84 Kan. 411 | Kan. | 1911
Lead Opinion
The first count of the information charges: that the appellee “did then and there unlawfully and' willfully practice medicine and surgery . . . by then and there attempting to treat for a fee one William Mershon, sr., who was then and there afflicted with bodily infirmities and who was then and there sick, the-nature and extent of said sickness and bodily infirmities being to informant unknown, by then and there-pretending to adjust the vertebrae of the said William Mershon, sr.” A motion to quash was sustained, and', the state appeals.
The second, third, fourth and fifth counts are similar to the first, except that they omit “pretending to adjust, the vertebrae.” The sixth count charges the appellee; with advertising in a newspaper:
“Chiropractic. P. W. Johnson, D. C., the chiropractor of Hutchinson, Kan., will be in Stafford, at Hotel’ Brinkman, Tuesday and Friday, 9 A. M. to 1 P. M. If' you are afflicted in any way, or have tried everything-else without results, try chiropractic spinal adjustment.”
The cause has been so presented and argued that we-deem it proper to consider the first and sixth counts-only. The record shows that the trial court sustained, the motion to quash “for the reason that it is agreed by both sides that said P. W. Johnson is a chiropractic- and practicing his profession as such, and is a graduate-of some school which teaches chiropractic and stands-ready to take an examination in chiropractic before the state board of medical registration, but that the statutes, of the state make no provision for granting a license to one practicing chiropractic, and has applied to take-such examinations before said board, but it has refused to examine him or grant him a license to practice in Kansas.”
The appellant contends that the appellee comes:
The appellee insists that, being a graduate of a school which teaches chiropractic and standing ready to take an examination therein, he is not a physician, surgeon or osteopathist,- and is not in any sense “practicing medicine and surgery”; and that the statute can not be extended to cover his case without violating. the constitution in various ways.
We have no doubt whatever that the legislature may prescribe reasonable restrictions and qualifications touching the healing art in any of its departments without impairing any constitutional rights. (The State v. Creditor, 44 Kan. 565; The State v. Wilcox, 64 Kan. 789; Meffert v. Medical Board, 66 Kan. 710.) While the power does not exist to give one particular school of medicine a monopoly or to prohibit the citizen from using or employing the ordinary home remedies and neighborly ministrations, still, when one holds himself out to the public as a healer of disease by the use of means or methods vouched for by him, and for which he receives pay, the legislature may, for the protection of the citizen from quackery or imposture, require such person to possess and show certain qualifications for doing properly what he does and what he receives pay for doing.
It is essential to ascertain whether or not the legislature has made provision for a case of this kind. In 1870 chapter 68 was enacted, the title reading as fol
“An act to create a state board of medical registration and examination, and to regulate the practice of medicine, surgery and osteopathy in the state of Kansas, prescribing penalties for the violation thereof, and repealing chapter 68 of the Session Laws of 1870.”
Chapter 63 of the Laws of 1908 is entitled:
“An act amending chapter 254 of the Laws of 1901, the same being an act entitled ‘An act to create a state board of medical registration and examination, and to regulate the practice of medicine, surgery and osteopathy in the state of Kansas, to provide penalties for the violation thereof, and repealing chapter 68 ,of the'Session Laws of 1870,’ and repealing section 6 of chapter 254 of the Laws of 1901.”
This, it will be seen, leaves the title substantially as it was in 1901, so that the legislation now in force is to “regulate the practice of medicine, surgery and osteopathy.” It is earnestly insisted that the act can be no broader than its title, and that chiropractic is not medicine or surgery or osteopathy, and therefore is left untouched by these provisions; that the rule of noscitur a sociis restricts the words found in the act of 1908 to their associates, medicine, surgery and osteopathy, and that this language can by no fair intendment be given sufficient elasticity to reach chiropractic. The language as amended is that anyone shall be “regarded as practicing medicine and surgery within the
The words italicized are the ones inserted by the act of 1908.
Webster’s New International Dictionary defines chiropractic as “a system of healing that treats disease by manipulation of the spinal column.” Counsel for appellee advises us that “the chiropractor claims that all the diseases which are in any way affected by his adjustments are caused by the partial displacement of the vertebrae, thus causing the nerves which pass through the openings in the vertebrae to press against the sides of the openings and prevent the life fluid from flowing freely through the nerve to the part of the human sys
It may be argued that, giving the entire language a ■close, critical and discriminating meaning and construction, this 'method of so-called treatment is in no sense the product of medicine or surgery, and would, indeed, come more nearly under the term osteopathy. But the manifest object and intent of the legislature was to protect the public from ignorance and imposition in the healing art. Osteopathy is carved out as a separate department, and registration and license are required, while its practitioners are prohibited from giving medicine and performing surgical operations — that is, from practicing medicine and surgery as distinguished from osteopathy. But medicine and surgery, which the appellee is charged with attempting to- practice, by common use and adjudged meaning, cover a wide portion of the domain of. healing, and may and should be held to cover the case of one who, not claiming to be a physician or surgeon, really practices
In State v. Miller, (Iowa, 1910) 124 N. W. 167, the supreme court of Iowa sustained a conviction and held an indictment good which charged that the defendant “did wrongfully and unlawfully publicly profess to be a physician, . . . and to cure and heal diseases, nervous disorders, displacements, injuries, and ailments by means of a certain system and treatment known as chiropractic” (p. 167), under a statute which was formerly entitled “An act to regulate the practice of medicine and surgery in the state of Iowa” (p. 168),
“He gave no medicine, nor did he prescribe medicine. His system consisted of certain mechanical appliances which were used in connection with hand manipulations and an electric vibrator.” (p. 168.)
But that the case fell squarely within the ruling in State v. Heath, 125 Iowa, 585, which held that the Iowa statute referred to includes magnetic healers, and State v. Edmunds, 127 Iowa, 333, which held that the statute includes one who attempts to cure by prescribing diet and eyeglasses. In The People v. Arendt, 60 Ill. App. 89, midwifery was held to be included within the provisions of an act regulating the practice of “medicine in any of its departments” (p. 91) without possessing certain qualifications. In Benham v. The State, 116 Ind. 112, one who held himself out as a physician and advertised that he treated and cured persons afflicted with the opi¿im habit was held to violate “An act regulating the practice of medicine, surgery and obstetrics,” etc. (p. 113.) In Parks v. State, 159 Ind. 211, substantially the same statute was held to include a “professor” who held himself out as a magnetic healer and who treated a lame ankle by holding and rubbing the afflicted parts. In The People v. Gordon, 194 Ill. 560, a magnetic healer who gave treatment in the nature of osteopathic treatment by “rubbing or kneading the body, for the purpose.of freeing the nerve force” (syl. ¶2), was held to be included in the expression “who shall treat or profess to treat, operate on or prescribe for any physical ailment or any physical injury or deformity of another.” (Syl. ¶ 1.) The practice of obstetrics'was, in State v. Welch, 129 N. C. 579, held to be the practice of medicine, following and approving State v. Van Doran, 109 N. C. 864. Osteopathy was held to be within the practice of medicine in Eastman v. The People, 71 Ill. App. 236. The Missouri court of appeals, in State v. Blumenthal, 141 Mo. App.
“That term seems to signify some disease or diseases of the eye and we can see no reason why one who prescribes medicine for such diseases would not be as guilty as by any other name. It is the act committed, and not its designation, which constitutes the offense.” (p.-505.)
In Bragg v. The State, 134 Ala. 165, it was held that osteopathy is within “the practice of medicine in any of its branches or departments” (p. 170), and that the term “practicing medicine” includes not simply those who prescribe drugs or other medicinal substances as remedial agents, but those also “who diagnose disease and prescribe or apply any therapeutic agent for its cure.” (Syl. ¶2.) The supreme court of Nebraska,, in State v. Buswell, 40 Neb. 158, held that an act to establish a state board of health to regulate the practice of medicine, surgery and obstetrics must be construed to include the practice of so-called Christian Science, which appeared to be .both drugless and successful, for one witness testified that after being bitten by a rattlesnake he at once sought the defendant and the pain ceased after his treatment, and that during the second treatment the patient “felt it come right through” (p. 162) him and from that time on he had no more pain. In State v. Bresee, 137 Iowa, 673, one who did not assume to be a physician, but who after-diagnosing a case prescribed and sold a tissue food, was held to be practicing medicine, and in People v. Allcutt, 102 N. Y. Supp. 678, one was- held to be practicing medicine who advertised himself as a doctor-practicing mechano-neural therapy and diagnosed cases, and prescribed diet, conduct and simple remedies. In Witty v. State, (Ind. 1910) 25 L. R. A., n. s., 1297, one who held himself out as a doctor able to cure disease-by suggestive therapeutics and who treated disease by
The foregoing authorities, among many others, are sufficient, we think, to support the contention of the ■state that the first and sixth counts of the indictment were erroneously quashed. The legislature has, by the ■statutes referred to, treated osteopathy as a separate -department, and covered all the other branches of the healing art by the term medicine and surgery. As .new schools of practice come into favor their followers must possess the requirements for the practice of medicine or surgery, or prevail upon the legislature to make separate provision for them as it has done for ■‘the osteopath.
The ruling of the trial court is reversed.
Dissenting Opinion
(dissenting) : The appellee, as shown
by the record, is a graduate of some school which teaches chiropractic, and has applied to the state board of medical registration and examination to be given an examination and license to practice his profession, and his application has been denied, the statutes making no provision for granting such license. He does not profess to practice or to understand medicine, surgery or osteopathy, but “is a chiropractic practicing his profession.” His theory seems to be that by the adjustment of the vertebras certain ailments can be remedied, by relieving the nervous pressure incident to spinal maladjustment.
From all that can be found in the record and in the dictionary chiropractic is not osteopathy, for the latter includes kneading, rubbing and the manipulation of the entire body, and, as its derivation necessarily signifies, it has special reference to the osseous structure. The legislature, by the act of 1901, included within the healing art three departments — medicine, surgery, and osteopathy. It could as easily and as constitutionally have included the three in the practice of
“All persons who practice osteopathy shall be registered and licensed as doctors of osteopathy, as herein-before provided, but they shall not administer drugs or medicine of any kind nor perform operations in surgery.”
Language could not more clearly show an intention to distinguish utterly between osteopathy and the practice of medicine and surgery than does this.
Chiropractic is a word so unfamiliar that counsel assert that it can not be found in the dictionaries, and
But the legislature has not yet caught up with chiro
But lest these remarks be considered dogmatic I will refer to a few decisions which seem to give support to the view that a reasonable construction of the present statute precludes the inclusion of chiropractic. In Nelson v. State Board of Health, 108 Ky. 769, it was held by the Kentucky court of appeals that osteopathy is not the practice of medicine in any of its departments. The act was entitled “An act to protect citizens of this commonwealth from empiricism” (p. 771), and one section thereof prohibited any person living in the state from practicing or attempting “to practice medicine in any of its branches, or who shall treat or attempt to treat any sick or afflicted person by any system or method whatsoever, for reward or com* pensation” (p. 774), without complying with the provisions of the act. The court quoted with approval (p. 779) from Smith v. Lane, 24 Hun (N. Y. Supr. Ct.) 632, where, in speaking of osteopathy, it was said:
“While it might be no benefit, it could hardly be possible that it could result in harm or injury. . . . His system of practice was rather that of nursing than of either medicine or surgery. ... He neither gave nor applied drugs or medicine, nor used surgical instruments. He was outside of the limits of both professions, and neither one of the schools or societies mentioned in the act had jurisdiction over him.” (pp. 634, 635.)
The Kentucky court, in speaking of Nelson, said:
“If by kneading and manipulating the body of the patient he can give relief from suffering, we see no reason why he should not be paid for his labor as*425 other laborers. Services in kneading and manipulating the body are no more the practice of medicine than services in bathing a patient to allay his fever or the inflammation of a wound.” (108 Ky. 782.)
The supreme court of Ohio, in The State of Ohio v. Liffring, 61 Ohio St. 39, decided that osteopathy is not within the terms of an act “to regulate the practice of medicine” (syl.) which forbids the prescribing of any “drug or medicine or other agency” (syl.) by a person’ not registered by the state board of medical registration and examination. In the opinion it was said:
“In obedience to the maxim, noscitur a sotáis, the meaning of the word agency must be limited by that of the associated words ‘drug’ and ‘medicine.’ . . . It requires the conclusion that the agency intended by the legislature is to be of the general character of a drug, or medicine, and to be applied or administered, as are drugs or medicines, with a view to producing effects by virtue of its own potency.” (pp. 50, 51.)
After this decision the statute was amended, bringing within the term “practice of medicine” one “who shall prescribe, or who shall recommend for a fee for like use, any drug or medicine, appliance, application, operation or treatment, of whatever nature, for the cure or relief of any wound, fracture or bodily injury, infirmity or disease” (2 Bates’s Ann. Ohio Stat., 6th ed., § 4403f), the amendment also making specific provision for registration by osteopaths; and in The State of Ohio v. Gravett, 65 Ohio St. 289, the amendments were held to include the practice of osteopathy. This was merely deciding that the practice of osteopathy was comprehended within the words “appliance, application, operation or treatment, of whatever nature,” and this under an act which did not by its title purport to separate osteopathy from medicine and surgery and which had manifestly been amended for the very purpose of including osteopathists. However, in Hayden v. State, 81 Miss. 291, the supreme court of
“A wise legislature sometime in the future will doubtless make suitable regulations for the practice of osteopathy, so as to exclude the ignorant and unskillful practitioners of the art among them. The world needs and may demand that nothing good or wholesome shall be denied from its use and enjoyment.” (p. 299.)
In Bennett v. Ware, 4 Ga. App. 293, the court of appeals of Georgia in 1908 held that prima facie a “magic healer” who takes the money of the sick and professes to heal them without the use of medicine, by placing his hands upon that portion of the body that is affected by pain, and claims that the healing results from “magic power given directly from the Lord,” is engaged in a fraudulent practice, but that he is not thereby engaged in the practice of medicine. The statute under which this “magic healer” was prosecuted provided: ' -
“The words ‘practice medicine’ shall mean, to suggest, recommend, prescribe or direct, for the use of any person, any drug, medicine, appliance, apparatus, or other agency, whether material or not material, for the cure, relief or palliation of any ailment or disease of the mind or body, or for the cure or relief of any wound, fracture or other bodily injury, or any deformity, after having received, or with the intent of receiving therefor, either directly or indirectly, any bonus, gift or compensation.” (Code of Ga., vol. 1, § 1478.)
The court held that an examination of the statute showed an intention to recognize only three systems or schools of medicine — the allopathic, homeopathic and eclectic, no means being provided for a practitioner
“It may be conceded that" the words ‘material or not material’ are sufficiently broad to include at least every human or natural agency. But was it intended by the legislature to denominate as a medical agency, whether material or not material, an agency claimed to be supernatural? ... In other words, the ' word ‘agency,’ even as qualified by the words ‘material or not material,’ was intended by the legislature to mean a substance.of the general character of a drug or medicine, or surgical apparatus or appliance, the obvious purpose being to protect society against the evils which might result from the use of drugs and medicines by the ignorant and unskillful.” (4 Ga. App. 297, 298.)
In The People v. Smith, 208 Ill. 31, a traveling seller •of spectacles advertised himself as a famous eye expert, and invited those afflicted with divers ills, including dizziness, neuralgia, headaches, trembling spells, and various nervous brain affections, to call on him •and have spectacles fitted which would benefit his patrons. It was held that while it is a well-known fact that headaches, dizziness and- other similar ailments -often result from defective vision, which may be relieved by the use of spectacles, still, to hold that this man was professing “to treat, operate on or prescribe for any physical ailment or any physical injury to or deformity of another” (p. 33) was not warranted. The court said:
“While the statute under consideration is a wise and liumane regulation for the protection of the public, and should be rigidly enforced, the construction here •contended for could have no other effect than to bring it into disrepute.” (p. 34.)
While we are not advised what qualifications the school which graduated the appellee required him to possess, the presumption of innocence is probably broad enough to warrant the assumption that the requirement
' The ruling of the trial court should be affirmed as to the first and sixth counts of the information.
