Starnes v. Rose

SIBLEY, District Judge (after stating the facts as above). Mandamus does not lie to compel an act as to which the officer has a discretion. Whether the collector of internal revenue has a discretion in reference to registering a practicing physician under section 1 of the Harrison Narcotic Act (Comp. St. § 6287g) is the very question here. The act is not a licensing act, whose aim is to control the dispensing of narcotics by confining the-dispensation to proper persons, for that is an exercise of the police power not possessed as to opiates by Congress. The act rests upon the power to tax, and its provisions for registration and its restrictions on the dispensation of narcotics are for the purpose of safeguarding the tax on the dispenser and on the drug. Its enforcement is left to officers of the revenue. For these purposes it properly requires a registration of persons engaged in the businesses enumerated in section 1, and makes it a crime to carry on such a business without registration. But to prohibit a practicing physician from prescribing narcotics unless he registers, and then to refuse to register him, would, to that extent, be to prohibit and regulate his practice of medicine, a thing within the province of the state, and not of the United States, and in contradiction of the revenue purposes of the act.. The act contains no enumeration of qualifications for a registrant, except as being engaged in one of the businesses mentioned, and if has no provision for a refusal of registration to him. Section 11 of regulation No. 35, indeed, assumes that Congress meant that the registrant-should be lawfully engaged under the laws of the state in the business for which he would register, and requires that inquiry be made into that fact. The qualifications referred to therein are those fixed by the state law for the business in question. Neither the collector nor his superior officer has power to add any other qualification or obstruction to registration. Regulations attempting this would not be “for the carrying of the provisions of the act into effect,” as authorized therein, but would subvert the registration required by it. The instruction of July 26, 1921, was not made by “the Commissioner of Internal Revenue with the approval of the Secretary of the Treasury,” and so not authorized by the act; but, if it were, in attempting to make a pending charge of crime a ground for refusing registration, it would be unsustainable. Even after conviction, to do so would add a deprivation of vocation to the punishment fixed by law. Prior to conviction there [338] is only an accusation of which the registrant is presumed to be innocent. The determination of who may properly practice medicine or otherwise dispense drugs belongs to the agencies of the state. The collector must register on proper application all who are by the state law permitted to dispense them. He has no discretion in the matter. The mandamus will be made absolute. Footnotes [1] igssEor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes