concurring.
I agree with the majority that the Blue Cross contracts in question violate Federal and State antitrust laws by fixing drug prices. I disagree with the conclusion that the contracts do not violate Virginia law by calling for direct payments by Blue Cross to cooperating pharmacists. Therefore, I would affirm the May 5, 1969 order of the State Corporation Commission on both grounds.
Blue Cross is the creature of statutes enacted for the purpose of enabling hospitals and doctors to operate plans, administered by a corporate agent, offering prepaid hospital and medical services to subscribers. The subscribers are thereby benefited by receiving relief from the overwhelming expense incident to catastrophic illness. Participating hospitals and doctors benefit from assured payment for services rendered to many persons of modest resources who might otherwise be unable to pay.
The worthy purposes of Blue Cross have received legislative approval and, indeed, Blue Cross enjoys a unique preference in the form of tax immunity. While recognizing that Blue Cross was not created for the purpose of acting as an insurance company, the Legislature was bound to see that it would directly compete with such taxpaying companies selling hospitalization and medical insurance.
Viewed against this background the authority of Blue Cross to expand its activities, depending entirely upon statute, must be strictly construed.
The Commission has held, and the finding is now conclusive, that participating hospitals may offer the proposed drug plan as a “similar or related service” within the purview of Code § 32-195.1.
The Commission has also held, and no cross-error has been assigned to the holding, that under the proposed drug plan Blue Cross would be acting as agent for the participating hospitals and not as agent for the cooperating pharmacists.
The majority has decided that, contrary to the Commission’s ruling, since the statute does not expressly prohibit it, Blue Cross may pay pharmacists directly. Such a conclusion, in my opinion, clearly violates not only the legislative intent but also sound principles of statutory construction. It may open the door to direct payments in the future to such recipients as funeral directors, health spa operators and department stores selling non-prescription drugs, ankle wraps and adhesive tape.
*194Code § 32-195.8 provides as follows for payments by Blue Cross to persons other than its principals:
“. . . A plan may make payments to a nonparticipating hospital or physician for services rendered a person included in a subscription contract; but no payments shall be made by a plan to a person included in a subscription contract unless it be for breach of contract or unless it be for contractually included costs incurred by such person or for services received and paid for such person and rendered by a nonparticipating hospital or physician.”
The Commission concluded, and I believe correctly, that this statute, by specifying the persons to whom payments may be made, prohibits payments to pharmacists and others who are not specifically included. This conclusion follows the generally approved principle that mention of one thing in a statute implies exclusion of others not specified. Miller v. Commonwealth, 180 Va. 36, 42, 21 S. E. 2d 721, 724 (1942); Tate v. Ogg, 170 Va. 95, 103, 195 S. E. 496, 499 (1938).
There can be no justification for .finding a legislative intent to permit Blue Cross to pay directly to any person who is not specifically excluded. The development of this and similar legislation rebuts any such suggestion. Thus, the 1960 amendments to the Blue Cross Act were required to permit hospitals to offer not only hospital and medical but “similar or related” services. Additional legislation was necessary to permit dentists and optometrists to operate similar prepaid service plans. Code § 32-195.21-§ 32-195.35; Code § 32-195.36-§32-195.50.
Any extension of Blue Cross offerings or facilities should, therefore, in the future as in the past, be expressly authorized by the Legislature. If the Legislature finds it to be in the public interest to permit Blue Cross to pre-empt the field of hospitalization and health insurance it will enact appropriate legislation to this end. Until it clearly expresses its intent that Blue Cross be permitted to do whatever is not specifically prohibited, the enabling legislation should be strictly construed. See Wheelwright v. Commonwealth, 103 Va. 512, 519, 49 S. E. 647, 649 (1905).
I agree with the majority that it was beyond the province of the Commission to determine whether cooperating pharmacists, who signed contracts with Blue Cross, thereby committed acts of unprofessional conduct.