Wasmuth v. Allen

• Citation: 200 N.E.2d 756,14 N.Y.2d 391,252 N.Y.S.2d 65
• Parties: , 200 N.E.2d 756 Henry WASMUTH et al., Suing on Behalf of Themselves and All Other Chiropractors in the State of New York Similarly Situated, Appellants, v. James E. ALLEN, Jr., as Commissioner of Education of the State of New York, etal., Respondents.
• Decision Date: 10 July 1964
• Court: New York Court of Appeals

Page 65

252 N.Y.S.2d 65

14 N.Y.2d 391, 200 N.E.2d 756

Henry WASMUTH et al., Suing on Behalf of Themselves and All

Other Chiropractors in the State of New York

Similarly Situated, Appellants, v. James E. ALLEN, Jr., as Commissioner of Education of the

State of New York, etal., Respondents.

Court of Appeals of New York.

July 10, 1964.

Appeal Dismissed Oct. 12, 1964. See 85 S.Ct. 86.

C. Dickerman Williams, Arnold G. Fraiman and John W. Harris, New York City, for appellants.

Louis J. Lefkowitz, Atty. Gen. (Paxton Blair, Albany, of counsel), for respondents.

DYE, Judge.

Following Chiropractic Association of New York v. Hilleboe, 12 N.Y.2d 109, 237 N.Y.S.2d 289, 187 N.E.2d 756, (decided Dec. 31, 1962)), the Legislature enacted article 132 of the Education Law, Consol.Laws, c. 16, entitled 'Chiropractic' (L.1963, chs. 780-781, eff. July 1, 1963). It was a new, complete, comprehensive and self-contained enactment for the licensing of the practice of chiropractic in New York State.

The plaintiffs are suing on behalf of themselves and all other chiropractors in New York who are similarly situated for a judgment declaring the act or portion thereof invalid as to them, on constitutional grounds, and for injunctive relief.

The Appellate Division, Second Department, has unanimously affirmed without opinion an order of the Supreme Court, Westchester County (DONOHOE, J.), which granted without a hearing defendant's motion to dismiss the complaint for insufficiency, it being of the view that article 132 is in all respects constitutional and valid. The appeal is here as of right of constitutional grounds.

The complaint alleges grievances affecting chiropractors, falling generally into nine groups, the specifications of which, for purposes of this appeal, need not detain us since the primary dispositive and over-all issue is whether the complaint is sufficient to allege the unconstitutionality of the statute, that is, whether the statute, as an exercise of the police power in furtherance of the public health, is unreasonable or, in brief, is the legislation appropriate to the licensing of chiropractors?

These plaintiffs and other candidates for licenses to practice chiropractic and those classes of chiropractors presently practicing who are required to do so took examinations under date of April 7 and 8, 1964 in anatomy, physiology, chemistry, hygiene, bacteriology, pathology and diagnosis. Alleging that they would be 'irreparably injured by the humiliation and loss of reputation resulting from their failure to pass' said examination, plaintiffs then moved for a stay to restrain the Commissioner of Education and the Board of Regents from marking the examinations pending the determination of the appeal herein.

The challenged legislation provides that it shall be a misdemeanor for any person not licensed as provided in article 132 of the Education Law to practice chiropractic after October 1, 1964 (Education Law, § 6561, subd. 1, par. d).

Section 6552 (subd. 1) requires all applicants (except certain classes with prior practice and experience, who may be blanketed in under the grandfather clause, and certain others with prior experience, but not to be covered in) to pass written examinations administered by the department in clinical chiropractic analysis and in X ray as it relates to chiropractic analysis and the practice of chiropractic, and written examinations in the following basic subjects: anatomy, physiology, chemistry, hygiene, bacteriology, pathology and the diagnosis and use and effects of X ray.

It also provides (subd. 2) that, in respect to the basic subjects, the department shall use the questions prepared for the same subjects in the examinations pursuant to sections 6507 and 6508 of the Education Law, which sections refer to examinations given to applicants for licenses for the professional practice of medicine, osteopathy and physiotherapy. This requirement, the plaintiffs allege in different ways, depending on the class group in which the plaintiffs fall and as between the groups, is grossly unfair to present practitioners, and applicants for licenses, and amounts to discrimination contrary to due process and equal protection, for the reason that, in addition to having satisfied preliminary qualifications as to citizenship, moral character and schooling, chiropractors of less than 2 years' practice experience are required to take the same examinations in basic subjects given applicants for medical certificates (§ 6556, subd. 3, pars. a, b); that chiropractors of between 2 and 7 years' practice experience must take a similar examination and those between 7 and 15 years' practice experience an examination prepared by the department 'in * * * the fundamentals of anatomy and physiology' (§ 6556, subd. 2, pars. a, b) and those with over 15 years' practice experience are to be admitted without examination in the basic subjects. This, they contend, points up a distinction as between 'groups' of chiropractors and between chiropractors and other groups licensed to practice in the field of human health, since the statute also requires all applicants to pass 'examination(s) prepared by the board' in the practice of chiropractic and an examination in 'the use and effects of X-ray' (§ 6556, subd. 1, par. g). It is contended that requiring all applicants for a chiropractic license to take and pass an examination in the use and effects of X ray when the same is not required by applicants for a medical certificate, dentistry and osteopathy is an unreasonable discrimination, as the latter also practice in the field of human health.

The main thrust is directed to the disabilities explicitly imposed on licensees in the practice of chiropractic, which they contend points up the inappropriateness and the inherent unfairness of the examination, viz.: "The practice of chiropractic" (according to the statute,) 'means a method of detecting and correcting, by manual or mechanical means essential to the practice of chiropractic, structural imbalance, distortion, or subluxation in the human body for the purpose of removing nerve interference and the effects thereof, where such interference is the result of or related to distortion, misalignment or subluxations of or in the vertebral column.' (Education Law, § 6550, subd. 4.) The statute further makes it clear that the practice of chiropractic, as above defined, 'is hereby declared not to be the practice of medicine, or osteopathy, or physiotherapy within the meaning of the laws of the state of New York defining the same' (§ 6558, subd. 2). It is further provided by subdivision 3 that a license to practice chiropractic shall not permit the holder thereof:

'a. to practice obstetrics, psychiatry or any medical, surgical or paramedical specialty or sub-specialty;

'b. to perform surgery of any kind or to reduce fractures or dislocations;

'c. to treat for any of the following conditions: any infectious diseases eases such as pneumonia, any communicable diseases listed in the sanitary code of the state of New York, any of the cardio-vascular-renal or cardio-pulmonary diseases, any surgical condition of the abdomen such as acute appendicitis, or diabetes, or any benign or malignant neoplasms.

'd. to prescribe, administer, dispense or use in his practice biologicals, logicals, drugs, medicines, sera, vaccines or hormones.'

Because of the limitation thus placed upon the practice of a licensed chiropractor, the requirement respecting an examination in the named 'basic subjects' as well as the requirement to pass an examination in the use and effects of X ray, according to the complaint, is discriminatory in its application since, by its terms, chiropractors presently practicing, depending on the period engaged, may be licensed without having to pass an examination in these fields; others, upon passing an examination in 'the fundamentals of anatomy and physiology', while still others must receive passing marks in the serveral designated 'basic subjects'.

Requiring chiropractice examinees to pass an examination in the use and effects of X ray is denounced as being uneven and...