# Jerry R. England v. Louisiana State Board of Medical Examiners

> Court of Appeals for the Fifth Circuit · January 23, 1959 · 263 F.2d 661

URL: https://www.frixlaw.com/law-library/cases/9446626

## Case

- **Full name:** Jerry R. ENGLAND Et Al., Appellants, v. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS Et Al., Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** January 23, 1959
- **Citations:** 263 F.2d 661; 1959 U.S. App. LEXIS 4968
- **Precedential status:** Published
- **Opinion:** Dissent by Wisdom
- **Judges:** Brown, Per Curiam, Rives, Wisdom
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9446626

## Opinion text

WISDOM, Circuit Judge
(dissenting).
I regret that I cannot go along with the majority of the Court. There is not so much disagreement between us on principle as there is lack of any meeting of the minds as to the scope and effect of the Court’s decision. I see the holding in this case as jostling the balance between the states and the federal government. My learned brothers do not see it that way. I respect their judgment and I know that they are concerned as I to avoid any improper extension of the authority of the federal judiciary at the expense of the reserved powers of the states. I feel bound therefore to give some of the reasons for my dissent that were not stated fully in my first opinion, originally prepared as the opinion of the Court.
My brothers expressly repudiate any attempt to supersede the authority of the state legislature; “this Court did not and would not attempt to do so.” They see the question as a narrow one: the *675 question is whether “the plaintiffs are entitled to a day in Court, to an opportunity to prove their case.
“The right to a day in Court” is a powerful cantrip as well as a fundamental maxim of justice. The spell of these words is hai d to resist. Here, it is luring us from the broad highway of long accepted principles of law into tangled trails.
I cannot see what purpose will be served by giving the plaintiffs a day in court to prove that chiropractic may be a useful profession and that chiropractors are not surgeons. No one denies that chiropractic may be a useful profession. Or that some intelligent persons go to chiropractors 1 for treatment. Or that chiropractors whose medical activities are restricted by law to adjusting subluxated vertebra by thrusting movements of the hands have no need for a knowledge of surgery and materia medi-ca. To give the plaintiffs a day in Court for the purpose of proving these undisputed facts is to decide the case now for the plaintiffs. It amounts to holding the Louisiana Medical Practice Act arbitrary, unreasonable, and unconstitutional on its face.
In Louisiana State Board of Examiners v. Pife, Douglas v. Noble, Dent v. West Virginia, and Graves v. Noble evidence had to be taken because a critical issue in each case was whether the accused had in fact practiced medicine or dentistry without a license. Remanding this case will only confound the trial judge and confuse the constitutional issue.
Medical practice acts enjoy no immunity from constitutional attack. But a federal court stretches its jurisdiction beyond reasonable limits when it undertakes to say to a state: You must allow chiropractors to take examinations for a medical license, even if they cannot meet the qualifications you consider necessary for all those who practice medicine; in the alternative, chiropractors may practice medicine without a license, free from the warranties a license carries and subject to none of the special restraints legislatures consider necessary for the protection of the public from chiropractors. I do not know where we derive the power to issue such a command. There is no discrimination in statutory standards applied to all candidates for a medical license. We cannot say that the state is acting arbitrarily or unreasonably if it finds a rational connection between medical training at a reputable medical school and the practice of medicine.
Agitation for legislation authorizing licensing of chiropractors is nothing new in Louisiana. The subject comes up at every session of the legislature. It came up in the 1958 session. It is bound to come up again in 1960. It is the sort of problem the state legislature is equipped to handle. For fifty years Louisiana has weighed the merits and demerits of specifically licensing chiropractors. Because of the extremely limited medical training chiropractors receive and because of the attraction the profession of chiropractic has had in the past for quacks, it has seemed good sense to the Louisiana legislature, as to all state legislatures, not to license chiropractors under a general medical practice act unless they meet the same eligibility standards required of all candidates for a medical license; and, to license chiropractors (if at all) only by specific legislation restricting their professional activities and putting the public on notice that a doctor in chiropractic is not a surgeon and not a doctor competent to prescribe drugs. This is within the judgment of the legislature. It is not a judicial question. Louisiana takes its stand with Massachusetts that the dan *676 gers to the public of licensing chiropractors, as such, still outweigh the advantages.
The plaintiffs are in the wrong forum asking for the wrong relief from the wrong lawmaker. The plaintiffs’ real complaint is that the legislature has not passed a law making a special exception for their benefit. Exceptions are a matter of legislative grace. It is not for us to supply the omission. The question before us is the limited one of the constitutionality of a particular statute: the reasonableness of educational requirements and other safeguards in the light of the purpose of the statute.
I do not see a federal court as having any right to challenge the purpose of a state law, if the purpose is lawful. The purpose of the Louisiana Medical Practice Act is to regulate the practice' of medicine by providing for the licensing of doctors competent to perform surgical operations, deliver babies,, and administer drugs. It is not for us to say that the purpose should be broader; that the statute should include provisions for licensing persons to practice medicine who cannot perform surgical operations, deliver babies, and administer drugs. That was not the law the Louisiana legislature passed.
The majority opinion states that the question “is whether they [chiropractors] can be constitutionally excluded from the practice of chiropractic in Louisiana.” There is nothing in the statute or in its administration that denies a man the right to practice chiropractic, as such. The plaintiffs are not excluded because they want to be chiropractors or because there is any exclusion of chiropractic as a profession. They are excluded because they can not or will not meet minimum standards fixed by the legislature as necessary and proper in order to be eligible to receive a license to practice medicine. It is common knowledge in Louisiana that there are a number of practitioners specializing in chiropractic. But these practitioners toed the mark set for all applicants who want a license under the Medical Practice Act. I fail to see anything discriminatory in a licensing requirement applicable to all-comers.
I do not understand the majority’s statement that the plaintiffs “can claim no right to practice medicine as that practice is engaged in by medical doctors and surgeons.” The complaint alleges that the Board of Examiners refuses to accept the plaintiffs as candidates eligible to stand an examination for a medical license, although the plaintiffs have diplomas from chiropractic schools. The plaintiffs allege that this is an unreasonable and arbitrary application of the statute and ask that the Board be enjoined “from so enforcing the statute complained of herein.” They ask this Court to order the Board to give them examinations for a license under the Act. In other words, plaintiffs may say that they intend to practice only chiropractic —but in this suit they aré demanding the same license issued to surgeons or heart specialists.
A license issued under the Medical Practice Act is a badge with a definite meaning to the public. The meaning is that the holder of such a license is a qualified surgeon and a qualified medical practitioner. It does not seem arbitrary to me that a state legislature should be able to say to its citizens that we shall try to protect you from all incompetent persons (including chiropractors) administering drugs, performing brain surgery, and prescribing cancer cures, by requiring all candidates for a medical license to have received adequate instruction in surgery and materia medica from practicing surgeons and practicing medical doctors associated with a medical college of recognized merit. It seems reasonable to me that the legislature should say, even ability to pass a written examination on surgery is not enough; a man must witness and study surgical operations actually being performed, before he can put up a sign with “Dr.” in front of his name. You don’t learn surgery by reading about it in a fat book.
The rationale of the Louisiana act is, that there is a reasonable connection be *677 tween practicing medicine and requiring candidates for a medical license to have adequate training in medicine, obstetrics, and surgery. If an exception is to be made for certain practitioners, such as for nurses or chiropodists or dentists, special legislation is necessary to protect the public. The experience of other states supports the reasonableness of this view.
No state allows chiropractors to be issued a license under the general provisions of a medical practice act. In every state where chiropractors are permitted to practice there is either a special act applicable to chiropractors or special provisions dealing with chiropractors. 2 In all of these states the law, in terms, prohibits chiropractors administering drugs and medicines, performing major or minor surgery, and practicing obstetrics or osteopathy. 3 And in such states a chiropractor may hold himself out only as a doctor of chiropractic. But the purpose of the licensing provisions of the Louisiana Medical Practice Act is to authorize a person to do the very things a chiropractor is prohibited from doing in the states granting licenses to chiropractors.
Four states — -Louisiana, Mississippi, Massachusetts and New York — have no specific provisions licensing chiropractors or other persons to practice medicine according to a special system using no drugs or surgery. Four states — Alabama, Illinois, Ohio and Utah — do not have separate acts, but make special provision for chiropractors in the general medical practice act. Only the Alabama and Ohio acts specifically mention chiropractors ; Illinois and Utah, in a general act have separate provisions for “treating human ailments without drugs or medicines and without operative surgery.” The license issued in Alabama, *678 Illinois, Ohio and Utah is based on a separate special examination and limits the practice to the system of healing taught at the applicant’s school. 41 states have specific acts licensing chiropractors. These acts virtually track the language of the medical practice act of the same state, but set up a special board of examiners and prescribe special educational requirements for chiropractors. In all the 44 states allowing the practice of chiropractic, the license issued to a chiropractor is one that recognizes his limitations, restricts his professional activities, and prevents his holding himself out as a licensee under a general medical practice act.
Thus, the considered decision of the. legislatures of all' the states is that chiropractors if licensed at all, should he hedged with restrictions under special statutory provisions. This is a fair measure of the reasonableness of the Louisiana Medical Practice Act and of the reasonableness of the interpretation placed on the act by the Board of Medical Examiners. Who' are we to say that all the states are wrong; that two federal judges have the power to authorize chiropractors to practice medicine without a license and without any of the safeguards forty-nine state legislatures consider necessary for the protection of the public?
There is no decision in the books holding unconstitutional a medical practice act on the ground that the necessary effect of the statute is to exclude chiropractors or other persons whose limited training fails to come up to the standards required of all applicants. There is no decision in the books holding that a licensing board under a general statute acts unreasonably and unconstitutionally if it finds chiropractors ineligible for a general medical license. The Supreme Court of Louisiana has upheld the constitutionality of the act on the very contentions made in this case. The Supreme Court of the United States regarded the question as so well settled that it held recently in a similar case (involving naturopathic practitioners) that there is no federal question. Hitchcock v. Collen-berg, 1957, 353 U.S. 919 , 77 S.Ct. 679 , 1 L.Ed.2d 718 .
Few courts have ever admitted that they superseded the authority of a state legislature. That would be judicial lawmaking. The plain fact is, however, that courts do supersede the legislature’s authority whenever they substitute their notion of reasonableness for the notion of reasonableness expressed in statutory standards. I do not quarrel with this fact of life. Judicial review of legislation is a vital part of the American governmental system, and federal courts are under a duty to supersede a state’s authority whenever, in the opinion of the court, the state’s denial of a claimed right is so arbitrary and unreasonable as to amount to a denial of due process or of equal protection of the laws.
The court’s duty is obvious when state action violates an express constitutional prohibition or when the Supreme Court has chartered a course lower courts must follow. Here we are on our own. In this case we are fixing a limit to state legislative action by drawing a line, known but to God and us, between what we think is reasonable and what we think is unreasonable.
In these circumstances I cast my vote for judicial restraint, relying on some well-worn generalizations. First, in the American system of government the judiciary owes a punctilious respect for the actions of the legislative branch. This may mean no more than a presumption of constitutionality. Here, it seems to me, it means that when it comes to deciding what is a reasonable regulation of the practice of medicine, the legislature is not only the appropriate body to make the decision, it is better qualified and has had more experience than the court in handling the problem. Legislators may even be as reasonable as we. Second, the effective working of the federal system depends upon federal courts showing a punctilious respect for state action. That attitude is particularly appropriate when the action is in a sphere traditionally occupied by the states, is of *679 long standing, and is approved by the highest courts of the state. Here, the state has acted to protect the health of its citizens from the effects of ignorance and deception on the part of persons professing to practice medicine. The statutory safeguards have been in effect for many years and have been approved by the Supreme Court of Louisiana and the Supreme Court of the United States. Short of a manifest, overpowering constitutional violation we should be slow to interfere with such state action. States should regulate their doctors.
This case turns on reasonableness. The reasonableness of local medical regulations is a matter of preeminent concern to the state — to its legislature that is responsible for making the laws and to its courts who are primarily concerned with the validity of the laws. The reasonableness of such a law as the Louisiana Medical Practice Act can be (and has been) determined more appropriately and just as surely and fairly by state courts as by federal courts.
I do not cotton to a federal court allowing chiropractors to come in by the back door when the state legislature and state courts have rejected their credentials at the front door. We chip away at the federal system whenever we assume jurisdiction we do not have. We chip away at the federal system whenever the issue is primarily one for the state to decide and the existence of a federal question is doubtful but could be resolved against assumption of federal jurisdiction.
In Konigsberg v. State Bar of California, 1957, 353 U.S. 252 , 77 S.Ct. 722, 734 , 1 L.Ed.2d 810 , Mr. Justice Frankfurter, dissenting-, makes the point: “[Jurisdiction] is a matter of deep importance to the working of our federalism.” He quotes Benjamin R. Curtis: “Let it be remembered, also, — for just now we may be in some danger of forgetting it, — that questions of jurisdiction were questions of power between the United States and the several states.” 2 Memoir of Curtis, 340-341. And from Mr. Justice Stone: “Due regard for the rightful independence of state government, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined.” Healy v. Ratta, 292 U.S. 263, 270 , 54 S. Ct. 700, 703 , 78 L.Ed. 1248 .
This Court does not have jurisdiction unless there is a federal question. Clearly, unequivocally' — or so it seems to me — ■ the United States Supreme Court has held that there is no federal question in a case such as that now before us. Hitchcock v. Collenberg, 1957, 353 U.S. 919 , 77 S.Ct. 679 , 1 L.Ed.2d 718 ; Louisiana State Board of Medical Examiners v. Fife, 1927, 274 U.S. 720 , 47 S.Ct. 590 , 71 L.Ed. 1324 . The district court, therefore, correctly declined jurisdiction.
I hope that I misunderstand the effect of the majority opinion. After the plaintiffs prove that chiropractic is a useful profession and that they have no need for surgery, materia medica, and training at a medical school, will the trial judge be compelled to render judgment for the plaintiffs? On appeal, will this Court have been committed to the proposition that there is no rational connection between the practice of medicine and medical training, because some persons in the practice of medicine can make a useful living with their hands and without employing a knowledge of all the medical subjects the legislature regards as necessary for doctors holding a medical license? This Court is now saying to the Louisiana legislature: Chiropractors must be allowed to take examinations for a general medical license, even though they are ineligible under the licensing statute; in the alternative, the statute is unconstitutional, because the eligibility standards are not low enough to permit chiropractors to qualify. Therefore, we, the federal Court of Appeals, authorize chiropractors to practice medicine subject to none of the restrictions Louisiana and 48 other states consider essential for the protection of the public against chiropractors.
I respectfully dissent from the judgment remanding the case for trial and from the order denying a rehearing.
. I uso the term “chiropractor” to moan a person trained in a school of chirojmietic, but not in a medical school, who is unable or unwilling to meet the eligibility standards for applicants for a license under the Medical Practice Act. Unless the context expresses a different meaning, the term does not include eligible applicants for a doctor’s license or licensed doctors who engage in the practice of chiropractic.
. Alabama: Title 46, Secs. 258-297, Code of 1940; Alaska: Comp.Laws 1949, Sees. 33-3-21 to 35-3-30; Arizona: Rev.Stat. Secs. 32-901 to 32-927; Arkansas: Stat.1947, Secs. 72-401 to 72-414; California, Secs. 1000-1001, West’s Ann. Business and Professions Code; Colorado: Rev.Stat.1953, Secs. 23-1-1 to 23-1-17; Connecticut: Gen.Stat.1949, Supp.1955, Secs. 4378-4387; Supp. 2195d-2197d; Delaware: Title 24, Secs. 701 to 716, Code Ann.; Florida: Stat.Ann. Ch. 460; Georgia: Secs. 84-501 to 84-521, Code Ann.; Idaho: Secs. 54-701 to 54-714, Code 1947; Illinois: Rev.Stat. ch. 91, Secs. l-16x, S.H.A.; Indiana: Burns’ Stat. Secs. 63-1326 to 63-1337; Iowa: Ch. 151, Code Ann.; Kansas: Gen.Stat.1949, Secs. 65-1301 to 65-1311; Kentucky: Rev.Stat.1953, Ch. 312; Maine: Rev.Stat.1954, Ch. 72; Maryland: Secs. 499-514, Ann.Code 1957, art. 43; Michigan: Comp.Laws 1948, Secs. 338.151-338.159; Minnesota: Stat.Ann. Secs. 148.01-148.10; Missouri: Vernon Ann.Stat. Ch. 331; Montana: Secs. 66-501 to 66-517, Rev.Codes 1947; Nebraska: RKev.Stat.1943, Secs. 71-177 to 71-182; Nevada: Comp.Laws 1929, Secs. 1080-1092; New Hampshire: Rev.Stat.1955, Secs. 316:1-316:20; New Jersey: Stat.Ann. Secs. 43:9-41.1 to 45:9-4116; New Mexico: Stat.1953, Secs. 67-3-1 to 67-3-8; North Carolina: Gen.Stat. Secs. 90-139 to 90-157; North Dakota: Ch. 43-06, Rev.Code 1943; Ohio: Ch. 4731, Page’s Rev.Code; Oklahoma: Stat.Ann. Title 59, Secs. 161-168; Oregon: Rev.Stat. Ch. 684; Pennsylvania: Pardon’s Stat. Title 63, Secs. 601-624; Rhode Island: Secs. 5-30-1 to 5-30-17, Gen.Laws 1956; South Carolina: Secs. 56-351 to 56-361, Code 1952; South Dakota: Ch. 27.05, Code 1939, Supp.1952; Tennessee: Secs. 63-401 to 63-420, Code Ann.; Texas: art. 4512b, Vernon’s Ann.Civ.Stat.; Utah: Secs. 58-12-1 to 58-12-22, Code Ann. 1953; Vermont: Stat.Rev.1947, Secs. 6757-6770; Virginia: Secs. 54-273 to 54r-325, Code 1950; Washington: Remington’s Rev.Stat. Secs. 10098-10111; West Virginia; Secs. 2998-3012, Code 1955; Wisconsin: Stat.Ann. Secs. 147.-23-147.26; Wyoming: Comp.Stat.1945, Secs. 37-701 to 37-717.
. For example:' “A license to practice chiropractic granted by the board of examiners shall not confer upon the licensee the right to practice surgery or obstetrics, prescribe, compound or administer drugs or to administer anaesthetics”; Colorado Rev.Stat.1953 ch. 23-1-2. A certificate issued to a chiropractor “shall not entitle him (or her) to practice major surgery or to prescribe or administer drugs”; Alabama Code 1940, Tit. 46, sec. 259. “Chiropractors shall not prescribe or administer medicine to patients, perform surgery, nor practice obstetrics or osteopathy”; Georgia Code Ann. Title 84, Section 509.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9446626. Public record. Not legal advice.