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AGO 1953 No. 38 - May 12, 1953
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Don Eastvold | 1953-1956 | Attorney General of Washington

UNIFORM NARCOTIC DRUG ACT ‑- PRESCRIPTIONS ‑- WHETHER OR NOT AN APOTHECARY MUST ACTUALLY HAVE IN HIS PHYSICAL POSSESSION THE WRITTEN PRESCRIPTION OF A PHYSICIAN BEFORE HE MAY SELL AND DISPENSE NARCOTIC DRUGS TO ANY PERSON.

 It is mandatory that an apothecary have physical possession of the written prescription before he may sell or dispense narcotic drugs.

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                                                                   May 12, 1953 

Honorable Hugh H. Evans
Prosecuting Attorney
Spokane County
Court House
Spokane, Washington                                                                                                                Cite as:  AGO 53-55 No. 38

 Attention:  !ttMr. John J. Lally,  Chief Deputy Prosecuting Attorney

 Dear Sir:

            Receipt is hereby acknowledged of your letter of April 27, 1953, requesting our opinion on whether or not an apothecary must actually have in his physical possession the written prescription of a physician before he may sell or dispense narcotic drugs to any person.

             Our conclusion may be summarized as follows:

             It is mandatory that an apothecary have physical possession of the written prescription before he may sell or dispense narcotic drugs.

                                                                      ANALYSIS

             RCW 69.33.060 of the Revised Code of Washington provides, in part, as follows:

              [[Orig. Op. Page 2]]

            "An apothecary, in good faith, may sell and dispense narcotic drugs to any person upon a written prescription of a physician, dentist, or veterinarian, dated and signed by the person prescribing on the day when issued and bearing the full name and address of the patient for whom, * * * the drug is dispensed, and the full name, address, and registry number under the federal narcotic laws of the person prescribing, if he is required by those laws to be so registered.  * * *  The person filling the prescription shall write the date of filling and his own signature on the face of the prescription.  The prescription shall be retained on file by the proprietor of the pharmacy in which it is filled for a period of two years, so as to be readily accessible for inspection by any public officer or employee engaged in the enforcement of this chapter.  The prescription shall not be refilled."  (Emphasis supplied).

             It is our opinion that physical receipt of the prescription is a prerequisite to its filling.  The words of a statute, unless defined specifically by the legislature, will be given their plain and ordinary meanings.  The word "upon" has been defined as meaning substantially the same as the word "on" and means "in connection with" or "at the time of."  Slaughter v. Robinson, (Utah) 173 Pac. 456; it has also been construed as a condition precedent.

             In construing the Harrison Anti-Narcotic Act, which act is similar to our own, in the case of U.S. v. Joseph Fleming and Son Co., 251 Fed. 932, at page 935, the court said:

             "* * * It [Congress] made the prescription of the registered physician the sole and sufficient warrant for the sale by the druggist of the drugs therein prescribed.  Evidently it was intended that, if the druggist keeps within the limitations of the prescription, he is protected thereby.  * * *"

             At page 937, the court remarked:

             "* * * Congress has defined what is a lawful business in the sale of narcotics by a dealer; and it is not a question of good faith on his part, but of strict compliance with the conditions, which Congress has imposed upon him."

              [[Orig. Op. Page 3]]

            In the case of Eckhert v. U.S., 7 F. (2d) 257, the court said:

             "* * * There was a prescription, the conflict and respective contentions being whether the sale was made before or after the prescription was delivered to the druggist.  * * *"

             See also State v. Clinkenbeard, (Mo.) 125 S.W. 827, 830, on the same subject.

             It is, therefore, our opinion that an apothecary must have physical possession of a prescription containing narcotic drugs within the provisions of the state uniform narcotic act, before he sells or dispenses such drugs, and that to sell or dispense prior to the time of such receipt is a violation of the statute.

 Very truly yours,
DON EASTVOLD
Attorney General

PHYLLIS DOLVIN
Assistant Attorney General

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