"This is an indictment for delivering . . . packages and bottles of
medicine bearing labels that stated or implied that the contents were effective in curing
cancer, the defendant well knowing that such representations were false. . . .
The question is whether the articles were misbranded within the meaning of ยง 2 of the
Food and Drugs Act of June 30, 1906, c. 3915, 34 Stat. 768, making the delivery of
misbranded drugs a punishable offense. . . .
From the point of view necessary to be taken by a legislature, these statements of
cure-all properties of patent medicines are not in any real scientific sense matters of
opinion. They are charlatanic and their falseness is generally demonstrable without real
dispute."
. . defendants, were charged .
. with having cocaine in their possession . . .
The drug was shipped from St. Louis in (a) box . . .. the defendants were prevented
from showing permission from the Treasury Department to export a quantity of cocaine to
Mexico. Such permission and the purpose of weighing the contents of the box were decided
to be immaterial, possession alone being determinative of guilt.
We think the rulings were error. Judgment reversed
Doremus was indicted for violating section 2 of the
so-called Harrison Narcotic Drug Act. Act . . . the District Court held the section
unconstitutional for the reason that it was not a revenue measure, and was an invasion of
the police power reserved to the state. . .
Considering the full power of Congress over excise
taxation the decisive question here is: Have the provisions in question any relation to
the raising of revenue? . . . Congress, . . . inserted these provisions in an
act specifically providing for the raising of revenue. Considered of themselves, we think
they tend to keep the traffic aboveboard and subject to inspection by those authorized to
collect the revenue.
'Webb was a practicing physician and Goldbaum a retail
druggist, in Memphis. It was Webb's regular custom [249 U.S. 96, 98] 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 individual
case, and in such quantities and with such direction as, in his judgment, would tend to
cure the habit, or as might be necessary or helpful in an attempt to break the habit, but
with such consideration and rather in such quantities as the applicant desired for the
sake of continuing his accustomed use. . . .
Upon these facts the Circuit Court of Appeals
propounds to this court three questions:
1. 'Does the first sentence of section 2 of the
Harrison Act prohibit retail sales of morphine by druggists to persons who have no
physician's prescription, who have no order blank therefor and who cannot obtain an order
blank because not of the class to which such blanks are allowed to be issued?'
2. 'If the answer 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 order not being issued by
him in the course of professional treatment in the attempted cure of the habit, but being
issued for the purpose of providing the user with morphine sufficient to keep him
comfortable by maintaining his customary use, is such order a physician's prescription
under exception (b) of section 2?'
'If question one is answered in the negative, or
question two in the affirmative, no answer to question three will be necessary; and if
question three is answered in the affirmative, 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 [249 U.S. 96, 100]
no discussion of the subject is required. That question should be answered in the
negative.
