England v. Louisiana State Board of Medical Examiners/Concurrence-dissent Black

Mr. Justice BLACK, concurring in part and dissenting in part.

I join in the judgment and in the opinion insofar as the Court holds that the District Court erred in the reasons it gave for dismissing appellants' action. I am of the opinion, however, that the dismissal should be affirmed on the grounds relied upon by Judge J. Skelly Wright sitting alone in the District Court when the action first was brought: that the complaint failed to state a substantial federal question warranting exercise of jurisdiction. See Hitchcock v. Collenberg, 140 F.Supp. 894 (D.C.D.Md.), aff'd, 353 U.S. 919, 77 S.Ct. 679, 1 L.Ed.2d 718; cf. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152. Compare Louisiana State Board of Medical Examiners v. Fife, 162 La. 681, 111 So. 58, aff'd, 274 U.S. 720, 47 S.Ct. 590, 71 L.Ed. 13 4; Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623. See also Judge Wisdom's opinions dissenting from reversal of Judge Wright's ruling, 259 F.2d 626, 627 (C.A.5th Cir.), and 263 F.2d 661, 674 (C.A.5th Cir.). Although a petition for certiorari to review the decision of the Fifth Circuit was denied, 359 U.S. 1012, 79 S.Ct. 1149, 3 L.Ed.2d 1036, issues raised at that stage of the litigation which remain dispositive of the case are properly before us. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282.