Davis v. State

• Citation: 37 A.2d 880,183 Md. 385
• Decision Date: 13 June 1944
• Docket Number: 26.
• Parties: DAVIS v. STATE et al.
• Court: Court of Appeals of Maryland

37 A.2d 880

183 Md. 385

DAVIS v. STATE et al.

No. 26.

Court of Appeals of Maryland

June 13, 1944

Appeal from Circuit Court of Baltimore City; William L. Henderson Judge.

Suit by William A. Davis against the State of Maryland and others constituting the State Board of Medical Examiners, for a declaratory judgment that the 1943 statute for the regulation of advertising by physicians and surgeons is unconstitutional. From an adverse decree, complainant appeals.

Affirmed.

Henry L. D. Stanford, Jr., of Baltimore (J. Carroll Sullivan, of Baltimore, on the brief), for appellant.

J Edgar Harvey, Asst. Atty. Gen. (William C. Walsh, Atty. Gen., on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN, and BAILEY, JJ.

DELAPLAINE Judge.

Dr. William A. Davis, of Baltimore, brought this suit under the Uniform Declaratory Judgments Act to obtain a judicial declaration that the statute passed by the Legislature of Maryland in 1943 for the regulation of advertising by physicians and surgeons is unconstitutional. Acts of 1943, ch. 600, Code 1943 Supp., art. 43, secs. 144A, 144B, 144C.

The statute provides that no physician or surgeon in this State shall advertise except as follows: (a) He may use a personal professional card, not larger than 3 1/2 by 2 inches, upon which may be printed his name, title, address, specialty, telephone number, and office hours; (b) he may mail to any of his bona fide patients a removal notice, not larger than 5 by 7 inches, containing his name, title, specialty, telephone number, office hours, and his old and new addresses; and (c) he may exhibit on the door or wall of the building in which he practices not more than two signs, on which shall be placed his name and title or degree, the letters of which shall not exceed 3 inches square, and he may also exhibit such sign on the door of his office. Any physician or surgeon who advertises or solicits in any other manner, whether by mail, card, newspaper, pamphlet, radio or otherwise, shall be guilty of a misdemeanor, and on conviction thereof shall be fined not less than $50 and not more than $300 for each offense. The statute expressly provides that a violation of the statute shall constitute unprofessional conduct, and the license of any physician or surgeon guilty of such violation shall be subject to revocation.

Complainant alleges that, after graduating in both pharmacy and medicine from the University of Maryland, he was licensed to practice medicine in this State in 1898; that he was teacher at the Baltimore Medical College from 1898 to 1905; that he took a post graduate course in medicine at the Johns Hopkins University and also did clinical work in England, France and Germany; that he has been practicing in an honorable manner, and the treatments used by him, particularly for venereal diseases, are those approved by the American medical profession; that he has been advertising in a Baltimore newspaper and in the telephone directory, but since he stopped advertising after the passage of the Act of 1943 his receipts fell more than 50% below those of previous years; that the statute is unconstitutional because (1) it is not a valid exercise of the police power of the State, but deprives him of his property without due process of law in contravention of article 23 of the Maryland Declaration of Rights and the Fourteenth Amendment to the Constitution of the United States, and (2) it is arbitrary and discriminatory and deprives him of the equal protection of the laws guaranteed by the Fourteenth Amendment.

It was questioned by the State Board of Medical Examiners whether complainant could use a declaratory judgment proceeding to test the constitutionality of the statute. The early conception of the courts was that they were a branch of the government created to redress private wrongs and to punish for the commission of crimes. The Uniform Declaratory Judgments Act was adopted by the State of Maryland in 1939. Acts of 1939, ch. 294, Code 1939, art. 31A. The primary purpose of this Act is to relieve litigants of the rule of the common law that no declaration of rights may be judicially adjudged unless a right has been violated, and to render practical help in ending controversies which have not reached the stage where other legal relief is immediately available. De Charette v. St. Matthews Bank & Trust Co., 214 Ky. 400, 283 S.W. 410, 50 A.L.R. 34. Section 1 of the Uniform Act explicitly declares that the existence of another adequate remedy shall not preclude a judgment for declaratory relief 'in cases where it is appropriate.' However, we have decided that the Act is designed to supplement, not to supersede, existing remedies at law and in equity, and accordingly where an immediate cause of action exists for which one of the existing remedies is available and adequate, a proceeding for a declaratory judgment is not appropriate within the contemplation of the Act. Caroline Street Permanent Building Ass'n v. Sohn, 178 Md. 434, 444, 13 A.2d 616. For instance, we held that the Legislature did not intend that a declaratory judgment proceeding should take the place of the ordinary action for damages for breach of contract. Porcelain Enamel & Mfg. Co. v. Jeffrey Mfg. Co., 177 Md. 677, 11 A.2d 451. Likewise, we held that the Circuit Court cannot decide by declaratory judgment whether a will should be probated, for the Orphans' Court is vested with jurisdiction to admit wills to probate. Morgan v. Dietrich, 179 Md. 199, 16 A.2d 916.

However, if a person is directly affected by a statute, there is no reason why he should not be permitted to obtain a judicial declaration that the statute is unconstitutional. It is true that a court of equity has power to restrain the enforcement of a void statute or ordinance at the suit of a person injuriously affected. City of Havre de Grace v. Johnson, 143 Md. 601, 123 A. 65; Spann v. Gaither, 152 Md. 1, 136 A. 41, 50 A.L.R. 620; Jewel Tea Co. v. Town of Bel Air, 172 Md. 536, 192 A. 417. But in this case complainant is affected by the Act of 1943 and he is entitled to apply for a declaratory judgment under the Uniform Act, rather than run the risk of being subjected to criminal prosecution, and possibly having his license revoked. The distinctive characteristic of a declaratory judgment is that the declaration stands by itself, and does not involve executory process or coercive relief. Of course, a court is not empowered to decide moot questions or abstract propositions, either under the Uniform Act or any other procedure, however convenient it might be to have the questions decided for the government of future cases, but will determine only actual controversies. Where, by act of the parties or subsequent law, the controversy has come to an end, the case becomes moot and should be treated accordingly. United States v. Alaska Steamship Co., 253 U.S. 113, 40 S.Ct. 448, 64 L.Ed. 808; Ladner v. Siegel, 294 Pa. 368, 144 A. 274; Reese v. Adamson, 297 Pa. 13, 146 A. 262; Revis v. Daugherty, Attoney General, 215 Ky. 823, 287 S.W. 28. But it is obvious that complainant is not attempting to secure an abstract decision or one advising what the law would be on an uncertain or hypothetical state of facts. He is directly affected by the challenged statute. While the usual course of judicial procedure ordinarily results in a judgment requiring an award of process or execution to carry it into effect, such relief is not an indispensable adjunct to the exercise of the judicial function. In Nashville, Chattanooga & St. Louis Ry. v. Wallace, 288 U.S. 249, 53 S.Ct. 345, 348, 77 L.Ed. 730, 736, 87 A.L.R. 1191, brought under the Declaratory Judgments Act of Tennessee to secure a declaration that a tax levied on the storage of gasoline was invalid as applied to appellant, Justice Stone declared: 'But the Constitution does not require that the case or controversy should be presented by traditional forms of procedure, invoking only traditional remedies. * * * It did not crystallize into changeless form the procedure of 1789 as the only possible means for presenting a case or controversy otherwise cognizable by the federal courts. Whenever the judicial power is invoked to review a judgment of a state court, the ultimate constitutional purpose is the protection, by the exercise of the judicial function, of rights arising under the Constitution and laws of the United States. The states are left free to regulate their own judicial procedure. * * * As the prayer for relief by injunctions is not a necessary prerequisite to the exercise of judicial power, allegations of threatened irreparable injury which are material only if an injunction is asked, may likewise be dispensed with if, in other respects, the controversy presented is, as in this case, real and substantial.'

In Daniel Loughran Co. v. Lord Baltimore Candy & Tobacco Co., 178 Md. 38, 12 A.2d 201, complainant used the procedure of the Declaratory Judgments Act to ask the Court to declare the 1939 amendment to the Fair Trade Act constitutional. The Court of Appeals, after making an exhaustive study of the constitutional question, held the amendment unconstitutional. Likewise, in Oursler v Tawes, 178 Md. 471, 13 A.2d 763, where certain citizens of Maryland attacked the constitutionality of the State Income Tax Law of 1939, we thoroughly discussed the validity of the statute, although no issue was raised as to the propriety of the procedure under the Declaratory Judgments Act. In other States declaratory judgment proceedings have been employed on many occasions to determine questions as to the validity or construction of statutes or ordinances. Woolf v. Fuller, 87 N.H. 64, 174 A. 193, 94 A.L.R. 1067; Sage-Allen Co. v. Wheeler, 119 Conn. 667, 179 A. 195, 98...