, would tend to cure the habit or as might bе necessary or helpful in an attempt to break the habit, but without such consideration and rather in such quantities as the applicant desired for the sake of continuing his accustomed use. Goldbaum was familiar with such praсtice and habitually filled such prescriptions. Webb had duly registered and paid the special tax as required by § 1 оf the act. - Goldbaum had also registered and paid such tax and kept all records required by the law. Goldbaum had been provided with the blank forms contemplated by § 2 of the act for use in ordering morphine, and, by the use of such blank order forms, had obtained from the wholesalers, in Memphis, a stock of morphine. It had been agreed аnd understood between Webb and Goldbaum that Goldbaum should, by using such order forms, procure a stock of morphine, which morphine he should and would sell to those who desired to purchase and who came provided with Webb’s so-called prescriptions. It w4s the intent ¡of Webb and Goldbaum that morphine should thus be furnished to the habitual users thereof by Gоldbaum and withodt any physician’s prescription issued in the course of a good faith attempt to cure the morphine habit. In order that these facts may have their true color, it should also be stated that within a period of eleven months Goldbaum purchased from wholesalers in Memphis, thirty times as much morphine as was bought by the averаge retail druggist doing a larger general business, and he sold narcotic drugs in 6,500 instances; that Webb regularly charged fifty cents for each so-called prescription, and within this period had furnished, and Goldbaum had filled, over 4,000 such presсriptions; and that one Rabens, a user of the *99 drug, came from another state and applied to Webb for mоrphine and was given at one time ten so-called prescriptions for one drachm each, which prescriptions were filled at one time by Goldbaum upon Rabens’ presentation, although each was made оut in a separate and fictitious name.”
Upon.these facts the Circuit Court of Appeals propounds tо this court three questions:
“1. Does the first sentence of § 2 of the Harrison Act prohibit retail sales of morphine- by druggists tо persons who have no physician’s prescription, who have no order blank therefor and who cannоt obtain an order blank because not of the class to which such blanks are allowed to be issued?
“2. If the answеr to question one is in the affirmative, does this construction make unconstitutional the prohibition of such sale?
“3. If a practicing and registered physician issues an order for morphine to an habitual user thereof, the ordеr not being issued by him in the course of professional treatment in the attempted cure of the habit, but being issued for thе púrpose of providing the user with morphine sufficient to keep him comfortable by maintaining his customary use, is suсh order a physician’s prescription under exception (b) of § 2?
“If .question one is answered in the negative, оr question two in the affirmative, no answer to- question three will be necessary; and if question three is answered in the аffirmative, questions one and two become immaterial.”
What we have said of the construction and purpose of the act in No. 367 plainly requires that question one should be answered in the affirmative. Question two should be answered in the negative for the reasons stated in the opinion in No. 367. As to question three — to call such an order for the use of morphine a physician’s prescription would be so plain a perversion of meaning that *100 no discussion of the subject is required. That question should- be answered in the negative.
Answers directed accordingly.
For the reasons which prevented him from assenting in No. 367, The Chief Justice also dissents in this case.