the practice of medicine was held constitutional after attacks against provisions granting exemptions and exceptions to its operation.
Collins v. Texas, 223 U.S. 288, 32 S. Ct. 286, 56 L. Ed. 439 upheld a statute regulating the practice of osteopathy attacked as unconstitutional because the licensing act established standards unnecessary for the practice of osteopathy.
Crane v. Johnson, 242 U.S. 339 37 S. Ct. 176, 61 L. Ed. 348, Ann. Cas. 1917B, 796 concerned a California statute regulating drugless practitioners whose mode of practice was prayer and religious faith. This statute was upheld as constitutional after being attacked by the complainant as discriminating between those practicing faith healing only and those practicing a species of treatment which relied upon faith healing but additionally involved special skill, experience and ability to diagnose disease.
In McNaughton v. Johnson, supra, the appellant was an opthamologist who complained that her profession did not require use of drugs and that no law of California prescribed regulations for the practice of opthamology. The appellant claimed that the optometry practice act of California offended the Fourteenth Amendment in that it deprived her of property without due process of law and denied equal protection of the laws; and specified, among other claims, that the act appropriated to the sole use of optometrics the right to employ any means other than the use of drugs in the measurement of the powers or range of vision and that other schools of scientific learning and practices were denied the right to measure the range of human vision other than by the use of drugs. Appellant contended that her occupation was a lawful one, not hurtful to the individual or dangerous to the community and that the State had no power to impose discriminatory regulations upon it. A three judge court held constitutional the statutes complained of. The Supreme Court affirmed.
In Douglas v. Noble, 261 U.S. 165, 43 S. Ct. 303, 67 L. Ed. 590, the delegation of power to determine fitness for the practice of dentistry to a board of examiners was upheld.
Graves v. Minnesota, 272 U.S. 425, 47 S. Ct. 122, 71 L. Ed. 331, sustained the conviction of a dentist for practice of dentistry without a license even though the appellant was a graduate dentist. His application for a license was denied because he had not graduated from an accredited dental school, the accreditation established by the examining board.
Louisiana State Board of Medical Examiners v. Fife, 162 La. 681, 111 So. 58, 54 A.L.R. 594, writ of error denied, 274 U.S. 720,
47 S. Ct. 590, 71 L. Ed. 1324, held that chiropractors are not unconstitutionally denied the protection of the laws by being required to have a knowledge of materia medica and surgery to receive a license to practice their profession when such knowledge was not required of allied medical sciences and that the practice of medicine may consist in the application of physical force to parts of the body for the purpose of curing disease or relieving bodily ailments. The court further held that no one had a natural or absolute right to practice medicine or surgery. And see Semler v Oregon State Board of Dental Examiners, 294 U.S. 608, 55 S. Ct. 570 79 L. Ed. 1086.
In the light of the foregoing decisions, the complainants' attack upon the New Jersey Medical Practice Act, N.J.S.A. 45:9-1 et seq., appears to raise no substantial question that their rights under the Constitution of the United States are violated by it as they suggest. The State of New Jersey has established direct, positive and definite standards for the practice of medicine and the allied healing arts consistent with its police power as a state.
Plaintiffs further contend that by virtue of the decision in the case of State Board of Medical Examiners v. Grossman, supra, in interpreting the penalty clauses of the Medical Practice Act, N.J.S.A. 45:9-23, denying the right to trial by jury, the State of New Jersey had deprived them of their right to trial by jury under the United States Constitution. The cases cited by them in their briefs are inapplicable here. They concern themselves with the right to trial by jury in federal courts where federal statutes or rules of court are involved. On the contrary, where, as here, the right is invoked under a constitution or statute of a state, the rule in Palko v. Connecticut, 302 U.S. 319, at page 324, 58 S. Ct. 149, 151, 82 L. Ed. 288, governs as it is therein stated in the following language:
'The Sixth Amendment calls for a jury trial in criminal cases and the Seventh for a jury trial in civil cases at common law where the value in controversy shall exceed $ 20.00. This court has ruled that consistently with those amendments trial by jury may be modified by a state or abolished altogether. Walker v. Sauvinet, 92 U.S. 90, 23 L. Ed. 678; Maxwell v. Dow, 176 U.S. 581, 20 S. Ct. 448, 494, 44 L. Ed. 597; New York Central R. Co. v. White, 243 U.S. 188, 208, 37 S. Ct. 247, 61 L. Ed. 667 L.R.A. 1917 D, 1, Ann. Cas. 1917 D, 629; Wagner Electric Mfg. Co. v. Lyndon, 262 U.S. 226, 232, 43 S. Ct. 589, 591, 67 L. Ed. 961.' Again the plaintiffs have failed to present a substantial federal question for consideration of the court because prior decisions of the United States Supreme Court have foreclosed this subject.
The plaintiffs also attack the New Jersey Medical School License Act, N.J.S.A. 18:20-18, which provides as follows:
'No school or college shall be conducted within this state for the purpose of training or qualifying students to practice medicine or surgery or any branch thereof or any method for the treatment of disease or any abnormal physical condition without first securing from the state board of medical examiners a license authorizing it so to do.'
The act, plaintiffs insist, is unconstitutional because 'no schools for naturopaths, or chiropractors may be maintained in the State of New Jersey. * * * ' They allege that a school for instruction in chiropracty was attempted to be organized but that it had been closed as a result of activities on the part of authorities of the State of New Jersey. They insist that it is the right of the people of the State to be given the opportunity to study the sciences of naturopathy and chiropracty and that since such schools are private in nature, the State has no power to interfere with such schools. They state that this law has been construed by the highest court of New Jersey, but do not city any cases.
They submit that a declaratory judgment should be entered in their favor providing that such schools may be established notwithstanding the statute
From the cases above cited it appears abundantly clear that a state may set reasonable standards by way of educational requirements, examinations, etc., for the determination of the qualifications of those who hold themselves out to the public as practitioners of any form of treatment of disease or abnormal physical condition. It is also held that a state has the right to grant to an administrative body the authority to regulate those standards fixed by the statute.
It follows that a state has the right to determine standards of institutions designed to prepare those who seek to practice the healing arts and may grant that authority for se determining to an administrative body. Graves v. Minnesota, supra; Douglas v. Nobel, supra. If it is a fact that the standards set by the State of New Jersey have so far deterred the establishment of schools for chiropracty and naturopathy, as alleged by the plaintiffs, it is equally true that no group in the field of medicine and surgery has satisfied the statute for no such college or school exists in this state.
In any event the pleadings contain no allegations that any of the plaintiffs have applied for a license to establish a school and have been denied such a permit. They urge only a argument that 'need is for declaratory judgment in this specific instance * * * because the establishment of naturopathic and chiropractic schools in the State of New Jersey is one of the many aims of both societies.' (The corporate plaintiffs in each case) Such argument can hardly place before a court a jursticiable issue or controversy that meets the fundamental requirement for a declaratory judgment. See Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461, 462, 471, 472, 65 S. Ct. 1384, 89 L. Ed. 1725.
In the instant cases the contentions of the plaintiffs come within the language of the Supreme Court in the case of Ex parte Poresky, supra, at page 32, of 290 U.S., at page 4 of 54 S. Ct. wherein it was declared that the question in that case was unsubstantial because:
"its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leaves no room for the inference that the question sought to be raised can be the subject of controversy.' Levering & Garrigues Co. v. Morrin, supra; Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S. Ct. 326, 54 L. Ed. 482; McGilvra v. Ross, 215 U.S. 70, 80, 30 S. Ct. 27, 54 L. Ed. 95.'
It follows that there exists no reason to convene a three judge court to rule upon the constitutionality of the statutes questioned and the motions to call such a court will be denied for want to jurisdiction. Poresky v. Ryan, 1 Cir., 82 F.2d 311, certiorari denied 298 U.S. 654, 56 S. Ct. 678, 80 L. Ed. 1380, rehearing denied, 298 U.S. 692, 56 S. Ct. 936, 80 L. Ed. 1409. The motions to stay proceedings in the state courts pending a ruling upon the motions for a three judge court will likewise be denied. Beal v. Missouri Pacific R. Corp., 312 U.S. 45, 49, 50, 61 S. Ct. 418, 85 L. Ed. 577.
There remains for determination whether the complaints allege facts to constitute a cause of action under the Civil Rights Statute, 8 U.S.C.A. § 43. To warrant a cause of action under this statute, there must be allegations of violations or denial of some right granted by the United States Constitution on the part of the defendants under color of 'any statute, ordinance, regulation, custom, or usage'.
Having found that no substantial Federal Constitutional question exists to warrant exercise of jurisdiction, the final question resolves itself into whether the defendants have acted in an unconstitutional manner or have administered the Medical Practice Act and the Licensing Act in an unconstitutional manner. The controlling principles are stated in Snowden v. Hughes, 321 U.S. 1, at page 8, 64 S. Ct. 397, 401, 88 L. Ed. 497 as follows:
'The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person * * * , or it may only be shown by extrinsic evidence showing a discriminatory design to favor one individual or class over another not to be inferred from the action itself. * * * But a discriminatory purpose is not presumed * * * ; there must be a showing of 'clear and intentional discrimination,' * * * .'
That the arts of chiropracty and naturopathy involve the practice of certain forms of treatment of some diseases or abnormalities, organic or functional, of the human body is not contested by the plaintiffs. They assert it is unnecessary in the practice of their forms to qualify themselves in such subjects as surgery, materia medica, etc., as the statute and regulations of New Jersey now generally require of all who would practice 'any method of treatment of human ailment, disease, pain, injury, deformity, mental or physical condition,' N.J.S.A. 45:9-5.1. The plaintiffs contend that their form should be recognized apart from the general practice of medicine and surgery and that the failure of such recognition constitutes discrimination against them which oppressively deprives them of their right to exercise freedom in offering to administer their forms of therapy to the public.
The State of New Jersey through its agencies, however, has deemed it appropriate that every one who desires to practice 'any method of treatment of human ailment, disease, pain, injury, deformity, mental or physical condition' shall be confronted with uniform requirements regardless of what forms of therapy he proposes to administer.
On the face of the complaints there is no showing that the laws and regulations or the administration thereof have been bent to adversely affect the rights of the plaintiffs in these cases or the classes some of them hold themselves out to represent. In fact, in all their details with regard to the prosecution of the individual plaintiffs in these cases, the allegations of the complaints fail to show that the defendants have acted other than as they are required, if they are to properly execute the mandates of the laws and regulations they are bound to administer. As a result there is left no valid charge of purposeful or intentional discrimination and the causes of action under the Civil Rights Statute, 8 U.S.C.A. § 43, must fall.
Furthermore, the plaintiffs may not convert this federal court into an appellate forum to pass upon the merits of legislation rather than to contest such controversies in the state court system with appeal directly to the United States Supreme Court. As was said by the Court in Beal v. Missouri-Pacific R. Corp. 312 U.S. 45, at pages 49, 50, 61 S. Ct. 418 at page 420:
'It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions. In re Sawyer, 124 U.S. 200, 211, 8 S. Ct. 482, 488, 31 L. Ed. 402; Davis & Farnum Mfg. Co. v. Los Angeles, 189 U.S. 207, 23 S. Ct. 498, 47 L. Ed. 778; Hygrade Provision Co. v. Sherman, 266 U.S. 497, 500, 45 S. Ct. 141, 69 L. Ed. 402. No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and hence unlawful is not alone ground for relief in equity, which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid. Terrance v. Thompson, 263 U.S. 194, 214, 44 S. Ct. 15, 17, 68 L. Ed. 255; Packard v. Banton, 264 U.S. 140, 143, 44 S. Ct. 257, 258, 68 L. Ed. 596; Tyson & Bro.-United Theatre Ticket Offices v. Banton, 273 U.S. 418, 428, 47 S. Ct. 426, 427, 71 L. Ed. 718, 58 A.L.R. 1236; Cline v. Frink Dairy Co., 274 U.S. 445, 452, 47 S. Ct. 681, 682, 71 L. Ed. 1146.
'This is especially the case where the only threatened action is the prosecution in the state courts by state officers of an alleged violation of state law, with the resulting final and authoritative determination of the disputed question whether the act complained of is lawful or unlawful. Harkrader v. Wadley, 172 U.S. 148 (149), 19 S. Ct. 119, 43 L. Ed. 399; Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 95, 55 S. Ct. 678, 680, 79 L. Ed. 1322. The federal courts are without jurisdiction to try alleged criminal violations of state statutes. The state courts are the final arbiters of their meaning and appropriate application, subject only to review by this court if such construction or application is appropriately challenged on constitutional grounds. Hygrade Provision Co. v. Sherman, supra; Fenner v. Boykin, 271 U.S. 240, 46 S. Ct. 492, 70 L. Ed. 927.'
For the lack of a substantial constitutional question warranting exercise of jurisdiction and failure to state a cause of action or justifiable controversy within the jurisdiction of the court, the complaints will be dismissed.
Orders should be settled in conformity with this opinion.