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AGO 1952 No. 353 - July 16, 1952
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Smith Troy | 1941-1952 | Attorney General of Washington

STATE PHARMACY BOARD ‑- RULES OF ‑- RULE REQUIRING PHARMACISTS TO SECURE SIGNATURE AND ADDRESS ON PRESCRIPTION FOR NARCOTICS

Rule 32 of the Washington State Board of Pharmacy requiring the signature and address of persons receiving drugs makes the same requirement as was contained in section 3, chapter 47, Laws of 1923, which was expressly repealed by the legislature is legislative and is without force or effect.

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                                                                    July 16, 1952

Honorable Charlie Johnson
State Representative
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 353

Dear Sir:

            We acknowledge receipt of your request for an opinion of this office on the validity of Rule 32 of the State Board of Pharmacy:

            "All persons receiving narcotics prescriptions shall sign their names and addresses on the back of the prescription."

            in view of the fact that this rule was promulgated after the passage of chapter 22, Laws of Second Ex. Sess. of 1951 which omitted the previous law to this effect.

            Our conclusions may be stated as follows:

            The Washington State Board of Pharmacy by promulgating a rule embodying requirements in a law which was expressly repealed, acted in a legislative capacity and the rule is without effect.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Section 3, chapter 47, Laws of 1923 (RRS § 2509-3; RCW 69.32.020) contained the following provision:

            "All such prescriptions shall be filled but once, and the dispenser of such drugs in pursuance of such prescriptions shall cause the person procuring the drug or drugs to be prescribed to place his or her signature and address upon the back of such prescriptions, and shall keep all such prescriptions on a separate file and preserve them for not less than two years from and after the date of the last prescription placed on such file, * * *"

            express authority being granted to make such rule and despite said requirement, previously set forth in the law, having been expressly repealed.

            The authority of an administrative body such as the board to promulgate rules and regulations is generally stated in 42 Am. Jur., Public Administrative Law, § 49, as follows:

            "The legislature, having declared its policy and purpose and provided standards for the exercise of the power, may confer upon administrative authorities the power to enact rules and regulations to promote the purpose and spirit of the legislation and carry it into effect, and, even though such rules and regulations are given the force and effect of law, there is no violation of the constitutional inhibition against delegation of the legislative function.  The authority to make rules to carry out a policy declared by the lawmaker is administrative and not legislative, even though the lawmaker has provided that a violation of such rules shall be punished as a public offense.  Such power is not the power to make law, but the power to carry into effect the will of the lawmaker as expressed by the statute, and its use by administrative officers is essential to the complete exercise of the powers of all the departments.  The binding effect of such administrative rules and regulations is derived from the sanction of the legislature itself.  However,  [[Orig. Op. Page 3]] the delegation of power to make rules and regulations cannot extend to the making of rules which subvert the statute reposing such power, or which are contrary to existing laws, or which repeal or abrogate statutes."  (Emphasis supplied)

            Cases too numerous to mention support the above statement of the law and especially that part which states that such power is not to make law.

            Examination of the Uniform Narcotics Act reveals (1) there is no power conferred on the board to makeany rules and regulations; (2) the law requiring the signature of the person receiving the prescription was expressly repealed by it.  See § 28.

            The conclusion therefore is inescapable that the board possesses no power to make rules under that act, and any rule which attempts to put back the requirement for such signature and address is an attempt at law making.

            Aside from the authority in the board to make rules and regulations to carry out the venereal prophylactic act (RCW 18.81.080), the only other provision for giving to the board such powers is found in section 3, chapter 98, Laws of 1935, slightly abridged in RCW 43.69.030, which gives the board the power to make rules governing actions of pharmacists.

            It is often difficult to determine what the intent of the legislature was in enacting a law, but from examination of the repealed section it is apparent that the legislature believed such requirement necessary to secure enforcement of the narcotics act of 1923, and the repeal of said requirement demonstrates that, whether this is true or not, the legislature determined it was no longer necessary as an aid in enforcement of the narcotics law.

            We must, therefore, conclude and it is our opinion that the pharmacy board, by promulgating a rule which attempts to reinstate a requirement that the legislature had just prior thereto determined was not necessary, and had repealed, was acting in a legislative capacity, that the power given to the board generally to make rules and regulations does not extend to legislative action and the board was therefore without authority to promulgate Rule 32 which accordingly is without force or effect.

Very truly yours,

SMITH TROY
Attorney General

PHILIP W. RICHARDSON
Assistant Attorney General

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