England v. Louisiana State Board of Medical Exam.

• Citation: 259 F.2d 626
• Decision Date: 09 September 1958
• Docket Number: No. 16920.,16920.
• Parties: Jerry R. ENGLAND et al., Appellants, v. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

259 F.2d 626 (1958)

Jerry R. ENGLAND et al., Appellants, v. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS et al., Appellees.

No. 16920.

United States Court of Appeals Fifth Circuit.

September 9, 1958.

J. Minos Simon, Lafayette, La., Floyd J. Reed, New Orleans, La., Jack L. Simms, Leesville, La. (Russell Morton Brown, Washington, D. C., on the brief), for appellants.

St. Clair Adams, Jr., New Orleans, La. (Adams & Reese, New Orleans, La., on the brief), for defendants-appellees.

Before RIVES, BROWN, and WISDOM, Circuit Judges.

PER CURIAM.

This case was originally assigned to Judge Wisdom, who has written an opinion, which has been changed to appear as the dissenting opinion, fully and fairly developing the issues and concluding in affirmance of the district court's judgment in accordance with the tentative vote of all three judges in conference. Upon further study and deliberation, however, Judges Rives and Brown now believe that the district court erred in dismissing the complaint for lack of a substantial federal question warranting exercise of jurisdiction. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152.

We are not called on at this time to say whether chiropractors should be admitted to practice in Louisiana, but the question is whether they are entitled to an opportunity to prove that the State's denial of their claimed right to practice an allegedly useful profession is so arbitrary and unreasonable as to amount to a denial of due process or of the equal protection of the laws under the Fourteenth Amendment. It is certainly true that the State is not bound to recognize every peculiar theory or school of medicine. Without doubt it is reasonable for the state to outlaw witch doctors, voodoo queens, bee stingers, and various other cults which no reasonably intelligent man would choose for the treatment of his ills, but it would certainly be arbitrary to exclude some, if not all, of the following classes which Louisiana does admit to practice: dentists, osteopaths, nurses, chiropodists, optometrists, pharmacists, and midwives. Just where is the dividing line? Under all of the cases, we think it is that the State cannot deny to any individual the right to exercise a reasonable choice in the method of treatment of his ills, nor the correlative right of practitioners to engage in the practice of a useful profession.

The case closest in point to that now presented is Louisiana State Board of Medical Examiners v. Fife, 1926, 162 La. 681, 111 So. 58, 54 A.L. R. 594, affirmed in a Per Curiam opinion on May 2, 1927, 274 U.S. 720, 47 S.Ct. 590, 71 L.Ed. 1324. In the thirty odd years since that decision was rendered, we judicially know that the healing art in general has made further enormous progress away from the ancient days when barbers did the blood letting. Can we say without hearing the evidence that chiropractic is no more entitled to recognition today than it was thirty odd years ago? It is claimed that the practice of chiropractic has now been legalized in forty-four of the States, in Hawaii, and in the District of Columbia, and that respectable colleges of chiropractic have been founded with courses comparable in length and claimed to be equal in quality to the medical colleges. It is not denied that the state may regulate, within reasonable bounds, the practice of chiropractic for the protection of the public health; but it is claimed that the requirements of a diploma from a college approved by the American Medical Association and a knowledge of surgery and materia medica bear no reasonable relation to the practice of chiropractic. Without hearing the evidence, we cannot say that those claims are untrue, or that a reasonable man might not intelligently choose a chiropractor for the treatment of some particular ailment. We hold simply that the plaintiffs are entitled to a day in court, to an opportunity to prove their case. The judgment is therefore reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

WISDOM, Circuit Judge (dissenting).

This is an appeal from the United States District Court for the Eastern District of Louisiana. Appellants requested that a three-judge court be convened. The request was denied. After a hearing on appellee's motion to dismiss, treated as a motion for summary judgment, the district court dismissed the complaint.

With all due deference to my learned brothers on the Court, respectfully I dissent. It seems to me that there is no dispute as to any material factual issue. The critical issues of law appear on the face of the pleadings. We should decide them now.

Chiropractors are entitled to their day in court. They are not entitled to an extra day.

It is the business of the state to decide who shall practice medicine and under what circumstances a license may be issued. It is not our business — unless (1) the licensing statute is so unreasonable or (2) is administered so unreasonably as to amount to a denial of due process or of equal protection of the laws under the Fourteenth Amendment.

The statute is in the books for us to read. It has been interpreted by the Supreme Court of Louisiana. Similar statutes have been interpreted by the Supreme Court of United States. The overwhelming weight of the decisions is against the plaintiffs.

Remand of this case produces a strange paradox. It allows a trial in order to show that chiropractic has advanced so far in the last thirty years that the Louisiana Medical Practice Act is unconstitutional — since it has no exception to permit lower standards to be applied to chiropractors than to any other applicants for a license to practice medicine. The effect of remanding is to allow the plaintiffs to introduce evidence that the Louisiana Board of Medical Examiners is acting unconstitutionally in that the Board does not disregard the statute by making a special exception for chiropractors, since they cannot meet the standards everyone else must meet.

Evidence that materia medica and surgery bear no relation to chiropractic strikes me as immaterial. The standards established in the Louisiana Medical Practice Act do not purport to bear a relation to the practice of chiropractic. The object of the law is to license those persons holding themselves out as qualified medical doctors — qualified to practice surgery and medicine generally, not necessarily chiropractic or any narrow, specialized practice or alleged healing skill.

It may be difficult in some cases for judges to avoid interstitial lawmaking. But not here. This is a clear case where it is for the legislature to take notice of the limitations in the medical training and the practice of chiropractic. It has done so in many similar cases: for optometrists, mid-wives, pharmacists, osteopaths, nurses, and chiropodists by enacting special licensing laws. It has taken note of chiropractors, limitations by not enacting a special law for their benefit. It is not for us to make a law for chiropractors or to say that the legislature enacted an unconstitutional law because it makes all applicants for a medical license toe the same mark.

Accepting the pleadings and exhibits as true, the plaintiffs failed to make a case. They failed to present a federal question not already decided against them by the United States Supreme Court. Since there is no diversity of citizenship, the district court properly held that it had no jurisdiction. Hitchcock v. Collenberg, D.C.Md.1956, 140 F. Supp. 894, involving naturopathic practitioners, and citing leading Louisiana cases, is almost on all fours with the instant case. The United States Supreme Court affirmed Hitchcock v. Collenberg in a per curiam opinion in 1957, 353 U.S. 919, 77 S.Ct. 679, 1 L.Ed.2d 718, citing Dent v. State of West Virginia, 1889, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623. Cf. the per curiam opinion affirming Louisiana State Board of Medical Examiners v. Fife, 1926, 162 La. 681, 111 So. 58; 1927, 274 U.S. 720, 47 S.Ct. 590, 71 L.Ed. 1324.

The continuity in this filed of law is unbroken.

I.

Forty chiropractors filed suit. Each holds a diploma allegedly from "a school in good standing teaching the healing arts, to-wit: the Science of Chiropractic". They ask for a declaratory judgment and for an injunction against the Louisiana State Board of Medical Examiners. (1) They attack the constitutionality of the Louisiana Medical Practice Act (LSA-R.S. 37:1261 et seq.) on the ground that on its face the statute is arbitrary, discriminatory and couched in terms so as to deprive appellants of their civil rights, privileges, and immunities, and equal protection under the Constitution and laws of the United States. (2) They attack the Louisiana State Board of Medical Examiners as acting unconstitutionally in discriminating wilfully and maliciously against chiropractors, in violation of the plaintiffs' constitutional rights under the Fourteenth Amendment.

The Louisiana Medical Practice Act creates the Louisiana State Board of Medical Examiners "to examine all applicants for the practice of medicine". Section 1271 is the center of the chiropractors' target. This reads:

"Any person who wishes to practice medicine shall:

"(1) Be twenty-one years of age;

"(2) Be a citizen of the United States;

"(3) Be of good moral character;

"(4) Present to the board a diploma from a college in good standing of any sect teaching medicine or the healing art; and

"(5) Pass an examination before the board upon the following: Anatomy, Physiology, Chemistry, Physical Diagnosis, Pathology, and Bacteriology, Hygiene, Surgery, Theory and Practice of Medicine, Materia Medica, Obstetrics, and Gynecology."

In Section 1275 the legislature allows the Board to waive examinations in favor of an applicant from another state who presents a certificate of examination from a board of medical examiners "received on the equivalent of a `Class A college standard American Medical Association'."

In line...