The opinion of the court was delivered by: FORMAN
In suit C-10900, the plaintiffs, New Jersey Chiropractic Association, (hereinafter called the Chiropractic Association) a New Jersey corporation and Joseph W. McGillvary, and in suit C-10901, the plaintiffs, New Jersey State Society of Naturopaths, (hereinafter called the Naturopathic Society) likewise a New Jersey corporation and Joseph Tugliglowicz, bring actions against the same defendants in each case, namely the State Board of Medical Examiners of New Jersey, (hereinafter called the State Board) and Walter D. Van Riper, Attorney General of New Jersey, to restrain actions in the courts of the State of New Jersey and to have declaratory judgments entered adjudicating as unconstitutional certain portions of the Medical Practice Act of the State of New Jersey, N.J.S.A. 45:9-1 et seq. Jurisdiction in this court is alleged by virtue of the provisions of 28 U.S.C.A. § 41(14)
and 28 U.S.C.A. § 400
founded on violations of 8 U.S.C.A. § 43 (Civil Rights Act),
clause 1, section 2 of Article IV
of, and the Fourteenth Amendment
to, the Constitution of the United States.
In the first count of the complaint in C-10900 the plaintiff Chiropractic Association alleges itself to be an association established to act in the best interests of practitioners in the art of chiropracty; that chiropracty, as practiced, requires no drugs, medication, or surgery as in the other medical sciences such as medicine and surgery; that it is a healing art of long recognition; and that its practice in the State of New Jersey is prescribed by restrictions set up by the defendant State Board, most of whose members are practitioners in medicine, a healing art which is given a monopoly in the State of New Jersey. It is further alleged that members of the Association have been prosecuted for illegal practice of medicine by the defendants upon no other grounds than that the Association members employed devices standard to the practice of chiropracty, but held to be practice of medicine. As a result of the practices of the defendants, chiropractors are alleged to be denied the right to practice a lawful occupation; even though they are graduates of recognized schools of chiropracty. The legislature has now barred licensing of applicants who desire to practice chiropracty unless they meet standards unnecessary for the practice of chiropracty; no school for instruction of chiropracty is permitted in New Jersey; and the State Board has instituted summary proceedings against Chiropractors as a result of detection machinery established by the State Board. It is charged that in these proceedings, offenders are denied trial by jury, are penalized by monetary fines and committed to imprisonment for failure to pay the fines and additionally, that the offender is subject to injunction by the Court of Chancery.
In the second count the plaintiff Joseph W. McGillvary alleges that he is a graduate of a school of chiropracty and that he is licensed to practice in Maryland, Nevada, and Tennessee. He claims to have applied to the State Board for a license to practice Chiropracty but was refused admission to the examinations for the reason that he is not qualified under the conditions specified in the Medical Practice Act. Plaintiff further alleges to have been arrested upon a complaint of a member of the State Board for violation of the Medical Practice Act and is now temporarity released after posting bail to await trial in the First District Court of Jersey City, New Jersey. Plaintiff McGillvary incorporates the allegations of count 1 into his complaint.
Both plaintiffs allege that the defendants violate 8 U.S.C.A. § 43 and the Fourteenth Amendment in the following manner:
(1) Portions of Title 45, chapter 9, N.J.S.A. and the manner of enforcement by the State Board confer a special and exclusive monopoly on medical and surgical practitioners by restricting care and treatment of the citizens of New Jersey to this form of therapy although large numbers of persons are opposed to it.
(2) Deprivation of the citizens of New Jersey of the right to derive from chiropractic therapy the benefits resulting from drugless and surgeryless treatment.
(3) Forbidding members of the Chiropractic Association from engaging in and practicing their calling.
(4) Requiring chiropractors to be examined in certain phases of the medical sciences in accordance with the provisions of N.J.S.A. 45:9-15
such conditions being unnecessary for the practice of chiropracty and unwarranted by the legitimate use of the police power.
(5) Conferring a monopoly upon physicians and surgeons and prohibiting the use of chiropractic remedies although such treatments are without drugs or surgery and are not deceitful, harmful or injurious to persons receiving the same.
(6) Prohibiting chiropractors from practicing although there is no contention or proof that chiropractors are ignorant or incompetent to the detriment of the public in the application of the methods used.
(7) Arbitrarily interfering with the business or occupation of the Chiropractic Association members under the guise of protecting the public interest through the medium of imposing unnecessary and confiscatory restrictions.
(9) Failing to provide for the examination and licensing of chiropractors qualified to practice chiropracty and establishing the policy that chiropracty is co-extensive in scope with that of medicine and surgery.
(10) Including the unrelated and harmless art of chiropracty within the terms of the Medical Practice Act governing the practice of medicine although the act is only intended to regulate and safeguard the use of powerful and dangerous treatments, i.e. drugs, medicines and surgery.
(11) Prohibiting the treatment of illnesses which dispense with the use of drugs, medicine and surgery.
(12) By making illegal arrests, obtaining convictions and imposing fines or sentences of imprisonment without trial by jury in a summary and unlawful manner contrary to the laws of the United States.
(13) By sponsoring legislation and obtaining jurisdictional determinations thereof, which are harsh, oppressive, arbitrary and unreasonable, in that specified acts (15 acts comprising the allegations charged against the individual plaintiffs in the State courts as violations of the law such as giving electrical treatments by one not licensed to practice medicine, etc) are maintained as violations of the Medical Practice Act.
(14) Prohibiting the establishment and denying the right to the people of New Jersey of a school which instructs in the practice of chiropracty.
(15) Prosecuting individual plaintiffs for the illegal practice of medicine when the healing arts alleged to be illegal come within the legitimate scope of chiropracty.
The plaintiffs further complain of the activities of the defendant Van Riper in enforcing the penalty clauses of the Medical Practice Act by virtue of his official position as Attorney General of the State of New Jersey.
In the first count of the complaint in C-10901, the plaintiff Society of Naturopaths alleges that it is a society established to advance the interest of naturopaths by establishing schools, conducting clinics, hospitals and dispensaries and establish county societies for the protection of naturopaths and upholding of professional ethics and the furthering of social intercourse between its members. It claims that the science of naturopathy requires the use of no drugs, surgery, etc., but that it employs air, light, water, vibrations, heat, electricity, hydrotherapy, physic-therapy, dietetics and massage in its treatment. It is alleged that it is of ancient origin and widely practiced; that no legislation of New Jersey has excluded or included naturopathy but that the State Board, empowered by the legislature, has refused admission to examinations by qualified graduates of recognized schools of naturopathy; and that the Medical Practice Act completely fails in any fashion to mention naturopaths yet the science is proscribed as a result of the activities of the defendants State Board and the Attorney General.
In the second count plaintiff Joseph Tugliglowicz alleges that he is a graduate of a recognized school of naturopathy and licensed in the State of Connecticut and that he has been three times convicted in the State of New Jersey for the practice of medicine without a license and that in May of 1947 he was arrested upon a complaint filed in the District Court of Essex County by a member of the State Board. Plaintiff Tugliglowicz further incorporates the allegations of count 1.
Both plaintiffs allege, in terms similar to the complaint filed in C-10900, violations of 8 U.S.C.A. 43 and the Fourteenth Amendment, with the exceptions that the science alleged to be discriminated against is that of naturopathy.
In addition an application is made by all plaintiffs for a temporary injunction to stay all proceedings against all individual plaintiffs in the respective state courts until the issues raised in the complaints herein are finally determined and that a three judge court should be convened for the purpose of entering interlocutory injunctions ...