Blass v. Weigel

• Decision Date: 29 June 1949
• Docket Number: Civ. No. 11759.
• Citation: 85 F. Supp. 775
• Parties: BLASS et al. v. WEIGEL et al.
• Court: U.S. District Court — District of New Jersey

85 F. Supp. 775

BLASS et al. v. WEIGEL et al.

Civ. No. 11759.

United States District Court D. New Jersey.

June 29, 1949.

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Elden Mills, Morristown, N. J., Curley C. Hoffpauir, New York City, of counsel, for plaintiffs.

Theodore D. Parsons, Attorney General of New Jersey, by Joseph A. Murphy, Assistant Deputy Attorney General, for defendants.

FORMAN, District Judge.

Plaintiffs, F. M. Eugene Blass and E. Am. Association for Oxygen-Therapy Incorporated, residents of the State of New Jersey, have brought a declaratory judgment action to have adjudged unconstitutional portions of the Medical Practice of New Jersey, N.J.S.A. 45:9-1 et seq., and in addition seek to recover pecuniary damages from certain named defendants for alleged violations of the Civil Rights Act, 8 U.S.C.A. § 43. The defendants are members of the New Jersey State Board of Medical Examiners, two investigators of the aforesaid Board, the Attorney General of the State of New Jersey, the Assistant Attorney General of New Jersey charged with prosecuting actions instituted by the State Board of Medical Examiners for violations of the Medical Practice Act, and the former Attorney General of New Jersey.

The present proceedings relate to the plaintiffs' motions for a temporary restraining order to stay court actions and to convoke a statutory three judge court to secure an interlocutory injunction; and the defendants' motion to dismiss the complaint.¹

The complaint, as amended, bears a striking similarity to that filed in this court in the case of Society of Naturopaths v. State Board of Medical Examiners et al., C-10901. See New Jersey Chiropractic Association v. State Board of Medical Examiners, D.C., 79 F.Supp. 327.²

Plaintiff, Blass, alleged that he developed a system of curative processes whereby a combination of non-poisonous natural products, beneficial to the human body, eliminates and removes all diseases and ill-health from it and that he assigned the secret formulae for the system to the plaintiff corporation for marketing purposes. He claimed to be a graduate naturopath and that his profession does not employ surgery or processes common to allopathic and homeopathic practitioners but treats diseased bodies by natural means. He alleged that through the action of the defendant investigators of the defendant Board, he was arrested on a warrant, held on bail and tried and convicted in a quasi-criminal action by a state court for violations of the New Jersey Medical Practice Act. He asserted that following his arrest he was denied the right to communicate with counsel and the right to be informed of the nature and details of the accusation against him until he posted security and that after posting bail he was refused a bill of particulars of the accusation against him and trial by jury. He claimed that the evidence presented against him at the trial was secured by professional and anonymous witnesses who called at his place of business and that evidence presented on his behalf clearly proved that he practiced nothing remotely touching medicine and surgery to sustain a conviction for practicing medicine without a license. He contended that the New Jersey Medical Practice Act does not encompass within its terms the science of naturopathy and that conflict, confusion and doubts have arisen because of numerous rulings by the state courts concerning what constitutes the practice of medicine by naturopaths. He further alleged that as a result of the actions of the defendants his business and that of the plaintiff corporation had been seriously impaired. There are additional allegations that the statute confers monopoly upon physicians and surgeons, that the Medical Practice Act is unconstitutional, and that the defendants have unlawfully discriminated against the plaintiffs in favor of allopathic and homeopathic practitioners.

Both plaintiffs allege that the defendants have and continue to violate the Civil Rights Act, 8 U.S.C.A. § 43, and the provisions of the First, Fifth, Sixth, Seventh, Thirteenth and Fourteenth Amendments to the Constitution of the United States in the following manner:

(1) That the enforcement by the defendants of the New Jersey Medical Practice Act confers a special and exclusive monopoly on medical and surgical practitioners by restricting care and treatment of the citizens of New Jersey to these forms of therapy although large numbers of persons are opposed to it.

(2) That the citizens of New Jersey are deprived of the right to derive from naturopathy the benefits resulting from this form of healing.

(3) By forbidding the plaintiff, Blass, and other naturopaths from engaging in and practicing their calling.

(4) By requiring naturopaths to be examined in certain phases of the medical sciences as provided by the provisions of N.J.S.A. 45:9-15, the knowledge of such subjects being unnecessary for the practice of naturopathy and unwarranted by the legitimate use of the police power.

(5) By conferring a monopoly upon physicians and surgeons and prohibiting the use of naturopathic remedies although such treatments are without drugs or surgery and are not deceitful, harmful or injurious to persons receiving the same.

(6) By prohibiting plaintiff Blass, and other naturopaths from practicing although there is no contention or proof that naturopaths are ignorant or incompetent or that their methods are detrimental to the public.

(7) By arbitrarily interfering with the plaintiffs' business and with the professional occupation of plaintiff Blass under the guise of protecting the public interest through the arbitrary and unlawful imposition of unauthorized and confiscatory monopolistic restrictions.

(8) By usurping the prerogatives of the citizens of New Jersey in enforcing the concept that the practice of allopathy — medicine and surgery — is the only proper school or method of treating and curing sickness and disease.

(9) By failing to provide for the examination and licensing of naturopaths qualified to practice naturopathy and establishing the policy that naturopathy is coextensive in scope with allopathy when the defendants know or should know that naturopathy is unrelated to, unlike, distinct from and antagonistic to the theory and practice of allopathy.

(10) By including the unrelated and harmless science of naturopathy within the terms of the Medical Practice Act although the Act is limited to and intended to regulate and safeguard the use of powerful and dangerous treatments, i. e., drugs, medicines, narcotics, and surgical operations.

(11) By prohibiting the treatment of illness which dispenses with the use of drugs, medicine and surgery.

(12) By illegally arresting, convicting and fining, or sentencing to imprisonment, the plaintiff, Blass, without trial by jury, in a summary and unlawful manner, contrary to the laws of the United States.

(13) By sponsoring legislation and obtaining judicial determinations thereof, which are harsh, oppressive, unlawful, arbitrary and unreasonable, in that said defendants maintain as a violation of the Medical Practice Act, among other charges, 17 specified acts.³

In addition there is an allegation that the Medical Practice Act of New Jersey violates Article IV, § 2 of the United States Constitution.

The procedure for enjoining enforcement of state statutes and convening a three-judge court is now governed by 28 U.S.C.A. § 2281 et seq. and is based upon former § 266 of the 1911 Judicial Code. See Revisers Notes, Title 28 United States Code, Congressional Service, 1948, pp. 1909-1911. Interpretations prior to the 1948 Code Revision held that in lieu of an allegation of diversity of citizenship there had to exist a substantial federal question which was to be determined from the allegations of the complaint. But, if the complaint showed that the question "is `obviously without merit' or because `its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy * * *'" a federal court is without jurisdiction to convene a three judge court. Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 78 L.Ed. 152. Cf. California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1232; Jameson & Co. v. Morgenthau, 307 U.S. 170, 171, 59 S.Ct. 804, 83 L.Ed. 1189. The rule enunciated in the Poresky case has not been altered by the 1948 Revision of Title 28.

A long line of decisions have upheld the right of a state to regulate the practice of medicine and the allied professions; to designate, limit or restrict what shall constitute the practice of medicine and the allied sciences; to authorize an administrative agency to provide for the regulation of the practice of medicine and the allied sciences; and to enforce either the statutes of the state or regulations of the administrative agency. Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L. Ed. 623; Gray v. Connecticut, 159 U.S. 74, 15 S.Ct. 985, 40 L.Ed. 80; Hawker v. People of New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002; Roetz v. Michigan, 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563; Meffert v. Packer, 195 U.S. 625, 25 S.Ct. 790, 49 L.Ed. 350; Williams v. Arkansas, 217 U.S. 79, 30 S.Ct. 493, 54 L.Ed. 673; Watson v. Maryland, 218 U.S. 173, 30 S.Ct. 218, 54 L.Ed. 987; Collins v. Texas, 223 U.S. 288, 32 S.Ct. 286, 56 L.Ed. 439; McNaughton v. Johnson, 242 U.S. 344, 37 S.Ct. 176, 61 L.Ed. 352, Ann.Cas. 1917B, 801; Crane v. Johnson, 242 U.S. 339, 37 S.Ct. 176, 61 L.Ed. 348, Ann.Cas. 1917B, 796; Noble v. Douglas, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590; State of Missouri ex rel. Hurwitz v. North et al., 271 U.S. 40, 46 S.Ct. 384, 70 L.Ed. 818; Graves v. Minnesota, 272 U.S. 425, 47 S. Ct. 122, 71 L.Ed. 331; Lambert v. Yellowley, 272 U.S. 581, 47 S.Ct. 210, 71 L.Ed. 422, 49 A.L.R. 575; Fife v. Louisiana State Board of Medical Examiners, 274...