Lambert v. Yellowley

272 U.S. 581, 47 S. Ct. 210, 71 L. Ed. 422, 1926 U.S. LEXIS 28, 49 A.L.R. 575, 5 Ohio Law. Abs. 88

• Court: Supreme Court of the United States
• Decided: November 29, 1926
• Docket: 47
• Status: Published

Opinions

Mr. Justice Brandeis

delivered the opinion of the Court.

The National Prohibition Act, October 28, 1919, c. 85, Title II, § 7, 41 Stat. 305, 311, provides: “ No one but a physician holding a permit to prescribe liquor shall issue any prescription for liquor. . . . Not more than a pint of spirituous liquor to be taken internally shall be prescribed for use by the same person within any period of ten days and no prescription shall be filled more than once.” The supplemental Act of November 23, 1921, c. 134, § 2, 42 Stat. 222, has a related but broader restriction to which reference will be made later on. Violation of the provision subjects the offender to fine or imprisonment or both. The limitation as to amount applies only to alcoholic liquor “ fit for use for beverage purposes.” National Prohibition Act, Title II, § 1. “ Medicinal preparations manufactured in accordance with fonnulas prescribed by the United States Pharmacopoeia, National Formulary or the American Institute of Homeopathy that are unfit for use for beverage purposes,” and “patented, patent, and proprietary medicines that are unfit for use for beverage purposes,” are specifically exempted from the operation of the provision. § 4(5) and (c). Moreover, the limitation does not apply to prescriptions for such liauor to be administered in certain hospitals. § o.

In November, 1922, Samuel W. Lambert of New York City, a distinguished physician, brought in the federal court for that district, this suit to enjoin Edward Yellowley, the acting Federal Prohibition Director, and other officials, “ from interfering with complainant in his acts as a physician in prescribing vinous or spirituous liquors to his patients for medicinal purposes, upon the ground that the quantities prescribed for the use of any one person in any period of ten days exceed the limits fixed by said Acts, or either of them.” As the basis for this relief the bill set forth Dr. Lambert’s qualifications and experience as a physician; his belief that in certain cases, including some subject to his professional advice, the use of spirituous liquor internally as a medicine in an amount exceeding one pint in ten days is necessary for the proper treatment of patients in order to afford relief from human ailments; and that he does not intend to prescribe the use of-liquor for beverage purposes. It alleged that to treat the diseases of his patients and to promote their physical well-being, according to the untrammelled exercise of his best skill and scientifically trained judg nent, and, to that end, to advise.the ase of such medicines and medical treatment as in his opinion are best calculated to effect their cure and establish their health, is an essential part of his constitutional rights as a physician.

In May, 1923, the case was heard upon an application for an interlocutory injunction and a motion to dismiss. The District Court issued the injunction. 291 Fed. 640. In December, 1924, the United States Circuit Court of Appeals for the Second Circuit reversed the decree, and directed that the bill be dismissed. 4 F. (2d) 915. In the interval, this Court had decided Hixon v. Oakes, 265 U. S. 254, and Everard’s Breweries v. Day, 265 U. S. 545. In the latter, Dr. Lambert’s counsel was permitted to file a brief, and to present an oral argument. The appeal in the case at bar was taken under §§ 128 and 241 of the Judicial Code and was allowed before the passage of the Act of February 13, 1925, c. 229, 43 Stat. 936. The claim is that the provision assailed is unconstitutional, because it has no real or substantial relation to the appropriate enforcement of the Eighteenth Amendment; that in enacting the provision Congress exceeded the powers delegated to it by the Amendment; and that thereby complainant’s fundamental rights are violated.

The Eighteenth Amendment, besides prohibiting by § 1 the manufacture, sale and transportation of intoxicating liquors for beverage purposes, confers upon Congress by § 2, in terms, the power to enforce the prohibition by appropriate legislation. That the limitation upon the amount of liquor which may be prescribed for medicinal purposes, is a provision adapted to promote the purpose of the amendment is clear. That the provision is not arbitrary appears from the evidence considered by Congress¹ which embodies, among other things, the lessons of half a century of experience in the several States in dealing with the liquor problem.² That evidence disclosed that practicing physicians differ about the value of malt, vinous and spirituous liquors for medicinal purposes, but that the preponderating opinion is against their use for such purposes; and that among those who prescribe them there are some who are disposed to give prescriptions where the real purpose is to divert the liquor to beverage uses. Indeed, the American Medical Association, at its meeting in 1917, had declared that the use of alcoholic liquor as a therapeutic agent was without “ scientific basis ” and “should be discouraged,” and, at its meeting in June, 1921, had adopted a resolution saying “ reproach has been brought upon the medical profession by some of its members who have misused the law which permits the prescription of alcohol.” With this as the situation to be met, the Judiciary Committee of the House of Representatives reported with favorable recommendation the bill which became the Act of November 23, 1921, whereby the prescription of intoxicating malt liquor for medicinal purposes is entirely prohibited, and the prescription of other intoxicating liquors is subjected to the following restrictions:

“No physician shall prescribe nor shall any person sell or furnish on any prescription, any vinous liquor that contains more than 24 per centum of alcohol by volume, nor shall any one prescribe or sell or furnish on any prescription more than one-fourth of one gallon of vinous liquor, or any such vinous or spirituous liquor that contains separately or in the aggregate more than one-half pint of alcohol, for use by any person within any period of ten days. No physician shall be furnished with more than one hundred prescription blanks for use in any period of ninety days, nor shall any physician issue more than that number of prescriptions within any such period unless on application therefor-he shall make it clearly apparent to the commissioner that for some extraordinary reason a larger amount is necessary whereupon the necessary additional blanks may be furnished him.”

The Committee said, in reporting the bill (House Report No. 224, 67th Cong., 1st Sess.):

“ Section 2 prohibits the use of beer as medicine and limits the alcoholic strength and the quantity of wine that may be prescribed. It also provides that no liquor shall be prescribed for use in any period of 10 days that contains more alcohol than that heretofore allowed. Under the national prohibition act 1 pint of beverage spirits can be prescribed. With the passage of this bill both spirituous and vinous liquor may be prescribed in-one prescription, but the combined content of both liquors must not exceed one-half pint of alcohol. The purpose of this provision is not to increase the alcoholic content of the liquor that may be consumed, but to give physicians a choice between spirituous and vinous liquor within certain specified limits as to quantity.

“ This section also writes into the law the present regulation as to the number of prescriptions that may be issued by a physician. One hundred are allowed within a period of 90 days, but this may be exceeded in cases of extraordinary circumstances such as the prevalence of contagious or epidemic diseases. Under ordinary circumstances reputable-physicians only write a small fraction of this number, and only about 22 per cent, of the doctors hold permits to prescribe liquor of any kind, although they can be obtained without any fee, simply for the asking. There are a number of States in which the State laws prohibit physicians from prescribing liquor of any kind.”

And also:

“While the majority of the States prohibit wine for medicinal purposes it was not deemed best by the committee that such provision should be inserted in the prohibition act at this time. In order, however, that this privilege should not be abused, it was deemed best to specifically limit its use, the same as has been done with spirituous liquor. Unless some limit is placed upon the amount of such liquors that may be prescribed, a number of physicians who do not have the high ethical standards of the large majority will abuse the privilege. Evidence was presented to the committee of physicians who issued hundreds of- proscriptions within a- few days when the total number of other prescriptions was a negligible number. In view of the fact that most of the States have more stringent provisions than the one contained in section 2, this legislation will work no hardship upon the profession.”

In Everard’s Breweries v. Day, 265 U. S. 545, the validity of the provision prohibiting the prescription of malt liquor was assailed as going beyond the power of Congress and impinging-upon'the reserved powers of the States, in that it is an interference with the regulation of health and the practice of medicine, both of which are within the domain of the state power and outside the legislative power-of Congress. The suit was against the Commissioner of Internal Revenue and other federal officers, and its chief purpose was to enjoin them from enforcing the provision prohibiting the prescription of malt liquor for medicinal purposes. This Court, besides observing that the “ ultimate and controlling question ” in the case was whether the provision prohibiting physicians from prescribing intoxicating malt liquors for medicinal purposes is within the power given to Congress by the Eighteenth Amendment, to enforce by “ appropriate legislation ” its prohibition of the manufacture, sale, etc., of intoxicating liquor for beverage purposes, proceeded to consider every phase of the question, and in conclusion held that the provision was appropriate legislation for the purpose and within the power of Congress, although affecting subjects which, but for the Amendment, would be entirely 'within State control. The Court referred to the settled rule that where the means adopted by Congress in exerting an express power are calculated to effect its purpose, it is not admissible for the judiciary to inquire into the degree of their necessity, and then said (p. 560) :

“We cannot say that prohibiting traffic in intoxicating malt liquors for medicinal purposes has no real or substantial relation to the enforcement of the Eighteenth Amendment, and is not adapted to accomplish that end and make the constitutional prohibition effective. The difficulties! always attendant upon the suppression of traffic in intoxicating liquors are notorious. Crane v. Campbell, 245 U. S. 304, 307. The Federal Government in enforcing prohibition is confronted with difficulties similar to those encountered by the States. Ruppert v. Caffey, supra, p. 297. The opportunity to manufacture, sell and prescribe intoxicating malt liquors for (medicinal purposes,' opens many doors to clandestine traffic in them as beverages under the guise of medicines; facilitates many frauds, subterfuges and artifices; aids evasion; and, thereby and to that extent, hampers and obstructs the enforcement of- the Eighteenth Amendment.”

The Court further held that Congress must be regarded as having concluded — as it well might do in the absence of any consensus of opinion among physician's and in the presence of the absolute prohibition in many of the States — that malt liquor has no substantial medicinal qualities making its prescription necessary; and that this made it impossible to say the provision was an unreasonable and arbitrary exercise of power.

We have spoken of that case at length because the decision was by a unanimous court and if adhered to disposes of the present case. If Congress may prohibit the manufacture and sale of intoxicating malt liquor for-medicinal purposes by way of enforcing the Eighteenth Amendment, it equally and to the same end may restrict the prescription of other intoxicating liquor for medicinal purposes. In point of power there is no difference; if in point of expediency there is a difference, that is a matter which Congress alone may consider. Experience has shown that opportunities for doing what the Constitution forbids are present in both instances, and that advantage not infrequently is taken of these opportunities. Congress, in deference to the belief of a fraction of the medical profession that vinous and spirituous liquors have some medicinal value, has said that they may be prescribed in limited quantities according to stated regulations; but it also has said that they shall not be prescribed in larger quantities, nor without conforming to the regulations, because this would be attended with too much risk of the diversion of the liquor, to beverage uses. Not only so, but the limitation as to quantity must be taken as embodying, an implicit congressional finding that such liquors have no such medicinal value as gives rise to a need for larger or more frequent prescriptions. Such a finding, in the presence of the well-known diverging opinions of physicians, cannot be regarded as arbitrary or without a reasonable basis. On the whole, therefore, we think it plain that the restrictions imposed are admissible measures for enforcing the prohibition ordained by the Eighteenth Amendment.

A later case applying like principles is Selzman v. United States, 268 U. S. 466. There a section of the National Prohibition Act forbidding the sale of denatured alcohol without a compliance with certain regulations was assailed as beyond the authority of Congress under the Eighteenth Amendment upon the ground that the Amendment relates only to traffic in intoxicating liquor for beverage purposes, and that, as denatured alcohol is not usable as a beverage, authority to prevent or regulate its sale is not given to Congress by the Amendment, but remains exclusively in the States. This Court held the section valid for the following-reasons:

“ The power of the Federal Government, granted by the Eighteenth Amendment, to enforce the prohibition of the manufacture, sale and transportation of intoxicating liquor carries with it power to enact any legislative measures reasonably adapted to promote the purpose. The denaturing in order to render the making and sale of industrial alcohol compatible with the enforcement of prohibition of alcohol for beverage purposes is not always effective. The ignorance of some, the craving and the hardihood of others, and the fraud and cupidity of still others, often tend to defeat its object. It helps the main purpose of the Amendment, therefore, to hedge about the making and disposition of the denatured article every reasonable precaution and penalty to prevent the proper industrial use of it from, being perverted to drinking it.”

From the authority of these cases Dr. Lambert seeks to escape by pointing out that he is a physician and believes that the use of spirituous liquor as a medicinal agent is at times both advisable and necessary.. He asserts that to control the medical, practice in the States is beyond the power of the Federal Government. Of course , his belief in the medicinal value of such liquor is not of controlling significance; it merely places him in what was shown to Congress to be the minor fraction of his profession. Besides, there is no right to practice medicine which is not subordinate to the police power of the States, Dent v. West Virginia, 129 U. S. 114; Collins v. Texas, 223 U. S. 288; Crane v. Johnson, 242 U. S. 339; Graves v. Minnesota, ante, page 425, and also to the power of Congress to make laws necessary and proper for carrying into execution the Eighteenth Amendment. When the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by some or all of the incidents which attend the exercise by a State of its police power. Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U. S. 146, 156; Jacob Ruppert v. Caffey, 251 U. S. 264, 300. The Eighteenth Amendment confers upon the Federal Government the power to prohibit the sale of intoxicating liquor for beverage purposes. Under it, as under the “ necessary and proper ” clause of Article I, § 8 of the Constitution, Congress has power to enforce prohibition “ by appropriate legislation.” High medical authority being in conflict as to the medicinal value of spirituous and vinous liquors taken as a beverage, it would, indeed, be strange if Congress lacked the power to determine that the necessities of the liquor problem require a limitation of permissible prescriptions, as by keeping the quantity that may be prescribed within limits which will minimize the temptation to resort to prescriptions as pretexts for obtaining liquor for beverage uses. Compare Jacobson v. Massachusetts, 197 U. S. 11.

Affirmed.

1 See House Report No. 224, 67th Cong., 1st Sess., Ser. No. 7920; Hearings before the Committee on the Judiciary of the House of Representatives on H. R. 5033, 15-16, 146; 61 Cong. Rec. 3456, 4035, 4036, 4038, 8749-8757.

2 At the time of the passage of the National Prohibition Act, and/or the Willis-Campbell Act, the following state legislation concerning the prescription of alcoholic beverages for medicinal purposes was in effect. In 7 State;' no intoxicating liquor of any kind could be prescribed. Ariz. Const. Art. 23, Cooper v. State, 19 Ariz. 486; 1915 Ida. Laws, c. 11, 1921 Ida. Laws, c. 50; 1917 Kan. Laws, c. 215, State v. Miller, 92 Kan. 994, 1000; 1916 Me. Rev. Stat. c. 20, § 17; 1915 N. C. Laws, e. 97, § 8; 1917 Utah Laws, c. 2, § 30; 1917 Wash. Laws, e. 19, § 2. In 3 States prescriptions could be made only if the liquor was made unfit for beverage purposes. 1919 Ga. Laws, No. 139, § 4(b); 1917 Neb. Laws, c. 187, § 25; 1921 N. Dak. Laws, c. 97, § 2. In 15 States only alcohol could be prescribed for medicinal purposes. 1919 Ala. Acts, No. 7, §§ 5, 7; 1919 Ark. I >ws, c. S7, § 17; 1919 Del. Laws, c. 291, §§ 8,14; 1918 Fla. Laws, c. 7736: § 5, amended by 1919 Fla. Laws, c. 7890, § 1; 1917 Ind. Acts, c. 4, § 13; 1908 Miss. Laws, c. 113; N. Mex. Const. Art. 23, 1919 N. Mex. Laws, c. 151; 1919 Nev. Stats., c. 1, § 4; 1910-1911 Okla. Laws, c. 70: § 1; 1915 Ore. Laws, c. 141, § 6(g), as amended by 1917 Ore. Laws, c. 40, § 2; 1921 S. C. Crim. Code, §§ .797, 798; 1919 S. Dak. Rev. Code, § 10273, as amended by 1919 S. Dak. Laws, c. 246, § 1; 1917 Tenn. Acts, No. 68, § 6; 1919 Tex. Laws, 2d Sess., c. 78, §§ 13, 14; 1921 W. Va. Acts, c. 115, amending c. 32A, § 4, Barnes’ West Va. Code. In 3 States no more than a stated quantity of intoxicating liquor fit for beverage purposes can be prescribed at one time. 1915 Colo. Laws, c. 98, § 18; 1919 Mich. Acts, No. 53, § 19, People v. Urcavitch, 210 Mich. 431; 1918 Va. Acts, c. 388, § 13.. In 11 States the standards of the federal law have been specifically adopted. 1921 Cal. Státs., c. 80; 1921 111. Laws, pp. 681, 687, § 8; 1920 Ky. Acts, c. 81, § 23; 1919 Minn. Laws, c. 455, § 7, as amended by 1921 Minn. Laws, c. 391, § 7; 1921 Mont. Laws, Ex. Sess., c. 9, § 6; 1921 N. J. Laws, c. 150, § 44; 1921 N. Y. Laws, c. 155, § 1214; 1921 Ohio Laws, p. 194, § 1; 1921 VL Laws, No. 204, § 5; 1921 Wis. Laws, c. 441, § 1(9); 1921 Wyo. Laws, c. 117, § 7. In 2 States only physicians holding a federal permit may prescribe such liquors. 1921 Conn. Pub. Acts, c. 291, § 4; 1922 R. I. Acts, c. 2231, § 4. In New Hampshire no limitations are placed upon the prescribing physician, save exercise of professional skill and the employment of specific forms and the keeping of records. 1919 N. H. Laws, c. 99, § 2, amending 1917 N. II. Laws, c. 147, §§ 16, 17.