Miscellaneous Businesses and Professions.

The practice of medicine, using this word in its most general sense, has long been the subject of regulation.268 A state may exclude osteopathic physicians from hospitals maintained by it or its municipalities269 and may regulate the practice of dentistry by prescribing qualifications that are reasonably necessary, requiring licenses, establishing a supervisory administrative board, or prohibiting certain advertising regardless of its truthfulness.270 The Court has sustained a law establishing as a qualification for obtaining or retaining a pharmacy operating permit that one either be a registered pharmacist in good standing or that the corporation or association have a majority of its stock owned by registered pharmacists in good standing who were actively and regularly employed in and responsible for the management, supervision, and operation of such pharmacy.271

Although statutes requiring pilots to be licensed272 and setting reasonable competency standards (e.g., that railroad engineers pass color blindness tests) have been sustained,273 an act making it a misdemeanor for a person to act as a railway passenger conductor without having had two years’ experience as a freight conductor or brakeman was invalidated as not rationally distinguishing between those competent and those not competent to serve as conductor.274 An act imposing license fees for operating employment agencies and prohibiting them from sending applicants to an employer who has not applied for labor does not deny due process of law.275 Also, a state law prohibiting operation of a “debt pooling” or a “debt adjustment” business except as an incident to the legitimate practice of law is a valid exercise of legislative discretion.276

The Court has also upheld a variety of other licensing or regulatory legislation applicable to places of amusement,277 grain elevators,278 detective agencies,279 the sale of cigarettes280 or cosmetics,281 and the resale of theater tickets.282 Restrictions on advertising have also been upheld, including absolute bans on the advertising of cigarettes283 or the use of a representation of the United States flag on an advertising medium.284 Similarly constitutional were prohibitions on the solicitation by a layman of the business of collecting and adjusting claims,285 the keeping of private markets within six squares of a public market,286 the keeping of billiard halls except in hotels,287 or the purchase by junk dealers of wire, copper, and other items, without ascertaining the seller’s right to sell.288

Footnotes

268
McNaughton v. Johnson, 242 U.S. 344, 349 (1917). See Dent v. West Virginia, 129 U.S. 114 (1889); Hawker v. New York, 170 U.S. 189 (1898); Reetz v. Michigan, 188 U.S. 505 (1903); Watson v. Maryland, 218 U.S. 173 (1910); See also Barsky v. Board of Regents, 347 U.S. 442 (1954), sustaining a New York law authorizing suspension for six months of the license of a physician who had been convicted of crime in any jurisdiction, in this instance, contempt of Congress under 2 U.S.C. § 192. Justices Black, Douglas, and Frankfurter dissented. back
269
Collins v. Texas, 223 U.S. 288 (1912); Hayman v. Galveston, 273 U.S. 414 (1927). back
270
Semler v. Dental Examiners, 294 U.S. 608, 611 (1935). See also Douglas v. Noble, 261 U.S. 165 (1923); Graves v. Minnesota, 272 U.S. 425, 427 (1926). back
271
North Dakota State Bd. of Pharmacy v. Snyder’s Drug Stores, 414 U.S. 156 (1973). In the course of the decision, the Court overruled Liggett Co. v. Baldridge, 278 U.S. 105 (1928), in which it had voided a law forbidding a corporation to own any drug store, unless all its stockholders were licensed pharmacists, as applied to a foreign corporation, all of whose stockholders were not pharmacists, which sought to extend its business in the state by acquiring and operating therein two additional stores. back
272
Olsen v. Smith, 195 U.S. 332 (1904). back
273
Nashville, C. & St. L. R.R. v. Alabama, 128 U.S. 96 (1888). back
274
Smith v. Texas, 233 U.S. 630 (1914). See DeVeau v. Braisted, 363 U.S. 144, 157–60 (1960), sustaining a New York law barring from office in a longshoremen’s union persons convicted of a felony and not thereafter pardoned or granted a good conduct certificate from a parole board. back
275
Brazee v. Michigan, 241 U.S. 340 (1916). With four Justices dissenting, the Court in Adams v. Tanner, 244 U.S. 590 (1917), struck down a state law absolutely prohibiting maintenance of private employment agencies. Commenting on the “constitutional philosophy” thereof in Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 535 (1949), Justice Black stated that Olsen v. Nebraska ex rel. Western Reference and Bond Ass’n, 313 U.S. 236 (1941), “clearly undermined Adams v. Tanner.” back
276
Ferguson v. Skrupa, 372 U.S. 726 (1963). back
277
Western Turf Ass’n v. Greenberg, 204 U.S. 359 (1907). back
278
W.W. Cargill Co. v. Minnesota, 180 U.S. 452 (1901). back
279
Lehon v. Atlanta, 242 U.S. 53 (1916). back
280
Gundling v. Chicago, 177 U.S. 183, 185 (1900). back
281
Bourjois, Inc. v. Chapman, 301 U.S. 183 (1937). back
282
Weller v. New York, 268 U.S. 319 (1925). back
283
Packer Corp. v. Utah, 285 U.S. 105 (1932). back
284
Halter v. Nebraska, 205 U.S. 34 (1907). back
285
McCloskey v. Tobin, 252 U.S. 107 (1920). back
286
Natal v. Louisiana, 139 U.S. 621 (1891). back
287
Murphy v. California, 225 U.S. 623 (1912). back
288
Rosenthal v. New York, 226 U.S. 260 (1912). The Court also upheld a state law forbidding (1) solicitation of the sale of frames, mountings, or other optical appliances, (2) solicitation of the sale of eyeglasses, lenses, or prisms by use of advertising media, (3) retailers from leasing, or otherwise permitting anyone purporting to do eye examinations or visual care to occupy space in a retail store, and (4) anyone, such as an optician, to fit lenses, or replace lenses or other optical appliances, except upon written prescription of an optometrist or ophthalmologist licensed in the state is not invalid. A state may treat all who deal with the human eye as members of a profession that should refrain from merchandising methods to obtain customers, and that should choose locations that reduce the temptations of commercialism; a state may also conclude that eye examinations are so critical that every change in frame and duplication of a lens should be accompanied by a prescription. Williamson v. Lee Optical Co., 348 U.S. 483 (1955). back