People ex rel. Bennett v. Laman

This action has been brought by the People on relation of the Attorney-General and the State Board of Regents to restrain the defendant from practicing medicine unlawfully and in violation of the Education Law. (Cons. Laws, ch. 16.) Before service of an answer, the defendant moved to dismiss the complaint, and the courts below have granted that motion. On this appeal we must take the facts alleged in the complaint to be true. The complaint is a very lengthy one, and we shall not attempt to summarize all the allegations, but shall call brief attention to those we deem material and more important. The situation as outlined in the complaint appears thus:

For the past fifteen years the defendant has maintained offices in the city of Binghamton and in Endicott city, in the county of Broome. During that time he has practiced medicine, as defined in section 1250, subdivision 7, of the Education Law, and is holding blips,elf out to the public as

Defendant gives his patients chiropractic treatments and in his work he has used and applied heat and electric lamps, light rays, vibrators and ointments. He intends and threatens to continue the practice of medicine and to hold himself out as being able to diagnose and treat human diseases, pains and physical conditions.

The complaint sets forth all the requirements of the Education Law respecting the qualifications, examinations and licensing of practitioners, and alleges that defendant lacks the proper qualifications, training and knowledge required by the law; that he has never been examined, licensed or registered as a physician, physiotherapist or osteopath under the laws of this State; and that he has no authority to practice in this State. He has openly, repeatedly and intentionally carried on his practice with full knowledge that he is violating the law of this State and he is endangering the health and welfare of the people. The complaint charges that by reason of the activities of defendant and other chiropractors of the county in publicity and propaganda, that many members of the community have come to believe that regardless of the provisions of law, chiropractors are entitled to practice in this State, even though they practice medicine in doing so,

Article 48 of the Education Law governs fche practice of medicine in this State. We need not advert here to the various provisions of that article. Section 1263 provides for penalties. By subdivision 2:

“ Any person who not being then lawfully licensed or authorized to practice medicine within this state shall

“ (a) Practice or advertise to practice medicine; or

“ (b) Use in connection with his name any designation tending to imply or designate him as a practitioner of medicine; or

“ (c) Use the title ‘ doctor ’ or any abbreviation thereof in connection with his name or with any trade name in the conduct of any occupation or profession involving or pertaining to the public health or the diagnosis or treatment of any human disease, pain, injury, deformity, or physical condition, unless duly authorized by law to use the same; * * * shall be guilty of a misdemeanor.”

That is the punishment prescribed by statute for the unlawful practice of medicine. The question before us on this appeal is whether a court of equity of this State has jurisdiction to enjoin the unlawful activities of defendant,

That a court of equity will not undertake the enforcement of the criminal law, and will not enjoin the commission of a crime is a principle of equity jurisprudence that is settled beyond any question. There can equally be no doubt that the criminal nature of an act will not deprive equity of the jurisdiction that would otherwise attach. (Cranford v. Tyrrell, 128 N. Y. 341 ; Davis v. Zimmerman, 91 Hun, 489 , 492; Matter of Debs, 158 U. S. 564 , 593.) Whether or not the act sought to be enjoined is a crime, is immaterial. Equity does not seek to enjoin it simply because it is a crime; it seeks to protect some proper interest. If the interest sought to be protected is one of which equity will take cognizance, it will not refuse to take jurisdiction on the ground that the act which invades that interest is punishable by the penal statutes of the State. Equity does not pretend to punish the perpetrator for the act; it attempts to protect the right of the party (here the People) seeking relief, and to prevent the performance of the act or acts, which here may injure many.

In an early case in this State, Chancellor Kent laid down a rule which has been often cited (Attorney-General v. Utica Ins. Co., 2 Johns. Ch. 371 ): “ If a charge be of a criminal nature, or an offense against the public, and does not touch the enjoyment of property, it ought not to be brought within the direct jurisdiction of this court, which was intended to deal only in matters of civil right, resting in equity, or where the remedy at law was not sufficiently adequate. Nor ought the process of injunction to be applied, but with the utmost caution. It is the strong arm of the court; and to render its operation benign and useful, it must be exercised with great discretion, and when necessity requires it. Assuming the charges in the information to be true, it does not appear to me that the banking power, in this case, produces such imminent and great mischief to the community, as to call for this sum

In that case an information was filed by the Attorney-General against the defendants, charging them with engaging in banking operations, without any authority under their charter and in violation of the act to restrain unincorporated banking associations. The information concluded with a prayer for an injunction to restrain the company from the business incident to incorporated banks. In refusing an injunction, the opinion of the Chancellor concluded: “ The exercise of the banking power cannot be brought under the head of a public nuisance. It has none of the characteristic marks of a mischief which calls for such a remedy as injunction. It may be endured without excessive public annoyance, until it can be abated by the regular process of the common law. Even if it was a nuisance, I should not deem myself sufficiently authorized to abate it, on the strength of one solitary modern case in the exchequer, by no means analogous. It is well understood, that public nuisances are public offenses, over which the courts of law have had a uniform and undisputed cognizance ” (p. 390). The rule is also stated in 5 Pomeroy’s Equity Jurisprudence (§§ 1890, 1893, 1894).

The stress upon property rights is again repeated in Matter of Debs ( 158 U. S. 564 , 592, 593), where it was said: “ Indeed, it may be affirmed that in no well-considered case has the power of a court of equity to interfere by injunction in cases of public nuisance been denied, the only denial ever being that of a necessity for the exercise of that jurisdiction under the circumstances of the particular case. * * * Again, it is objected that it is outside of the jurisdiction of a court of equity to enjoin the commission of crimes. This, as a general proposition, is unquestioned.

Although invasion of property rights or pecuniary interests is emphasized in some of the earlier cases as a basis for equitable interference, there appeared later a recognition that public health, morals, safety and welfare of the community equally required protection from irreparable injury.

In Stead v. Fortner ( 255 Ill. 468 , 478) the court said: “ The maintenance of the public health, morals, safety and welfare is on a plane above mere pecuniary damage although not susceptible of measurement in money, and to say that a court of equity may not enjoin a public nuisance because property rights are not involved, would be to say that the State is unable to enforce the law or protect its citizens from public wrongs.”

In Kentucky State Board of Dental Examiners v. Payne ( 213 Ky. 382 , 388, 389) the Kentucky Court of Appeals had before it an appeal involving an action to restrain the defendant from practicing dentistry without having first obtained a license as prescribed by statute. The court said: “ * * * Moreover, we are unable to see why the remedy would prevail in cases where purely property rights are involved and withheld in cases where health, and possibly fife, is involved, since to hazard the latter is as much a nuisance as it is to imperil and impair the former, even if we were compelled to place the grounds of our decision upon the right of the Commonwealth to abate a nuisance. But we are not convinced that the right to maintain this action rests solely upon that ground. * * *. It is

And in Commonwealth v. McGovern ( 116 Ky. 212 , 238) it was said: “ Nor do we think that the right of the chancellor to so employ the writ of injunction in this case is dependent upon the fact that a property right be involved. It may be justified upon the higher ground that the morals and safety of the public are involved, and that the public good is of the first consideration.”

In our own State Chief Judge Rtjgeb wrote (Health Dept. v. Purdon, 99 N. Y. 237 , 241) : “ The fact that the teas, the sale of which this action was- brought to restrain, were adulterated, and that their possession for the purpose of sale to the general public was a nuisance subjecting the offenders to an indictment, and in case of sale, to actions for penalties for selling adulterated goods, cannot be successfully controverted; and yet this fact alone is insufficient to support the action. The plaintiffs have thereby established but one of the elements necessary to entitle them to the relief demanded. Courts will not in all cases interfere by way of injunction to restrain the continuance of an illegal trade, the abatement of a nuisance, or the prosecution of a dangerous employment. (Wolcott v. Melick, 3 Stockt. 204; Attorney-General v. Utica Ins. Co., 2 Johns. Ch. 371 .) Its power, however, to do so in case of the exercise of any trade or business which is either illegal or dangerous to human life, detrimental to health, or the occasion of great public inconvenience, is not only

In an action to enjoin defendant from selling and distributing milk to consumers or stores at less than the minimum prices fixed by the New Jersey Milk Control Board for the area in which the defendant conducts its business for sale within the State of New Jersey (State ex rel. State Board of Milk Control v. Newark Milk Co., 118 N. J. Eq. 504 , 513), the court stated the rule: “ Where the property rights of many citizens are involved, it is proper for the government upon their behalf to invoke the powers of equity. Pom. Rem. § 480. A fortiori, the injunctive power may be invoked when the health or very existence of the people is menaced by the deprivation of an essential food commodity, or its service in a contaminated state.” It seems clear, therefore, that a court of equity will extend its protection to the health and safety of the public, and, in a proper case, will enjoin acts which imperil that interest and are a public menace. The Supreme Court of Iowa said: “ * * * the practice of medicine without a license is injurious to the health of all the people, and therefore, under the general statute defining nuisances, constitutes and is a nuisance.” (State v. Howard, 214 Iowa, 60 , 66.) Broadcasting by an unlicensed radio station has been held to be a public nuisance which could be enjoined at the suit of the Attorney-General. (United States v. American Bond & Mortgage Co., 31 Fed. Rep. [2d] 448.) “ It is apparent that the elasticity of the word ‘ nuisance ’ permits courts to stretch it to cover almost any situation which threatens injury to interests of the public.” (Injunctions against Crime, by Harmon Caldwell, 26 Ill. L. Rev. 259, 268.)

Section 1251 of the Education Law provides that: “No person shall practice medicine * * * : unless licensed by the department and registered as required by this

We have pointed out that the fact that a criminal penalty is imposed for the performance of such acts will not deprive equity of its jurisdiction. In equity the court will consider the criminality of the act only to determine whether, under the particular circumstances, equitable intervention is necessary to give adequate protection to the interest invaded or whether justice will be best served by relegating the parties to the criminal court. It is not every violation of a statute, even of the statute under consideration, that calls for equitable interference. But where, as here, it is made to appear as a fact that real danger is threatened to the public health by the conduct of the defendant, that irreparable damage to the health of individuals is likely to result, and that criminal prosecution, even if successful, will not give adequate protection to those in danger, a proper case for injunction has been made out.

There are allegations in the complaint which charge that criminal prosecutions against defendant and others have been unsuccessful due to the reluctance of local juries to convict those defendants. That is not a factor calling for

In some of the other' States, an injunction has been permitted in similar cases. (State v. Anderson, 6 Tenn. Civ. App. 1; Kentucky State Board of Dental Examiners v. Payne, 213 Ky. 382 ; Commonwealth ex rel. Attorney-General v. Pollitt, 258 Ky. 489 ; State ex rel. La Prade v. Smith, 43 Ariz. 131 .) Other States have refused to grant such an injunction. (People ex rel. Shepardson v. Universal Chiropactors’ Assn., 302 Ill. 228 ; Redmond v. State, 152 Miss. 54 ; State v. Maltby, 108 Neb. 578 ; Dean v. State, 151 Ga. 371 .) In People ex rel. Shepardson v. Universal Chiropractors’ Assn, it was stated that what defendants were doing was not a menace to public health, morals, safety or welfare. In Dean v. State (supra) there were no findings of harm, even it it were so conceded the chancellor could find.

The policy of our State in extending the remedy of injunction may be observed in the acts enacted by the Legislature. (Civ. Prac. Act, § 1218, to restrain the unlawful exercise of corporate rights; § 1221-b, to restrain the unlawful practice of law; Gen. Corp. Law [Cons. Laws, ch. 23], §§ 96, 135, 219, to restrain corporations, their officers, etc., under certain circumstances; Agriculture and Markets Law [Cons. Laws, ch. 69], § 38, to restrain the further violation of provisions of that chapter; § 258-e, to enforce compliance with the statute, rules and regulations respecting milk control; § 270-c, to restrain violation of statute, rules or regulations respecting public markets; Public Health Law [Cons. Laws, ch. 45], § 21, board of health may restrain violation of its orders or

In the case at bar the People would not be entitled to an injunction upon a mere showing that the statute had been violated or that acts prohibited by the statute had been performed, in the absence of special statutory authority. However, they go much further than that. They allege facts showing that the acts of defendant imperil the health of the people of the community, and will continue to cause irreparable injury to the health of the people and perhaps to their Uves. The relators invoke only the ordinary powers of a court of equity. The power of the court to restrain acts which are dangerous to human life, detrimental to the public health and the occasion of great public inconvenience and damage is one that is possessed by ah courts of equity. (Health Dept. v. Purdon, supra.) Enough has been shown here, which if proven upon the trial, will warrant the issuance of an injunction.

The judgments should be reversed, and the motion denied, without costs.

O’Beien, Htjbbs, Loughean and Finch, JJ., concur; Lehman and Bjppey. JJ., dissent.

Judgments reversed, etc.