Western Surgical Supply Co. v. Affleck

California Court of Appeal Apr 16, 1952 No. Civ. 7941Published

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Holding. The court held that a writ of mandate is not available to restrain an administrative board from enforcing regulations when the board has not yet conducted a hearing or rendered a decision against the petitioner, and that the board's initiation of criminal complaints for statutory violations does not constitute the enforcement of administrative orders subject to such review.

Issues

Whether the action of the respondent board is subject to review in a mandate proceeding.
Whether the board's action in directing its employees to sign criminal complaints constitutes the enforcement of administrative orders and regulations.
Whether the board is estopped from enforcing penal laws due to its prior conduct or failure to act.

Disposition. denied

Quotations verified verbatim against the opinion

“Mandate is a proper writ to test the validity of regulations, orders or proceedings of an administrative board which have been asserted against one seeking the writ.”

“Until the board has acted against petitioner, that is, conducted a hearing and rendered its decision, there is nothing to review.”

“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.”

THE COURT.

This is a petition for a writ of mandate to restrain respondents as members of the State Board of Pharmacy from enforcing certain regulations and orders against the petitioner. We granted the alternative writ, and appointed a referee. Findings were made by the referee which we adopt. This court issued its decision on February 8, 1952. A rehearing was granted on March 7, 1952. The matter is again before us for decision.

The petitioner is a corporation whose central office is in Los Angeles with branch offices situated in Pasadena, Long Beach, San Bernardino, San Diego, Sacramento and San Francisco. It is engaged in the business of wholesale distribution of cer

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tain 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, which was prior to the petition for a writ of mandate, the respondent board acting through its inspectors caused 33 criminal complaints to be filed in various municipal courts charging petitioner with misdemeanor violations of sections 20755, 29020 and 29023 of the Health and Safety Code and sections 4030, 4161, 4231, 4232 and 4233 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 with-, out 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 in its possession certain hypnotic drugs incorrectly labeled.

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

The criminal proceedings are now pending in the various courts.

Western Surgical Supply Co. v. Affleck

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THE COURT.

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