DocketNumber： Calendar 32, Docket 50,087
Citation Numbers： 125 N.W.2d 13, 372 Mich. 22, 1963 Mich. LEXIS 264
Judges： Black, Dethmers, Kelly, Carr, Kavanagh, Souris, O'Hara, Smith
Filed Date： 12/5/1963
Status： Precedential
Modified Date： 11/10/2024
(dissenting). Executive as well as legislative attempts to interfere with, trespass' upon, or even coerce the judicial department are nothing new in the history of tripartite government. On account thereof the judiciary, sworn as it is to uphold and maintain the constitutionally requisite prerogatives of each department, has on historic occasion been compelled to meet head-on all such attempted invasions-and, doubtless, will be so compelled as long as three-divisional government endures. - This case, regrettably, confronts us with just such an occasion.
During President Jefferson’s administration congress “actually closed down the supreme court for a year.”
“An opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence. of lazy or timid associates, by a crafty chief judge, who sophisticates the law to his mind, by the turn of his own reasoning.”
President Roosevelt’s unprecedented court-packing bill of 1937, and the modern drumfire of attacks upon the supreme court in and out of congress,
This Court, too, on 1 notable occasion where the essayed opening wedge was small but the principle great, did not hesitate (even in the absence of a pending action or proceeding) to advise the executive and legislative departments that it would countenance no trespass upon or interference with the
We cannot blink the sordid fact that this has become a “political” case. It was made so last March by successive partisan intrusions, each gratuitous and wholly unwarranted, first by a Republican governor and then by a retorting Democratic State chairman, Mr. Ferency; all while the Court awaited due pleadings and orderly submission of the case. Now that a decision is due, we may no longer ignore such intrusions lest more of the same are encouraged by that silence which, in matters political, seems always to be taken as cowed submission or, worse, total indifference. Nor may any member of this Court pretend that he lives and works so far from the world of reality as to know nothing about the governor’s hosanna-heralded entry into this yet pending case, and nothing about Chairman Ferency’s immediate and equally indefensible counter-entry therein. It is true today, as formerly, that “Courts are not supposed to be blinded bats,” and that “What
This ease is before us upon invocation of the Court’s original jurisdiction. No circuit judge ever could have decided it. Nor could any such judge adjudicate any issue the parties so far have presented by their pleadings and briefs. And no one, the governor included, was ever possessed of right — either in fact or law — to conclude that Judge Coleman’s special report to us, a report supposedly made for our exclusive consideration and appraisal, might or could be regarded as a judicial decision or judgment of any kind. Such reports are sought by this Court solely for aid and explanation in original ■eases, and the right and duty to accept or reject them is committed solely to our determination. Let that sink in.
So when the governor, somehow advised of the content of Judge Coleman’s report prior to the very existence thereof being known to the Justices,
And when the governor threatened in front page headlines to remove the defendant drug director, for grounds allegedly found in Judge Coleman’s re
It is not amiss -at this juncture to observe that the governor did himself no credit by openly taking 1 side of this- case when his appointed legal adviser, Mr. Van Dusen, was ■ upon judicially noticeable record a member of this plaintiff’s law firm. See each- annual issue of the Martindale-IIubbell Law Directory, starting with the year 1959 (1963 issue vol 2 at page 3005); also the official and current State Bar roster (42 MSBJ, No 6, p 185). And Chairman Fereney, himself a member of the bar and familiar with what is orderly and what is not with respect to a judicially pending ease, should have maintained silence no matter what the governor did. The two are equally censurable.
These successive and unseemly performances have left the Courf in what may be described — in minimal terms — as an embarrassing position. No matter the sincerity of repeated protestation that appellate court Justices are ■ never coerced or influenced by the pulls and hauls of partisan politics, these highly stationed intruders have, by their acts, forced the
Now, save only ' by this second-in-our-history “Letter” to the governor, there is no way to avoid the appearance, that odious if false appearance, that some voting here to give this plaintiff — peremptorily — everything it demands, and some voting here to remand for complete administrative submission and determination as a condition of rightful judicial review, have been influenced either way by applied partisan pressures. And surely, without such “Letter,” the cynics of partisan politics are due to proclaim again, as when the latest apportionment case was handed down (Scholle v. Secretary of State, 367 Mich 176), that sly old saw anent partisan-nominated judges: “Once we judged judges by the company kept by them, but now we judge judges by the political parties that keep them.” Hopefully
Reflective thought upon this voluminous record proves that the attorney general was right when he insisted, in brief supporting the defendant board’s answer (filed October 5, 1962), that plaintiff was attempting by the instant petition for mandamus to bypass Michigan’s administrative procedure act of 1952 (CLS 1956, § 24.101 et seq. [S-tat Ann 1961 Rev § 3.560(21.1) et seq.']). The same reflective thought proves that plaintiff in turn was right when, in brief filed October 30,1962, it rather heatedly opposed the attorney general’s motion for an order of statutory reference. This in summary shrift means that our successive orders of reference and remand, each having issued under CL 1948, § 636.4 (Stat Ann § 27.2231),
By its petition and supporting brief plaintiff requests our peremptory writ “commanding defendants to issue forthwith a renewal license for plaintiff’s Battle Creek store.” That was the basic issue which arose before the defendant board when plaintiff vainly applied to the board for a renewal license under PA 1885, No 134, as amended (CL 1948 and
■ No one of the questions plaintiff states and .presents before us (all appear in the margin
“Meeting reconvened in Room 115, Stevens T. Mason building, Lansing, Michigan, at 11:30 a.m.
“Mr. Moss informed the board members that he bad received additional information concerning the Herman Pharmacy, 68 West Michigan avenue, Battle Creek, Michigan. This was in the form of an inspection sheet showing that Mr. Herman filled .and refilled barbiturate and amphetamine prescriptions without the physician’s signature. The report was signed by Mr. Herman and the inspection was. made by State Inspector Kenneth French.
“Furthermore, a telephone call had been received from Mr. Mark Louis Briggs, former owner of the ■Owl Drug, Inc., which is now the Herman Pharmacy. Pie advised Mr. Moss that the store had been closed ■due to the fact he could not make his payments, in January of 1958. The mortgage company took over, reopened with him (Mr. Briggs) as manager, until July of 1958, at which time it was again closed and remained closed until the latter part of November 1958. ■
“Mr. Moss felt that the evidence supplied by our inspector would substantiate the affidavit read by Mr. Charles MacLean, to the effect that Mr. Herman was dispensing without proper prescription. After further discussion Mr. Gillespie made the following motion:
“ T now move the Michigan board of pharmacy, under provision of PA 1885, No 134, § 19 (CL 1948,*32 § 338.419 [Stat Ann 1956 Rev §14.741]), which; states:
“ ‘ “The State board of pharmacy shall have the power to . withhold a license from any applicant whenever it shall be satisfied that the safety of the public health will be endangered by reason of the habits or character of such applicant.”
deny the application for a pharmacy and narcotic license of the Supers Drugs Corporation, 68 West Michigan avenue, Battle Creek, Michigan, on the ground the management has not fulfilled the requirements of the pharmacy laws of the State of Michigan, due to dispensing barbiturate and amphetamines without prescription signed by the physician, dentist or veterinarian, which is in violation of the dangerous drug act, PA 1943, No 204, as amended by PA 1961, No 28 (CL 1948, § 335.101 et seq., as amended [Stat Ann 1957 Rev and Stat Ann 1961 Cum Supp § 18.1101 et seq.l):
“'“(c) Druggists and pharmacists shall be prohibited from selling, giving away, bartering or otherwise disposing of barbituric acid and any of its derivatives, chloral hydrate, paraldehyde, or amphetamines and methamphetamine and their salts and derivatives, except on prescription of a licensed physician, dentist or veterinarian.” ’
“Motion seconded by Mr. Paul Coussen, and unanimously carried by vocal roll call of the members of the Michigan board of pharmacy.”
Refer now to section 8 of the act of 1952. No effort was made by plaintiff to seek review of the board’s determination as in that pointedly available section provided. Its counsel must have known, as Governor Williams observed when he returned to the signed, the act of which section 8 is
Had plaintiff sought review under said section 8, the circuit court then would have been confronted with the same record of arbitrary administrative action plaintiff, by its attempted bypass of section 8, has brought directly here. That court would, we must assume, promptly have reversed and remanded for due hearing and with firm suggestion that the board examine and then conform to the processual religion of the act of 1952. And what that court would have done, we should do now, the better and the quicker to get the case back on its rightful procedural track.
In the ultimate this record portrays a total failure of administrative due process; a record which wants an orderly presentation of proof before the statutory administrator and a determination, by such administrator upon that proof, of plaintiff’s said application. For such failure the defendant board became and remains primarily responsible even though plaintiff, headlong-bent as it was for the goal of our clerk’s office, compounded the board’s error
The painful result is that plaintiff has not shown a clear legal duty on the part of the board to license it as prayed. It has shown only a reversible and remandable failure of due process, and we need but repeat what was said — of the extraordinary writ plaintiff seeks — in Toan v. McGinn, 271 Mich 28, 34:
“The applicable rules are clear. To support mandamus, plaintiffs must have a clear legal right to performance of the specific duty sought to be compelled; defendants must have the clear legal duty to perform such act; and it must be a ministerial act, one ‘where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.’’ 38 CJ, Mandamus, § 72, p 598. See, also, Globe Indemnity Co. v. Richer, 264 Mich 224; Sezor v. Proctor & Gamble Soap Co., 267 Mich 128.”
The rule of this case has been followed many times, in a variety of instances attested by the signatures of veteran Justices Carr and Dethmers, notably Kosiba v. Wayne County Board of Auditors, 320 Mich 322, at 326 (Dethmers and Carr); Janigian v. City of Dearborn, 336 Mich 261, at 264 (Dethmers and Carr); State Highway Commissioner v. Ottawa Circuit Judge, 339 Mich 390, at 395 (Carr); Taylor v. Ottawa Circuit Judge, 343 Mich 440, at 444 (Dethmers and Carr); Cochrane v. Mesick Consolidated School Board of Education, 360 Mich 390, at 416 (Dethmers). Today, however, it is ignored.
To date, no record has been made before the defendant board on the basis of which this Court or any court would have been, or now might be, justified in ruling that the board has “a-clear legal duty” to grant plaintiff the consequentially far-reaching li
But it is said that'plaintiff’s remedy at law (under the act of 1952) is inadequate, in that (quoting the Chief Justice):
“Such court [circuit on review under said' section 8] is not given specific authority to enter the order that it may conclude the agency should have issued. Assuming that; defendant board on resubmission to it of plaintiff’s application for a license enters an order of denial, and the circuit judge on- appeal concludes that plaintiff was under the proofs entitled to such license, a mandatory order for its issuance would clearly be beyond'the jurisdiction of the circuit court.”
This belatedly conjured picture of a, woebegone .circuit judge, seated helpless to enforce- the reversing order he has entered under said section 8, will bring sympathetic tears to the eyes of all who, viewing it in print, are not too familiar, with circuit court jurisdiction. The tears, though, may be quickly dried.
Let-us read, first, section 8, subd (6), of the act of 1952 (CLS 1956, § 24.108 [Stat Ann 1961 Rev § 3.560(21.8)]):
“(6) The [circuit] court may affirm the decision of'the agency or remand the case for further pro'ceedings; or it may reverse or modify the decision*36 if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions or decisions are:
(a) In violation of constitutional provisions; or
(b) In excess of the statutory authority or jurisdiction of the agency; or
(c) Made upon unlawful procedure; or
(d) Affected by other error of law; or
(e) Unsupported by competent, material, and substantial evidence in view of the entire record as submitted, or contrary to the overwhelming weight of the evidence; or
(f) Arbitrary or capricious.”
Let us read next what has been repealed (by PA 1961, No 236, § 9901; [CLS 1961, § 600.9901, Stat Ann 1962 Rev § ' 27A.9901]), and so is mistakenly depended upon by the Chief Justice to support his quoted declaration of circuit court debility (CLS 1948, § 636.3 [Stat Ann § 27.2230]):
“No circuit court shall have jurisdiction to issue a writ of mandamus against any State officer.”
View now what by statute has replaced said section 636.3:
“All actions for mandamus against State officers shall be commenced in the Supreme Court.” PA 1961, No 236, § 4401 (CLS 1961, § 600.4401, Stat Ann 1962 Rev § 27A.4401).”
If the former restriction (by section 636.3) ever meant anything in the context of enforcement of a section 8, subd (6), order of reversal (the undersigned are agreed that it never has), such restriction means nothing now in view of its repeal. The fact is that, ever since the administrative procedure act became effective in 1952, the circuit court, on review provided by section 8, subd (6), of that act, has been clothed with express as well as inherent power to enforce any order of reversal it might enter under
“Circuit courts have jurisdiction and power to make any order proper to fully effectuate the circuit courts’ jurisdiction and judgments.”17
In the highly improbable instance of administrative insubordination the Chief Justice fears, .there would be no need or occasion for issuance by any court of a writ of mandamus or order of superintending control. Should any agency, the decisions of which are subject to judicial review under section 8, subd (6), refuse to act in accordance with a circuit court order or judgment of reversal, the court’s power to enforce by contempt would be just as effective as would this Court’s corresponding power to enforce its own orders. The Chief Justice,
One need but add, should a majority of the membership of this Court sign what the Chief Justice has written, that Michigan’s administrative procedure act will have been fully emasculated so far as concerns judicial review in circuit as now provided in said section 8. In such event any aggrieved' applicant for license may bypass the circuit court by .heading direct to this Court with an application for order of superintending, control, in which he or it need but allege inadequacy of the statutory remedy of review. On what ground? Why simply that the circuit courts lack “jurisdiction” to effectuate such remedy. Quite, a prospect, this. The aggrieved party would have a free selection, according to selective ex parte advantage, between review under section 8, subd '(6), or review in the Supreme Court 'by application for extraordinary writ.
It is said next, by the Chief .Justice, that the plaintiff’s remedy of judicial review — under the act of 1952 — is not exclusive, and a portion of the first paragraph of section 8 of the act is quoted as follows :
■ “Nothing in this section shall be deemed to prevent ¡resort to other means of review, redress, relief or trial de novo, provided by law.”
, True enough, such remedy is not exclusive if another remedy is “provided by- law.” But there is
“In its petition for writ of mandamus plaintiff alleged that defendant Moss sought to close the Battle Creek store of petitioner for thé purpose of interrupting the continuous operation thereof, thus creating a bar to plaintiff’s claim that it was entitled to the rights granted by the ‘grandfather’ clause of the statute above quoted. However that may be, it is obvious that following the procedure suggested of remanding to the pharmacy board, and leaving plaintiff to a remedy other than by resort to a mandamus proceeding in this Court, might well result in such closing and thus break the continuity of operation on which plaintiff relies.”
There is a short answer to this, assuming plaintiff’s rights do require the utmost of judicial pro1 tection against all suppositions of prejudicial nature. Upon remand with presently indicated instructions, let us simply do as was done before when the same alarum was previously sounded, that is, enter a special order authorizing plaintiff, pending final determination of its application for license, to “continue its operation of the drug store or pharmacy in said city of Battle Creek without interference thereof on the part of the defendant board.”
We might well stop here, and announce that a judgment of dismissal of plaintiff’s petition should be entered, without prejudice to a genuine hearing before and determination by. the defendant board. But the error below, the importance to many interested yet unrepresented parties of all relevant issues which must originate before the board, and the possible effect due resolution thereof may have upon the public health, suggest that plaintiff’s petition for mandamus and our order to show cause should be treated as a granted petition for review, by the constitutional writ of certiorari, of the board’s decision of September 26, 1962. Thus may this Court spell out now, rather than later, the duties of a State agency when a “contested case” — defined in section 1 of the administrative procedure act of 1952 — is presented before it.
Here, visibly and vigorously, the defendant board did have before it, on September 26, 1962, a “contested case.” The plaintiff was determined that it should have a license immediately per application, and several hundred independent druggists were equally determined that no such license should issue.
When courts sit for review of administrative decisions by which statutory licenses are granted, denied, revoked, or suspended, they do not thereby enter the administrative business of licensure. As said in Federal Power Commission v. Idaho Power Co., 344 US 17, 20 (73 S Ct 85, 97 L ed 15):
“When-the court [court of appeals for the District of Columbia circuit] decided that the license should issue without the conditions, it usurped an administrative function. There doubtless may be situations where the provision excised from the administrative order is separable from the remaining parts or so minor as to make remand 'inappropriate. But the guiding principle, violated here, is that the function of the reviewing court ends when an error of law is laid bare. At that point the .matter once more goes to the commission for reconsideration (citing cases).”
So in many of the States, as in our State, all former questions having to do with the respective functions of courts and administrators are resolved now by what have become known as uniform administrative procedure acts, of which our said act (of 1952) is a general counterpart. An up-to-date resume of such acts so far in effect appears in 2 Am Jur 2d, Administrative Law, § 201 et seq., starting on page 32, under heading of “Administrative Procedure Acts,” and it is altogether probable that Michigan’s adoption of the uniform act was stimulated by Mr. Hoyt’s treatise, “Should Michigan Adopt an Administrative Procedure Code,” 29 MSBJ, No 2, p 33, by which this trenchancy came before the bar in 1950 (p 37):
*42 “Another thing that the courts have from time to - time insisted upon, but the administrative agencies are sometimes prone to forget, is that the decision of , the agency must be based solely on the record whose contents all parties have had an opportunity to know, and not on confidential or outside information received by the agency from its own investigators or others. As the supreme court of the United States has put it, manifestly there is no hearing when the party does not know what evidence is offered or considered, and is not given an opportunity to test, explain or refute.”
The quotation discloses that the defendant board erred, fundamentally and reversibly, when its quoted decision of denial was made for reasons declared therein. Accordingly, and on instructional remand, the board should proceed with dispatch, under the act of 1952, (a) to hear and consider all admissible proof tendered in support as well as against plaintiff’s application; (b) to hear and consider all admissible proof interested parties may offer for and against what was and still remains the real issue of importance
As to the aforesaid real issue of importance I would hint no opinion. The defendant board is charged with administration of our statutes pertaining to pharmacy, and the questions to be heard and decided on remand are those of specific application of statutory terms, to presented facts, which the appointed agency of administration must determine
. To conclude: The final outcome of this case will mean grant or denial of a million dollar chain store pharmacy license. That outcome should be attained by orderly due process'of administrative law;.not by the convenience of ratification by this Court of its undenied interlocutory error; the error which Justice Smith describes as that of having “accepted and .maintained jurisdiction in this case” and which I describe as the error of having omitted summary denial, with included instructions, of this original petition for mandamus.
Until now, orders to show cause and of reference in mandamus proceedings — all of which are supposedly provisional — have not been regarded as finally binding or adjudicatory of anything. Mo.st certainly they do not determine that mandamus is the petitioner’s proper remedy (Reed v. St. Clair Circuit Judge, 122 Mich 153; Olson v. Muskegon Circuit Judge, 49 Mich 85). Today,' however, we learn that decisions to grant or deny such orders had best receive full scale study rather than that which, hitherto, has been time-budgeted for all like decisions pendente. The lesson of Supers learned, some of us will have to proceed with greater vigilance as future original petitions arrive lest we commit ourselves to having “accepted and maintained jurisdiction.”
Accepting plaintiff’s petition as having sued out certiorari to the defendant board, I conclude that the
The issues in this case should be decided by this Court on the record presented and the briefs and arguments of the respective parties. The primary question involves the right of the plaintiff to receive from the defendant board a license to operate its pharmacy in the city of Battle Creek. The facts are fully presented in the record that has been made. In view of that record and the proceedings taken before the defendant State board of pharmacy on plaintiff’s application for the issuance of a license for the year beginning July 1, 1962, a decision of the controversy should not be here refused and the proceeding remanded to the defendant board for possible action there. This Court should retain its jurisdiction.
Involved in a determination of the matters at issue are certain provisions of the statutes relating to the practice of pharmacy in this State. The powers and duties of defendant boardare prescribed by PA.1885, No 134 as amended. Section 5 of said act, CL 1948, § 338.405, as last amended by PA 1958, No 193
■“It 'shall be unlawful for any person, firm or corporation to engage in the business of selling at retail,, drugs and poisons or compounding prescriptions, except those who are exempted from registration under section 18 of this act, without first securing from' the State board of pharmacy a license as hereinafter' provided for each separate place in which said business is to be carried on. Application for such license' shall be in writing and shall be accompanied by á‘ payment to said board of the sum of $15 as a license fee. Such licenses shall be valid for a period of 1 year commencing on July 1st and ending on the 30th day of the next June, and such license shall contain the name of the licensee and the address of the place at which such business will be conducted. Every person, firm or corporation, and every member or officer thereof, who violates the provisions of this section shall be guilty of a misdemeanor, and upon conviction thereof shall be liable to the penalties provided in section 32 of this act.”
The statute further requires that no one other than a registered pharmacist may engage in the dispensing, compounding, or sale of drugs, medicines, or poisons, anywhere within the State, except as otherwise expressly provided.
Also involved is the application, under the facts in the case, of PA 1927, No 359 (CL 1948, § 338.481 et seq. [Stat Ann 1956 Rev §14.771 et seq.]), the first section of which act reads:
“Every pharmacy, drug store or apothecary shop shall be owned by a registered pharmacist and no partnership or corporation shall own a drug store, pharmacy or apothecary shop unless at least 25% of all stock is held by registered pharmacists, except that any corporation, organized and existing under the laws of the State of Michigan, or any other State*46 ... i>£ the-United States, authorized to do business in the; .'State of Michigan and empowered by its charter to •own and conduct pharmacies, drug stores or apothecary shops and which, at the time of the passage of this act, owns and conducts a drug store or stores, 'pharmacy or pharmacies, apothecary shop or shops' in the State of Michigan may continue to own and •conduct the same and may establish and own additional pharmacies, drug stores or apothecary shops -in accordance with provisions of this article: Provided, That any such corporation which-shall not ''continue to own at least 1 of the pharmacies, drugstores or apothecary shops theretofore owned by it, or ceases to be actively engaged in the practice of pharmacy in the State of -Michigan, shall not be permitted thereafter to own a drug store, pharmacy or apothecary shop: And-provided further, That any-person not a registered pharmacist who at-the time of the passage of this act owns a pharmacy, drug store or apothecary shop in the State of Miehi-’ gan, may continue to own and conduct the same in' accordance -with existing laws and regulations: And provided further, That the administrator, executor or trustee of the estate of any deceased owner of a, pharmacy, drug store or apothecary shop, or the widow, heirs or next of kin of such deceased owner, may continue to own and conduct such pharmacy^ drug store or apothecary shop in accordance with existing laws and regulations: Provided further* That this act shall not apply to stores or shops', in which patent or proprietary medicines and ordinary domestic or household remedies, such as the sale of is provided for in section 18 of Act No 134, Public Acts of 1885, are the only drugs and medicines sold .at retail.”
Plaintiff was incorporated under the laws of Michigan in December, 1909, as “Baker-Jones Company.” In 1913 the name was changed to “Owl Drug
Plaintiff further alleged that it was given certain explanations or excuses for delay in issuing the licenses,. and that on September 24, 1962, it was advised by telegram that a meeting would be held on September- 26th in the city of' Lansing. It- was claimed that said notice did not comply with the administrative rule adopted by defendant board to the effect that notices of hearings before the board of pharmacy should be given by registered mail at least 15" days prior to a hearing. The meeting Was held on the 26th .of September at the Lansing Civic Center, and was attended by 900 or more individuals apparently seeking to prevent, if possible, the granting of the license to plaintiff. Discussion of the manner in which the hearing was conducted would serve no useful purpose here. Following the hearing, and at approximately 2 o’clock in the afternoon of Sép
The written order issued by defendant board on plaintiff’s application was dated September 27, 1962, and the material part thereof read as follows:
“The Michigan Board of Pharmacy, under provision of PA 1885, No 134, § 19, as amended (CL 1948, § 338.419 [Stat Ann 1956 Rev § 14.741] ) which states:
• “ ‘The State board of pharmacy shall have the power to withhold a license from any applicant whenever it shall be satisfied that the safety of the public health will be endangered by reason of the habits or character of such applicant,’
deny the application for a pharmacy and narcotic license of the Supers Drugs Corporation, 68 West Michigan avenue, Battle Creek, Michigan, on the ground that management has not fulfilled the requirements of the pharmacy laws of the State of Michigan, due to dispensing barbiturate and amphetamines without prescription signed by the physician, dentist or. veterinarian, which is in violation of the dangerous drug act, PA 1943, No 204, as amended by PA 1961, No 28 (CL 1948, § 335.101 et seq., as amended [Stat Ann 1957 Rev and Stat Ann 1961 Cum Supp § 18.1101 et seq.]):
*49 “‘(c) Druggists and pharmacists shall be prohibited from selling, giving away, bartering or otherwise disposing of barbituric acid and any of its derivatives, chloral hydrate, paraldehyde, or amphetamine and methamphetamine and their salts anci derivatives, except on prescription of a licensed physician, dentist or veterinarian.’
“Yours very truly,
“David M. Moss, Director,
“DMM :dt “Drugs and Drug 'Stores.”
With reference to said written order it may be noted that PA 1952, No 197, § 7
“Every decision and order adverse- to a party to the proceeding, rendered by an agency in a contested case, shall be in writing'or stated in the record and shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of the conclusions upon each con-, tested issue of fact. Parties- to the proceedings shall be notified forthwith of the decision and order in perr son or by mail. A copy of the decisions and order and accompanying findings and conclusions shall be delivered or mailed upon request to each party and to his attorney of record.”
It thus appears that the order of the board based a denial of the license sought by plaintiff on the theory that acts of employees of plaintiff had endangered the safety of the public health “by reason of the habits or character” of Superx. Obviously the order may not be construed as embodying any other reason for the action taken. .
As before stated, plaintiff’s petition for relief from the order of. defendant board was filed in this Court on September 27, 1962. On behalf of defend
An order was issued by this Court under date of October 16,1962, requiring defendants to show cause why the relief sought by plaintiff should not be granted with reference to the renewal of the' license of the drug store or pharmacy located in Battle Creek. It was further ordered that pending the determination of the case, or the further order of the Court in the premises, petitioner might continue its operation, of said store without interference on the part of defendant board. Shortly thereafter motion for order of reference for the taking of testimony on the issues of fact presented by the pleadings was filed on behalf of defendants. The motion was granted on October 30th following, and the ease was remanded to the circuit court of Calhoun county for the taking of proofs before 1 of the judges of said court and the filing of a transcript of the testimony so taken. Such hearing was assigned to the Honorable Creighton R. Coleman, circuit judge, who proceeded to carry out the order of reference. A pre
“1. Did plaintiff operate a drug store in September, 1927, and has it continued to operate one from that date through October 1, 1962?
“2. Did plaintiff cease to be actively engaged in the practice of pharmacy in the fall of 1956 [1958 sic] ?
“3. Have the defendants been guilty of an abuse of discretion in treating plaintiff’s application for renewal license at its Battle Creelc store? . ■ ■
“4. What was the reason for the denial of plain-, tiff’s license application, which took place on Sepr, tember 26,1962? ' , -
“5. Does an act requiring that registered pharmacists hold 25% of the stock of a corporation owning a drug store bear a reasonable relation to the health,, safety, and morals of the people of the State of. Michigan? - -
“6. What has been the common practice , of pharmacists with respect to dispensing barbiturates and-amphetamines on oral prescription?
“7. What evidence of alleged violations .of the, hypnotic drug act and the pharmacy act wás-before. the pharmacy board when it denied plaintiff’s renewal license?” ... . , "
Counsel for the parties also entered into a stipula-. tion of facts covering the formation and operation of the plaintiff, its name changes,- its continuous', operation of the drug store in Battle Creek' from January 1, 1927, to January 1, 1958, and its compliance with laws of the State.relating to returns and reports to State agencies. It was- also stipulated' that for certain years licenses were issued by defend-' ant board covering the operation of said store under the names of, officers thereof.- It- clearly- appears from the record that prior to July 1, 19,62j the store'
Following the taking of the testimony before Judge Coleman and its filing in this Court an order was entered under date of January 28, 1963, directing remand of the transcript to the circuit judge for preparation and submission to this Court of an opinion making due determination of the issues of fact involved. It was also directed that following the filing of the desired opinion the appendices and briefs of the parties should be printed and the case submitted. . This procedure was followed, the case being finally submitted on oral argument under date of July 17, 1963.
It is evident from the testimony taken that the parties to the controversy were given full opportunity to-present their claims before the circuit judge, and the opinion rendered by Judge Coleman establishes conclusively that he gave careful consideration to all of the proofs before him. .The. conclusions that he reached were supported by the testimony of the witnesses. He considered the points that counsel had agreed were involved in the proceeding and concerning which testimony should be taken, and expressed clearly his finding as to each. This Court is indebted to Judge Coleman for the very careful and efficient way in which he sought to be of service in the proper'disposition of the controversy. The record made in the mandamus proceeding should not be brushed aside by this Court, jurisdiction over the case terminated, and a remand made to the defendant pharmacy board for such action as it may see fit to take. Such course would leave plaintiff without a license to continue the operation of its Battle Creek store and the order of-this Court under which it has been doing so would, of course, be terminated.
No question is raised as to the jurisdiction of this Court to .apt on the .petition for a writ of-mandamus.
“It is the inadequacy, and not the mere absence, of all other legal remedies, and the danger of a failure of justice without it, that must usually determine the propriety of this writ. Where none but specific relief will do justice, specific relief should be granted if practicable. And where a right is single and specific it usually is practicable.”
The language quoted ‘ was approved in Chemical Bank & Trust Co. v. County of Oakland, 264 Mich 673, 678, 679, and in Hazel Park Racing Association, Inc., v. Racing Commissioner, 336 Mich 508, 518, and its general import has been followed in numerous prior decisions of this Court.
The adequacy of an appeal from the State board-of pharmacy in a case of this nature, under the provisions of PA 1952, No 197, above cited, is open to serious question. That act defines the scope of the authority of a circuit court on appeal from a decision of an administrative agency. Such court is not given specific authority to enter the order that it may conclude the agency should have issued. Assuming that defendant board on resubmission to it of plaintiff’s application for a license enters an order of denial, and the circuit judge on appeal concludes that plaintiff was under the proofs entitled to such license, a mandatory order for its issuance would clearly be beyond the jurisdiction of the circuit court. At the time of the institution of this proceeding in this Court the statute.expressly provided that:
*54 “No circuit' court shall have jurisdiction to issue a writ of mandamus against any State officer.” CL 1948, § 636.3 (Stat Ann § 27,2230).
Such an order would in effect be within the scope of the inhibition which was applicable to the circuit court in appellate matters as well as proceedings originating in that court. See Mount Clemens Harness Association v. Racing Commissioner, 360 Mich 467, 475, and prior decisions cited. ' The present judicature act is of like tenor, providing that all actions for mandamus against State officers shall be commenced in the Supreme Court. PA 1961, No 236, chap 44, § 4401 (CLS 1961, § 600.4401 [Stat Ann 1962 Rev § 27A.4401] ).
It should be further noted that the legislature in the enactment, of PA 1952, No 197, above cited, did not undertake to make exclusive the procedure outr lined for judicial review of an order of an administrative agency in a contested matter. Section 8 of the act (CLS 1956, §24.108 [Stat Ann 1961 Rev § 3.560(21.8)']) expressly provides that:
“Nothing in this section shall be deemed to prevent resort to other means of review, redress, relief or trial de novo, provided by law.”
The conclusion, therefore, follows that if an application for the issuance of a license, of the character here involved, results in a “contested case” within the meaning of the statute the party claiming to be aggrieved by the order entered by the agency is not limited, in.any case, to the method of review specified but has an election to seek relief by any other means sanctioned by law. In the instant case the remedy by way of mandamus was clearly available. As above indicated, the authority of this Court to entertain jurisdiction on an application for such writ
In its petition for writ of mandamus plaintiff alleged that defendant Moss sought to close the Battle Creek store of petitioner for the purpose of interrupting the continuous operation thereof, thus creating a bar to plaintiff’s claim that it was entitled to the rights granted by the “grandfather” clause of the statute above quoted. However that may be, it. is obvious that following the procedure suggested of remanding to the pharmacy board, and leaving plaintiff to a remedy other than by resort to a mandamus proceeding in this Court, might well result in such closing and thus break the continuity of operation on which plaintiff relies. Adequate protection to the petitioner here necessitates a method of procedure that will safeguard it against an invasion of any statutory rights to which it may be entitled. Under the situation presented we think that it was entitled to invoke the jurisdiction of this Court and to seek relief by way of mandamus. "We may not proceed on the assumption that defendant board did not act at all in the premises. It caused inspections to be made ' of plaintiff’s store and also of its records. Apparently it sought to gather information from various sources. Based on its activities in the matter it assumed to issue a positive and explicit order denying a license to the plaintiff and stating its reason therefor. Plaintiff properly concluded that it would be bound by said order unless it could obtain relief by appropriate court action.
Plaintiff was entitled: to invoke the jurisdiction of this Court by its petition for the issuance of a writ of mandamus to the defendant board, and, in consequence, the question is now presented whether under the record before us it is entitled to the relief sought.
The testimony of defendant board’s inspector disclosed that he found in the records of plaintiff’s drug store indications that, in a very few instances, a sale had been made without there being on file a written prescription duly signed by one authorized under the statute to do so. The query is whether such incidents, limited in number as they were, may fairly be said to have endangered the public health. In this connection it is significant that the president of the State board of pharmacy testified to filling prescriptions within the scope of the statute without written authorization therefor, further stating that in his opinion the safety of the public health was not thereby endangered. Other members of defendant board gave testimony of like character. The conclusion is fully justified from the proofs that in the practice of pharmacy there has not been strict compliance by the profession generally with the claimed requirement as to the sale of certain articles on written prescription only*
“An order for drugs or- devices written, signed or transmitted by word of mouth, telephone, telegraph or other means of communication by a physician, dentist or veterinarian, to be filled, compounded or dispensed, but if the order is transmitted in other than written form, it shall be recorded in writing and immediately dated by the pharmacist, and such record shall constitute the original prescription.”
Said act was approved May 9, 1962. While not in effect at the time of the order of the defendant board denying plaintiff’s application for a license to operate its store, it is apparent that defendants were aware of the legislative action. Defendant Moss testified that the bill was sponsored by the Michigan State Pharmaceutical Association, that it looked like a good bill, and that he did not oppose it. The president of the defendant board testified that he supported the measure.
The circuit judge, after weighing the testimony, concluded that it was common practice prior to the taking effect of the act of 1962, above cited, to fill barbiturate and amphetamine prescriptions on oral order, and that there was no evidence that plaintiff had ever filled unauthorized prescriptions. Under the record before us the conclusion cannot be avoided that the reason given by the defendant board for denying a license to the plaintiff for the operation of its Battle Creek drug store was not well-founded. It is significant in this respect that the board’s inspector, after his examinations, of the store and. its
It has been stipulated by counsel that plaintiff corporation conducted a drug store in the city of Battle Creek from January 1, 1927, to January 1, 1958, and during said period did not cease at any time to be actively engaged in the practice of pharmacy. It further appears that it was issued a license for the carrying on of said operation for each year to and including June 30, 1962. On behalf of defendants, however, the claim has been advanced that it was not so engaged during the period from August 30, 1958, to November 24th thereafter. It appears that during said period the store was being-remodeled and that it was deemed impracticable to keep it open for the conduct of business during the-desired operation. It appears, however, that the president of the corporation was in. and out of file-store checking and storing stock, and generally supervising the work of remodeling for which expenditures of between $10,000 and $12,000 were made.. The public was informed that the store was closed because of the remodeling operation and that refills could be had at another store. Business calls were-received during the remodeling period and the-prescription files were transferred to another pharmacy so that plaintiff’s customers could be served. From time to time announcements were made to the public-with reference to the reopening of the store. Supplies and new stock were ordered, and preparations made for the resumption of active operations.' It is apparent from the proofs that there was no intention on the part of the plaintiff of abandoning the operation of the drug store which was reopened oh November 24, 1958, such reopening being somewhat delayed because of failure in the delivery of fixtures as ordered. The circuit judge concluded, and we think correctly so, that there was no cessation of the
It appears from the stipulation of facts entered in- ■ to by counsel for the parties that under date of May -25, 1962, the stock of the Owl Drug Company was acquired by The Kroger Company. PA 1927, No ■359, the-first section of which act is above quoted, in. terms forbids ownership of a drug- store, pharmacy, or apothecary shop by a partnership or corporation unless at least 25% of all stock is owned by registered pharmacists. However, such inhibition was declared not applicable to any corporation which at the time of the passage of the act owned and conducted a drug store, pharmacy, or apothecary shop, within the State, and continued in such operation. The question has been raised as to the constitutionality of said act, it being assailed primarily on the ground that it bears no relation to the public health, welfare, or safety. It is suggested that the ownership of 25% of the stock of a corporation does not carry with it the right to dictate the business policies thereof, to elect its officials, or otherwise control its procedures. In Louis K. Liggett Co. v. Baldridge, 278 US 105 (49 S Ct 57, 73 L ed 204), a statute of the State of Pennsylvania requiring that all stock of a corporation conducting a pharmacy or drug store should be owned by registered pharmacists was declared unconstitutional, the court pointing.out that the. ownership of the stock
However, it does not appear that the constitutionality of the act of 1927 is before us at this time. If it is in fact unconstitutional, then plaintiff is entitled to a license to operate its drug store. On the other hand, if valid, then the proofs establish that plaintiff is entitled to the rights granted under the so-called “grandfather” clause. Regardless of possible practical implications, the ownership of the stock in plaintiff corporation is not, from a legal standpoint, involved in this case.
The factual findings as presented to this Court by the circuit judge are fully sustained by the record. The reason given by defendant board for denying the requested license to plaintiff to the effect that the public health would thereby be endangered is without reasonable basis. The proofs relating to the issues involved in the case have sufficient weight to require the granting of the relief sought. The writ will accordingly issue directing the defendant board to grant a proper license for the operation of the plaintiff’s Battle Creek pharmacy and drug store. No costs are allowed.
Rodell, p 78. -
See Yale Law Professor Rodell’s “Nine Men,” Random House, 1955, p 85.
Rodell, pp 93, 94.
Eor á list of such modern attacks, see the Park Case (Park v. Employment Security Commission, 355 Mich 103) at 144.
This is the occasion when the Court advised the governor and the legislature that it is the duty of high Court judges, “though none object, to observe and respect the Constitution and rights of third parties acquired thereunder.” 43 Mich at 642.
The. quotations are taken from Todd v. Hull, 288 Mich 521, at 543.
Most certainly including the writer as original and present assignee of the case.
This original petition for mandamus was filed in 1962, shortly before the effective date of the new Court Rules. Commencing January 1st -last the writ of mandamus was superseded by the “order of superintending control.” GCR -1963, '711.3. Starting in 1964, it will be known constitutionally as a “prerogative” writ. Const 1963, art 6, § 4. .. , . - . . ........
The first of these orders was entered October 30, 1962. It directed that the Calhoun circuit court take required proofs as on framed issues of fact. The second of such orders was issued January 28, 1963. That order remanded the taken record of testimony to the Calhoun circuit for determination of such framed issues of fact and due report thereof to this Court.
See Davis, Administrative Law and Government (West Publishing Co. 1960), ch 7, p 143, under headiirg “The" need for confrontation” :
“When facts about an individual are in dispute, our legal tradition is that the party aifected is entitled not only to -rebut -or explain the evidence against him-but also to ‘confront his accusers’ and to cross-examine them.”
See, also, annotation 18 ALR2d 552, headed “Administrative decision or finding based on evidence secured outside of hearing, and without presence of interested party or counsel.”
“1. Did the pharmacy board have a discretionary right to deny plaintiff’s application for renewal of its drug store license?
“2. Did the board of pharmacy abuse its discretion in denying plaintiff’s application for renewal of its drug store license ?-
“3. Is plaintiff - entitled to exercise the rights of a ‘grandfather’ provided for in PA 1927, No 359 (CL 1948, § 338.481 [Stat Ann 1956 Eev § 14.771] ) ?
“4. Is plaintiff estopped to question the constitutionality of PA 1927, No 359?.
“5. Is PA 1927, No 359 unconstitutional?”
Of course, in final analysis, the circuit court having been, empowered to reverse as in section 8, subd (6), provided, the inherent power to effectuate its judgment of reversal has always been existent regardless of enabling statute or court rule. As said in Muskrat v. United States, 219 US 346, 356 (31 S Ct 250, 55 L ed 246), “Judicial power is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a ease before- it for decision.” This rule was expressly followed .and applied, as to circuit court jurisdiction, in Goetz v. Black, 256 Mich 564, 569, 570 (84 ALR 802).
The quotation is from the concluding paragraph of our order to show causé, entered October 16, 1962.
The obvious reason for such controversy, ‘ which I am fain to record, is that the _ druggists foresaw from plaintiff’s application State-wide chain store pharmacy by a formidable competitor, the Eroger''Compa‘ny, owner of all of the capital stock of plaintiff Supers Drugs Corporation. ■ ■
Whether upon the facts dealing with the history of and acquisition by plaintiff of Owl Drug and/or Herman Pharmacy plaintiff succeeded to the status of a “grandfather” under section 1 of the pharmacy ownership act of 1927 (CL 1948, § 338.481 [Stat Ann 1956 Eev § 14.771]).
CLS 1956, § 24.107 (Stat Ann 1961 Rev § 3.560 [21.7]).