Opinion
September 15, 1944. —
October 10, 1944.
APPEAL from an order of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Reversed.
For the appellants there were briefs by the Attorney General and William A. Platz, assistant attorney general, and oral argument by Mr. Platz.
For the respondents there was a brief by Wilkie, Toebaas, Hart Jackman of Madison, and oral argument by Oscar T. Toebaas.
Action by Frederick E. Hecker, Albert M. Kelchner, and Orrin E. Meyers, each on behalf of himself and all other duly licensed osteopathic physicians and surgeons similarly situated, plaintiffs, against Gunner Gunderson, Ira. F. Thompson, A.E. Rector, Carl W. Eberbach, Stephen Cahana, W.T. Clark, Stephen E. Gavin, and Carl N. Neupert, being the members of and constituting the State Board of Health of Wisconsin, defendants, commenced April 19, 1944.
The complaint alleges in substance as follows: That plaintiffs are duly registered and licensed to practice osteopathy and surgery in Wisconsin; that defendants are licensed to practice medicine and surgery in Wisconsin; that defendant Carl N. Neupert is the state health officer and secretary and executive officer of the State Board of Health; that defendants are members of the State Board of Health and constitute that board; that plaintiffs bring this action each in his own behalf and in behalf of all other duly licensed osteopaths similarly situated; that there are in Wisconsin about one hundred thirty duly registered and licensed osteopaths and it would be impractical for all to join in this action; that each plaintiff is legally authorized to practice obstetrics, and is a physician authorized to issue birth and death certificates under secs. 69.30 and 69.38, Wis. Stats. It is further alleged:
"That an act of congress of the United States, chapter 221, Public Law 135, known as `Labor-Federal Security Appropriations Act; 1944,' and especially under the subtitle `Maternal and Child Welfare' has granted the sum of $4,400,000 to states for emergency maternity and infant care for wives and infants of enlisted men in the armed forces of the United States under plans prepared and administered and to be prepared and administered by state health agencies and approved by the children's bureau and that by joint resolution of the congress of the United States, known as chapter 253, Public Law 156, an additional fund of $18,600,000 was appropriated to states to further carry out said emergency maternity and infant care program, hereinafter referred to as the EMIC plan, and that a large and substantial part of said funds has been allotted to the state of Wisconsin to carry out the said EMIC plan. That the use of said appropriations by the various states was made subject to the following provisions:
"`. . . Provided, That no part of any appropriation contained in this title shall be used to promulgate or carry out any instruction, order, or regulation relating to the care of obstetrical cases which discriminates between persons licensed under state law to practice obstetrics: Provided further, That the foregoing proviso shall not be so construed as to prevent any patient from having the services of any practitioner of her own choice, paid for out of this fund, so long as state laws are complied with.'"
It is further alleged that by virtue of sec. 146.18, Wis. Stats., the State Board of Health was required to prepare and submit to the children's bureau of the United States department of labor, a state plan for maternal and child-health services in full conformity with all requirements covering federal aid and with a view of securing for the state the maximum amount of federal aid; that the plaintiffs and other osteopaths practicing in Wisconsin, in the belief that they would be included in the EMIC plan, accepted maternity cases of wives and children of enlisted men in the armed forces; that they submitted to the defendants, as the State Board of Health, applications requesting that such services be paid for out of federal appropriation funds; that all such applications were rejected, contrary to law and contrary to the provisions of said Federal Appropriations Act; that prior to July 14, 1943, defendants, acting as the State Board of Health, promulgated a rule that funds obtained from the children's bureau under the Federal Appropriations Act should not be used to pay any person furnishing such obstetrical care unless such person be licensed to practice medicine, be a graduate of a medical school approved by the council on medical education of the American Medical Association, and be licensed to practice in Wisconsin; that none of plaintiffs are licensed to practice medicine and surgery nor are graduates of such schools, but all are graduates of reputable schools of osteopathy and surgery and licensed to practice obstetrics; that on July 14, 1943, the children's bureau of the United States department of labor revoked the instructions requiring minimum qualifications for physicians participating in the EMIC plan, in so far as such instructions related to obstetrical cases in order to comply with the terms of said federal law; that on or about July 14, 1943, the children's bureau requested the state health agencies to resubmit a modified plan or new plan for obstetrical care of wives of enlisted men, said plan to be accompanied by an opinion from the state attorney general certifying that the plan complied with state law; that defendants, as the State Board of Health, resubmitted the former plan, which limited participation, to persons licensed to practice medicine and surgery and who are graduates of certain approved schools; that defendants obtained an opinion of the attorney general, dated October 20, 1943, XXXII Op. Atty. Gen. 395, which approved the former plan excluding osteopaths, and held that osteopaths were permitted to practice midwifery only, and not obstetrics; that said opinion of the attorney general is contrary. to law in that persons licensed to practice osteopathy and surgery are by law permitted to practice obstetrics; that the State Board of Health has given as its reason for excluding osteopaths from participation in the EMIC plan, that such osteopaths are limited to the practice of midwifery only.
It is alleged on information and belief that the children's bureau has approved other state plans which include osteopaths, and if the State Board of Health had submitted a plan including osteopaths, with the attorney general's approval, the children's bureau would have approved such plan and osteopaths would have been permitted to share in the EMIC plan.
It is further alleged that such action on the part of the State Board of Health is an arbitrary discrimination against such osteopaths, contrary to the provisions of the Labor-Federal Security Appropriations Act, 1944, and was based on an erroneous opinion of the attorney general; that the controversy between plaintiffs and defendants turns upon the construction of sec. 146.18; ch. 147, especially secs. 147.14 to 147.17; ch. 150, Wis. Stats.; the Federal Appropriations Act heretofore referred to; and the validity of the rule of the State Board of Health excluding osteopaths from the EMIC plan; that said rule is beyond the powers of defendants, is not warranted by state and federal statutes, and is in violation of the state constitution and federal constitution, Fourteenth amendment, denying equal protection of the laws; that a real and bona fide controversy exists between plaintiffs and defendants, in which plaintiffs contend that: (a) Defendants have no statutory power to limit participation in the EMIC plan to persons licensed to practice medicine and surgery and who are graduates of certain approved colleges; (b) that defendants have no statutory power to exclude osteopaths from the EMIC plan because such rule discriminates between persons licensed under state law to practice obstetrics and violates the second provision of the Federal Appropriations Act prohibiting any construction of the first provision against discrimination that would prevent the patient from choosing her own practitioner; (c) that the plaintiffs and others similarly situated are by their training, education, and scope of their examination by the state board of examiners authorized to practice obstetrics under their license granted pursuant to ch. 147, Wis. Stats., and therefore entitled to share in the EMIC plan; (d) that the State Board of Health did not comply with sec. 146.18, Wis. Stats., requiring that the plan be in full conformity with all requirements covering federal aid, and designed to secure for the state the maximum amount of federal aid.
The complaint further alleges that defendants contend they have power to submit said plan excluding osteopaths from participation in the EMIC plan; that remedy by way of declaratory judgment is appropriate for the reason that:
"The plaintiffs are entitled to have declaratory judgment on the rules of the defendants as the state board of health and it is necessary to settle, adjudicate and determine the rights, status and legal relations of the plaintiffs and others similarly situated respecting the validity and limitation of said rule and said state plan as its application and continued application by said defendants as a state board of health interferes with and impairs and threatens to interfere with and impair the legal rights and privileges of the plaintiffs and their maternity patients who are wives of enlisted men to participate in said EMIC plan. That the relief herein asked for will settle, determine and adjudicate the rights of the state board of health to apply federal funds under said Federal Appropriations Act and any subsequent amendments extending obstetrical care and financial aid under all of the circumstances above set forth."
Plaintiffs asked for a declaratory judgment determining the validity of the rule and state plan of defendants; determining the rights, status, and legal relation of the plaintiffs and other osteopaths to share in the EMIC plan; and determining the duty of the defendants as the State Board of Health to amend or modify its rule and state plan to include plaintiffs and other osteopaths; and for such other relief as might be just and proper. Defendants demurred on the ground that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled by the trial court, with leave to answer within twenty days. Defendants appeal. Further material facts will be stated in the opinion.
The action is one for a declaratory judgment under sec. 227.05, Wis. Stats. The action was commenced by the service of summons and complaint. Sec. 227.05 provides:
"(1) Except as otherwise specifically provided by statute, the validity of any rule may be judicially determined upon petition for a declaratory judgment addressed to the circuit court of Dane county. The court shall hear the petition and render a declaratory judgment thereon only when it appears from the petition and the evidence presented in support thereof that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights and privileges of the petitioner.
"(2) A declaratory judgment may be rendered whether or not the petitioner has first requested the agency to pass upon the validity of the rule in question. In rendering judgment, the court shall give effect to any pertinent (a) constitutional limitations upon the powers of the agency; (b) statutory limits upon the authority of the agency; (c) if the rule in question is an interpretative rule, the limits of correct interpretation; and (d) statutory requirements concerning rulemaking procedures.
"(3) Whenever a decision upon the validity of a rule requires a decision upon an issue of fact concerning the applicability of the rule to the petitioner, the court shall, after deciding the pertinent legal questions, refer the case to the agency for determination of the fact issue under the declaratory ruling procedure provided in section 227.06. Review by the courts of the agency determination may thereafter be had in the manner prescribed for such cases."
The demurrer in behalf of all defendants was on the ground that the complaint does not state facts sufficient to constitute a cause of action. The demurrer raises only the question whether the complaint states a proper case for declaratory relief. Sec. 146.18(1), Wis. Stats., provides:
"The state board of health shall prepare and submit to the proper federal authorities a state plan for maternal and child health services. Such plan shall conform with all requirements governing federal aid for this purpose and shall be designed to secure for this state the maximum amount of federal aid which can be secured on the basis of the available state, county, and local appropriations. It shall make such reports, in such form and containing such information, as may from time to time be required by the federal authorities, and comply with all provisions which may be prescribed to assure the correctness and verification of such reports."
The State Board of Health, pursuant to said section, did prepare and submit to the children's bureau of the United States department of labor a plan for maternal and child-health services in conformity with the requirements governing federal aid with a view to securing for the state the maximum amount of federal aid. Prior to July 14, 1943, defendants, acting as the State Board of Health, promulgated a rule that funds obtained from the children's bureau under the Federal Appropriations Act should not be used to pay any, person furnishing obstetrical care to wives of servicemen unless such person be licensed to practice medicine, be a graduate of the medical schools approved by the council on medical education of the American Medical Association, and be licensed to practice in Wisconsin. None of the plaintiffs are licensed to practice medicine and surgery, nor are they graduates of such schools.
The Federal Appropriations Act, 1944, contained the following provisos:
" Provided, That no part of any appropriation contained in this title shall be used to promulgate or carry out any instruction, order, or regulation relating to the care of obstetrical cases which discriminates between persons licensed under state law to practice obstetrics: Provided further, That the foregoing proviso shall not be so construed as to prevent any patient from having the services of any practitioner of her own choice, paid for out of this fund, so long as state laws are complied with."
On July 14, 1943, the children's bureau revoked the instructions requiring minimum qualifications for physicians participating in the EMIC plan in so far as such instructions related to obstetrical cases in order to comply with the terms of the federal law. On or about said date the children's bureau requested the state health agencies to resubmit a modified plan, or a new plan, for obstetrical care of wives of enlisted men, said plan to be accompanied by an opinion of the state attorney general certifying that the plan complied with state law. On October 20, 1943, the State Board of Health obtained an opinion from the attorney general (XXXII Op. Atty. Gen. 395) which approved the former plan excluding osteopaths, and held that osteopaths were permitted to practice midwifery only and not obstetrics. The State Board of Health then resubmitted to the children's bureau the former plan which limited participation in the EMIC plan to persons licensed to practice medicine and surgery, and who are graduates of certain approved schools. Thereupon, the children's bureau of the United States department of labor approved the plan submitted by the State Board of Health. That plan is being carried out by the children's bureau. It was the approval of the plan by the federal bureau that gave the EMIC program its vitality.
From the foregoing, we conclude that the allegations of the complaint, as well as the relief demanded, are solely concerned with the proper distribution of federal funds by a federal administrative board, through the Wisconsin State Board of Health acting as its agent. The several appropriations made by congress to carry out the EMIC program were all made to the United States department of labor, children's bureau, which bureau allots the funds to the several states to carry out the program according to plans approved by the federal bureau. That puts this controversy out of our reach. No facts are alleged in the complaint to the effect that any osteopath has been deprived of the right to practice obstetrics or that any such action has been threatened. Neither is any declaration demanded along this direction. The pleadings, therefore, state no cause of action for declaratory relief on this point, and it hardly needs to be said that this determination neither forecloses nor predetermines the merits of such an action.
By the Court. — Order reversed. Cause remanded with directions to enter an order sustaining the demurrer, and dismissing the action.