Merz v. Murchison

Nov 15, 1908

Reporters:

Per Curiam.

Heard on appeal.

*459Thе plaintiff, a physician -and surgeon of the city of Sandusky, brought this action in the court of common pleas tо enjoin alleged unlawful and unfair competition by the defendant. The ease is brought to this court by appeal. It presents an important and interesting question not heretofore, so far as we are apprised specifically considered or determined'in any court of this state or other jurisdiction. The defendant wаs engaged in the practice of what he denominates, not medicine or surgery, for which he conceded that he had no license under the medical examination and registration law of Ohio, but the “chiropractic” adjustment of displaced spinal vertebrae, with the result, as claimed, of effecting remarkable and speedy cure of numerous if not all bodily ailments.

The evidence before us discloses that the defendant is under indictment for alleged violation of the statute referred to (R. S., 4403c). With this matter, however, we are nоt concerned, but the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍fact that the acts of the defendant may be such as are forbidden by this penal enactment, may have an incidental bearing on the question of our power as a court of equity to prevent them.

There appears to be no serious- contention by counsel for plaintiff but that, his claim tо the eqrdtable interposition of this court is based mainly, if not wholly, upon this statute. Without legal provisions for the еxamination .and licensing of -physicians and surgeons, one person would be as free as another to practice these professions without interference from the courts. True, there are in plaintiff’s petition .averments that the acts of defendant are fraudulent in intent as well as illegal under the statute, but little emрhasis has been placed on this assertion in argument or support given to it by evidence. However unfoundеd may be defendant’s claims -as to .the merits of the “chiropractic” method of removing the cause оf disease, and with regard to this we express no opinion, we are not convinced that he knows or believes such claims to be false. But were it otherwise, it is not apparent -that the position -of the plaintiff from a legal or equitable standpoint would be greatly strengthened. A court will not interfere with the practice of medicine or -surgery by one person *460on the petition of another, merely because such practice is unskillful .and patients may be injured ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍rather than benefited there-' by, nor because the patients are deceived by false claims of skill.

The plaintiff relies rather on what he earnestly urges is a property right to practice medicine and surgery conferred on him by' his statutory license, and an interference with that рroperty right by the unlawful competition of a person unlicensed.

Probably the statute rather qualifies rights heretofore existing than confers new ones. It is not apparent that the law could stand the test of the cоnstitutional requirement that laws shall be for the equal benefit and protection of the people, if it had no object, purpose or effect other' than to nonfer special privileges upon certain people having certain qualifications to practice medicine, through ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍excluding from such рractice all others not so qualified. The constitutionality of the statute is based on the police powers of the Legislature, and whatever benefit is derived from the statute by those engaged in the practiсe of medicine and surgery is only incidental. The circle of competition may be narrowed by excluding unliсensed competitors, but that is not the purpose of the law. Palmer & Crawford v. Tingle, 55 O. S., 423, 440; State v. Gardner, 58 O. S., 599.

The statute, which is designed to protect thе public, contains certain penal provisions enforcible in behalf of the .public. Can a private individual invoke it in his own behalf, and in a civil proceeding prevent the very acts which the statute fciakes сriminal ?

We quote this language from an .opinion ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍by Lord Mansfield, 2 Burrows, 803:

‘ ‘ The rule is certain, ‘ that where a- statute creates a new offense, by prohibiting and making unlawful anything that was lawful before, and appoints a specific remedy against such new offense (not antecedently unlawful) by .a particular sanction and particular method of proceeding, that particular method of pro. ceeding must be pursued and no other.’ ” •

This rule is followed and applied in Com’rs v. Bank of Findlay, 32 O. S., 194, 200, 201, аnd asserted ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in other phraseology in *461State, ex rel Reynolds, v. the Capital City Dairy Co., 62 O. S., 123-126.

We refer also to High on Injunctions, 4th Ed., Sections 20 and 769. In the latter section the author asserts that an injunction will be withheld against the perpetration of -an act prohibited by publiс statute, the only ground urged for the relief being the diminution of the profits of a trade or business pursued by complаinant in common with others.

While no reported case precisely like the one under our considerаtion has been cited to us, the courts of New York and Texas 'have passed upon conditions and contentions very analogous and have refused the relief here sought. We refer to the cases of Smith et al v. Lockwood & Wood, 13 Barbour (N. Y.), 209, and York v. Yzaguairre (Texas), 71 S. W., 563.

The рrinciples enunciated in those eases, so far as applicable to the ease beforе us, we are disposed to adopt. We have found no others so pertinent to our inquiry. ,,. ■

It is the judgment of the court that plaintiff’s petition be-dismissed.