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Burden v. Hoover

OPINION FILED MAY 23, 1956.

H.C. BURDEN ET AL., APPELLANTS,

v.

HERMAN C. HOOVER ET AL., APPELLEES.



APPEAL from the Appellate Court for the Fourth District; — heard in that court on appeal from the Circuit Court MR. CHIEF JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 24, 1956.

The plaintiffs, licensed chiropractors, brought suit in the circuit court of Madison County to enjoin the defendants from practicing chiropractic without a license. The court dismissed the complaint for want of equity, and the Appellate Court affirmed. (7 Ill. App.2d 296.) We granted leave to appeal.

The five plaintiffs, who practice their profession in Madison County, are licensed under the Illinois Medical Practice Act (Ill. Rev. Stat. 1955, chap. 91, par. 11,) to treat human ailments without drugs or operative surgery. This type of license is commonly referred to as a limited license in order to distinguish it from that license which authorizes one to practice medicine in all of its branches. The three defendants, however, who also practice in Madison County, are not licensed.

By their complaint, the plaintiffs charge that as a direct result of the plaintiffs and the defendants maintaining offices in the same area, treating patients with similar physical defects and ailments, the practice of the plaintiffs is thereby limited, and the plaintiffs' income from the practice of their profession is lessened and reduced. Moreover, they allege that they have attempted on many occasions to procure criminal prosecution of the defendants as provided by law, but efforts in this regard have been unsuccessful.

In a motion to dismiss, the defendants state that the plaintiffs have an adequate remedy at law, presumably by criminal prosecution. The court allowed the motion and, after the plaintiffs elected to stand by their complaint, dismissed the cause for want of equity.

The plaintiffs contend that their professional licenses are in the nature of franchises which confer valuable property rights and which a court of equity should protect, even though the conduct complained of is a breach of the criminal law. The defendants insist that no grounds for equitable jurisdiction are alleged and that the remedy at law is adequate.

It is fundamental that courts of equity do not have jurisdiction to enjoin the commission of a crime, but courts have recognized that if grounds for equitable intervention are present an injunction may issue even though the conduct objected to is also a crime. Those cases in which relief has been granted in a situation of this type have usually been based on one of two theories: (1) the license is a franchise in the nature of a property right which equity will protect, (see, e.g., Neil v. Gimbel Bros. Inc. 330 Pa. 213, optometrists; Sloan v. Mitchell, 113 W. Va. 506, physicians; Smith v. Illinois Adjustment Finance Co. 326 Ill. App. 654, attorneys); (2) the unlicensed practice may constitute a public nuisance, which equity will abate. (See, e.g., People ex rel. Bennett v. Lamon, 277 N.Y. 368, chiropractors.) Other reasons have been suggested, such as the prevention of unfair competition, but rarely constitute the basis of a decision. (But cf. Seifert v. Buhl Optical Co. 276 Mich. 784.) However, both of the foregoing theories have on occasion been rejected. For example, New Jersey refused to follow the franchise theory in a case involving chiropodists (Mosig v. Jersey Chiropodist, Inc. 122 N.J. Equity, 382, 194 A. 248,) and this court rejected the nuisance theory in a case involving chiropractors. People ex rel. Shepardson v. Universal Chiropractors' Association, 302 Ill. 228.

The cases are in conflict; but the apparent weight of authority, especially as reflected in the later decisions, favors injunctive relief. See McClintock on Equity, pp. 400-1; Downey, "Illegal Practice of the Professions — Licensed Practitioner's Right to Enjoin," 11 Southern California Law Review, 476-83.

But by reason of People ex rel. Shepardson v. Universal Chiropractors' Association, 302 Ill. 228, decided in 1922, Illinois must be numbered with the minority. In that case the Attorney General sought to have fifty-two unlicensed chiropractors enjoined from practicing in this State. The trial court denied relief, and this court affirmed. The court observed that there were conditions under which an injunction was available to enjoin the continuation of certain acts or conduct, although they are made crimes and punishment is provided for the persons guilty of them, but that is only where it is necessary to abate a nuisance. Concluding that practicing chiropractic did not constitute a menace to the public health, morals, safety or welfare, it was held not to be a nuisance so as to warrant equitable relief.

At the time it was decided, the case was in accord with the prevailing view. (Cf. Merz v. Murchison, 30 Ohio Cir. Ct. 646, physician; Drummond v. Rowe, 155 Va. 725, veterinarian; State v. Maltby, 108 Neb. 578, chiropractor.) However, a notable change occurred in 1931, when Ohio recognized the right of an attorney to injunctive relief against one practicing law without a license (Dworken v. Apt. House Owners' Association, 38 Ohio App. 265,) and again during the following year, granted an injunction in the case of a dentist. (Taylor v. Dental Laboratories, Inc. 29 Ohio N.P.N.S. 451.) Thereafter, the right to injunctive relief to stop the unauthorized practice of law was repeatedly upheld. (See cases discussed in Smith v. Illinois Adjustment Finance Co. 326 Ill. App. 654, where the issue was so resolved.) In addition, the right to injunctive relief was recognized in cases involving other professions. Physicians: Sloan v. Mitchell, 113 W. Va. 506; Palmer v. O'Hara, 359 Pa. 213. Dentists: Boggs v. Werner, 372 Pa. 312; Curtis v. Registered Dentists of Oklahoma, 193 Okla. 233, 143 P.2d 427. Optometrists: Neil v. Gimbel Bros., Inc., 330 Pa. 213; Ezell v. Ritholz, 188 S.C. 39; Seifert v. Buhl Optical Co. 276 Mich. 784. Chiropractors: People ex rel. Bennett v. Lamon, 277 N.Y. 368. Contra: Mosig v. Jersey Chiropodists, Inc. 122 N.J. Equity 382, 194 A. 248, chiropodists.

Apart from the fact that courts are abandoning the strict view that formerly prevailed in this area, we are convinced that there are sound, compelling reasons for bringing Illinois in line with the majority position and granting relief in a case of this nature. These reasons may be grouped under two general categories: (1) protection of the rights of the licensed practitioner, and (2) protection of the public.

First, it is conceded that one who holds a license to practice medicine, be it a limited or a full license, has a "property right" in the sense that laws affecting him in his practice must satisfy due process of law. (People v. Love, 298 Ill. 304; Smith v. Dept. of Registration and Education, 412 Ill. 332.) Moreover this license confers a right in the nature of a franchise, in that it grants the privilege of doing that which does not belong to the public generally by common right. (Sloan v. Mitchell, 113 W. Va. 506; Ezell v. Ritholz, 188 S.C. 39. Cf. Smith v. Illinois Adjustment Finance Co. 326 Ill. App. 654, 662.) In this regard, the license of a professional man which by statute is conferred only for merit differs from an ordinary regulatory license, such as a tavern license, or a revenue license, such as an automobile or hunting license. For to qualify for any type of healing arts license in this State, the licensee personally must meet high standards established for the purpose of protecting the public health, morals, safety and welfare. This being true, whether the right to practice the profession be called a franchise, a license or a privilege, it is certainly a valuable interest that should, in justice, be entitled to protection.

The Appellate Court distinguishes between the attorney's license, which is conferred by this court, and other professional licenses which are conferred by the legislature. There are, of course, distinguishing features, but none which are material here. In both cases, the licensed individual must demonstrate to the satisfaction of a responsible governmental body his professional competence and personal fitness.

Equity traditionally has provided a remedy in matters where private property rights are infringed, despite the fact that invasions of such rights are also breaches of the criminal law. Because the practice of chiropractic in this State by one who is not licensed constitutes an infringement of the rights of those who are properly licensed, we ...


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