endowing Congress with power to enforce prohibition by appropriate legislation empowers it to limit the amount of liquor which may be prescribed for medicinal purposes. [See annotation on this question beginning on page 588.] Intoxicating liquors, § 10 restricting prescription to pint validity. 2. Restricting prescriptions by physicians of intoxicating liquor to not to exceed a pint for use by the same person within any period of ten days cannot, in view of the diverging opinions of physicians as to the medicinal value of such liquor, be regarded as arbitrary or without a reasonable basis, and is an admissible measure for enforcing the prohibition ordained by the 18th Amendment to the Federal Constitution. medicine which is not subordinate to the police power, and also to the power of Congress to make laws necessary and proper for carrying into execution the 18th Amendment to the Federal Constitution. [See 4 R. C. L. Supp. 985, 986; 6 R. C. L. Supp. 909. See also annotation in 10 A.L.R. 1588.] Constitutional law, § 751 practise medicine right to police power. 3. There is no right to practise [See 6 R. C. L. 209; 21 R. C. L. 353; 5 R. C. L. Supp. 1155.] - States, § 6 interference by Congress with police power of state. 4. 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. [See annotations in 10 A.L.R. 1587; 11 A.L.R. 1320; 26 A.L.R. 661.] (Mr. Justice Sutherland, Mr. Justice McReynolds, Mr. Justice Butler, and Mr. Justice Stone dissent.) APPEAL by complainant from a decree of the United States Circuit Court of Appeals for the Second Circuit reversing a decree of the District Court for the Southern District of New York enjoining the execution of the provision of the National Prohibition Act limiting the amounts of liquor which may be prescribed for medicinal purposes. Affirmed. See same case below, 4 F. (2d) 915. The facts are stated in the opinion of the court. The 18th Amendment, in prohibiting beverage purpose, does not prohibit, or delegate the power to prohibit, medicinal use. McGill v. Mellon (D. C.) 5 F. (2d) 262; Selzman v. United States, 268 U. S. 466, 69 L. ed. 1055, 45 Sup. Ct. Rep. 574; Com. v. Mandeville, 142 Mass. 469, 8 N. E. 327; Gue v. Eugene, 53 Or. 282, 100 Pac. 254; State v. Roach, 75 Me. 123; State v. Costa, 78 Vt. 198, 62 Atl. 38; Busch v. Webb (C. C.) 122 Fed. 655, appeal dismissed in 194 U. S. 640, 48 L. ed. 1162, 24 Sup. Ct. Rep. 857; Bowman v. State, 38 Tex. Crim. Rep. 14, 40 S. W. 796, 41 S. W. 635; Thomasson v. State, 15 Ind. 449; State v. Larrimore, 19 Mo. 391; Sarrls v. Com. 83 Ky. 327; Nixon v. State, 76 Ind. 524; United States v. Harris, 177 U. S. 305, 44 L. ed. 780, 20 Sup. Ct. Rep. 609; National Prohibition Cases (Rhode Island v. Palmer) 253 U. S. 350, 64 L. ed. 946, 40 Sup. Ct. Rep. 486, 588. Prohibition of medicinal use is inappropriate to the reasonable enforcement of prohibition of beverage purpose. V. Hawker v. New York, 170 U. S. 189, 42 L. ed. 1002, 18 Sup. Ct. Rep. 573; Dent v. West Virginia, 129 U. S. 114, 32 L. ed. 623, 9 Sup. Ct. Rep. 231; Tiedeman, Control of Persons & Prop. § 85, p. 239; Freund, Pol. Power, § 650; James Everard's Breweries Day, 265 U. S. 545, 68 L. ed. 1174, 44 Sup. Ct. Rep. 628; United States v. Doremus, 249 U. S. 86, 63 L. ed. 493, 39 Sup. Ct. Rep. 214; Lochner v. New York, 198 U. S. 45, 49 L. ed. 937, 25 Sup. Ct. Rep. 539, 3 Ann. Cas. 1133; Freund, Pol. Power, p. 210, § 223; Linder v. United States, 268 U. S. 5, 69 L. ed. 819, 39 A.L.R. 229, 45 Sup. Ct. Rep. 446; United States v. Daugherty, 269 U. S. 360, 70 L. ed. 309, 46 Sup. Ct. (272 U. S. 581, 71 L. ed. (Adv. 240), 47 Sup. Ct. Rep. 210.) Rep. 156; Adams v. Tanner, 244 U. S. 590, 61 L. ed. 1336, L.R.A.1917F, 1163, 37 Sup. Ct. Rep. 662, Ann. Cas. 1917D, 973; Children's Hospital v. Adkins, 52 App. D. C. 109, 284 Fed. 613, affirmed in 261 U. S. 525, 67 L. ed. 785, 24 A.L.R. 1238, 43 Sup. Ct. Rep. 394. Control of medical practice in the states is beyond the power of the Federal government. Linder v. United States, 268 U. S. 5, 69 L. ed. 819, 39 A.L.R. 229, 45 Sup. Ct. Rep. 446; Hamilton v. Kentucky Distilleries & Warehouse Co. 251 U. S. 146, 64 L. ed. 194, 40 Sup. Ct. Rep. 106; Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357; Hammer v. Dagenhart, 247 U. S. 251, 62 L. ed. 1101, 3 A.L.R. 649, 38 Sup. Ct. Rep. 527, Ann. Cas. 1918E, 724; Child Labor Tax Case (Bailey v. Drexel Furniture Co.) 259 U. S. 20, 66 L. ed. 817, 21 A.L.R. 1432, 42 Sup. Ct. Rep. 449; Jacobson v. Massachusetts, 197 U. S. 11, 49 L. ed. 643, 25 Sup. Ct. Rep. 358, 3 Ann. Cas. 765. Mrs. Mabel Walker Willebrandt, Assistant Attorney General, and Messrs. William D. Mitchell, Solicitor General, and Mahlon D. Kiefer, for appellees: There is no right to practise medicine which is not subordinate to the police power. Gray v. Connecticut, 159 U. S. 74, 40 L. ed. 80, 15 Sup. Ct. Rep. 985; Dent v. West Virginia, 129 U. S. 114, 32 L. ed. 623, 9 Sup. Ct. Rep. 231; Watson v. Maryland, 218 U. S. 173, 54 L. ed. 987, 30 Sup. Ct. Rep. 644; Reetz v. Michigan, 188 U. S. 505, 47 L. ed. 563, 23 Sup. Ct. Rep. 390; O'Neil v. State, 115 Tenn. 427, 3 L.R.A.(N.S.) 762, 90 S. W. 627; State v. Davis, 194 Mo. 485, 4 L.R.A. (N.S.) 1023, 92 S. W. 484, 5 Ann. Cas. 1000; State ex rel. Grant v. Rosenkrans, 30 R. I. 374, 75 Atl. 491, 19 Ann. Cas. 824; State v. Edmunds, 127 Iowa, 333, 101 N. W. 431. Legislative acts are presumed constitutional. Interstate Consol. Street R. Co. v. Massachusetts, 207 U. S. 79, 52 L. ed. 111, 28 Sup. Ct. Rep. 26, 12 Ann. Cas. 555; Hamilton v. Kentucky Distilleries & Warehouse Co. 251 U. S. 146, 64 L. ed. 194, 40 Sup. Ct. Rep. 106. Every possible presumption is in favor of the validity of an act of Congress until overcome beyond rational doubt. James Everard's Breweries v. Day, 265 U. S. 545, 68 L. ed. 1174, 44 Sup. 49 A.L.R.-37. Ct. Rep. 628; Price v. Russell (D. C.) 296 Fed. 263. Messrs. Wayne B. Wheeler and Edward B. Dunford, amici curiæ: Congress has power under the 18th Amendment to prohibit the prescribing of certain kinds of intoxicating liquors and to regulate the prescribing of other kinds. James Everard's Breweries v. Day, 265 U. S. 545, 68 L. ed. 1174, 44 Sup. Ct. Rep. 628; Clark Distilling Co. v. Western Maryland R. Co. 242 U. S. 311, 61 L. ed. 326, L.R.A.1917B, 1218, 37 Sup. Ct. Rep. 180, Ann. Cas. 1917B, 845. The power of Congress to enforce the 18th Amendment is the same as the police power of states to prohibit beverage intoxicants. National Prohibition Cases (Rhode Island v. Palmer) 253 U. S. 350, 64 L. ed. 946, 40 Sup. Ct. Rep. 486, 588; Jacob Ruppert v. Caffey, 251 U. S. 264, 64 L. ed. 260, 40 Sup. Ct. Rep. 141. The states have authority to prohibit certain kinds of liquors for medicinal purposes and to regulate the medicinal use of other kinds. State v. Durein, 70 Kan. 13, 15 L.R.A. (N.S.) 908, 80 Pac. 987, affirmed in 208 U. S. 613, 52 L. ed. 645, 28 Sup. Ct. Rep. 567; State v. Weiss, 84 Kan. 165, 36 L.R.A.(N.S.) 73, 113 Pac. 388; State v. Miller, 92 Kan. 994, L.R.A. 1917F, 238, 142 Pac. 979, Ann. Cas. 1916B, 365; State v. Macek, 104 Kan. 742, 180 Pac. 985; State v. Kurent, 105 Kan. 13, 181 Pac. 603; State v. Kane, 15 R. I. 395, 6 Atl. 783; State v. Kennedy, 16 R. I. 409, 17 Atl. 51; Re Crane, 27 Idaho, 671, L.R.A.1918A, 942, 151 Pac. 1006; Crane v. Campbell, 245 U. S. 304, 62 L. ed. 304, 38 Sup. Ct. Rep. 98; Cooper v. State, 19 Ariz. 486, 172 Pac. 276; People v. Urcavitch, 210 Mich. 431, 178 N. W. 225. Congress has the right to regulate the nonbeverage use of liquor as an implied and necessary incident to make effective the prohibition upon the beverage use of intoxicants. Selzman v. United States, 268 U. S. 466, 69 L. ed. 1054, 45 Sup. Ct. Rep. 574. There is no right to practise medicine which is not subordinate to police power. Dent v. West Virginia, 129 U. S. 114, 32 L. ed. 623, 9 Sup. Ct. Rep. 231; Gray v. Connecticut, 159 U. S. 74, 40 L. ed. 80, 15 Sup. Ct. Rep. 985; Watson v. Maryland, 218 U. S. 173, 54 L. ed. 987, 30 Sup. Ct. Rep. 644; Reetz v. Michigan, 188 U. S. 505, 47 L. ed. 563, 23 Sup. Ct. Rep. 390; Williams v. Arkansas, 217 U. S. 79, 54 L. ed. 673, 30 Sup. Ct. Rep. 493, 18 Ann. Cas. 865; O'Neil v. State, 115 Tenn. 427, 3 L.R.A. (N.S.) 762, 90 S. W. 627; State v. Davis, 194 Mo. 485, 4 L.R.A. (N.S.) 1023, 92 S. W. 484, 5 Ann. Cas. 1000; State ex rel. Grant v. Rosenkrans, 30 R. I. 374, 75 Atl. 491, 19 Ann. Cas. 824, affirmed in 225 U. S. 698, 56 L. ed. 1263, 32 Sup. Ct. Rep. 840; State v. Edmunds, 127 Iowa, 333, 101 N. W. 431. The 18th Amendment conferred no new right to manufacture or prescribe intoxicating liquors. Hixon v. Oakes, 265 U. S. 254, 64 L. ed. 1005, 44 Sup. Ct. Rep. 514. The power to prohibit the manufacture or prescribing of liquor absolutely being established, it necessarily includes the lesser power to permit conditionally. Clark Distilling Co. v. Western Maryland R. Co. 242 U. S. 311, 61 L. ed. 326, L.R.A.1917B, 1218, 37 Sup. Ct. Rep. 180, Ann. Cas. 1917B, 845; Ohio ex rel. Lloyd v. Dollison, 194 U. S. 445, 48 L. ed. 1062, 24 Sup. Ct. Rep. 703; Rippey v. Texas, 193 U. S. 504, 48 L. ed. 767, 24 Sup. Ct. Rep. 516; Southern Exp. Co. v. State, 188 Ala. 454, 66 So. 122; American Exp. Co. v. Beer, 107 Miss. 528, L.R.A.1918B, 446, 65 So. 581, Ann. Cas. 1916D, 127; State v. United States Exp. Co. 164 Iowa, 112, 145 N. W. 451; State v. Doe, 92 Kan. 212, 139 Pac. 1170. Mr. William C. Woodward, also amicus curiæ. Mr. Justice Brandeis delivered the opinion of the court: The National Prohibition Act, October 28, 1919, chap. 85, title II. § 7, 41 Stat. at L. 305, 311, Comp. Stat. 10,138 cc, Fed. Stat. Anno. Supp. 1919, p. 208, 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, chap. 134, § 2, 42 Stat. at L. 222, Comp. Stat. § 10,1384aaa, Fed. Stat. Anno. Supp. 1921, p. 228, 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 formulas 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 provisions. § 4 (b) and (c). Moreover, the limitation does not apply to prescriptions for such liquor to be administered in certain hospitals. § 6. 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 (272 U. S. 581, 71 L. ed. (Adv. 240), 47 Sup. Ct. Rep. 210.) scientifically trained judgment, and, to that end, to advise the use 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, 68 L. ed. 1005, 44 Sup. Ct. Rep. 514, and James Everard's Breweries v. Day, 265 U. S. 545, 68 L. ed. 1174, 44 Sup. Ct. Rep. 628. 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, chap. 229, 43 Stat. at L. 936, Comp. Stat. § 1120, Fed. 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 WillisCampbell Act, the following state legislation concerning the prescription of alcoholic beverages for medicinal purposes was in effect. In seven states no intoxicating liquor of any kind could be prescribed. Ariz. Const. art. 23, Cooper v. State, 19 Ariz. 486, 172 Pac. 276; Idaho Laws 1915, chap. 11, Idaho Laws 1921, chap. 50; Kan. Laws 1917, chap. 215, State v. Miller, 92 Kan. 994, 1000, L.R.A. 1917F, 238, 142 Pac. 979, Ann. Cas. 1916B, 365; Me. Rev. Stat. 1916, chap. 20, § 17; N. C. Laws 1915, chap. 97, § 8; Utah Laws 1917, chap. 2, § 30; Wash. Laws 1917, chap. 19, § 2. In three states prescriptions could be made only if the liquor was made unfit for beverage purposes. Ga. Laws 1919, No. 139, § 4(b); Neb. Laws 1917, chap. 187, § 25; N. D. Laws 1921, chap. 97, § 2. In fifteen states only al Stat. Anno. Supp. 1925, p. 84. The claim is that the provision assailed is unconstitutional, because it has no real or substantial relation to the appropriate enforcement of the 18th 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 18th 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 problems.2 That evidence disclosed that practising physicians cohol could be prescribed for medical purposes. Ala. Acts 1919, No. 7, §§ 5, 7; Ark. Laws 1919, chap. 87, § 17; Del. Laws 1919, chap. 291, §§ 8, 14; Fla. Laws 1918, chap. 7736, § 5, amended by Fla. Laws 1919, chap. 7890, § 1; Ind. Acts 1917, chap. 4, § 13; Miss. Laws 1908, chap. 113; N. M. Const. art. 23, N. M. Laws 1919, chap. 151; Nev. Stat. 1919, chap. 1, § 4; Okla. Laws 1910-1911, chap. 70, § 1; Or. Laws 1915, chap. 141, § 6(g), as amended by Or. Laws 1917, chap. 40, § 2; S. C. Crim. Code 1921, §§ 797, 798; S. D. Rev. Code 1919, § 10,273, as amended by S. D. Laws 1919, chap. 246, § 1; Tenn. Acts 1917, No. 68, § 6; Tex. Laws 1919, 2d Sess. chap. 78, §§ 13, 14; W. Va. Acts 1921, chap. 115, amending chap. 32A, § 4, Barnes's W. Va. Code. In three states no more than a stated quantity of intoxicating liquor fit for beverage purposes can be prescribed at one time. Colo. Laws 1915, chap. 98, § 18; Mich. Acts 1919, No. 53, § 19; People v. Urcavitch, 210 Mich. 431, 178 N. W. 224; Va. Acts 1918, chap. 388, § 13. In eleven states the standards of the federal law have been specifically adopted. Cal. Stat. 1921, chap. 80; Ill. Laws 1921, pp. structs the enforcement of the 18th 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 physicians 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. Intoxicating liquors-power to limit for medicinal purposes. 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 18th 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 those 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 -restricting be regarded as ar- prescription_to pint-validity. bitrary 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 18th Amendment. A later case applying like principles is Selzman v. United States, 268 U. S. 466, 69 L. ed. 1054, 45 Sup. Ct. Rep. 574. Sup. Ct. Rep. 574. 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 18th 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 18th 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." |