1906-1908 Ind. Op. Att'y Gen. p. 198b

198 DEAF, INDIANA STATE SCHOOL FOR-EXISTING RELA- TIONS, RIGHTS AND DUTIES BETWEEN IT AND BOARD OF STATE CHARITIES. May 28, 1907. Hon. Richard 0. Johnson, Superintendent Institution for the Education of the Deaf, City: Dear Sir-I have your favor of the 11th inst., asking my opin- ion as to the existing relations, rights and duties between the Institution for the Education of the Deaf and the board of state charities. I have already rendered an opinion upon this subject to the board of state charities, a copy of which I enclose herewith. Upon a re-examination of the matter submitted, I am of the opinion that the legislature of 1907 did not intend to withdraw the Institution for the Education of the Deaf from the supervision of the board of state charities; however,- it would be entirely proper and would undoubtedly carry out the general purpose of the legislature for the board of state charities to adopt such a classification of state institutions in their periodical publications as will indicate that the School for the Education of the Deaf is not regarded as a charitable or benevolent institution. PHARMACY, INDIANA BOARD OF-POWERS AND DUTIES OF, ETC. June 1, 1907. Hon. A. F. Sala, Secretary Indiana Board of Pharmacy, Win- chester, Indiana: Dear Sir-Your communication of May 29th received in which you request my opinion- First. As to whether yoir board is required to grant regis- tration to physicians without examination. Second. Whether your board is compelled to grant registra- tion without examination where the applicant is a graduate of a four year course in a school of pharmacy, satisfactory to the board. Third. Whether the board is required to grant registration without examination under the provisions of the third subdivi- sions of §3 of the act of March 9, 1907. Fourth. Whether the board, at the time of registration on July 1, 1907, is authorized by law to register all assistant pharma- cists as registered pharmacists, who were registered as assistant registered pharmacists prior to April, 1907. Fifth. Whether the board is authorized to grant registration to E. W. Rawlings, under the facts stated in your letter and in applicant's affidavit, which you enclosed to me. Sixth Whether the rules adopted by the board, and enclosed by you for my examination, are within the law governing the board. I shall answer your inquiries in the order in which they are asked. There are three subdivisions in §3 of the act approved March 9, 1907 (Acts 1907,p. 317), and it is provided in this section that: "Upon the payment of such fee or fees as hereinafter provided, said board shall grant and issue a license as regis- tered pharmacist or as registered assistant pharmacist to any person not less than eighteen years of age, as herein- after provided, for two years or the unexpired portion thereof prior to the next regular date of registration, upon producing evidence satisfactory to said board of one of the following qualifications, towit:" The license is to be granted to the applicant whenever he "produces evidence satisfactory to said board of one of the quali- fications" named, the first of which is that he shall pass a satis- factory examination, and produce and file evidence to satisfy the board that he has served four years in a store where prescriptions are compounded, or, in lieu of the four years experience, that he is a licensed practicing physician. To recapitulate, he must pass a satisfactory examination and show that he has had four years experience, or, he must pass a satisfactoryexamination and show by evidence that he is a regu- lar licensed physician. In any event, if he is to be granted registration, provided he has not been licensed before, he must pass a satisfactory examin- ation and produce satisfactory evidence, either that he has had four years experience or is a licensed physician. It is, therefore, my opinion that your first question must be answered in the negative. It is my opinion that your second question must be answered in the affirmative. It is provided in the second subdivision of said section 3 that: "He shall be a graduate of a four year course in a school of pharmacy, which course must be satisfactory to the board of pharmacy." This is one of the three qualifications required for regis- tration, and it is my opinion if the applicant, having paid the fees required and being over eighteen years of age, produces evidence satisfactory to the board, that he is a graduate of a four years course in a school of pharmacy, which course is also satisfactory to the board, that the board must grant him regis- tration without examination. This is the plain meaning of the language used by the legislature in such section. It is provided in the third subdivision of §3 that: "He shall be al graduate of a full course in a school of pharmacy, which course must be satisfactory to said board of pharmacy, and if said course is for less than four years, in addition thereto, said applicant shall produce and file such evidence as is satisfactory to said board of having served in a store or pharmacy where physicians' prescrip- tions are compounded for a sufficient length of time to make such course and such service cover a period of four years, and such course of pharmacy shall not be less than two years." It is my opinion that your third question must be answered in the affirmative, and that if an applicant for registration, who has not before been licensed by the board, submits satisfactory proof to your board that he is a graduate of a full course in a school of pharmacy, which course is satisfactory to the board, if it be for less than four years and not less than two years, and shall produce and file also satisfactory evidence that he has served in a phar- macy where physicians' prescriptions are compounded, for a sufficient time to make such course and such service together cover a period of four years, such applicant is entitled to regis- tration without examination, other than an examination of his proofs. In answer to your fourth question, it is my opinion the board has no authority to register as registered pharmacists, assistant pharmacists, unless it be upon the applications of such registered assistant pharmacists. and also that they either pass the examina- tion required by the first subdivision of §3, or comply with the provisions of the second or third subdivisions of said section. Section 3 fixes a different standard of qualifications for ap- plicants who desire licenses as registered pharmacists, from those required from applicants desiring to be licensed as assistant pharmacists. We have seen what is required of an applicant desiring a license as registered pharmacist. The following is required from an applicant desiring license as an assistant pharmacist: "lie shall have served as a clerk for one year in a store or pharmacy in which physicians' prescriptions are compounded, and shall pass a satisfactory examination before said board. In the case of an applicant for license as a registered assistant pharmacist, who is a graduate of a school of pharmacy of such standing and requirements as are satisfactory to the board of pharmacy, the actual time spent in attendance at such school shall be accepted as an equivalent for six months of service in a store or phar- macy where physicians' prescriptions are compounded." In view of the different standards named in said section 3 for the two classes of druggists, it is my opinion that the board has no authority to license as registered pharmacists any persons except those who comply with the requirements of §3. The board has no power other than such as named in the act, except that it may "adopt rules to carry out the provisions of the act"; but it has no power to make any rule which is in conflict with the provisions of the act. It is, therefore, my opinion that the board has no legal author- ity to register as registered pharmacists all assistant pharma- cists who were registered as such prior to April, 1907. I have also examined the rules adopted by the board, as re- quired by your sixth question. I suggest that rule one, while a proper one, is hardly complete, since to secure a license as a registered pharmacist the applicant must pass an examination and produce evidence to satisfy the board either that he has had four years experience or that he is a licensed physician. This rule makes no mention of the right of a physician who takes the examination in lieu of four years experience, to pro- duce evidence that he is a licensed physician. Rule nine, adopted by the Board, provides that "All certifi- cates of registration obtained by fraud or false representations shall be revoked by the board of pharmacy." While the act of March 9th makes no provision for revoking a license, still it is 202 my opinion that where the applicant has been guilty of fraud in his application, the board has- the right to revoke such a license. A certificate of registration gives the holder the right to con- duct a pharmacy, and this is in the nature of a property right, and it is my opinion that the rule should be amended so as to provide that before the board shall proceed to revoke a license, and take away his right thereunder, a notice be given to the holder, giving him a right to be heard. This will give him his day in court, and, after a hearing, the board's action in revoking such license will undoubtedly be legal. I have examined the affidavit of Mr. E. W. Rawlings, together with his statement of the facts relative to his having passed the examination in 1900, etc. The act of March 1, 1899, pro- viding for the examination of applicants for registration (Acts 1899, p. 159), provided that upon such applicant paying the fees and passing the required examination, said board should "grant and issue a license as registered pharmacist or as regis- tered assistant pharmacist"; and section 4 of such act provided that on July 1, 1901, any person holding such license should be required to re-register, etc. This act required the board, upon certain conditions, to "grant and issue" a license, and it is my opinion that to issue a license means to prepare the same, have it duly signed, and either de- liver same to the applicant, or offer to deliver it. No license hav- ing been issued by the board, and the time having passed when, even if it had been issued, re-registration is required, it is my opinion that the board, at this time, is not authorized' to issue such license upon the application made by Rawlings in 1900. The amendment of section 3 of the act of 1899, by the act of 1907, requires the board to "grant and issue" a license to appli- cants who comply with the act, as hereinbefore shown, and if Rawlings is a graduate of a four-year course in a school of phar- macy, where the course is satisfactory to the board, under the second subdivision of said section, he is entitled to a license with- out examination, upon showing his age, etc., and the payment of the fees required. No license having been issued under the 1900 examination, I suggest that he be required to make a new application, submit his diploma and such other proof as you may require, and, if the proof is satisfactory, that the board "grant and issue" him a license upon this application.