{ "id": 8620921, "name": "NORTH CAROLINA BOARD OF PHARMACY v. W. RONALD LANE T/A LANE'S BROOKLYN PHARMACY and JOHN W. BALDWIN", "name_abbreviation": "North Carolina Board of Pharmacy v. Lane", "decision_date": "1958-04-09", "docket_number": "", "first_page": "134", "last_page": "145", "citations": [ { "type": "official", "cite": "248 N.C. 134" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "228 N.W. 288", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "51 Am. St. Rep. 174", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "33 L. R. A. 213", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "24 South. 809", "category": "reporters:state_regional", "reporter": "So.", "opinion_index": 0 }, { "cite": "50 La. Ann. 1358", "category": "reporters:state", "reporter": "La. Ann.", "case_ids": [ 2577962 ], "opinion_index": 0, "case_paths": [ "/la-ann/50/1358-01" ] }, { "cite": "196 P. 221", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 8871088 ], "opinion_index": 0, "case_paths": [ "/utah/57/0516-01" ] }, { "cite": "100 S.E. 2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627048 ], "opinion_index": 0, "case_paths": [ "/nc/247/0363-01" ] }, { "cite": "152 S.E. 681", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "198 N.C. 585", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615587 ], "opinion_index": 0, "case_paths": [ "/nc/198/0585-01" ] }, { "cite": "156 SE 163", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "200 N.C. 58", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615753 ], "opinion_index": 0, "case_paths": [ "/nc/200/0058-01" ] }, { "cite": "184 S.E. 540", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "209 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2221603 ], "opinion_index": 0, "case_paths": [ "/nc/209/0624-01" ] }, { "cite": "46 S.E. 749", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "134 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273164 ], "opinion_index": 0, "case_paths": [ "/nc/134/0394-01" ] }, { "cite": "193 S.E. 730", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "212 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614356 ], "pin_cites": [ { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/nc/212/0537-01" ] }, { "cite": "40 S.E. 2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 682", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624593 ], "pin_cites": [ { "page": "688" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0682-01" ] }, { "cite": "69 S.E. 2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "235 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622354 ], "pin_cites": [ { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/nc/235/0179-01" ] }, { "cite": "86 S.E. 2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608317 ], "pin_cites": [ { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0020-01" ] }, { "cite": "5 S.E. 2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "216 N.C. 596", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610748 ], "opinion_index": 0, "case_paths": [ "/nc/216/0596-01" ] }, { "cite": "37 N.W. 329", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "73 S.E. 2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 704", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627507 ], "opinion_index": 0, "case_paths": [ "/nc/236/0704-01" ] }, { "cite": "180 S.E. 78", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "208 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602767 ], "opinion_index": 0, "case_paths": [ "/nc/208/0279-01" ] }, { "cite": "67 S.E. 925", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "152 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271353 ], "opinion_index": 0, "case_paths": [ "/nc/152/0373-01" ] }, { "cite": "37 A. 185", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "54 A. L. R. 725", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "295 S.W. 469", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "17 A. 577", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "40 So. 365", "category": "reporters:state_regional", "reporter": "So.", "case_ids": [ 5310880, 5312567 ], "opinion_index": 0, "case_paths": [ "/la/115/0488-02", "/la/115/0488-01" ] }, { "cite": "153 N.Y.S. 323", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 3258994 ], "opinion_index": 0, "case_paths": [ "/nys/153/0323-01" ] }, { "cite": "26 L. R. A. (N.S.) 1013", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "197 N.Y. 353", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 4465464 ], "opinion_index": 0, "case_paths": [ "/ny/197/0353-01" ] }, { "cite": "49 N.W. 818", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "74 S.W. 730", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "110 N.W. 870", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "110 S.W. 1082", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "217 N.Y.S. 217", "category": "reporters:state", "reporter": "N.Y.S.", "opinion_index": 0 }, { "cite": "215 N.W. 487", "category": "reporters:state_regional", "reporter": "N.W.", "case_ids": [ 5344603 ], "opinion_index": 0, "case_paths": [ "/sd/51/0485-01" ] }, { "cite": "217 N.W. 545", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "274 P. 974", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "40 P. 2d 979", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 5077308 ], "opinion_index": 0, "case_paths": [ "/ariz/45/0143-01" ] }, { "cite": "158 P. 2d 199", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "35 N.W. 2d 354", "category": "reporters:state_regional", "reporter": "N.W.2d", "opinion_index": 0 }, { "cite": "65 So. 2d 654", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9918955 ], "opinion_index": 0, "case_paths": [ "/so2d/65/0654-01" ] }, { "cite": "297 P. 2d 325", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 5319043 ], "opinion_index": 0, "case_paths": [ "/nm/61/0184-01" ] }, { "cite": "51 S.E. 2d 731", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "229 N.C. 764", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12168052 ], "pin_cites": [ { "page": "770" } ], "opinion_index": 0, "case_paths": [ "/nc/229/0764-01" ] }, { "cite": "101 S.E. 2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627639 ], "pin_cites": [ { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/nc/247/0516-01" ] }, { "cite": "81 S.E. 2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8595420 ], "opinion_index": 0, "case_paths": [ "/nc/240/0137-01" ] }, { "cite": "94 S.E. 2d 603", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219619 ], "opinion_index": 0, "case_paths": [ "/nc/244/0571-01" ] } ], "analysis": { "cardinality": 1199, "char_count": 31160, "ocr_confidence": 0.566, "pagerank": { "raw": 1.2071409823261612e-07, "percentile": 0.595048977758935 }, "sha256": "c5dfb6e8b5c686239f9d5d4e32a7f62a2e16ade7f2339aba6536597dbf6bfba7", "simhash": "1:3303fefbb0e0347d", "word_count": 5158 }, "last_updated": "2023-07-14T22:38:24.992419+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NORTH CAROLINA BOARD OF PHARMACY v. W. RONALD LANE T/A LANE\u2019S BROOKLYN PHARMACY and JOHN W. BALDWIN." ], "opinions": [ { "text": "Bobbitt, J.\nThe agreed facts, on which the case was submitted, constitute the sole basis for decision. Eason v. Dew, 244 N.C. 571, 94 S.E. 2d 603; Edwards v. Raleigh, 240 N.C. 137, 81 S.E. 2d 273; Greensboro v. Wall, 247 N.C. 516, 522, 101 S.E. 2d 413. Do these facts support the court\u2019s conclusions of law and judgment?\n\u2022 Statutory provisions regulating the practice of pharmacy in North Carolina comprise GS Ch. 90, Art. 4.\n\u201cWhere the practice of a profession or calling requires special knowledge or skill and intimately affects the public health, morals, order, or safety, or the general welfare, the Legislature may prescribe reasonable qualifications for persons desiring to pursue such profession or calling, and require them to demonstrate their possession of such qualifications by an examination on the subjects with which such profession or calling has.'to deal as a' condition precedent to the right to follow such profession or calling.\u201d S. v. Ballance, 229 N.C. 764, 770, 51 S.E. 2d 731, and cases cited.\nUnquestionably, the General Assembly, in the exercise of the police power of the State, may regulate the practice of pharmacy. 17A Am. Jur., Drugs and Druggists Sec. 13; 28 C.J.S., Druggists Sec. 2. As to this, decisions in other jurisdictions are in full accord. S. v. Collins (N.M.), 297 P. 2d 325; Louisiana Board of Pharmacy v. Smith, 65 So. 2d 654; Beeman v. Board of Pharmacy (Mich.), 35 N.W. 2d 354; Rosenblatt v. Board of Pharmacy (Cal.), 158 P. 2d 199; Stewart v. Robertson (Ariz.), 40 P. 2d 979; Ex parte Gray (Cal.), 274 P. 974; Reppert v. Utterback (Iowa), 217 N.W. 545; S. v. Wood (S. D.), 215 N.W. 487; Tucker v. Board of Pharmacy, 217 N.Y.S. 217; S. v. Hamlett (Mo.), 110 S.W. 1082; S. v. Hovorka (Minn.), 110 N.W. 870; Board of Pharmacy v. Cassidy (Ky.), 74 S.W. 730; S. v. Heinemann (Wis.), 49 N.W. 818; State Board of Pharmacy v. Matthews, 197 N.Y. 353, 26 L. R. A. (N.S.) 1013; People v. Roemer, 153 N.Y.S. 323; S. v. Kumpfert (La.), 40 So. 365; S. v. Forcier (N. H.), 17 A. 577; S. v. Foutch (Tenn.), 295 S.W. 469, 54 A. L. R. 725; Commonwealth v. Zacharias (Pa.), 37 A. 185.\nIn Thomas v. Board of Pharmacy, 152 N.C. 373, 67 S.E. 925, and McNair v. Board of Pharmacy, 208 N.C. 279, 180 S.E. 78, in which the plaintiff, in his efforts to obtain license, sought a writ of mandamus to require the Board of Pharmacy to perform certain acts, the constitutionality of the legislation was not challenged. However, in Thomas v. Board of Pharmacy, supra, Clark, C. J., said: \u201cThe selling of- drugs is an important matter to the health and lives of the public. The Legislature has carefully guarded it, by the provisions to be found in Rev., 4471-4490.\u201d\nNothing appears in the record to indicate that either defendant at any time sought- to obtain license as a registered pharmacist or assistant pharmacist. Defendants\u2019 assignments of error, purporting to attack broadside the constitutionality of GS Ch. 90, Art. 4, are without merit. GS 90-85.1, the only specific provision challenged by defendants, is considered below.\nDefendants\u2019 primary position is that the practice engaged in by Baldwin, the unlicensed employee, and caused or permitted by Lane, the employer-owner, of which the specific transaction of August 5, 1954, is typical, does not violate GS 90-71 and GS 90-72.\nGS 90-71, in pertinent part, provides:\n\u201cIt shall be unlawful for any person not licensed as a pharmacist or assistant pharmacist within the meaning of this article to conduct or manage any pharmacy, drug or chemical store, apothecary shop or other place of business for the retailing, compounding, or dispensing of any drugs, chemicals, or poison, or for the compounding of physicians\u2019 prescriptions, or to keep exposed for sale at retail any drugs, chemicals, or poison, except as hereinafter provided, or for any person not licensed as a pharmacist within the meaning of this article to compound, dispense, or sell at retail any drug, chemical, poison, or pharmaceutical preparation upon the prescription of a physician or otherwise, or to compound physicians\u2019 prescriptions except as an aid to and under the immediate supervision of a person licensed as a pharmacist or assistant pharmacist under this article. Provided, that during the temporary absence of the licensed pharmacist in charge of any pharmacy, drug or chemical store, a licensed assistant pharmacist may conduct or have charge of said store. And it shall be unlawful for any owner or manager of a pharmacy or drugstore or other place of business to cause or permit any other than a person licensed as a pharmacist or assistant pharmacist to compound, dispense, or sell at retail any drug, medicine, or poison, except as an aid to and under the immediate supervision of a person licensed as a pharmacist or assistant pharmacist.\u201d\nG.S. 90-72 provides:\n\u201cIf any person, not being licensed as a pharmacist or assistant pharmacist, shall compound, dispense, or sell at retail any drug, medicine, poison, or pharmaceutical preparation, either upon a physician\u2019s prescription or otherwise, and if any person being the owner or manager of a drugstore, pharmacy, or other place of business, shall cause or permit anyone not licensed as a pharmacist or assistant pharmacist to dispense, sell at retail, or compound any drug, medicine, poison, or physician\u2019s prescription contrary to the provisions of this article, he shall be deemed guilty of a misdemeanor, and fined not less than twenty-five nor more than one hundred dollars.\u201d\nThe General Assembly has prescribed the requirements an applicant must meet to become licensed as a registered pharmacist. G.S. 90-61, G.S. 90-63; G.S. 90-64. With two exceptions (G.S. 90-61, G.S. 90-64), not relevant here, a person eligible therefor must submit to and pass an examination prepared and furnished by the Board of Pharmacy \u201cas to his qualifications for registration as a licensed pharmacist.\u201d G.S. 90-61.\nAfter January 1, 1939, the Board of Pharmacy had no authority to issue \u201can original certificate to any person as a registered assistant pharmacist\u201d; but a person registered as an assistant pharmacist prior to that date was permitted to continue to practice as such registered assistant pharmacist. G.S. 90-63. (Note: Oh. 52, Public Laws of 1921, provided for the licensing of registered assistant pharmacists. However, except as to those who were licensed as registered assistant pharmacists prior to January 1, 1939, this provision was eliminated by Ch. 402, Public Laws of 1937, now G.S. 90-63.)\nThe fact that Baldwin, prior to August 5, 1954, had had over fourteen years\u2019 experience in filling and compounding prescriptions as an aid to and under the supervision of registered pharmacists, is beside the point. This is not a proceeding to establish his right to be licensed as a registered pharmacist or assistant pharmacist.\nSince it was agreed that the tablets called for in the prescription \u201care a drug within the meaning of the use of that term\u201d in G.S. 90-71 and 90-72, we put aside as irrelevant the fact that the tablets were prescribed by the trade name of the manufacturer and that all Baldwin did was to remove tablets from the duly labeled stock bottle, place them in a small container and deliver them to the ultimate consumer.\nG.S. 90-71 and G.S. 90-72, which relate to the same subject matter, are to be construed in pari materia. S. v. Hill, 236 N.C. 704, 73 S.E. 2d 894, and cases cited.\nThese statutes, when so construed, provide that it shall be unlawful (G.S. 90-71) and a misdemeanor (G.S. 90-72) for any person not licensed as a pharmacist or assistant pharmacist to compound, dispense or sell at retail any drug, etc., upon the prescription of a physician or otherwise, \u201cor to compound physicians\u2019 prescriptions except as an aid to and under the immediate supervision of a person licensed as a pharmacist or assistant pharmacist under this article.\u201d G.S. 90-71. (Our italics) Although the punctuation is inexact, we think it clear that the exception (italicized words) applies to dispensing drugs and selling drugs at retail as well as to compounding physicians\u2019 prescriptions. This view is supported by this further provision: \u201cAnd it shall be unlawful for any owner or manager of a pharmacy or drugstore or other place of business to cause or permit any other than a person licensed as a pharmacist or assistant pharmacist to compound, dispense, or sell at retail any drug, medicine, or poison, except as an aid to and under the immediate supervision of a person licensed as a. pharmacist or assistant pharmacist.\u201d G.S. 90-71.\nDefendants contend that, notwithstanding no registered pharmacist was present in person, Baldwin should be deemed \u201cunder the immediate supervision\u201d of registered pharmacists, namely, the registered pharmacists then on duty in Lane\u2019s other stores, whom he could contact by telephone or by messenger for advice and directions. This contention poses the basic question for decision.\nIf defendants\u2019 said contention were accepted, the unlicensed person, in deciding whether he needed the advice or directions of a registered pharmacist, would necessarily be the sole judge of his own qualifications and competency. The exception relating to an unlicensed person contemplates that his service is to be rendered \u201cas an aid to\u201d as well as \u201cunder the immediate supervision of\u201d a licensed pharmacist. G.S. 90-71 contains a proviso \u201cthat during the temporary absence of the licensed pharmacist in charge of any pharmacy, drug or chemical store, a licensed assistant pharmacist may conduct or have charge of said store.\u201d The construction contended for by defendants would write into the statute a provision it does not contain, namely, a provision to the effect that during the temporary absence of the licensed pharmacist an unlicensed person may conduct or have charge of the store.\nMoreover, the legislative history of G.S. 90-71 evinces the legislative intent. The original act, Ch. 355, Sec. 3, Public Laws of 1881, used these words: \u201cexcept under the supervision of a registered phar-maceutist, . . .\u201d The amendment of 1905, Ch. 108, Sec. 4, Public Laws of 1905, introduced the present provision: \u201cexcept as an aid to and under the immediate supervision of a person licensed as a pharmacist.\u201d (Our italics)\nIn State v. Mullenhoff (Iowa), 37 N.W. 329, the statute \u201cforbid any one not a registered pharmacist to dispense medicine, except as an aid to, and under the supervision of, a registered pharmacist.\u201d Beck, J., writing the opinion, states: \u201cThe nonregistered clerk may, under the law, aid the pharmacist under his supervision. This implies that the clerk shall assist the pharmacist, who shall supervise the clerk\u2019s work. It seems to us that the pharmacist must have \u2018immediate personal direction and supervision' of the work.\u201d This decision (1888) indicates that our interpretation of G.S. 90-71 has been associated with the words presently used therein for at least seventy years.\n..Our conclusion, in agreement with the court below, is that the statute makes it unlawful for an unlicensed person either to compound or to dispense or to sell at retail any drug, either upon a physician\u2019s prescription or otherwise, unless he acts in the immediate \u25a0physical presence of a licensed pharmacist or assistant pharmacist and under his personal supervision and direction.\nHaving- determined that Baldwin, the unlicensed employee, and Lane, the employer-owner, by engaging in the practice typified by the specific transaction of August 5, 1954, acted in violation of G.S. 90-7.1 and G.S. 90-72, we consider defendants\u2019 remaining contention.\n\u25a0 The said acts of the defendants, unlawful under G.S. 90-71, are criminal offenses (misdemeanors, punishable by fine) under G.S. 90-72. Plaintiff seeks no relief for what has been done but seeks to restrain defendants from continuing such unlawful practice in the future. Is plaintiff entitled to such injunctive relief?\n\u201cOrdinarily, injunction will not lie to prevent the perpetration of a crime.\u201d Fayetteville v. Distributing Co., 216 N.C. 596, 5 S.E. 2d 838. The established general rule is that there is no equitable jurisdiction to enjoin the commission of a crime. Mills v. Cemetery Park Corp., 242 N.C. 20, 28, 86 S.E. 2d 893; Dare County v. Mater, 235 N.C. 179, 181, 69 S.E. 2d 244; Clinton v. Ross, 226 N.C. 682, 688, 40 S.E. 2d 593, and cases cited; Matthews v. Lawrence, 212 N.C. 537, 538, 193 S.E. 730; Hargett v. Bell, 134 N.C. 394, 46 S.E. 749.\nPlaintiff bases its right to injunctive relief on G.S. 90-85.1, which provides:\n\u201cThe Board of Pharmacy may, if it shall find that any person is violating any of the provisions of this article, and after notice to such person of such violation, apply to the superior court for a temporary or permanent restraining order or injunction to restrain such person from continuing such illegal practices. If upon such application, it shall appear to the court that such person has violated, or is violating, the provisions of this article, the court may issue an order restraining any further violations thereof. All such actions by the Board for injunctive relief shall be governed by the provisions of article 37 of the chapter on \u2018Civil Procedure\u2019: Provided, such injunctive-relief may be granted regardless of whether criminal prosecution has been or may be instituted under any of the provisions of this article.\u201d\nDefendants challenge this statutory provision, as applied to future criminal acts, as unconstitutional. Their contention is that punishment for violation of such injunction upon the basis of findings of fact made by the court without a jury would in effect constitute punishment for a criminal offense, thereby depriving them of the constitutional safeguards of indictment, trial by jury, etc., to which they are entitled under Art. I, Secs. 12 and 13, Constitution of North Carolina.\nIn Matthews v. Lawrence, supra, where the plaintiff (Board of Photographic Examiners) sought to enjoin the defendant from practicing photography, no statute authorized the plaintiff to enforce the statute by civil action for injunction. In Mills v. Cemetery Park Corp., supra, heard on demurrer, the allegations were held insufficient to entitle plaintiff to enjoin defendant\u2019s alleged practice of law without a license, a criminal offense under G.S. 84-4 and G.S. 84-10; but it is noted that G.S. 84-7 conferred upon solicitors, not upon private indiT viduals, the right to bring an action (in the name of the State) for injunctive relief. (Compare: Seawell, Attorney-General, v. Motor Club, 209 N.C. 624, 184 S.E. 540, where the unauthorized practice of law was enjoined.) In Clinton v. Ross, supra, it was held that G.S. 160-179, a part of the Zoning Act, G.S. Ch. 160, Art. 14, was not a statute of general application but authorized a suit in equity to restrain the erection, maintenance, or repair of any building, structure, or land used \u201cin violation of this article or of any ordinance or other regulation made under authority conferred thereby.\u201d It is noted that the authority for injunctive relief conferred iby G.S. 160-179 differentiates the decision hi Elizabeth City v. Aydlett, 200 N.C. 58, 156 SE 163,Trom th\u00e9 earlier decision, Elizabeth City v. Aydlett, 198 N.C. 585, 152 S.E. 681. It is noted further that the violation of the Raleigh Zoning Ordinance was enjoined in Raleigh v. Morand, 247 N.C. 363, 100 S.E. 2d 870, upon authority of G.S. 160-179.\nThis is a civil action, expressly authorized by G.S. 90-85.1; and we hold that the validity of G.S. 90-85.1 is not impaired by the fact that the same acts that would constitute wilful violations of the injunction would also constitute a basis for criminal prosecutions. The contentions now made by defendants were so fully considered and answered in Board of Medical Examiners v. Blair (Utah), 196 P. 221, that we quote with approval this excerpt from the opinion of Gideon, J., viz.:\n\u201cIt may be conceded that the power to enjoin the threatened commission of ordinary crimes has never been recognized by the courts. But we are here dealing with the right or power of the Legislature to enact and to provide means for the enforcement of regulations looking to the health of the community. If no other or worse results would or could follow the violation of the penal provisions of a statute than the arrest and punishment of any one violating such provisions, it might well be that the Legislature would not have the authority to provide a remedy by injunction. As indicated, the statute was enacted, not to provide a means of punishing those violating its provisions, but to protect the community from what, in the judgment of the Legislature, was or might be detrimental to the public health. The power of the court, while not often called into force, to prevent such an injury, has been repeatedly recognized in the decisions of the courts of this country. The authority is recognized by the quotation from Allopathic State Board of Medical Examiners v. Fowler, 50 La. Ann. 1358, 24 South. 809, by this court in the Freenor Case, as follows:\n\u201c \u2018The General Assembly, having the authority to attach prior conditions to the practice of medicine, was vested with the right to enforce enactments on that subject by prescribing penalties for violations of the same, either by fine, by imprisonment, or by civil remedies.\u2019\n\u201cSee, also, (Citations).\n\u201cIf it be insisted, as it is, that the violation of the injunction may result in the imprisonment of the defendant, the punishment would not be for the violation of a statute, but for violating an order of the court. As concisely stated by the Supreme Court of Indiana in State v. Roby, supra, at page 189 of 142 Ind., at page 152 of 41 N.E. (33 L. R. A. 213, 51 Am. St. Rep. 174):\n\u2022 \u2018It.is further contended that, in case of the violation of an injunction under the civil remedy part of the act, the court might fine the defendant for contempt, for disobeying the order of injunction, and that would make him liable to double punishment. The statement of the proposition furnishes a sufficient answer thereto. In that case he would not be punished for crime, but for contempt of court.\u2019 \u201d\nSee, also, 43 C. J. S., Injunctions Sec. 124; 28 Am. Jur., Injunctions Sec. 149; S. v. Jewett Market Co. (Iowa), 228 N.W. 288.\nIn Fayetteville v. Distributing Co., supra, where the right to in-junctive relief was upheld as authorized by G.S. 160-179, a part of the Zoning Act, G.S. Ch. 160, Art. 14 Seawell, J., referring to the contention that criminal prosecution provided an adequate remedy at law, said: \u201cIt (criminal prosecution) is not intended, nor is it adequate, to protect society or the individuals or groups within it, or persons within a congested territory, from acts which expose them to special danger or which constitute a menace to the safety, health, and welfare of the community, although indeed these acts may incidentally become violations of law. In order to adequately deal with these evils a resort to the police power should mean more than merely setting in motion that highly specialized vehicle of its exercise \u2014 the criminal law \u2014 since in many instances this must be found inadequate to sustain the power. The fact that an act from which such injury may come, either to a private citizen or to the public at large, is denounced either in an ordinance or in the law as criminal does not immunize its author from other appropriate remedy. . . . Equity is invoked, not to prevent a crime, but to maintain a right.\u201d. (Our italics)\nIt is noteworthy that Oh. 229, Session Laws of 1947, now G.S. 90-85.1, was enacted for the reasons indicated by this preamble: \u201cWHEREAS, the illegal practice of pharmacy involving the use of many dangerous drugs and the internal use of these drugs and medicines by the public is eminently dangerous to the public health and welfare, and such illegal practice is hereby declared to be against public policy.\u201d It is quite evident that the General Assembly did not consider criminal prosecution an adequate remedy for the protection of the public health and welfare.\nWhether the practice engaged in by Baldwin, the unlicensed employee, and caused or permitted by Lane, the employer-owner, of which the specific transaction of August 5, 1954, is typical, was in violation of G.S. 90-71 and G.S. 90-72, was the only question presented to and decided by the court below. Hence, the portion of the judgment reading, \u201cor performing any thing or act in violation of the provisions of General Statutes, Chapter 90,\u201d is too broad and should be stricken therefrom. S. v. Jewett Market Co., supra. It is so ordered. As so modified, the judgment of the court below is affirmed.\nModified and affirmed.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Bailey & Dixon for plaintiff, appellee.", "J. H. Ferguson for defendants, appellants." ], "corrections": "", "head_matter": "NORTH CAROLINA BOARD OF PHARMACY v. W. RONALD LANE T/A LANE\u2019S BROOKLYN PHARMACY and JOHN W. BALDWIN.\n(Filed 9 April, 1958)\n1. Controversy without Action \u00a7 2\u2014\nWhere the parties submit an action to the court upon an agreed statement of facts, the facts agreed constitute the sole basis for decision.\n2. Constitutional Law \u00a7 12: Pharmacy \u00a7 1\u2014\nThe General Assembly, in the exercise of the police power of the State, may regulate the practice of pharmacy.\n3. Pharmacy \u00a7 1\u2014\nG.S. 90-71 and G.S. 90-72, which relate to the same subject matter, are to be construed in pari materia.\n4. Same\u2014\nG.S. 90-71 and G.S. 90-72 proscribe the dispensing and selling of drugs, as well as the compounding physicians\u2019 prescriptions, by persons not licensed as pharmacists or assistant pharmacists, except under the immediate supervision of a licensed person, and therefore, it is immaterial to the application of the statute that an unlicensed person, in dispensing a drug to a customer on prescription in the absence of a licensed pharmacist or assistant pharmacist, merely takes the designated number of tablets prepared by a manufacturer from a large container and removes them to a small container and delivers them to the customer.\n5. Same\u2014\nThe fact that an unlicensed person, in the absence of any licensed pharmacist or assistant pharmacist, in dispensing drugs on a prescription to a customer, has access by telephone to licensed pharmacists in other \u25a0 stores owned by the same employer, does not render his dispensing the drugs permissible under the statute, since the proviso of the statute requires that he act in the immediate physical presence of a licensed pharmacist or assistant pharmacist and under his personal supervision and direction.\n6. Injunctions \u00a7 4g\u2014\nOrdinarily, injunction will not lie to prevent the perpetration of a crime.\n7. Same\u2014\nWhere a statute expressly provides that the violation of its provisions should constitute a misdemeanor and also provides that the acts therein proscribed might be enjoined, the contention that the violation of an injunction issued under the statute would subject the offender to punishment for a criminal offense without the constitutional safeguards of indictment, trial by jury, etc., is untenable, since the punishment for violation of the injunction would be for violating an order of the court and not punishment for a crime. Constitution of North Carolina, Art. I, Secs. 12 and 13.\n8. Judgments \u00a7 17b\u2014\nWhere an action is instituted to enjoin definite acts proscribed by statute, the injunction issued in the action should be limited to the acts defined, and further provision enjoining defendants from doing any act in violation of the statute is too broad and should be stricken therefrom.\nAppeal by defendants from Moms, J., October Civil Term, 1957, of New HaNoveR.\nCivil action to enjoin defendants from continuing certain acts alleged to constitute violations of GS 90-71 and GS 90-72.\nA jury trial was waived. The parties submitted the case upon an AGREED STATEMENT OF FACTS, which, in material part, was as follows:\n\u201cFIRST: . . . the plaintiff North Carolina Board of Pharmacy is . . . the duly constituted agency of the State ... for the purpose of regulating the practice of Pharmacy in . . . North Carolina, . . . and as such agency is authorized to sue in its name.\n\u201cSECOND: At all times herein referred to, the defendant W. Ronald Lane . . . owned and operated a drugstore known as Lane\u2019s Brooklyn Pharmacy, wherein he employed the defendant John W. Baldwin for the performance of certain duties and services in the prescription department thereof as assistant to and under the direct control of registered pharmacist R. E. Miller. . . . The defendant W. Ronald Lane also owned and operated two other drugstores, to wit, Lane\u2019s Miarket Street Pharmacy, and Lane\u2019s Lake Forest Pharmacy, all . . . located in the City of Wilmington, North Carolina. For the purpose of performing the functions of compounding and dispensing prescriptions, selling drugs and medicines, and complying with the laws relating to the practice of Pharmacy, . . . the defendant W^. Ronald Lane, as owner and operator of the said three drugstores ..., employed three registered pharmacists in full and complete charge of the prescription departments of these three stores on a schedule of work so that there were at least two registered pharmacists on duty in at least two of the said drugstores at all times who could be contacted by telephone dr by messenger delivery, for consultation and assistance concerning any prescription to be compounded or otherwise filled in any one of the said three stores, but that on the occasions mentioned in the complaint, none of the said registered pharmacists, or any others, were contacted with regard to the \u2018prescription\u2019 on which this action is based. \u25a0\n\u201cTHIRD: Under and by virtue of Chapter 90 of the General Statutes of North Carolina, the plaintiff North Carolina Board of Pharmacy has delegated to it by the General Assembly of North Carolina the duties and authority set forth therein, including the duty to carry out the purposes and to enforce the provisions of the said Chapter 90.\n\u201cFOURTH: Neither the defendant W. Ronald Lane nor the defendant John W. Baldwin are, or have ever been, either registered pharmacists or assistant pharmacists, within the meaning that the said terms are used in the said Chapter 90 . . .; but the defendant John W. Baldwin, prior to 5 August 1954, had had over 14 years\u2019 experience in filling and compounding prescriptions as an aid to and under the supervision of registered pharmacists in the said Brooklyn Pharmacy.\n\u201cFIFTH: The \u2018prescription\u2019 which was presented to the defendant John W. Baldwin on 5 August 1954 and on which this action is based, and referred to in paragraph 5 of the complaint as amended, is as follows:\nROBERT T. PIGFORD, M.D.\n1015 Murchison Building\nWilmington, N. C.\nReg. No. 3900 Phone 2-1636\nName Mr. Allen Forrest No.\nAddress Deleo, N. C.\nRx. CN 758089 8-5-54\nLuminal gr SS\n#30\n1 tab 2-3 times a day for nervousness\nHave This Prescription Filled By a REGISTERED PHARMACIST at\nthe Drug Store of your choice. R.T.P. M.D.\n\u201cSIXTH: The defendant John W. Baldwin, who was not then a registered pharmacist, or assistant registered pharmacist, and who was acting as the agent, servant, and employee of the defendant W. Ronald Lane, while the registered pharmacist was temporarily off the premises, received the above set forth \u2018prescription\u2019 for the purpose of supplying the tablets called for therein, and did then and there take from a large size container labeled with the trade name of the said tablets and containing a larger quantity of tablets the number of tablets called for by the said prescription, put the said specified number of tablets in a smaller container which was then delivered to the \u2018customer,\u2019 and received the purchase money from the \u2018customer.\u2019\n\u201cSEVENTH: The \u2018prescription\u2019 mentioned in paragraph 6 above did not have to be compounded or prepared from a combination of ingredients, but consisted of tablets which had been previously prepared by the manufacturer thereof, and which tablets were themselves ready for delivery to and use by the ultimate consumer except for removal from their container.\n\u201cEIGHTH: The facts set forth in paragraphs 6 and 7 above, with relation to the occurrence on 5 August 1954, are the same facts as occurred \u2018at various other times\u2019 referred to in paragraphs 5 and 6 of the complaint as amended; and on none of the occasions referred to in the complaint, and on which this action is based, did the defendants, or either of them, have to compound, or prepare by mixing various ingredients, the items called for by the said \u2018prescription,\u2019 but merely removed the prescribed number of tablets called for in the said prescription by their trade name from the stock bottle ready prepared by the manufacturer and delivered them to the ultimate consumer in the quantity specified on the said prescription.\n\u201cAs to the tablets called for in the prescription set forth in paragraph 5 above, they are a drug within the meaning of the use of that term in Sections 90-71 and 90-72 of the General Statutes of North Carolina.\n\u201cNINTH: With relation to the acts set forth in paragraphs 6, 7 and 8 above, the defendant W. Ronald Lane T/A Lane\u2019s Brooklyn Pharmacy, as employer of the defendant John W. Baldwin, caused or permitted the said acts to be done by his said employee.\n\u201cTENTH: The defendant W. Ronald Lane T/A Lane\u2019s Brooklyn Pharmacy, employed and had on the payroll of the said Brooklyn Pharmacy, one or more registered pharmacists who were then and still are duly certified by the plaintiff as qualified to practice pharmacy in the State of North Carolina, but who were not, at the time of the above set forth acts, present on the premises of the said Brooklyn Pharmacy.\n\u201cELEVENTH: The facts set forth in the foregoing paragraphs 6, 7, 8, 9 and 10, with regard to the \u2018filling\u2019 of prescriptions and operations of drugstores constitute a course of conduct which has, from time to time, over a period of many years, been the common practice in a great many of the drugstores throughout the State of North Carolina. The plaintiff has taken action in cases coming to its attention in which \u25a0it could be established that such a course of conduct was being followed.\n\u201cTWELFTH: The facts above set forth in paragraphs 6, 7, 8, 9, 10 and 11 constitute all of the facts upon which the plaintiff North Carolina Board of Pharmacy contends that the defendants violated the Laws of the State of North Carolina with relation to practice of Pharmacy and on which this action is based.\u201d\nUpon these facts, and conclusions of law based thereon, the court entered judgment as follows:\n\u201cNOW, THEREFORE, upon the foregoing findings of fact and conclusions of law, IT IS ORDERED, DECREED AND ADJUDGED that the defendants W. Ronald Lane T/A Lane\u2019s Brooklyn Pharmacy and John W; Baldwin be, and they-are hereby restrained and enjoined from employing others than licensed pharmacists to- perform such services as are hereinbefore set out or performing any thing or act in violation of the provisions of General Statutes, Chapter 90. (Our italics) \u25a0 .\n\u201cIT IS FURTHER ORDERED, DECREED AND ADJUDGED that the costs of this action be taxed against the defendants.\u201d\nDefendants excepted and appealed, assigning errors.\nBailey & Dixon for plaintiff, appellee.\nJ. H. Ferguson for defendants, appellants." }, "file_name": "0134-01", "first_page_order": 176, "last_page_order": 187 }