dissenting.
The majority depend on Safeway Stores v. State Bd. of Agriculture, 1953, 198 Or 43, 255 P2d 564 to void the Board of Pharmacy’s regulation. The Safeway Stores case should not be given further approval. That decision is unsupported by any of the recognized authorities who have written on the subject of legislative delegation of authority. A study of 1 Davis, Administrative Law (1958) § 2.11, p. 122 et seq.; Gellhorn & Byse, Administrative Law (1960) p. 114 et seq.; Jaffe, Judicial Control of Administrative Action (1965) Ch 2, and particularly the comprehensive *126analysis of the delegation problem in 1 Cooper, State Administrativé Law (1965) Ch III, will disclose no parallel to the restrictive limitations found in the Safeway Stores opinion. No one accepts the narrow view that an administrative agency “who claims that authority was delegated to him to enter the order under challenge must place his finger upon legislation couched in express and nonambignons language. In fact, it must he worded in terms so clear ‘that no doubt can reasonably arise in the mind of the public.’ ” 198 Or at page 71.
Actually, we need look no further than our decision in Van Ripper v. Liquor Cont. Com., 1961, 228 Or 581, 365 P2d 109, to find that the Safeway Stores ease was ignored and contradicted. Language, like the following, from the decision cannot be squared with the Safeway Stores opinion:
“Obviously the commission, in writing rules and enforcing them, can not undertake anything contrary to the statute itself. But it can fill in interstices in the legislation (Gouge v. David, supra) and thereby aid the statute to accomplish its purposes. The legislature, in drafting an act, can not always foresee the developments that will occur when an agency created by it proceeds to administer the act. Such was the juncture of events that occurred in the ease now before us. Since the legislators can not peer far into the future they may confer upon an agency to which they entrust the administration of the act enacted by them power to write the needed rules when a crises threatens that is within the purview of the act.
if* * * * *
“The interpretation of an act by the agency entrusted with its administration is generally given careful consideration by the courts, Gouge v. David, supra. There can be no doubt but that the com*127mission construes the ‘Sale of Alcoholic Liquor by Individual Drink’ act as enjoining upon it the duty to prevent the recurrence of the evils that lurked in the saloon. In the latter, as we have noted, alcoholic beverages, if not the sole objects of sale, were the principal objects thereof.” 228 Or at pp. 591-593.
The cases cited and discussed, including the Van Ripper case, in the 1965 Supplement to § 2.15 of the cited treatise of Professor Davis, provide further evidence that the rule followed by the Safeway Stores case is untenable.
Although the statute involved in Van Ripper, ORS Chapter 472, activating the Constitutional Amendment, Article I, § 39, for the sale of liquor by the drink contains platitudes, ORS 472.030, about the evils that “lurked in the saloon”, the power granted to the liquor commission to make regulations is substantially the same as the statute we are now considering. ORS 471.730 (5) delegates to the liquor commission the power:
“To adopt such regulations as are necessary and feasible for carrying out the provisions of this chapter and to amend or repeal such regulations. When such regulations are adopted they shall have the full force and effect of law.”
The same authority is repeated at ORS 472.060 (2) (d). These, however, are no more explicit in respect to the regulation at issue in Van Ripper than they are in respect to thé Board of Pharmacy.
ORS 689.620 (8) gives the Board of Pharmacy the same authority to:
“Make such regulations as are necessary and feasible for carrying out ORS 453.010 to 453.170 and 689.010 to 689.660, amend or repeal such regu*128lations, and make regulations relating to the sale of drugs that the Drug Advisory Council designates as ‘dangerous drugs.’ ”
ORS 453.010 to 453.170 regulates the sale and control of poisons.
The need to regulate the sale of some prescription drugs may not be attended with the same strictness that may be necessary in the control of the liquor trade. However, it is doubtful that anyone could claim that sale of narcotics and poisons, for example, is a less serious business than the sale of liquor.
The quoted portion of the Van Ripper opinion is similar in context to a statement of Professor Jaffe beginning at page 35 of his cited text. He makes this suggestion as one condition or purpose, at least, for the delegation of legislative power:
* * Indeed, every statute is a delegation' of lawmaking power to the agency appointed to enforce it. ‘Jurisdiction,’ the power to declare the law applicable to a case, is the power to apply a general formula to a specific situation. This power when exercised by the judiciary is ordinarily called interpretation or discovery of the legislative intention. We need not enter the debate as to whether such a quest is as bootless as the search for the Holy G-rail. Even the most traditional lawyer will admit that under the Sherman Act a court has no choice but to formulate its standards as to what is a restraint of trade or a monopoly and that the formulation must express the court’s notions of policy. The Sherman Act is an extreme case but all great statutes force the judge at some point or other, be he ever so reluctant, to devise a ‘common-law’ of the statute. We have it from good authority that the legislative draftsman on occasion (for tactical reasons) deliberately fails to make explicit provision for a foreseen case. .But *129such failure is inevitable. Language and experience alike can never be so divinely comprehensive as to make clear provision for all future cases.
“The occasions for delegating power to administrative officers have been variously enumerated. They can be compassed by a single generalization. Power should be delegated where there is agreement that a task must be performed and it cannot be effectively performed by the legislature without the assistance of a delegate or without an expenditure of time so great as to lead to the neglect of equally important business. Delegation is most commonly indicated where the relations to be regulated are highly technical or where their regulation requires a course of continuous decision.” (Footnotes omitted.)
If we should apply Professor Jaffe’s suggestion then it would, indeed, be hard to find products, the sale of which needs to be regulated, that are more “highly technical or where regulation requires a course of continuous decision” than in the sale of pharmaceuticals. We know from our study of other cases (Lewis v. Baker, 1966, 243 Or 317, 413 P2d 400, for one) that the multiplicity and complexity of drugs— many of them highly dangerous if not properly used —is growing with astounding speed. This is acknowledged by all who have given any attention to the matter and certainly must be considered to have been in the mind of the legislature when it delegated the broad powers given to the Board of Pharmacy. It appears to me that the prohibition of the challenged regulation forbidding advertising of prescription drugs is a legitimate and intended essential of the practice of pharmacy. And it must be remembered that ORS 689.620 (1) directs the Board to “make regulations, necessary for the protection of the public, pertaining to the practice of pharmacy and the lawful perform*130anee of its duties.” The sale of prescription drugs is the ultimate function of the practice of pharmacy.
The sale of the drugs is an essential need for the public good. Creating an inducement to buy is not. Certainly, the public would not be protected if druggists could, by advertising, excite public demand for narcotics, for example. If pharmacists were to advertise generally of the benefits derived from various drugs, many of which are already in sometimes clandestine demand, the public would be outraged, not protected. It is significant to me that none of the thousands of pharmacists that there must be in this state have joined in attacking this regulation. I can only assume that they think it wholesome and desirable.
And because this is a desirable function in the restriction of the sale of prescription drugs, I take it to be a desirable and necessary part of the regulation of the practice of pharmacy. It is not an unwarranted and unlawful usurpation of authority by the Board of Pharmacy. The regulation should be sustained.
Denecke, J., joins in this dissent.