Thompson v. Van Lear

• Citation: 92 S.W. 773
• Parties: THOMPSON et al. v. VAN LEAR.
• Decision Date: 27 January 1906
• Court: Arkansas Supreme Court

92 S.W. 773

THOMPSON et al. v. VAN LEAR.

Supreme Court of Arkansas.

January 27, 1906.

Appeal from Garland Chancery Court; Alphonzo Curl, Chancellor.

Suit by S. C. Van Lear against M. G. Thompson and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Wood & Henderson, Greaves & Martin, and Leland Leatherman, for appellants. R. G. Davies, for appellee.

RIDDICK, J.

This is an appeal from a judgment of the Garland chancery court enjoining the defendants, M. G. Thompson and others, from instituting any prosecution against the plaintiff, S. C. Van Lear, under the statute prohibiting physicians from soliciting patients through paid agents or drummers, and enjoining them from otherwise interfering with the business and practice of the plaintiff.

The facts are as follows: In 1903 the Legislature passed an act forbidding physicians and surgeons engaged in the practice of medicine to solicit patients by paid agents. Congress, which claims jurisdiction over a portion of the Hot Springs reservation, has also provided by statute that physicians before prescribing the water of the springs shall be registered with the superintendent of the reservation, but that no physician shall be allowed to register who was engaged in soliciting patronage through the medium of paid agents. To aid the officers of the law to enforce these provisions against the practice of soliciting patients by hired agents, a number of the physicians of Hot Springs formed an association called the "Visitors' Protective Association." The meetings of this association were public, membership in it was open to all physicians of the city, and it was supported by the voluntary contributions of its members. The chief purpose of the association, as before stated, was to aid in suppressing the practice among certain physicians of soliciting patients by hired agents or "drumming," as it was called; the members of the association believing that this method of securing patronage was not only illegal and unprofessional, but that it was highly injurious both to the profession and the general public. The efforts of the association to suppress this evil were not directed specially against plaintiff or any particular physician or school of medicine. On the contrary, the agent or detective of the association employed to look up evidence against physicians violating these statutes was instructed to investigate and report to the officers of the law evidence against every physician who was guilty of such practice, without regard to who he was, or whether he was a member of the association or not. The evidence shows that the plaintiff, Van Lear, was not permitted to register with the superintendent of the Hot Springs reservation as one of the physicians authorized to use the waters of the hot springs, or to prescribe the use thereof by his patients. The reason for this refusal to permit the plaintiff to register was that he was suspected of having solicited patients by hired agents, though it is not shown that the defendants were responsible for this act of the federal authorities. But the agent of plaintiff employed to look up evidence against physicians, it seems, discovered evidence against Van Lear tending to show that he was guilty of hiring agents to solicit patients for him, and that he was prescribing the waters of the springs to his patients without being registered, and he reported this evidence to the officers, which resulted in prosecutions against Van Lear, and injury to his business as a physician. Van Lear thereupon brought this action in equity against M. G. Thompson and other members of the association to enjoin them from further prosecutions or interference with his business. On the hearing the chancellor held that the law prohibiting physicians from soliciting patronage by hired agents was unconstitutional and void. He further held that the act of the state Legislature ceding jurisdiction to the United States over part of the Hot Springs reservation was void on the ground that Congress had no authority to accept such jurisdiction, and that Congress could not legislate and make penal the act of a physician in prescribing the hot waters of the reservation for his patients. This appeal brings his decision before us for review.

As to the jurisdiction of Congress over the Hot Springs reservation and its right to enact laws regulating the use of the waters thereof by physicians that, of course, presents a question on which this court would follow the decisions of the federal courts. But we do not find it necessary to decide that question in this case; for, if the statute of the state Legislature prohibiting physicians from soliciting patients through paid agents be valid, it seems clear that the injunction ought not to have been granted in this case. For, if that was a valid statute, the purposes for which the defendants were associated were clearly legal. If soliciting patients by physicians through hired agents was unlawful, then this association was formed for the purpose of upholding the law and preventing its violation, and there would be no reason why an injunction should be granted, even if their agents made occasional mistakes and prosecuted innocent parties. The case would not be different if the act of Congress assuming jurisdiction over the reservation was invalid, for the state laws would then be in force there, and as the purpose of the association was lawful the fact that the agent of these defendants may have, when he found evidence against the plaintiff showing that he was guilty of violating the law, commenced the prosecution against him in the federal, instead of a state, court, would not justify the issuance of an injunction to stop such prosecutions, for the remedy of plaintiff at law in such a case was clear and adequate. He had nothing to do but to take an appeal and be discharged on showing that the law under which he was prosecuted in the federal courts was invalid. Taylor v. City of Pine Bluff, 34 Ark. 603; In re Sawyer, 124 U. S. 200, 8 Sup. Ct. 482, 31 L. Ed. 402; Davis & Farnem Mfg. Co. v. Los Angeles, 189 U. S. 207, 23 Sup. Ct. 498, 47 L. Ed. 778; Davis v. American Society, 75 N. Y. 362; High on injunctions, § 68.

So as before stated, the main question is whether the state law is a valid law or not. Counsel for appellee has argued with much earnestness that laws of this kind are unwise, and he quotes from Herbert Spencer, who says, in his Social Statics, that there are no sound reasons why the principles of free trade should not be extended to medical advice and...