to regulate and safeguard the use of powerful and dangerous treatments, i.e., drugs, medicines, narcotics, and surgical operations.
(11) By prohibiting the treatment of illness which dispenses with the use of drugs, medicine and surgery.
(12) By illegally arresting, convicting and fining, or sentencing to imprisonment, the plaintiff, Blass, without trial by jury, in a summary and unlawful manner, contrary to the laws of the United States.
(13) By sponsoring legislation and obtaining judicial determinations thereof, which are harsh, oppressive, unlawful, arbitrary and unreasonable, in that said defendants maintain as a violation of the Medical Practice Act, among other charges, 17 specified acts.
In addition there is an allegation that the Medical Practice Act of New Jersey violates Article IV, § 2 of the United States Constitution.
The procedure for enjoining enforcement of state statutes and convening a three-judge court is now governed by 28 U.S.C.A. § 2281 et seq. and is based upon former § 266 of the 1911 Judicial Code. See Revisers Notes, Title 28 United States Code, Congressional Service, 1948, pp. 1909-1911. Interpretations prior to the 1948 Code Revision held that in lieu of an allegation of diversity of citizenship there had to exist a substantial federal question which was to be determined from the allegations of the complaint. But, if the complaint showed that the question 'is 'obviously without merit' or because 'its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy * * * " a federal court is without jurisdiction to convene a three-judge court. Ex parte Poresky, 290 U.S. 30, 32, 54 S. Ct. 3, 78 L. Ed. 152. Cf. California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S. Ct. 865, 82 L. Ed. 1232; Jameson & Co. v. Morgenthau, 307 U.S. 170, 171, 59 S. Ct. 804, 83 L. Ed. 1189. The rule enunciated in the Poresky case has not been altered by the 1948 Revision of Title 28.
A long line of decisions have upheld the right of a state to regulate the practice of medicine and the allied professions; to designate, limit or restrict what shall constitute the practice of medicine and the allied sciences; to authorize an administrative agency to provide for the regulation of the practice of medicine and the allied sciences; and to enforce either the statutes of the state or regulations of the administrative agency. Dent v. West Virginia, 129 U.S. 114, 9 S. Ct. 231, 32 L. Ed. 623; Gray v. Connecticut, 159 U.S. 74, 15 S. Ct. 985, 40 L. Ed. 80; Hawker v. People of New York, 170 U.S. 189, 18 S. Ct. 573, 42 L. Ed. 1002; Roetz v. Michigan, 188 U.S. 505, 23 S. Ct. 390, 47 L. Ed. 563; Meffert v. Packer, 195 U.S. 625, 25 S. Ct. 790, 49 L. Ed. 250; Williams v. Arkansas, 217 U.S. 79, 30 S. Ct. 493, 54 L. Ed. 673; Watson v. Maryland, 218 U.S. 173, 30 S. Ct. 218, 54 L. Ed. 987; Collins v. Texas, 223 U.S. 288, 32 S. Ct. 286, 56 L. Ed. 439; McNaughton v. Johnson, 242 U.S. 344, 37 S. Ct. 178, 61 L. Ed. 352, Ann. Cas. 1917B, 801; Crane v. Johnson, 242 U.S. 339, 37 S. Ct. 176, 61 L. Ed. 248, Ann. Cas. 1917B, 796; Noble v. Douglas, 261 U.S. 165, 43 S. Ct. 303, 67 L. Ed. 590; State of Missouri ex rel. Hurwitz v. North et al., 271 U.S. 40, 46 S. Ct. 384, 70 L. Ed. 818; Graves v. Minnesota, 272 U.S. 425, 47 S. Ct. 122, 71 L. Ed. 331; Lambert v. Yellowley, 272 U.S. 581, 47 S. Ct. 210, 71 L. Ed. 422, 49 A.L.R. 575; Fife v. Louisiana State Board of Medical Examiners, 274 U.S. 720, 47 S. Ct. 590, 71 L. Ed. 1324;
Dr. Bloom, Dentist, v. Cruise, 288 U.S. 588, 53 S. Ct. 320, 77 L. Ed. 967; Semler v. Oregon State Board of Medical Examiners, 294 U.S. 608, 55 S. Ct. 570, 79 L. Ed. 1086.
Plaintiff, Blass, argued, however, that the statutes under which he was tried in the state court, N.J.S.A. 45:9-18, 22, 23, are unconstitutional because they fail to inform the accused of the nature and the cause of the charge or offense by specifying which one or more of the various methods listed in N.J.S.A. 45:9-18
has been violated, nor do they provide for naming the person or persons upon whom the accused is alleged to have practiced medicine. Plaintiffs charge that when the New Jersey Medical Act provides that 'such process shall state what provisions or provisions of the law are alleged to have been violated by the defendant', N.J.S.A. 45:9-22, the act is deficient because under the Fourteenth Amendment of the Federal Constitution they must be informed of the specific acts alleged to constitute violations of the law rather than in charges alleging the general violation of sections of the statute. The plaintiffs further complain of the alleged inadequacy of N.J.S.A. 45:9-23 where it is provided that 'the court shall proceed in a summary manner, without a jury, to hear testimony and to determine and give judgment in the matter without the filing of any pleadings of the plaintiff for the recovery of such penalty, with costs, or for the defendant. * * * ' These complaints reduce themselves to an attack upon the former
procedural methods of enforcement of the Medical Practice Act of New Jersey. It has long been recognized constitutional doctrine that a state is not limited in the civil and criminal procedures to be followed by its courts. It may dispense with trial by jury, indictment by grand jury, exercise no positive bar against the self incrimination rule, et cetera, in line with the doctrine that the Fourth, Fifth, Sixth and Seventh Amendments to the United States Constitution are inapplicable to the respective states. Hurtado v. California, 110 U.S. 516, 4 S. Ct. 111, 28 L. Ed. 232; Gaines v. Washington, 277, U.S. 81, 48 S. Ct. 468, 72 L. Ed. 793; Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288; Adamson v. California, 332 U.S. 46, 67 S. Ct. 1672, 91 L. Ed. 1903, 171 A.L.R. 1223. Every alleged defect or deprivation enunciated by the plaintiffs in the procedure of the defendants under the New Jersey law is met by the foregoing decisions of the Supreme Court.
Little has been offered by the plaintiffs in this case that was not considered and disposed of in the case of New Jersey Chiropractic Association v. State Board of Medical Examiners, D.C., 79 F.Supp. 327. It is apparent that the constitutional issues raised by these plaintiffs are as equally without merit as were the contentions of the plaintiffs in the Chiropractic case for they lack substance and have been foreclosed by prior decisions of the United States Supreme Court as hereinabove set forth. No jurisdiction exists, therefore, for invoking the procedure outlined in 28 U.S.C.A. 2281 et seq. an the motion to stay state court proceedings will be denied. Ex parte Poresky, supra; California Water Service Co. v. City of Redding, supra; Jameson Co. v. Morgenthau, supra; Beal v. Missouri Pacific R. Corp., 312 U.S. 45, 49-50, 61 S. Ct. 418, 85 L. Ed. 577; Douglas v. City of Jeanette, 319 U.S. 157, 164, 63 S. Ct. 882, 87 L. Ed. 1324, 146 A.L.R. 81.
There remain those allegations by the corporate plaintiff, E. Am. Association for Oxygen-Therapy, Incorporated, and the individual plaintiff, Blass, pertaining to alleged violations of the Civil Rights Act, 8 U.S.C.A. § 43 wherein the defendants are alleged to have violated Article IV, § 2, and the First, Fifth, Sixth, Seventh, Thirteenth and Fourteenth Amendments to the United States Constitution. Since natural persons only are entitled to sue for violation of the privileges and immunities which § 1 of the Fourteenth Amendment secures for citizens of the United States, the corporate plaintiff, E. Am. Association, is without a cause of action here and its complaints must be dismissed. Hague v. C.I.O., 307 U.S. 496, 514, 59 S. Ct. 954, 83 L. Ed. 1423; Slaughter House cases, 16 Wall. 16, 21 L. Ed. 394.
Article IV, Sec. 2 of the Constitution is limited to circumstances wherein diversity of citizenship exists, a condition totally absent here. Hague v. C.I.O., 307 U.S. 496, 511, 59 S. Ct. 954, 83 L. Ed. 1423.
There have been a number of decisions within the last few years wherein consideration has been given to the extent to which the Bill of Rights, by virtue of the provisions of the Fourteenth Amendment, applies to the individual states. However, with the exception of the First Amendment, the Supreme Court has refused to hold that the Fourteenth Amendment secures against state invasion the rights, privileges and immunities protected from federal violation by the Bill of Rights. Adamson v. California, supra; Palko v. Connecticut, supra; Foster v. Illinois, 332 U.S. 134, 67 S. Ct. 1716, 91 L. Ed. 1955; Malinski v. New York, 324 U.S. 401, 65 S. Ct. 781, 89 L. Ed. 1029; Hague v. C.I.O., supra. But compare Leon Johnson, alias Robert McMillan v. Dye, Warden, 3 Cir., 1949, 175 F.2d 250.
The Thirteenth Amendment has no application to a situation where a person is held to answer for violations of a penal statute. Slaughter House Cases, supra. Cf. Lindsey v. Leavey, 149 F.2d 899, 9 Cir., certiorari denied 326 U.S. 873, 66 S. Ct. 331, 90 L. Ed. 474.
When these principles are applied to the instant case, the allegations of plaintiff, Blass, concerning Article IV, § 2, the Fifth, Sixth, Seventh and Thirteenth Amendments, fail to state a cause of action.
The allegations concerning the First Amendment are based upon plaintiff Blass' contention that the acts of the defendants in enforcing the Medical Practice Act prevent him from disseminating information concerning the science of naturopathy. Although the rights granted by the First Amendment are protected from encroachment by the respective states by the provisions of the Fourteenth Amendment, Hague v. C.I.O., supra, the right is not absolute and will not cloak him 'with immunity from the legal consequences for concomitant acts committed in violation of a valid criminal statute.' Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S. Ct. 766, 769, 86 L. Ed. 1031. It is admitted that the alleged acts of the defendants have been executed under color of state law. Cf. Screws v. United States, 325 U.S. 91, 65 S. Ct. 1031, 89 L. Ed. 1495, 162 A.L.R. 1330. But to constitute a violation over which this court is required to exercise jurisdiction, the acts of state officials must have been in violation of federal law. The alleged violation of the First Amendment is based upon the fact that in prosecuting the violation of the Medical Practice Act, plaintiff, Blass, was silenced by the in torrorem effect of the state action. Unless, therefore, the defendants acted outside the limits of the authority vested in them by law, no violation of a federal right has occurred. Cf. Picking v. Pennsylvania R. Co., 3 Cir., 151 F.2d 240, 248.
The State of New Jersey has provided for a comprehensive scheme whereby the practice of medicine is regulated by the defendant, State Board of Medical Examiners, N.J.S.A. 45:9-1 et seq. Plaintiff, Blass, was accused of having violated these regulations and statutes, and, in conformity to the procedure provided in N.J.S.A. 45:9-22, 23, suit was instituted against him. He complained that the information under which he was tried failed to inform him as to the nature of the offense, that he was denied this information upon his demand for a bill of particulars, and that the information upon which is accusation and conviction were based was obtained by anonymous and professional informants. No appeal was taken from the action of the District Court to the appellate courts of New Jersey whereby any alleged invalidity in the accusation, trial and judgment could have been tested to determine whether errors had been committed under the then current New Jersey practice. Rather, he has filed this complaint seeking to enjoin the enforcement of a state court judgment and in essence has sought to convert this court into an appellate forum to pass upon matters of state court trial procedure. Cf. United States ex rel. Steele v. Jackson, 2 Cir., 171 F.2d 432, 433.
The language of the United States Supreme Court in Douglas v. City of Jeanette, 319 U.S. 157, 163-164, 63 S. Ct. 877, 881, 87 L. Ed. 1324, 146 A.L.R. 81, appears to be strikingly dispositive of the contentions of the plaintiff, Blass. It says therein:
'It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions. No person is immune from prosecution in good faith for his alleged criminal acts. Its imminence, even though alleged to be in violation of constitutional guaranties, is not a ground for equity relief since the lawfulness or constitutionality of the statute or ordinance on which the prosecution is based may be determined as readily in the criminal case as in a suit for an injunction. (Cases cited.) Where the threatened prosecution is by state officers for alleged violations of a state law, the state courts are the final arbiters of its meaning and application, subject only to review by this Court on federal grounds appropriately asserted. Hence the arrest by the federal courts of the processes of the criminal law within the states, and the determination of questions of criminal liability under state law by a federal court of equity, are to be supported only on a showing of danger of irreparable injury 'both great and immediate.' (Cases cited.)
'It does not appear from the record that petitioners have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith, or that a federal court of equity by withdrawing the determination of guilt from the state courts could rightly afford petitioners any protection which they could not secure by prompt trial and appeal pursued to this Court.'
Cf. Beal v. Missouri Pacific R. Co., 312 U.S. 45, 49-50, 61 S. Ct. 418, 85 L. Ed. 577; Snowden v. Hughes, 321 U.S. 1, 11-12, 64 S. Ct. 397, 88 L. Ed. 497.
There is a complete failure upon the part of the plaintiff to show in his complaint that the defendants have performed any act involving him other than those required of them by the Medical Practice Act of the State of New Jersey or that they have violated under color of state law any right secured for him by the federal constitution.
Where it appears to be a certainty that a plaintiff would be entitled to no relief under any state of facts which could be proved in support of a claim, the complaint should be dismissed. De Loach v. Crowley's Inc., 5 Cir., 128 F.2d 378, 380; Continental Colleries v. Shober, 3 Cir., 130 F.2d 631, 635. Measured by this test, the complaint fails to aver a cause of action under the Civil Rights Act, 8 U.S.C.A. 43. The plaintiff is not entitled to relief either by way of injunction or damages against the defendants and this section of his complaint must likewise be dismissed.