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PENNSYLVANIA STATE BOARD PHARMACY v. PASTOR (01/07/71)

decided: January 7, 1971.

PENNSYLVANIA STATE BOARD OF PHARMACY
v.
PASTOR, APPELLANT



Appeal from order of Superior Court, March T., 1968, No. 70, affirming order of Court of Common Pleas of Dauphin County, No. 224, Commonwealth Docket 1965, in case of Pennsylvania State Board of Pharmacy v. Edward Robert Pastor.

COUNSEL

David N. Savitt, with him John Patrick Walsh, for appellant.

Victor L. Schwartz, Assistant District Attorney, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen took no part in the decision of this case. Dissenting Opinion by Mr. Justice Jones.

Author: Roberts

[ 441 Pa. Page 187]

Section 8(11) of the Pharmacy Act, Act of September 27, 1961, P. L. 1700, 63 P.S. ยง 390-8(11), makes it unlawful for a pharmacist to advertise the prices of dangerous or narcotic drugs.*fn1 We are today called upon to determine whether this statute is constitutional.

[ 441 Pa. Page 188]

The instant case arises as follows: In April of 1965 appellant's pharmacist license was revoked by the State Board of Pharmacy,*fn2 after it found that he had placed a newspaper advertisement listing the prices his pharmacy charged for certain drugs. The revocation was appealed to the Court of Common Pleas of Dauphin County, sitting as the Commonwealth Court, appellant asserting that the statute prohibiting advertising was unconstitutional. The court upheld the statute's constitutionality, but remanded the case to the Board for specific findings on whether the drugs advertised were, in fact, dangerous or narcotic drugs.*fn3 See 85 Dauph. 174 (1966). The Board held further hearings and did find that certain of the advertised drugs*fn4 were "dangerous drugs" within the meaning of the statute.*fn5 These

[ 441 Pa. Page 189]

    findings were affirmed in part by the Court of Common Pleas of Dauphin County,*fn6 and the revocation was reduced to a six month suspension. See 88 Dauph. 273 (1967). An appeal to the Superior Court resulted in a per curiam affirmance without opinion, Judge Hoffman filing a dissenting opinion setting forth his view that the statute is unconstitutional. See 213 Pa. Superior Ct. 227, 228-38, 247 A.2d 651, 652-56 (1968). We granted allocatur.*fn7

Our adjudication begins with an acknowledgment that the day has long passed when the Due Process Clause of the Fourteenth Amendment could be used to indiscriminately strike down state economic regulatory statutes. It is certainly clear that the "vague contours" of due process, see Adkins v. Children's Hospital, 261 U.S. 525, 567, 568, 43 S. Ct. 394, 405 (1923) (Holmes, J., dissenting), cannot be employed to engulf a State's efforts to, for example, set minimum hours for work, see Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539 (1905), or set minimum wages for children, see Adkins v. Children's Hospital, supra, or prohibit employment agencies from collecting fees from employees, see Adams v. Tanner,

[ 441 Pa. Page 190244]

U.S. 590, 37 S. Ct. 662 (1917). In a long line of cases, see Day-Brite Lighting v. Missouri, 342 U.S. 421, 423, 72 S. Ct. 405, 407 (1952) (citing cases), the Supreme Court of the United States has "returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws". Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S. Ct. 1028, 1031 (1963). "Deference to the legislative judgment" is now the federal watchword, see Daniel v. Family Security Life Insurance Co., 336 U.S. 220, 224 n. 4, 69 S. Ct. 550, 553 n. 4 (1949); United States v. Carolene Products Co., 304 U.S. 144, 152, 58 S. Ct. 778, 783 (1938). "It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it." Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 488, 75 S. Ct. 461, 464 (1955). See also Adams v. Tanner, 244 U.S. 590, 596, 599-600, 37 S. Ct. 662, 665, 666 (1917) (Brandeis, J., dissenting).

While this test may mean that in the federal courts the "due process barrier to substantive legislation as to economic matters has been in effect removed,"*fn8 the same cannot be said with respect to state courts and state constitutional law. This difference between federal and state constitutional law represents a sound development, one which takes into account the fact that "state courts may be in a better position to review local economic legislation than the Supreme Court. State Courts, since their precedents are not of national authority, may better adapt their decisions to local economic conditions and needs. . . . And where an industry is of basic importance to the economy of a state or

[ 441 Pa. Page 191]

    territory, extraordinary regulations may be necessary and proper." Hetherington, State Economic Regulation and Substantive Due Process of Law, 53 Nw. U. L. Rev. 226, 250 (1958) (footnote omitted).

Thus Pennsylvania, like other state "economic laboratories", see New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 311, 52 S. Ct. 371, 375, 387 (1932) (Brandeis, J., dissenting), has scrutinized regulatory legislation perhaps more closely than would the Supreme Court of the United States.*fn9 We have held unconstitutional, for example, an act regulating car rental agencies as a public utility, see Hertz Drivurself Stations, Inc. v. Siggins, 359 Pa. 25, 58 A.2d 464 (1948), an act forbidding gasoline stations from displaying price signs in excess of a certain prescribed size, see Gambone v. Commonwealth, 375 Pa. 547, 101 A.2d 634 (1954), an act forbidding the sale of carbonated beverages made with sucaryl, see Cott Beverage Corp. v. Horst, 380 Pa. 113, 110 A.2d 405 (1955),*fn10 an act forbidding the sale of ice-milk milk shakes, see Commonwealth ex rel. Woodside v. Sun Ray Drug Co., 383 Pa. 1, 116 A.2d ...


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