Hitchcock v. Collenberg

• Decision Date: 19 April 1956
• Docket Number: Civ. No. 7866.
• Citation: 140 F. Supp. 894
• Parties: Kenneth C. HITCHCOCK, The Maryland Naturopathic Association, Inc., a body corporate, Dena Cohen, Harry E. West, Mary S. Gebhardt, Lewis Kern v. Henry T. COLLENBERG et al., comprising The Board of Medical Examiners for the State of Maryland et al.
• Court: U.S. District Court — District of Maryland

140 F. Supp. 894

Kenneth C. HITCHCOCK, The Maryland Naturopathic Association, Inc., a body corporate, Dena Cohen, Harry E. West, Mary S. Gebhardt, Lewis Kern v. Henry T. COLLENBERG et al., comprising The Board of Medical Examiners for the State of Maryland et al.

Civ. No. 7866.

United States District Court D. Maryland, Civil Division.

April 19, 1956.

John J. O'Connor, Jr., Baltimore, Md., for plaintiffs.

C. Ferdinand Sybert, Atty. Gen. of Maryland, and Stedman Prescott, Jr., Asst. Atty. Gen. of Maryland, for defendants.

Before SOPER, Circuit Judge, and CHESNUT and THOMSEN, District Judges.

THOMSEN, District Judge.

The Court of Appeals of Maryland has held that naturopathic practitioners are "practicing medicine", as that term is defined in the State Medical Practice Act, Annotated Code of Maryland, 1951 ed., Art. 43, Secs. 117-147, and that a person desiring to engage in the healing art by the practice of naturopathy may not do so without a license from one of the two State Boards of Medical Examiners. Aitchison v. State, 204 Md. 538, 105 A.2d 495, certiorari denied 348 U.S. 880, 75 S.Ct. 116, 99 L.Ed. 692.

The complaint in the instant case is filed by Dr. Kenneth C. Hitchcock, a naturopathic practitioner; the Maryland Naturopathic Association; and two Maryland residents, one Pennsylvania resident and one Ohio resident, who regularly engage, and intend to continue to engage, naturopathic practitioners of Maryland to assist them in diagnosing and treating their physical ills and ailments. They seek a ruling that the Act was improperly construed by the Maryland court, or that, as so construed, it violates plaintiffs' rights under Articles 4 and 6 of the Constitution of the United States, the 14th Amendment thereto, the anti-trust laws, the Maryland Declaration of Rights and the State Constitution.

The defendants are the members of the two Maryland Boards of Medical Examiners, the Attorney General of the State, the State's Attorney for Baltimore City and the Police Commissioner of that City. They have moved to dismiss the complaint.

Art. 43 of the Maryland Code is entitled "Health". The State Medical Practice Act, sec. 117 et seq., was originally adopted in 1888 and has been amended a number of times.¹ It provides for two Boards of Medical Examiners authorized to issue licenses for the practice of medicine and surgery. The members of one board are appointed by the Medical and Chirurgical Faculty of Maryland, the members of the other by the Maryland State Homeopathic Medical Society. Sec. 118. A person receiving a license from either board is directed to file it with the Clerk of the Circuit Court, who registers the name of the licensee and the name of the president of the board signing the license. Anyone practicing medicine or surgery in Maryland without having obtained a license from one of these boards is guilty of a misdemeanor; so is a person who practices medicine or surgery without being registered. Secs. 126, 127, 128, 131, 136.

Sec. 138 defines "practicing medicine" as follows:

"Any person shall be regarded as practicing medicine within the meaning of this sub-title who shall append to his or her name the words or letters `Dr.,' `Doctor,' `M.D.,' or any other title in connection with his name, with the intent thereby to imply that he or she is engaged in the art or science of healing, or in the practice of medicine in any of its branches, or who shall operate on, profess to heal, prescribe for, or otherwise treat any physical or mental ailment or supposed mental ailment of another, or who shall for hire or for any gratuity or compensation, either directly or indirectly to him or her paid, undertake by any appliance, operation or treatment of whatever nature, to cure, heal or treat any bodily or mental ailment or supposed ailment of another; or who for any hire, gratuity or compensation, either directly or indirectly to him or her paid, by or for any patient, shall undertake to treat, heal, cure, drive away or remove any physical or mental ailment, or supposed ailment of another, by mental or other process, exercised or invoked on the part of either the healer or the patient or both; * * *."

A proviso makes the following exceptions to the foregoing definition: (1) gratuitous services; (2) resident and assistant resident physicians and students at hospitals in the discharge of their hospital or dispensary duties and in the offices of physicians; (3) physicians and surgeons from another State when in actual consultation with a practitioner of this State; (4) commissioned surgeons of the United States Army, Navy or insane hospital service; (5) opticians; (6) chiropodists; (7) midwives; (8) masseurs or other manual manipulators who use no other means; (9) physicians and surgeons residing on the border of a neighboring State and authorized to practice medicine and surgery therein, whose practice extends into this State; (10) dentists; and (11) the sale by druggists of proprietary or patent medicines or any official or standard drug or medicine.

Before the passage of the Medical Practice Act, the Legislature had adopted in 1884 special regulations for the practice of dentistry, Code Art. 32; it has since prescribed special regulations for the practice of optometry (1914), osteopathy (1914), chiropody (1916), chiropractic (1920), and physical therapy (1947). An optometrist obtains his license from the Board of Examiners of Optometry, Art. 43, secs. 346-364; an osteopath from the Board of Osteopathic Examiners, secs. 428-441; a chiropodist from the Board of Chiropody Examiners, secs. 442-455; a chiropractor from the State Board of Chiropractic Examiners, secs. 460-475; and a physical therapist from the State Board of Physical Therapy Examiners, secs. 565-575. Art. 43 also contains provisions regulating funeral directors and embalmers, pharmacists, barbers, registered nurses, plumbers, practical nurses, midwives, hairdressers and beauty culturists, including the practice of trichology.

No special provisions have been made for the licensing of naturopaths, naturopathic physicians or practitioners of naturopathy, although numerous bills have been introduced in the Legislature since 1939. After the decision of the Court of Appeals in the Aitchison case in 1954, a bill was introduced in the Maryland Legislature in 1955, known as House Bill 129, which, if it had been enacted, would have added twelve new sections to Art. 43, creating a Board of Naturopathic Examiners, providing for the licensing of naturopathic physicians, and relating generally to the practice of naturopathy. That bill contained the following definition of naturopathy:

"For the purposes of this sub-title naturopathy is hereby defined to be one of the healing arts whose scope, purposes and methods of practice are as follows: Naturopathy is a system of healing for the prevention, diagnosis, care and treatment of injuries, deformities, ailments, diseases and abnormalities of the human mind and body by means of such arts, sciences, methods and agencies of healing as make use of the healing properties and principles inherent in air, sunshine, light, electricity, heat, cold, climate, water, earths, exercise, work, rest, recreation, sweats, baths, packs, irrigations, inhalations, manipulations, corrective gymnastics, psychology, physics, mechanics, bio-chemistry, dietetics, enzymes, vitamins, minerals, tissue salts and substances naturally found in or required by the body, oxygen, ozone, herbs, external applications, apparatus, appliances, mental hygiene, physical culture, first aid, hygiene and sanitation; provided, however, that except as hereinbefore specified, the practice of naturopathy shall not include the use of drugs, surgery, destructively radioactive substances, or x-rays, except for diagnostic purposes."

It is apparent from this definition that the practice of naturopathy comes within the definition of "practicing medicine" in sec. 138, quoted above.

Dr. Hitchcock holds a Bachelor of Arts degree from the University of Florida (1918) and a Doctor of Naturopathy degree from the Blumer College of Naturopathy, of Hartford, Connecticut (1921). He was granted a license to practice naturopathy by the Connecticut State Board of Naturopathic Examiners in 1923 and similar licenses by the Florida State Board of Naturopathic Examiners in 1939 and the South Carolina Board of Naturopathic Examiners in 1932.² He has practiced naturopathy openly in Maryland since 1939. He is president of the Maryland Naturopathic Association, which, in 1948, filed a bill in equity against the Board of Medical Examiners in the Circuit Court No. 2 of Baltimore City for an injunction and a decree declaring that the system of healing known as naturopathy is not included in the practice of medicine as regulated by the State Medical Practice Act. A decree dismissing the bill was affirmed by the Court of Appeals of Maryland on the ground that the association had no property interests which might have been affected by any of the alleged acts of the defendants. Maryland Naturopathic Association v. Kloman, 191 Md. 626, 628, 62 A.2d 538.

Thereupon Dr. Hitchcock himself filed a bill in equity against the Board of Medical Examiners, the Police Commissioner and the State's Attorney for a declaratory decree and injunction. The decree dismissing that bill was affirmed by the Court of Appeals because "`the general rule is that equity will not interfere to prevent the enforcement of a criminal statute even though unconstitutional. * * * The mere existence of a criminal statute is not such a threat as to present a justiciable controversy.'" Hitchcock v. Kloman, 196 Md. 351, 356, 76 A.2d 582, 584.

Dr. Hitchcock then applied in writing to the State Board of Medical Examiners for a license to practice naturopathy. The Secretary of the Board in a letter dated July 1, 1954, replied, in part, as follows:

"* * * We are informed by the office of the Attorney General that the Court

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