Wesselink v. State Dept. of Health

• Decision Date: 15 January 1957
• Docket Number: No. 49107,49107
• Citation: 248 Iowa 639,80 N.W.2d 484
• Parties: Dr. A. H. WESSELINK, Dr. James E. Slocum, Dr. W. E. Borgerson, Dr. Raymond Deming, Dr. Leo Boyce, Dr. Carl Hoveland, Dr. J. F. Walsh and the Iowa Chiropractors' Association, Plaintiffs-Appellants, v. The STATE DEPARTMENT OF HEALTH, and Dr. Edmund G. Zimmerer, Commissioner of Public Health and head of the State Department of Health, Defendants-Appellees, Iowa State Medical Society, and Iowa Society of Osteopathic Physicians and Surgeons, Intervenors-Appellees.
• Court: Iowa Supreme Court

Page 484

80 N.W.2d 484

248 Iowa 639

Dr. A. H. WESSELINK, Dr. James E. Slocum, Dr. W. E. Borgerson, Dr. Raymond Deming, Dr. Leo Boyce, Dr. Carl Hoveland, Dr. J. F. Walsh and the Iowa Chiropractors' Association, Plaintiffs-Appellants, v. The STATE DEPARTMENT OF HEALTH, and Dr. Edmund G. Zimmerer, Commissioner of Public Health and head of the State Department of Health, Defendants-Appellees Iowa State Medical Society, and Iowa Society of Osteopathic Physicians and Surgeons, Intervenors-Appellees.

No. 49107.

Supreme Court of Iowa.

Jan. 15, 1957.

Rehearing Denied March 8, 1957.

Max Putnam, Des Moines, for plaintiffs-appellants.

Dayton Countryman, Atty. Gen., and Leonard C. Abels, Asst. Atty. Gen., for defendants-appellees.

Lehmann, Hurlburt, Blanchard & Cless, Des Moines, for intervenor-appellee Iowa State Medical Society.

Herman W. Walter, Des Moines, for intervenor-appellee Iowa Society of Osteopathic Physicians and Surgeons.

LARSON, Justice.

Plaintiffs, as individuals licensed to practice chiropractic, in their own behalf and on behalf of all licensed chiropractors in Iowa, brought this action for declaratory judgment in two counts against the defendants, the State Department of Health and the Commissioner of Public Health. The pleadings set out particular allegations of fact, rights, contentions and prayers which were substantially the same in each count. Plaintiffs, among other things, alleged by certain conduct of the Code Commission for the 1924 Code that they as chiropractors were deprived of a part of Section 1326-a20 of the Supplement to the Compiled Code of 1923, granting them all rights and privileges of physicians and surgeons, with certain exceptions. They prayed for a 'Declaratory Judgment to construe the meaning of the word 'physician' as used in Section 135.1 Subsection 5 and Section 135.2 and Section 135.3 of the 1954 Code, and also to construe the meaning of the definition of the word 'physician' as used in Section 135.1 Subsection 5, and the intent of the Legislature in enacting the statute now known as Subsection 5 of Section 135.1', and asked that the court uphold the contentions of plaintiffs that the designation include chiropractors as well as medical doctors and osteopaths.

After preliminary motions, defendants and the intervenors Iowa State Medical Society and Iowa Society of Osteopathic Physicians and Surgeons filed answers in two divisions, which in part denied and in part admitted the allegations of plaintiffs. A third division to the answer set up the affirmative defense that the petition failed to state a justiciable controversy between proper parties, thus raising a moot and academic issue upon which plaintiffs were not entitled to relief.

Thereafter, with leave of court, plaintiffs filed an amendment to their petition alleging, 'the Defendants, with the support and at the instance of the Intervenors, discriminate against the Plaintiffs in the services conducted by the Defendants at public expense, which discrimination includes refusal to distribute to Plaintiffs any of the material distributed to Intervenors and issued under Section 135.11'; also that defendants did not send them information sent to physicians such as their 'mobile survey of tuberculosis among the public.' It alleged such discriminatory practice created a 'need for relief by injunction, mandamus or otherwise', and that 'Defendants assert that Intervenors are entitled to preferential rights and privileges as physicians and surgeons over the Plaintiffs' because they are 'charged with special duties and obligations' not included to chiropractors, etc. Defendants' denial of these allegations again included a separate count applying for a determination before trial of a point of law under Rules of Civil Procedure 105, and the court's determination of this question for defendants raises the only point of issue before us at this time, namely, does the petition as amended present a justiciable controversy between proper parties?

The trial court correctly determined that the Iowa Rules of Civil Procedure empower the court to declare rights, status, and other legal relations affected by statute, when a justiciable controversy exists which will entitle the plaintiffs to such a declaration. Rule 262, Iowa Rules of Civil Procedure. The court was also substantially correct in stating, 'a justiciable controversy means an active, antagonistic assertion of a legal right on one side and a denial thereof on the other concerning a real, and not a mere theoretical question or issue and affecting a right in controversy wherein the Court otherwise has jurisdiction of the subject matter and the parties, which right ought to be decided to safeguard it, and which can be finally settled and determined by entering a judgment or decision for either party by a single decree or supplemental decision thereon.' The fact that this definition is lengthy and involved might reasonably account for error in its present application. In its conclusions of law the court stated:

'Basically the plaintiffs by their petition as amended seek to have the Court: (a) Define the word 'physician' as used in Section 135.1, subsection 5, 135.2 and 135.3 * * * by judicially inserting in Section 135.1, subsection 5, the phrase 'chiropractors shall, subject to the limitations contained in Chapter 151 (the Code chapter recognizing chiropractic and establishing limitations in its practice) be entitled to all the rights and privileges of physicians and surgeons and shall be subject to all the duties and obligations prescribed by the statutes of this state insofar as they are not inconsistent with the provisions of Chapter 151'; (b) Declare that a doctor of chiropractic could be named by the Governor of Iowa as the head of the State Department of Health.'

As we understand the judgment of dismissal, the court found that no plaintiff alleged he was seeking the office of Commissioner of Public Health, none was being considered for the job, no successor was being contemplated to replace the incumbent at this time, and defendants had no authority or part in making such appointments. Thus it concluded the parties were not proper ones nor the issue ripe or proper for declaratory relief, and dismissed the cause as not justiciable. The trial court further held it did not have jurisdiction. We cannot agree with that disposition of the case at this time.

I. Declaratory relief provisions in Iowa are found in Rules of Civil Procedure 261-269 inclusive. Rule 262, of importance in this case, provides in part as follows:

'Any person interested in a contract * * * or whose rights, status or other legal relations are affected by a statute, * * * may have determined any question of the construction or validity thereof or arising thereunder, and obtain a declaration of rights, status or legal relations thereunder.' (Emphasis supplied.)

These rules are of relatively recent effect in Iowa, and our decisions thereunder are few. Fortunately, many prior judicial pronouncements under the Uniform Act and the Federal Declaratory Judgements Act, 28 U.S.C.A. §§ 2201, 2202, from which our rules are patterned, are available and helpful. For a complete discussion of this adoption, see Ostrander v. Linn, 237 Iowa 694, 22 N.W.2d 223.

One of the most troublesome questions in this field of law is, when does a justiciable controversy arise, as distinguished from a mere abstract question? We said in Katz Investment Co. v. Lynch, 242 Iowa 640, 648, 47 N.W.2d 800, 805:

'The difference between a mere abstract question and a controversy has been called one of degree which is difficult to define precisely. The basic question is said to be whether the facts alleged show there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant a declaratory judgment', citing Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826, 829. (Emphasis supplied.)

We are not concerned with the actual proof here, for the question we have to decide is whether or not under the pleadings plaintiffs have stated a cause in which material and competent evidence that would justify the relief demanded could be received.

Our declaratory judgment rules necessarily deal with present rights, and we must examine carefully each petition to determine whether such legal right is in issue between the parties litigant. It has often been said it is the nature of the controversy, not the method of its presentation or the particular party who presents it, that is determinative. Borchard, in his Declaratory Judgments, Second Edition, pages 41-42, states:

'Were the controversy not genuine or ripe for judicial decision, with a plaintiff and defendant having actually or potentially opposing interests, with a res or other legal interest definitely affected by the judgment rendered and the judgment a final determination of the issue, it would fail to present a justiciable dispute--not because it seeks a declaratory judgment, but because it lacks the elements essential to invoke any judgment from judicial courts.'

We search, then, for an 'antagonistic assertion and denial of right' and, if found and other proper allegations appear, the court may then entertain the question of whether the plaintiffs' claim is proper and justified. Manhattan Bridge Three-Cent Line v. City of New York, 204 App.Div. 89, 198 N.Y.S. 49. An inspection of the pleadings to determine whether they show antagonistic positions is necessary and proper. Yukon Pocahontas Coal Co. v. Ratliff, 175 Va. 366, 8 S.E.2d 303. By an inspection of the pleadings in the case at bar, can we determine from plaintiffs' petition alone the fact that the positions or contentions of the parties are substantial and antagonistic?

Defendants correctly contend there must be sufficient facts pleaded to show that the issue is concrete and that particular legal rights and powers will...