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mon to interstate and intrastate commerce, Commerce Commission had assumed jurisand over which factor the Interstate Com. diction of the rates at the instance of merce Commission had previously assumed Poehlmann Brothers Company, and had jurisdiction.

rendered a decision sustaining the rates The case, we think, is in small compass, that the order under review adjudges unalthough on its face and in the argument reasonable. of counsel for plaintiff in error it concerns There was such a complaint and the testisuch relation between state and interstate mony taken was introduced in the present rates as to make the order an interference case. But the complaints are different. with the latter. The facts remove the order That before the Interstate Commerce Comfrom such effect. The coal that the order mission concerned coal from West Virginia. regulates has its point of shipment and The complaint in the present case concerns its point of destination in Illinois, and was coal shipped from a place in Illinois to for transportation for 12 miles on the lines another place in Illinois, the latter place of the railway company in the state. But being Morton Grove, and the rate to it counsel say that the rate for those 12 miles, from Galewood being involved. The testithat is, for the haul from Galewood to Mor- mony taken before the Interstate Commerce ton Grove, is part of the through rate from Commission happened to have material the coal-producing districts to Galewood, relevancy to such rate and hence was ad. which is a station in Chicago, that such mitted in evidence. The rulings were difproducing districts may be inside or out-ferent. It was proper for the Interstate side of the state, and that the rate, there- Commerce Commission to consider the rate fore, may be a part of interstate commerce as part of a through rate from points outas well as intrastate commerce.

There side of the state. It was equally proper hence comes into the case, counsel contends, for the State Commission to consider it as "a feature of commerce in which interstate part of the intrastate haul, and we do not and intrastate commerce are commingled;" think the rates were so related as to exand that, the interstate element dominating, clude the exercise of jurisdiction by the the State Commission had no jurisdiction State Commission. to make its order, and it is asserted that The order of the Interstate Commerce discriminations and preferences between Commission is not in the record. It is, shippers and localities will result from it. however, quoted in the briefs of counsel,

The contention based upon an interstate and it appears therefrom that neither the commerce element in a rate, that is, the through rate nor the carriers responsible relation of interstate and intrastate rates for and participating in it were before the and their reciprocal effect, was at one time Commission. The Commission said: "Con. quite formidable, but since the Minnesota sidering the absence of evidence as to the Rate Cases (Simpson v. Shepard) 230 V. reasonableness of the through rate, and the S. 352, 57 L. ed. 1511, 48 L.R.A. (N.S.) unsatisfactory evidence as to the separately 1151, 33 Sup. Ct. Rep. 729, Ann. Cas. 1916A, established rates under attack, we must 18, its perplexity, arising from a conflict of refrain from expressing any conclusion upon powers, has been simplified. In those cases the reasonableness of either rate." it was decided that there is a field of opera- But a relation is asserted between the tion for the power of the state over intra- state and interstate haul because it is said state rates and the power of the nation over to be manifest that the order of the State interstate rates. In other words, and in the Commission gives commercial advantages to language of Mr. Justice Hughes, who de shippers and producers of coal in Illinois over livered the opinion of the court: "The shippers and producers outside of the state. fixing of reasonable rates for intrastate But there is nothing in the record that transportation was left where it had been justifies the confidence of the assertion. found; that is, with the states and the | There are too many factors to be considered agencies created by the states to deal with for such offhand declarations to be acthat subject (Missouri P. R. Co. v. Larabeecepted. Some relation we may admit beFlour Mills Co. 211 U. S. 612, 53 L. ed. 352, tween the state and interstate service, but 29 Sup. Ct. Rep. 214)," until the authority the evidence does not bring it within that of the state is limited “through the exer- certainty and precision of influence that in• tion by Congress of its paramount consti- duced the decision in Houston, E. & W. T. tutional power where there may be a blend. R. Co. v. United States, 234 U. S. 342, 58 ing of interstate and intrastate operations L. ed. 1341, 34 Sup. Ct. Rep. 833, but leaves of interstate carriers.” But it was decided | it controlled by the Minnesota Rate Cases, that Congress had not exerted its power by supra; Oregon R. & Nav. Co. v. Campbell, the enactment of the Interstate Commerce 230 U. S. 525, 57 L. ed. 1604, 33 Sup. Ct. Act.

Rep. 1026; and Louisville & N. R. Co. v. It is, however, said that the Interstate Garrett, 231 U. S. 298, 58 L. ed. 229, 34


Sup. Ct. Rep. 48. Therefore, the order is Mr. Justice McKenna delivered the opinnot subject to the charges against it, and ion of the court: $S 3, 13, and 15 of the Interstate Commerce Appeal from an order denying an interAct have no application.

locutory injunction, three judges sitting. The motion to dismiss is denied. The The court took jurisdiction of the action, judgment is affirmed.

citing Raich v. Truax, 219 Fed. 273, 283,

but denied the injunction on the ground (242 U. S. 339)

that the averments of the complaint did P. L. CRANE, Appt.,

not justify it.

Complainant is a drugless practitioner, HIRAM W. JOHNSON, Governor of the he avers (we state the facts averred nar. State of California, et al.

ratively), and has practised his profession

in the city and county of Los Angeles for CONSTITUTIONAL LAW 230(2), EQUAL the last seven years, and is dependent


upon it for making a living. He does not 1. The exemption in favor of persons employ either medicine, drugs, or surgery treating the sick by prayer from the appli- in his practice, nor is there anything harm. cation of Cal. Laws 1913, chap. 354, as ful in it to the individual or dangerous to amended by Laws 1915, chap. 105, which society; but he does employ in practice provides that persons may not practise faith, hope, and the processes of mental drugless healing unless holding a "drugless suggestion and mental adaptation. practitioner certificate,” obtainable only

Under a statute of the state that went upon completion of a prescribed course of into effect August 10, 1913, amended in study and after an examination, does not render the statute invalid as denying the 1915, a board of medical examiners was equal protection of the laws guaranteed by created which was empowered to prescribe U. S. Const. 14th Amend., to one who does a course of study and examination for not employ prayer in his treatment of dis- those practising medicine (using this word ease, but does use faith, hope, the processes in a broad sense for convenience), and to of mental suggestion and mental adaptation, issue certificates of qualifications and a form of treatment in which skill enhanced licenses. by practice is to be exercised.

Three forms of certificates were required [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. $ 687; Dec. Dig. 230(2).] to be issued: First, a certificate authorizing PHYSICIANS AND SURGEONS Eml-POLICE the holder thereof to use drugs, or what POWER LICENSING DRUGLESS PRACTI- are known as medicinal preparations, in

2. The state's police power extends to or upon human beings, and to perform requiring, as is done by Cal. Laws 1913, surgical operations, which certificate shall chap. 354, as amended by Laws 1915, chap. be designated, “physician and surgeon cer105, that drugless practitioners employing tificate.” Second, a certificate authorizing faith, hope, and the processes of mental sug- an opposite treatment to that which the gestion and mental adaptation in the treat- first certificate authorized (we are using ment of disease, shall have completed a general description), which certificate shall prescribed course of study and passed an ex. be designated, “drugless practitioner certifiamination. [Ed. Note.-For other cases,

cate.” Third, a certificate authorizing the

see Physicians and Surgeons, Cent. Dig. $ 1; Dec. Dig. eml.) holder to practise chiropody. And the stat. (No. 493.)

ute also provides for the issuance of what

it designates as a "reciprocity certificate." Argued December 12, 1916. Decided Janu. Any of these certificates, on being recorded ary 8, 1917.

'in the oflice of the county clerk, as provided in the act, shall constitute the holder there


A i

United States for the Southern District ance with the provisions of his certificate. of California to review a decree denying an Applicants must file with the board testiinterlocutory injunction to restrain the en- monials of good moral character and diploforcement of a state statute requiring drug- mas of a school or schools, and, in addition, less practitioners to have completed a each applicant for a "physician and surgeon prescribed course of study and passed an ex. certificate” must show that he has attendamination. Affirmed.

ed four courses of study, each to have been See same case below, 233 Fed. 334. not less than thirty-two weeks' duration, The facts are stated in the opinion. with some other additions; and each appli. Mr. Tom L. Johnston for appellant. cant fòr a "drugless practitioner certifi.

Messrs. Robert M. Clarke, Thomas cate" must show that he has attended two Lee Woolwine, George E. Cryer, and Mr. courses of study, each of such courses to U. S. Webb, Attorney General of California, have been not less than thirty-two weeks' for appellees.

duration, but not necessarily pursued conem For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

tinuously or consecutively, and at least ten by faith, mental suggestion, and mental months shall have intervened between the adaptation, and treatment by laying on of beginning of any course and the beginning hands, anointing with holy oil, or other of the preceding course; and the course in kindred treatment. chiropody is to be of not less than thirty- Complainant does not employ prayer in nine weeks' duration, consisting of not less the treatment of disease, and is, therefore, than 664 hours. There is a provision that, not exempt from examination by the medical in lieu of a diploma or diplomas and pre- board, and is subject, therefore, to the liminary requirements in the other courses, penalties of the act if he practises his proif the applicant can show to the board that fession, for which he has fitted himself by he has taken the courses required by the study and practice, and upon which he is statute in a school or schools approved by dependent, and by reason of his age he is the board, totaling not less than sixty-four) in large measure unable to take up any new weeks' study of not less than 2,000 hours branch of work. That defendants, appelfor a "drugless practitioner certificate,” or lees here, are threatening prosecutions un128 weeks' study of not less than 4,000 der the act, and he is without remedy at hours for a "physician and surgeon certifi-law. cate," he shall be admitted to examination There is an allegation that the supreme for his form of certificate.

court of the state of California has decided The statute sets out the course of instruc-that the statute is not offensive to the tion which the respective applicants must 14th Amendment, in habeas corpus proceedhave pursued, giving the course that is ings prosecuted by one Chow Juyan, who necessary for a "physician and surgeon cer- was convicted of practising some form of tificate" and the course for a "drugless Chinese healing which was adjudged a viopractitioner certificate.” The descriptions lation of the act. are very elaborate and technical. The stat. The allegations of the bill set forth comute also prescribes the manner of examina-plainant's particular grievance to be that tion, states the exemptions from its pro- the statute discriminates between forms of visions, the penalties for its violation, and healing the sick and the use of prayer and for what conduct and upon what condi. other drugless methods, and invoke the tions the certificates may be revoked. equal protection clause of the 14th AmendAmong the latter is the following:

ment of the Constitution of the United "Ninth. The use, by the holder of a States. In other words, he attacks the 'drugless practitioner certificate,' of drugs classification of the statute as having no or what are known as medicinal prepara relation to the purpose of the legislation. tions, in or upon any human being, or the Of course, complainant is confined to the severing or penetrating by the holder of special discrimination against him; he cansaid 'drugless practitioner certificate' of not get assistance from the discrimination, the tissues of any human being in the treat- if any exist, against other drugless pracment of any disease, injury, deformity, or titioners. The case, therefore, is brought to other physical or mental condition of such the short point of the distinction made be. human being, excepting the severing of tween his practice and certain forms of the umbilical cord.” [Stat. 1913, chap. practice, or, more specifically, between his 354, p. 734.]

practice of drugless healing and the use of By § 22 of the original act (unaffected prayer. by the Act of 1915), it is provided : "Nor The principle of decision needs no exsball this act be construed so as to disposition, and the only question is whether criminate against any particular school of it was competent for the state to recognize medicine or surgery, or any other treat- a distinction in its legislation between drugment, nor to regulate, prohibit or to apply less healing as practised by complainant to, any kind of treatment by prayer, nor and such healing by prayer. That there is to interfere in any way with the practice a distinction between his practice and that of religion." [Stat. 1913, chap. 354, p. of prayer, complainant himself, it seems 736.]

to us, has charged in his bill. He has not It is alleged that the statute violates the only charged that he does not employ either 14th Amendment of the Constitution of the medicine, drugs, or surgery in his practice, United States, especially the equal protec- but that he does employ faith, hope, and tion clause thereof, in that it imposes the processes of mental suggestion and greater burdens upon complainant than mental adaptation. These processes he does upon others in the same calling and posi- not describe. Presumably they are different tion. That it discriminates in favor of from healing by prayer,—different from the the Christian Science drugless practitioner, treatment by Christian Science. But he distinguishes between the treatment of the alleges that for his practice he has become sick by prayer, the treatment of the sick '"particularly fitted by many years of

37 S. C.-12.

ary 8, 1917.

study and practice therein." In other, the accommodative and refractive states of words, the treatment is one in which skill the human eye, does not deny the equal is to be exercised, and the skill can be en protection of the laws guaranteed by U. S. hanced by practice, and the objects of the Const. 14th Amend., to a regularly gradutreatment are diseased human beings whose

ated ophthalmologist who employs drugless

means for such purposes. condition is to be diagnosed. To treat a

(Ed. Note.-For other cases, see Constitutional disease there must be an appreciation of it, Law, Cent. Dig. 8 687: Dec. Dig. Om 230(2).] a distinction between it and other diseases, and special knowledge is therefore required.

[No. 494.] And this was the determination of the state; but it determined otherwise as to prayer, Argued December 12, 1916. Decided Januthe use of which, it decided, was a practice of religion. We cannot say that the state's estimate of the practices and of their differ: A United States for the Southern District

PPEAL from the District Court of the ences is arbitrary, and therefore beyond the power of government. And this we of California to review a decree denying should have to say to sustain the conten- an interlocutory injunction to restrain the tions of complainant, and say besides, pos- enforcement of a state statute licensing sibly against the judgment of the state, that optometrists. Affirmed. there was not greater opportunity for de- See same case below, 233 Fed. 334. ception in complainant's practice than in The facts are stated in the opinion. other forms of drugless healing.

Mr. Tom L. Johnston for appellant. Because of our very recent opinions we

Messrs. Robert M. Clarke, Thomas omit extended reply to the argument of Lee Woolwine, George E. Cryer, Ray E. counsel and the cases cited by him, not Nimmo, and Mr. U. S. Webb, Attorney only of the general scope of the police General of California, for appellees. power of the state, but also of the distinctions which may be made in classifying the Mr. Justice McKenna delivered the opin. objects of legislation. And for like reason ion of the court: we do not review or comment upon the This case was submitted with Crane v. cases cited in opposition to complainant's Johnson, just decided [242 U. S. 339, 61 L contentions.

ed. 348, 37 Sup. Ct. Rep. 176). It was conIt is to be observed that the order of the sidered in the district court with that case, court was put upon the narrow ground of three judges sitting as in that case. the averments of the complaint, no opinion comes here on appeal from an order denying beyond such averments being expressed. an interlocutory injunction. The court enDecree affirmed.

tertained jurisdiction upon the authority

of Raich v. Truax, 219 Fed. 273, 283; Truax (242 U. S. 344)

v. Raich, 239 U. S. 33, 60 L. ed. 131, L.R.A. KATE P. McNAUGHTON, Appt.,

1916D, 545, 36 Sup. Ct. Rep. 7.

The court, in denying the injunction, said AIRAM W. JOHNSON, Governor of the “that the granting of such orders is within State of California, et al.

the sound discretion of the court, and, in

the exercise of such discretion, based upon PHYSICIANS AND SURGEONS Owl-Police the averments of the bills, we are of opinion POWER-LICENSING OPTOMETRISTS.

1. A state may, in the exercise of its that the application should be denied." The police power, confine to registered optome court did not pass upon the merits, express. trists who have passed the examination pre-ing a doubt of its authority to do so, as scribed by Cal. Laws 1913, chap. 598, the the court said it was composed of three right to employ means other than drugs to judges, “under statutory requirement.” measure the range of human vision, and

Appellant-we shall call her complainant, the accommodative and refractive states of and state narratively the facts she alleged the human eye.

-is a regularly graduated ophthalmologist, [Ed. Note.-For other cases, and Surgeons, Cent. Dig. $ 1; Dec. dig. 1.3 which is a school of scientific learning and CONSTITUTIONAL LAW C230(2) – EQUAL

practice confined to the treatment of the PROTECTION OF THE LAWS LICENSING

inflammation of the eye and its membranes OPTOMETRISTS EXEMPTING PHYSICIANS and in fitting glasses to the human eye. She AND SURGEONS.

has practised her profession in the city of 2. The exemption in favor of duly li. Los Angeles for the past three years and censed physicians and surgeons, which is is dependent upon the proceeds of her labor made by Cal. Laws 1913, chap. 598, con

and services. fining to registered optometrists who have

She does not employ either passed the prescribed examination the right medicine, drugs, or surgery, nor is there to employ means other than the use of drugs anything in her practice hurtful to the into measure the range of human vision, and dividual or dangerous to society.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes


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In her practice it is absolutely necessary | said board upon payment of a fee of $5. and indispensable that she measure the pow. Such certificate shall continue in force until ers and range of human vision without the the first day of August in the year next vse of drugs, and there is no law in the succeeding." [Stat. 1913, chap. 598, p. state of California prescribing an examina. 1100.] tion for and regulating the practice of Before engaging in practice it shall be ophthalmology.

the duty of each registered optometrist to At its 40th session the legislature of Cali. notify the board in writing of the place or fornia enacted a statute by which it pro- places where he is to engage or intends to vided that it should be unlawful for any engage in practice, and of changes in such person to engage in the practice of optome places. try without first having obtained a certifi- There are other provisions intended to cate of registration from the State Board fortify those above mentioned, and violaof Optometry under an act to regulate that tions of the act are made misdemeanors, practice, approved March 20, 1903, and the with fines and imprisonment, increasing acts amendatory thereof.

with repetition of the offense. The practice of optometry is defined to It is provided that the act shall not be be the employment of any means other than construed to prevent duly licensed physi. the use of drugs for the measurement of cians and surgeons from treating the human the powers or range of human vision, or eye, nor to prohibit the sale of complete the determination of the accommodative and ready-to-wear eyeglasses as merchandise refractive states of the human eye, or the from a permanent place of business, in good scope of its functions in general, or the faith, and not in evasion of the act, by the adaptation of lenses or frames for the aid person not holding himself out as thereof.

petent to examine and prescribe for the The board is given the power, among


eye. others, to visit schools where the science of Registry certificates may be revoked for optometry is taught, and accredit such as certain specified causes. the board finds give a sufficient course of Complainant charges that the act offends study for the preparation of optometrists; | the 14th Amendment of the Constitution of to keep a register of all persons to whom the United States in that it deprives her certificates of registration have been issued of her property without due process of law and of all itinerant licenses, and to grant and denies her the equal protection of the or refuse or revoke such certificates. The laws; and as specifications of the last she act prescribes a course of examination, de instances the exemption from the provisions scribes the particulars of the examinations, of the act of licensed physicians and surand provides that every applicant for an geons; the appropriation to the sole use of examination, upon passing it, shall be en registered optometrists of the right to emtitled to be registered in the board's register ploy any means other than the use of drugs of optometrists, and a certificate of regis- in the measurement of the powers or range tration shall be issued to him.

of vision; the denial to all other schools of “At such examinations the board shall scientific learning and practice the right to examine applicants in the anatomy of the measure the range of human vision other eye, in normal and abnormal refractive and than by the use of drugs on equal terms accommodative and muscular conditions and with the physician and surgeon; and conco-ordination of the eye, in subjective tends generally that her occupation being and objective optometry, including the fit

a lawful one, not hurtful to the individual ting of glasses, the principles of lens grind or angerous to the community, the state ing and frame adjusting, and in such other has no power to impose discriminatory regusubjects as pertain to the science and

lations upon it.

practice of optometry, such subjects to be

She alleges her competency to practise enumerated in publication by the board. - her profession and apply its treatment, that In case of failure, the applicant shall be appellees are threatening to enforce the law, examined at the next examination only in and hence prays temporary and permanent the subjects in which he failed. All such injunctions. applicants, without discrimination, who These specific objections are brought down shall satisfactorily pass such examination to the general objection that the statute disshall thereupon be registered in the buard's criminates against those who employ any register of optometrists and a certificate of other means than the use of drugs, and registration shall be issued to them, under therefore "creates a monopoly favored and the seal and signature of the members of protected by law in the interest of prac

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