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District Court of Appeal, Third District, California.


Civ. 7941.

Decided: February 08, 1952

Sheppard, Mullin, Richter & Balthis, Los Angeles, Mull & Pierce, Sacramento, for appellant. Carl W. Wynkoop, Deputy Atty. Gen., for respondents.

Petitioner seeks a writ of mandate to restrain the respondents, as members of the State Board of Pharmacy from enforcing certain orders and regulations which petitioner alleges are unlawful and void. This court accepted jurisdiction over the issues raised by the petition and the return, and restrained respondents from further enforcement of the orders pending final determination of this proceeding. The order also provided for the appointment of a Referee to take evidence and make findings. Following the taking of testimony the Referee made and filed his Findings of Fact which are supported by the record and which we adopt.

Petitioner is a corporation whose central office is in Los Angeles with branch places of business in Pasadena, Long Beach, San Bernardino, San Diego, Sacramento and San Francisco. It is engaged in the business of wholesale distribution of certain drugs defined as ‘dangerous drugs' in the Health and Safety Code, and other supplies and equipment used by physicians, surgeons, dentists, hospitals, chiropodists, veterinarians, laboratories and chiropractors. Between June 9 and July 11, 1950 the respondent Board of Pharmacy served on petitioner notices of violation and simultaneously filed thirty-three complaints containing a total of seventy-six counts in the various municipal courts charging violations of certain sections of the Health and Safety Code and of the Business and Professions Code. The acts charged were:

1. That petitioner sold a drug classified as a dangerous drug to a person or persons who were registered pharmacists without a prescription;

2. That it had, without acting through an employee who was a registered pharmacist, sold iodoform gauze, sterile water, zinc oxide ointment, tannic acid ointment, soda bicarbonate to a person who was a registered pharmacist without a prescription;

3. That it had sold schedule ‘A’ poisons without registering the sale thereof;

4. That it had sold to a person who is a registered pharmacist a hypodermic needle, without recording the sale in a book.

Each of these acts with which petitioner is charged involved transactions between petitioner and certain inspectors employed by respondent Board. All of the inspectors are registered pharmacists. It was unknown to petitioner that these men were agents of respondent Board.

The above proceedings were an outgrowth of a policy decision by the respondent Board in October 1949, to require registered wholesalers to have registered pharmacists on duty at all times.

Petitioner makes five contentions in support of the petition:

1. The action of respondent Board in prosecuting petitioner is illegal and immoral and the Board is estopped by its conduct from giving effect to such a construction of the Pharmacy Law.

2. The chapter of the Business and Professions Code dealing with pharmacy is ambiguous.

3. A proper construction of the Pharmacy Act leads to the conclusion that wholesalers are not required to conduct sales to the professional classes through registered pharmacists.

4. To give the Pharmacy Law the interpretation advocated by respondent would make it unconstitutional.

5. That the action of the Pharmacy Board amounts to an amendment of the Statutes involved by administrative fiat.

We granted the alternative writ of mandate because it appeared that serious questions were presented concerning the validity of certain regulations and orders purportedly adopted by the Pharmacy Board, and to also determine whether the respondent Board was estopped to assert such regulations and orders against petitioner. These questions are now eliminated by the Findings adopted by the Referee. The Referee has found that the respondent Board has not adopted rules, regulations, or orders respecting the matters here in dispute. It also is clear that there has been no proceeding before the Pharmacy Board charging petitioner with the violation of its regulations or orders.

While mandate is a proper proceeding to test the validity of regulations adopted by an administrative Board not exercising judicial functions, the action taken by the respondent Board and its individual members does not fall within this category. It is true that respondent Board has asserted that petitioner violated certain sections of the Health and Safety Code and Business and Professions Code. Pursuant to this belief, notices of violations were served upon petitioner, and the Board, through its employees, has caused various criminal complaints to be filed against the petitioner which charge a violation of these sections. The respondent Board has taken no administrative action against the petitioner, i. e. proceedings to revoke licenses, etc.

The various criminal proceedings now pending in the municipal courts charge violations of certain sections of the Health and Safety Code and the Business and Professions Code. Such violations are denominated misdemeanors under these Codes. Under Section 1426 of the Penal Code, the prosecution of misdemeanor cases is commenced by complaint under oath. This section does not restrict the making of a complaint to any certain person or official; It may be made by any person having knowledge of the facts constituting the offense charged. Whether the complaint is sufficient, or whether a warrant of arrest will issue are matters resting with the court as are the proceedings and the ultimate disposition of the case. Penal Code, Section 1427; People v. Barnhart, 37 Cal.App.2d Supp. 748, 94 P.2d 411. In any event, the Pharmacy Board, or its employees who signed the complaints, are not exercising judicial functions in respect to the proceedings pending in the municipal courts, and such proceedings are not the judicial enforcement of administrative regulations or orders, but rather the enforcement of penal provisions adopted by the legislature.

The petitioner contends that the action of respondent Board is estopped by its conduct from giving effect to such a construction of the pharmacy law. In support of this contention petitioner refers to various conferences at which wholesale dealers and members of respondent Board were present, and that at such meetings the Board or its members or employees did not inform petitioner that the law required it to sell only through registered pharmacists, and that the Board by its conduct sanctioned the method of petitioner's operation. Petitioner relies upon Farrell v. County of Placer, 23 Cal.2d 624, 145 P.2d 570, 153 A.L.R. 323. It was there held that the filing of a claim against a county or other governmental agency is a condition precedent to his cause of action, but that the time requirement of the claim statute is procedural and may be executed by estoppel.

Petitioner's contention on estoppel amounts to an assertion that state agencies or state officials may waive the penal laws of this state. We find nothing in the Farrell case, supra, or other cases cited by petitioner which would support this contention. The Penal provisions contained in the Health and Safety Code and the Business and Professions Code were enacted by the legislature, and it is beyond the power of any Board or official to waive or consent to a violation of such provisions. In Caminetti v. State Mut. Life Ins. Co., 52 Cal.App.2d 321, 126 P.2d 165, the appellant insurance company contended that the Insurance Commissioner was estopped to take over the company because the Commissioner and his predecessors in office knew of the practices of the company in previous years and had failed to take action against it. The court stated in 52 Cal.App.2d at page 326, 126 P.2d at page 168: ‘To state the contention is to state its impossibility. To govern themselves, the people act through their instrumentality which we call the State of California. The State of California functions through persons who are for the time being its officers. The failure of any of these persons to enforce any law may never estop the people to enforce that law either then or at any future time. It would be as logical to argue that the people may not proceed to convict a defendant of burglary because the sheriff perhaps saw him and failed to stop him or arrest him for another burglary committed the night before. State ex rel. Fishback v. Glove [Globe] Casket & Undertaking Co., 82 Wash. 124, 143 P. 878, L.R.A.1915B, 976; Department of Insurance v. Church Members R. Assn., 217 Ind. 58, 26 N.E.2d 51, 52, 128 A.L.R. 635; Mullan v. State, 114 Cal. 578, 587, 46 P. 670, 34 L.R.A. 262.’ See also Magruder v. City of Redwood, 203 Cal. 665, 675, 265 P. 806; Fleming v. Miller, D.C., 47 F.Supp. 1004, 1008.

The petitioner contends that a proper construction of the Pharmacy Act, the Dangerous Drug Act, and the Poison Act, does not require wholesalers to have a registered pharmacist when selling to the professional classes. It is also contended that the various acts as construed by the respondent Board are unconstitutional for numerous reasons.

Whether petitioner has violated the various acts, or whether those acts are unconstitutional, are questions beyond the scope of this proceeding. As previously observed, we granted the alternative writ of mandate to ascertain if the Pharmacy Board had adopted regulations or orders respecting the subject matter here involved, and to pass upon the validity of such regulations. Upon the conclusion that the Pharmacy Board is not asserting its regulations against petitioner, a determination as to the validity of the statutes involved would amount to an unwarranted interference with the criminal proceedings now pending in the municipal courts. Our conclusion would be the same if we consider the petition one for prohibition rather than mandate. As a general rule, the question of whether petitioner's acts constitute a violation of the statutes must be raised upon the trial of the issues. Walsh v. Railroad Commission, 16 Cal.2d 691, 694, 107 P.2d 611. Where normal remedies are inadequate ‘the constitutionality of a statute or ordinance may be tested by prohibition on the ground that invalidity of the legislation goes to the jurisdiction of the court to proceed to try the case.’ Rescue Army v. Municipal Court, 28 Cal.2d 460, 462, 171 P.2d 8, 10. Such proceeding in prohibition are directed against the court attempting to act under the invalid statute. In the proceeding before us, the municipal courts are not parties. Where prohibition is proper to test the validity of a statute, it must appear that the trial court has passed upon its own jurisdiction. In Rescue Army v. Municipal Court, supra, the record showed that the petitioner had been tried twice for violation of a statute and the case had been set for trial a third time. Under those facts it sufficiently appeared that the trial court had passed upon its own jurisdiction. The court stated 28 Cal.2d at page 464, 171 P.2d at page 11: ‘A court has jurisdiction to determine its own jurisdiction, for a basic issue in any case before a tribunal is its power to act, and it must have authority to decide that question in the first instance. It is necessary, therefore, to challenge the jurisdiction of the trial court in that court, by demurrer, motion, plea or other objection of some kind, so that that court may preliminarily decide the question whether it has jurisdiction to proceed. And unless a party can show that a lower tribunal, after first determining that it has jurisdiction, is proceeding to exercise it, there is nothing for a higher court to prohibit. This obvious principle is one of the cornerstones of our system of lower and higher tribunals.’

In view of the foregoing we conclude that the peremptory writ should be and it is hereby denied, and that the alternative writ heretofore issued is discharged.

SCHOTTKY, Justice pro tem.

PEEK, and VAN DYKE, JJ., concur.

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