England v. Louisiana State Board of Medical Exam.

• Decision Date: 23 January 1959
• Docket Number: No. 16920.,16920.
• Citation: 263 F.2d 661
• 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

263 F.2d 661 (1959)

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.

January 23, 1959.

Jack L. Simms, Leesville, La., Floyd J. Reed, New Orleans, La., J. Minos Simon, Lafayette, La., for appellants.

St. Clair Adams, Jr., New Orleans, La., for appellees.

Before RIVES, BROWN and WISDOM, Circuit Judges.

PER CURIAM.

Appellees' petition for rehearing evidences such complete misunderstanding of the scope and effect of this Court's opinion and decision, that some further elucidation is indicated, particularly in view of the public importance of this litigation. That can best be done in our opinion, by briefly answering the first four grounds of the petition for rehearing.

"1. The Court, in its opinion of reversal remanding this case for trial, has failed to take into consideration the fact that neither a State nor a Federal Court can supersede the authority of the State Legislature, particularly where the health and welfare of the people of the State are at issue."

It is as elementary as it is fundamental that no court can supersede the authority of the state legislature. Certainly, this Court did not and would not attempt to do so. Our opinion clearly stated that: "* * * the question is whether they (chiropractors) 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." The extent of our holding was thus expressed: "We hold simply that the plaintiffs are entitled to a day in court, to an opportunity to prove their case."

No court, state or federal, has held that a state legislature has unlimited power or authority even with respect to such subjects as the health and welfare of the people of the state. The primary responsibility rests with the state legislature, but the courts have a solemn and inescapable duty, in an appropriate case, of deciding whether state action is so arbitrary and unreasonable as to be unconstitutional. That salutary check on the power and authority of a state legislature is recognized in every one of the cases relied on by the petitioners, as will appear from brief quotations in the margin.¹

"2. The majority opinion of the Court in its Per Curiam decision does not consider or give effect to prior decisions of the Supreme Court of the United States. In particular, we refer to the following decisions:

"Louisiana State Board of Medical Examiners v. Fife, 162 La. 681, 111 So. 58, 54 A.L.R. 594, 274 U.S. 720, 47 S.Ct. 590, 71 L.Ed. 1324; Graves v. Minnesota, 272 U.S. 425, 47 S.Ct. 122, 71 L.Ed. 331; Douglas v. Noble, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590; Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L. Ed. 623."

The last three cases are those cited by the Supreme Court of the United States as authority for its per curiam affirmance in the first case. In footnote 1, supra, we have quoted from each of the cases, and each, of course, had our careful consideration. It is important to note that every one of those cases was decided upon the evidence and not merely upon the pleadings as was this case. Further, it is not clear that in the case closest in point, Louisiana State Board of Medical Examiners v. Fife, supra, there was actually and fully litigated and tried the issue of whether practitioners of chiropractic were engaged in the practice of a useful profession or calling which they had a lawful right to pursue unimpeded by requirements having no relation to such calling or profession. The decision in that case operates as res judicata only as to those who were parties, and does not deprive the present appellants of their day in court.

"3. The Court recognized that the State has the right to regulate the practice of medicine, and can bar such cults as witch doctors, voodoo queens, bee-stingers, and others, but apparently did not realize that any order that might be issued by this or the District Court compelling the Louisiana State Board of Medical Examiners to issue a medical license to chiropractors would at the same time have the effect of permitting anybody to practice medicine. It may be facetious, but if such an order were ever issued, even the writer of this Petition would have the right to apply to the Louisiana State Board of Medical Examiners, and they would have to issue him a medical license."

The Louisiana State Board of Medical Examiners certainly cannot be required to issue to a chiropractor a license to practice medicine unless he complies with all of the statutory prerequisites, including the passing of an examination before the Board upon the subjects of surgery and materia medica,² which the appellants claim bear no reasonable relation to the practice of chiropractic. That, however, is not the question at issue. The Louisiana State Board of Medical Examiners has more extensive powers than those of simply examining and licensing applicants for the practice of medicine. It has broad and preferential powers to conduct legal proceedings for the prevention of the unauthorized practice of medicine,³ as that practice is broadly defined by the Louisiana Statute.⁴ Those powers, the complaint alleges, are being used in such a manner as to deprive the plaintiffs of their claimed right to practice chiropractic in Louisiana.⁵ As we understand, the plaintiffs can claim no right to practice medicine as that practice is engaged in by medical doctors and surgeons. The question is whether they can be constitutionally excluded from the practice of chiropractic in Louisiana.

"4. The majority opinion of the Court has completely overlooked the fact that the Medical Practice Act of Louisiana does not prohibit the practice of chiropractic but merely defines what constitutes the practice of medicine and directs the State Board to issue licenses to practice medicine only to those qualified as defined in the Statute. If a man is qualified to and takes the required examination under the Medical Practice Act, he can practice chiropractic, or for that matter, any of the other cults that have developed on the fringe of true medicine."

The answer is that the mere form of the statutes of a state cannot justify or excuse the deprivation of one's rights under the Constitution of the United States. The "practice of medicine" is defined broadly enough⁶ to apply to dentists, nurses, and pharmacists. Each of those three professions is protected by a special statute, but if it were not, would any one deny the jurisdiction of a federal district court to protect a dentist, a nurse, or a pharmacist in the practice of his or her useful profession or calling? We reiterate our holding that the plaintiffs are entitled to an opportunity to attempt to prove that chiropractic is such a useful profession or calling that they cannot be constitutionally excluded from its practice in Louisiana in the manner and form claimed to be attempted by the State Legislature and by the State Board of Medical Examiners. Nothing said in our original opinion should operate to limit the evidence to the period since the decision in Louisiana State Board of Medical Examiners v. Fife, supra.

The foregoing was all that we had originally written in denying the petition for rehearing. Our dissenting brother, whose opinion we value highly, remained unconvinced, and further expressed his views so cogently and vigorously that we have been led to make a careful re-examination of our own views. They remain the same, but, to make certain that we do not continue to be misunderstood, we shall attempt still further to elucidate those views at considerable length.

It was in 1888, before the Supreme Court had the opportunity to consider the full impact of the Fourteenth Amendment upon the rights of the States (couched in terms, "Police Power") to regulate the practice of medicine and the related healing arts,⁷ that the case of Dent v. State of West Virginia, 1888, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623, was decided. The Court upheld a state regulation which made it mandatory for persons who practiced medicine, surgery, or obstetrics either to have graduated from a reputable medical college or to have practiced medicine for ten continuous years preceding the enactment. The Court stated that every citizen of the United States has a right to follow any lawful calling, business, or profession, "subject only to such restrictions as are imposed upon all persons of like age, sex, and condition * * * and this right cannot be arbitrarily taken from them, any more than their real or personal property can be thus taken." (129 U.S. at pages 121, 122, 9 S.Ct. at page 233.) On the other side of the balance, however, is the right of the state to regulate to protect the health and general welfare of its people. Concerning this police power, the Court stated the following language which has served as the basis for practically every decision concerning state regulation over the medical field:

"* * * But there is no arbitrary deprivation of such right where its exercise is not permitted because of a failure to comply with conditions imposed by the state for the protection of society. The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as in its judgment will secure or tend to secure them against the consequences of ignorance and incapacity, as well as of deception and fraud. As one means to this end it has been the practice of different states, from time immemorial, to exact in many pursuits a certain degree of skill and learning upon which the community may confidently rely; their possession being generally ascertained upon an examination of parties by competent persons, or inferred from a certificate to them in the form of a diploma or license from

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