
    The People of the State of New York, Respondent, v. Caswell-Massey Co., Ltd., Milton Taylor and Ralph Taylor, Appellants.
    Argued April 14, 1959;
    decided July 8, 1959.
    
      F. W. H. Adams, Donald W. Smith and George C. Mantzoros for appellants.
    I. Section 118c fails to meet the standards of definiteness required of penal statutes and is, therefore, invalid. (United States v. Cardiff, 344 U. S. 174; People v. Grogan, 260 N. Y. 138.) . II. Assuming that section. 118c- is- not fatally ambiguous, the courts below wrongfully interpreted it to prohibit telephoned prescriptions following a written prescription. (People v. Moore, 142 App. Div. 402, 201 N. Y. 570; People v. Koch, 250 App. Div. 623; People ex rel. Ansil v. Chief of Police of City of Troy, 268 App. Div. 336.) III. The evidence is insufficient to sustain a conviction of the individual appellants. (People v. Anderson, 210 App. Div. 59; People v. Pinnock, 207 Misc. 1097; People v. Gluck, 188 N. Y. 167; People v. Brainard, 192 App. Div. 816; Nye & Nissen v. United States, 336 U. S. 613; People v. Taylor, 192 N. Y. 398.)
    
      Charles H. Tenney, Corporation Counsel (Fred Is col And Seymour B. Quel of counsel), for respondent.
    Defendants were properly convicted since the evidence plainly established that they had violated the Sanitary Code by refilling the prescription despite the lack of a statement thereon that it might be refilled. There is no basis in the record for a finding that the doctor had issued any new prescription, either in writing or by telephone. (People v. Weeks, 172 App. Div. 117; People v. Shapiro, 6 A D 2d 271.)
    
      Emil Greenberg for the Pharmaceutical Society of the State of New York, amicus curies.
    
    I. Paragraph 3 of section 118c of the Sanitary Code of the City of New York is too indefinite to meet the standards of due process in that the word “ refill ” as used therein to describe the act intended to be regulated does not have a meaning sufficiently definite and clear to guide the persons subject to the regulation. (Connolly v. General Constr. Co., 269 U. S. 385.) II. Paragraph 3 does not fulfill its purpose, if “ refill ” is intended to mean any subsequent dispensing of the same barbiturate, and therefore is not a valid exercise of the police power. (People v. Van Fradenburgh, 81 App. Div. 259; Boxer v. Town of Harrison, 175 Misc. 249; Matter of Friedman v. Valentine, 177 Misc. 437, 266 App. Div. 561.)
   Desmond, J.

Section 118c of the Sanitary Code of the City of New York is in pertinent part (subds. 1, 3.) as follows:

“ § 118c. Dispensing of Barbiturates on Prescription .Only; Filling and Refilling Prescriptions.-
,“ 1. No barbiturate as defined in Section 118b shall be sold, of dispensed, or given away in The City of New York except by a pharmacist or druggist on an original written prescription as defined in paragraph 7 of Section 115, which prescription shall include the name and address of the practitioner, the name and address of the patient, and if prescribed for an animal, the species of such animal. Telephone prescriptions from practitioners legally authorized to prescribe barbiturates may be filled by a pharmacist or druggist and, in such cases, the practitioners must furnish to the pharmacist or druggist a written prescription within seventy-two hours. If the written prescription is not received by the pharmacist or druggist within such period, the pharmacist or druggist shall make a record showing the name and address of the physician, the name and address of the patient, the amount of barbiturate dispensed and the time and date of dispensing. Such record shall be kept on file by the pharmacist or druggist for a period of not less than two years and shall be exhibited to representatives of the department of health upon request.
# * #
‘ ‘ 3. The refilling of any prescription for a barbiturate as defined in Section 118b is prohibited unless such prescription includes a statement by the practitioner (1) That it may be refilled and (2) Specifying the minimum interval between fillings and the total number of refillings prescribed. No such prescription shall be refilled in any event later than three (3) months after the original issuance thereof.”

Defendant Caswell-Massey Co., Ltd., operates a pharmacy on Lexington Avenue in Manhattan. The individual defendants Milton Taylor and Ralph Taylor are officers of the corporation and active in the prescription-filling department of its business. All three defendants were cónvictéd and fined, after a trial before a Magistrate sitting as a Court of Special Sessions, on charges of violations of section 118c of the Sanitary Code of the City of New York (supra). The Appellate Division affirmed.

In substance, the corporation is accused of violating section 118c (supra) on nine different dates in 1955 by refilling (that is, filling without a new prescription) a July 25, 1955 prescription for a barbiturate. The original July, 1955 prescription did not contain, it is conceded, a statement by the prescribing physician that the prescription might be refilled (see subd. 3, supra). The complaint against defendant Milton Taylor charges that on eight of the nine 1955 dates just above referred to he was guilty of the same act as alleged against the corporation. The complaint against defendant Ralph Taylor makes the same charge against him, as of August 16, 1955. The meaning is that Milton Taylor was in charge of the prescription department and directed the issuance of the so-called refill on the dates of eight of the alleged violations. Ralph Taylor likewise is charged as of August 16, 1955 because he was running the prescription department and handled the transaction on that date. In each instance there was sold to a City Health Department investigator 10 capsules each containing a grain and a half of nembutal, a barbiturate, for the price of $1 for the 10. It is testified in the record without dispute that nembutal is a habit-forming substance prescribed for inducing sleep but that it is not dangerous to health in these quantities.

The substance of the trial testimony was that the Health Department employee, using an assumed name, got from a physician (who knew this was part of an investigation) the original prescription for 10 grains of nembutal. That original prescription contained no direction or authorization for refill but was refilled nine times at the pharmacy of defendant Caswell-Massey Co., Ltd.

The prosecution says that under the Sanitary Code (supra) each of those refills was illegal and a criminal violation of the code because the original prescription did not contain a direction for refilling. The defense was: first, that the Sanitary Code is so ambiguous or uncertain in meaning that it does not meet the standards for a criminal statute; second, that under any reasonable meaning of the code these refillings were not illegal since as sworn to by defendants there was in each instance a telephonic authorization by the prescribing physician or his office for the refill; and third, that since the first subdivision of section 118c (supra) specifically validates original telephone prescriptions without any stated necessity for a later written prescription and since it is the New York City custom as established by this record to make refills on telephone instructions, no guilty act of defendants was established. Put in another way, the submission of defendants is that, since any number of original prescriptions may validly be filled on telephone instructions without a writing, it is an unreasonable construction of this Sanitary Code and contrary to its practical construction in the trade to penalize a druggist or pharmacist for refilling on telephone order when the identical prescription if considered to be an original one can be authorized by telephone as could any number of subsequent identical original prescriptions.

The trial court did not pass on the disputed fact question as to whether defendants got telephone authorization from the physician’s office on the occasion of each refill. The court found it unnecessary to pass on that issue since it held that each of these refills was a violation of the statute because there was no writing authorizing it.

We hold that subdivision 3 of section 118c, read as it must be with subdivision 1, is not clear and explicit enough to meet the requirement that “ Statutes which create crimes must be definite in specifying conduct which is condemned or prohibited ’ ’ and that “ They must afford some comprehensible guide, rule or information as to what must be done and what must be avoided, to the end that the ordinary member of society may know how to comply with its requirements ” (People v. Grogan, 260 N. Y. 138, 145; People v. Vetrie, 309 N. Y. 401, 406; People v. Benc, 288 N. Y. 318; People v. Firth, 3 N Y 2d 472; United States v. Cardiff, 344 U. S. 174). A criminal statute must give “ unequivocal warning ” to citizens, of the rule which is to be obeyed, and, especially as to acts not mala per se, there must be a clear and positive expression of legislative intent to make them criminal (People v. Vetrie, supra, and cases cited therein, 309 N. Y. 405, 406).

If subdivision 1 were the whole of the law it would probably be clear enough. We will assume, also, that subdivision 3 read separately might provide an understandable rule. But when we read the two subdivisions together, as we must for the purpose of deciding when and how a barbiturate prescription may be filled more than once, we cannot work out a clear meaning. The first sentence of subdivision 1 requires an original written prescription. But the second sentence of subdivision 1 supplies a very large exception to that requirement of a writing in that it specifically permits the filling of telephoned barbiturate prescriptions. The end of that second sentence says that when such prescriptions are filled by telephone physicians must send the pharmacist a written prescription within 72. hours. However, that mandate is addressed not to the pharmacist but to the physician, as is established by the third sentence of subdivision 1 which says that if after filling a telephoned prescription the druggist does not get a written prescription within 72 hours the druggist must make a record of that occurrence and keep that record available for 2.years. Thus it is clear, on a reading of the whole of subdivision 1, that a druggist is not violating the law by taking a telephoned barbiturate prescription even if he does not get later written authorization therefor, provided he makes a written record thereof.

Now let us turn to subdivision 3 on which these defendants were convicted. That forbids the refilling of a barbiturate prescription unless the prescription includes a statement that it may be refilled and contains a specification of the minimum interval between fillings and the total number of refillings permitted. The statute adds a further proviso that there shall be no refilling more than 3 months after the issuance of the original prescription. Here is the point at which subdivisions 1 and 3, read together, become unworkable if not unintelligible. Subdivision 1 validates telephoned prescriptions never afterwards put into writing. Then subdivision 3 turns around and forbids the refilling of such a prescription (which may validly be oral) unless it contains written permission for refilling and particulars as to number and intervals of refillings. Having authorized oral prescriptions, the statute reverses itself and requires that to be refilled such prescriptions must contain certain written material. Such a statute could mean so many things to careful people that it does not meet the requirements of precision for a criminal law. And that is not all. Subdivision 1 plainly means that a druggist may, as many, times as he wishes, validly accept telephoned barbiturate prescriptions and this would.seem to be so even though the successive telephoned prescriptions were each for the same quantity of the same drug. Then, having made it legal for a druggist to take a series of separate telephoned barbiturate prescriptions, subdivision. 3 seems to say that if those later prescriptions are refills each of them is invalid unless the druggist has a writing. All this adds up to confusion only.

These defendants recorded every, filling.of a prescription in a book prepared for that purpose which has printed columns for date, number of prescription, name of physician, name of patient, type of medicine, etc., etc. Every prescription, original or refill, was given a consecutive number in the book. In one column there was inserted, in the case of a refill, the number of the original prescription refilled. Thus, in the case of a refill the book entry contains two numbers. Since telephoned prescriptions are valid, a druggist may treat a telephoned request from the doctor’s office for a product theretofore prescribed either as an original prescription or a refill and the only difference is that in the latter case he puts into his book, besides the new number, the original number also. All he has to do is to omit recording the original number, and the new-filling becomes a new prescription and valid although telephoned.

The judgments should be reversed, the fines remitted and the complaints dismissed.

Chief Judge Conway (dissenting).

On this appeal defendants ask this court to strike down as uncertain in meaning a clearly written statute designed by the Legislature to protect the public against the indiscriminate use of a drug which is habit forming.

On July 25,1955 a prescription for a habit forming barbiturate was issued by a Doctor Kayden to a Public Health Sanitarian of the Department of Health of the City of New York. The prescription contained no statement by the doctor that it might be refilled. Notwithstanding the absence of authorization to refill, the defendants refilled the prescription nine times. Two of the nine refillings were made later than three months after the original issuance of the prescription by the defendant Milton Taylor, the secretary and vice-president of the corporate defendant pharmacy, who is in charge of the drug dispensing department. On the second of those occasions, to wit, on November 23, 1955, the Sanitarian presented Taylor with a slip of paper containing the prescription number F-79037 — the number of the original prescription. The Sanitarian testified that, after she had waited a while, Milton Taylor “ came out and he told me that he put on a new number because the prescription runs out after three months.” Milton, at that time, executed a so-called “new prescription”, presumably in the name of Doctor Kayden, with the indorsement of a new prescription number, F-81495, putting on the date 11-23-55 and a new notation “OK to refill The original prescription of Doctor Kayden, as we have said, contained no statement authorizing a refilling of it. It was delivered personally to the pharmacy— not telephoned in. Doctor Kayden testified that, after he had issued the prescription to the Sanitarian on July 25th, he had issued no other prescription to her and had not authorized the refilling of the prescription; that he had never received a telephone call from Caswell-Massey or from anyone on its behalf requesting permission to refill the prescription; and that his nurse, Miss Doherty, was not authorized to act in such matters without prior consultation with him.

As a consequence of the foregoing, which was uncovered by the Sanitarian (who, we may fairly presume undertook the investigation of defendants because she had been given cause to suspect that defendants had been acting in violation of the provisions of the Sanitary Code of the City of New York dealing with the dispensation of barbiturates), defendants were charged with having violated subdivision 3 of section 118c of the Sanitary Code. That subdivision reads: “3. The refilling of any prescription for a barbiturate as defined in Section 118b is prohibited unless such prescription includes a statement by the practitioner (1) That it may be refilled and (2) Specifying the minimum interval between fillings and the total number of refillings prescribed. No such prescription shall be refilled in any event later than three (3) months after the original issuance thereof. ’ ’

There can be no doubt that the acts committed by the defendants, described above, were in plain violation of subdivision 3 of section 118c. The Magistrate sitting as a Court of Special Sessions so found and the Appellate Division unanimously affirmed. Defendants contend that the convictions may not stand because the statute is so unclear in its meaning that it does not afford citizens notice of what conduct is made criminal by it. It can hardly be denied that subdivision 3 (under which defendants were convicted), by itself, provides an understandable guide for pharmacists. That subdivision, in the most unambiguous of terms, proscribes the refilling of a prescription for a barbiturate unless (1) the prescription includes a statement that it may be refilled and (2) contains a specification of the minimum interval between fillings and the total number of refillings permitted. The statute imposes one further condition, namely, that in no event shall a barbiturate prescription be refilled later than three months after the original issuance thereof. Here, in the face of the unequivocal language of subdivision 3, the defendants refilled the original prescription nine times and two of those nine refillings were made after the expiration of the three-month period beyond which no refilling was permissible under the statute even if Doctor Kayden had included in the prescription the statement that it could be refilled — and that he had not done.

While the language of subdivision 3 is as lucid and understandable as language can be and while the defendants, by their very conduct, have demonstrated that they found it so, they now ask our court to find the wording of the subdivision vague and confusing when read with subdivision 1. We see no sound basis for such a holding.

A comparison of subdivision 1 with subdivision 3 reveals that a sharp distinction has been drawn between original barbiturate prescriptions and the refilling of such prescriptions. Under the terms of subdivision 1, a pharmacist may fill a telephone barbiturate prescription. Under the terms of subdivision 3, the pharmacist may refill only a written barbiturate prescription and only if such written prescription includes a statement by the practitioner that it may be refilled, and specifies the minimum interval between fillings and the total number of refillings prescribed. As the unanimous Appellate Division so aptly pointed out “ Anomalous as it [the distinction] may seem at first glance, there may be cogent reasons for a greater degree of stringency in the requirements for refilling a prescription than for dispensing an original one. There is nothing in the statute which, directly or inferentially, permits refilling by verbal order.” Indeed, it must be said that in no uncertain terms the statute explicitly prohibits refilling by verbal order. The wisdom of the distinction drawn by the Legislature between original prescriptions and the refilling of such prescriptions is not open to review in the courts.

The language of the statute governing the refilling of barbiturate prescriptions being plain, and the acts of defendants having been in violation thereof, these convictions must be affirmed. '

Judges Dye, Van Voórhis and Burke concur' with Judge Desmond ; Chief Judge Conway dissents in an opinion in which Judges Fuld and Froessel concur.

■ Judgments reversed, etc.  