State v. Maltby, 108 Neb. 578

State v. Maltby

108 Neb. 578 | Neb. | 1922

Lead Opinion

Paine, District Judge.

This is a suit in equity brought by the state of Nebraska, through its attorney general, to enjoin Ethel Thrall Maltby, defendant, from maintaining a public office in the city of Omaha in which she gives chiropractic treatments and administers and prescribes drugs to her patients without first having obtained a license. A temporary injunction was granted by the district court for Douglas county, but later a demurrer was sustained and a permanent in-. junction denied, and the plaintiff electing to stand upon its demurrer, the case was thereupon dismissed, from which order the state of Nebraska plaintiff appeals to this court.

The petition may be briefly summarized as follows: That the defendant is a resident of and doing business and maintaining an office in the Elks Building in Omaha, Nebraska; that she has for more than two years there maintained an office in which she has engaged in the practice of chiropractic; that this profession consists in the treatment of diseases or ills of the human body by adjustment by hand of the vertebrae of the spine; that chapter 197, Laws 1915, requires that persons desiring 'to engage in chiropractic shall first pass an examination and secure a license, without which no person is permitted to practice chiropractic in this state; that defendant has failed refused and neglected to submit herself to such examination or to procure the required license; that during said time she has falsely represented herself to be a qualified. *580licensed chiropractor, and has used the title “D. C.” meaaing Doctor of Chiropractic, to induce any and all persons to submit their bodies to her manipulation • and adjustments; that the laws dealing with said practice were enacted for the protection of the health and welfare of the people, and designed to prevent ignorant and unskilled persons without proper knowledge of anatomy to make the adjustments which, it is claimed, will relieve the pressure on the nerves, and so allow nature's nerve energy to flow freely to and from the brain; that the lives of the public were endangered by quacks and charlatans who were practicing upon the bodies of men, women and children, without proper qualifications, thereby constituting themselves public nuisances; that the state board of chiropractic organized under the above law of 1915 has at all times been willing and ready to examine all applicants for licenses; that said board has frequently notified this defendant that she was violating the law and endangering the health and welfare of the people of Nebraska; that she has also been notified by the department of public welfare as well as by the attorney general’s department of this state that unless she obtained a license a criminal complaint would be filed against her; but that in open disregard thereof she has openly, publicly, persistently, intentionally and continuously refused to obey the law, and has publicly stated upon many occasions that she would disregard any criminal prosecutions filed against her for so practicing without a license, and was certain she would be acquitted if arrested and tried, and that she would continue to practice chiropractic even though one or more criminal prosecutions should be brought against her; that, in addition to the above, she has been guilty during all of said times of practicing medicine by administering and prescribing drugs to her patients, all without a license; that by such acts she has become a public nuisance, detrimental to the public welfare, dangerous to public health, against public policy, and contrary to the laws of the state of Nebraska; .that such acts and practice on the part of the defendant *581constitute an open and continuous public nuisance in the city of Omaha, which cannot be stopped ór abated except by an injunctive order of a court of equity, and that plaintiff is without an adequate remedy at law, or means whereby the open, continuous, persistent and repeated violations of the law may be prevented and the health and welfare of the public protected and conserved. Following these and many other allegations of the petition, there was a prayer in apt language asking that a temporary injunction be granted, and that upon a final hearing a permanent injunction should restrain Ethel Thrall Maltby, defendant, from continuing to practice chiropractic medicine in Douglas county without first procuring a license as pro-. vided by law.

It may aid in discussing the questions at issue to define the term involved herein. Chiropractic is a system of healing that treats disease by manipulation of the spinal column. There are three general classes of healing at the present time: (1) Medical, as followed by the general and ordinary physicians and surgeons. (2) Mechanical, as employed in osteopathy and chiropractic. (3) Mental healing, as taught by Christian Science and other sects.

The main question presented in this case is: Shall an injunction be granted to enforce the provisions of a criminal statute? Our law books are full of instances in which the same offense gives rise to a civil action and also to a criminal prosecution. In this case the petition recites facts which, taken as true for the purposes of this demurrer, show that the law relating to chropractic is being flagrantly violated at the office of the defendant in the city of Omaha, and the state maintains that such an office may be enjoined as a public nuisance affecting the health, morals or safety of the community. “In early times the English court of chancery, not without much protest on the part of common law courts, occasionally issued injunctions to restrain the commission of certain criminal acts. * * It is now the rule that, where acts complained of are violations of the criminal law, courts of equity will not *582on that ground alone interfere by injunction to prevent their commission, as they will not exercise their powers for- the purpose of enforcing criminal laws by restraining criminal acts.” 14 R. C. L. 376, sec. 78. However, in -the case of public nuisances, an exception to this general rule seems to be well recognized; “it being held that, though such a nuisance is indictable, yet a court of equity may, at the instance of the properly constituted public authority, issue an injunction as giving more effectual and complete relief than can be afforded in a court of law.” 14 R. C. L. 379, sec. 80. Examples of injunctions against public nuisances may be cited, such as an injunction from using a building to conduct an illegal prize fight in the case of Columbian Athletic Club v. State, 143 Ind. 98, 52 Am. St. Rep. 407; and the three cases combined in Res-pass v. Commonwealth, 131 Ky. 807, 21 L. R. A. n. s. 836, deciding that gambling houses or poolrooms where money was to be bet on horse races are public nuisances.' Injunctions have also been granted to restrain managers of ii lottery from proceeding with further drawings (State v. Maury, 2 Del. Ch. 141); and to restrain the pollution of a stream by draining water from a cemetery into it, which was also a crime (Barrett v. Greenwood Cemetery Ass’n, 159 Ill. 385, 31 L. R. A. 109).

In the case of Beisel v. Crosby, 104 Neb. 643, this court enjoined an undertaker from conducting a funeral home in an exclusively residential district of the city of Omaha for the reason that no relief the law afforded would remedy the wrong that was threatened.

Judge Sedgwick in State v. Chicago, B. & Q. R. Co., 88 Neb. 669, 34 L. R. A. n. s. 250, says: “The repeated, continuous and persistent violations of the statutes are what make them nuisances, independent of the express terms of the statute declaring them to be such. Indeed, we would think that every place where a public statute is openly, publicly, repeatedly, continuously, persistently and intentionally violated is a public nuisance.”

The attorney general contends that under this defini*583tion the practice of chiropractic by the defendant is a public nuisance. It is illuminating to note that the definition relied upon was taken from the case of State v. Crawford, 28 Kan. 726, 42 Am. Rep. 182, and was not given as a rule for equity courts to follow, but was founded upon a Kansas statute, in force since 1859, in which the legislature had declared that all places where intoxicating liquors were sold in violation of law Avere common nuisances and should be shut up and abated as public nuisances. And the court finds that, even after giving the Arery broad and general definition of public nuisances relied upon in this case, the Kansas court affirmed the lower court in refusing to grant the injunction prayed for, and said that keeping such an illegal saloon open may not be enjoined in a court of equity.

The granting of the injunction in the case of State v. Chicago, B. & Q. R. Co., supra, was necessary, because the attempt to stop the serving of liquor on dining cars by criminal arrest of each participant therein Avould be impossible, especially in those counties Avhere stops were infrequently made, and would result, not only in a multiplicity of suits, but might in the end be entirely futile and ineffectual; while in the case at bar there is but one individual offender avIio, it is alleged, has defied the law and threatens to continue to AÚolate the lavv, even though complaints are filed against her.

The cases examined thus far have all involved the misuse of buildings or property or dining cars, and do not establish any precedent for the use of an injunction against one Avoman Avho fails to follow the law requiring chiropractors to be examined and licensed. When new schools of practice come into existence, their adherents are not qualified to pass the examinations by boards already established. Failing to be licensed under existing laws, their followers must prevail upon the legislature to legalize their particular mode of practice or they can be arrested and punished. In response to such a call the legislature in 1915 passed a law licensing chiropractors and providing a fine of $200 *584and imprisonment up to one year in the county jail, or both, for failure to be examined and secure a license. In 1919 the legislature saw fit to amend this law as found in chapter 190, and cut the punishment provided to a fine of not to exceed $100, or by imprisonment of not to exceed three months.

Our attention has been called to a decision by the supreme court of Illinois which involves the exact point at issue. The attorney general and other state officers of that state brought a bill for injunction against an association consisting of 52 chiropractors, alleging conspiracy to defy the laws and continue practicing without a license, and, although many of the members had been arrested and punished with fines, the association protected its members by paying all fines and costs, and all of them continued to practice without a license. That case is much stronger than the case presented to this court, yet that court said: “All the bill alleges appellees to propose to do is to continue to practice without a license, which would be a misdemeanor for which punishment is provided and an adequate remedy at law exists.” People v. Universal Chiropractors’ Ass’n, 302 Ill. 228.

This court finds that the office or residence where a person is practicing chiropractic without a license is not a public nuisance, and neither is such an offender who violates the law in this respect. The statute of Nebraska regulating the practice of chiropractic recognizes such a profession as a legal one and undertakes to regulate it, and such a law is not prohibitive in its provisions, as is a liquor law, and therefore violations of its provisions should be punished by the criminal process, and not by injunction. If the punishment provided is not sufficient, recourse should be had to the legislature, and not to the equity side of the courts.

Affirmed.

Dissenting Opinion

Rose, J.,

dissenting.

Defendant is openly and defiantly practicing chiropractic daily without a license in violation of law.

*585When the state, for the protection of public health, applies for an injunction to prevent a continuing, public nuisance created by the practice of an unlicensed chiro praetor, a court of equity should not abdicate merely because the unlawful acts constituting the nuisance are punishable as misdemeanors.

Misdemeanors committed by an unlicensed chiropractor to an extent amounting to a public nuisance may be enjoined by a court of equity without interfering with the right to jury trials in criminal prosecutions for prior misdemeanors, if such a right exists.

The criminal prosecution of an unlicensed chiropractor who openly defies the public prosecutors and, in spite of law and prosecutions, threatens to continue an unlawful practice amounting to a public nuisance, which, through ignorance and lawlessness, may result in the violation of quarantine regulations and in the spread of epidemics, is not an adequate remedy for the protection of the public. It would be better to abate the nuisance in advance by injunction than to rely on criminal' prosecutions after a calamity has befallen the public.

This application of the state for an injunction has an intimate relation to public health and to the laws on that subject. Supplementing the statutes already in existence the legislature, in 1919, prohibited the practice of chiropractic without a license. The qualifications of a practitioner of chiropractic and the conditions of procuring a license are defined by statute. Educational training equivalent .to that of a regular high school course of four years is required. An applicant for a license must be a graduate of a chartered chiropractic school after a personal attendance of not less than three terms of nine months each. In addition, an applicant must pass successfully an examination by a public board, and the subjects include “anatomy, physiology, chiropractic, symptomatology, nerve tracing, chiropractic orthopedy, hygiene, principles of chiropractic and adjusting, as taught by chiropractic schools and colleges.” Laws 1919, ch. 29, sec. 2.

*586The court is bound to presume that the lawmakers in adopting these high standards for the practitioners of chiropractic and in legislating for the public health had at hand all the information essential to legislative action.

The branches of learning mentioned indicate that the legislature meant to require the attainments essential to diagnosis for individual and public purposes, including quarantine and the arresting of infectious and contagious diseases. The system of healing by the promiscuous use of the hands on the spinal column and other parts of the human body in ignorance of the subjects of hygiene and diagnosis is condemned by statute. Without the qualifications required by law such a system of healing may become an agency for the spread of epidemics. “Symptomatology,” mentioned in the statute, is a branch of pathology relating to the observation and classification of symptoms — a field of knowledge essential to diagnosis. Defendant did not pass the statutory examination on this or any other subject and has not shown that she is qualified to treat diseases according to the system of healing known as “chiropractic” or to protect the public from those who come to her with infectious or contagious diseases. She nevertheless pretends to practice chiropractic in her office in Omaha without a license. The petition so alleges and the allegations are admitted by her demurrer. The state in applying for an injunctioirto abate the nuisance pleads in the sixth and seventh paragraphs of the petition the following:

“6. That for more than two years last past the defendant has maintained her office as heretofore described and has practiced chiropractic, and that the defendant is still maintaining her said office and practicing chiropractic in violation of law without first securing a license therefor, and has daily throughout said time adjusted the vertebrae of the spines of men, women and children, and she has openly in her said office in the said city of Omaha, Douglas county, Nebraska, and publicly, repeatedly, continuously, persistently and intentionally treated persons chiropractically in direct defiance and contrary to the provisions of *587the statutes of the state of Nebraska; that said defendant has frequently been notified by the state board of chiropractic that she was violating the law, and that she was endangering the health and welfare of the people of the state of Nebraska by her practice as an unqualified chiropractor, but she persistently, intentionally and continuously refuses to submit herself to examination- as provided by law and thereby secure a license and thereby qualify herself for such practice, and she has continuously, persistently and intentionally continued her said practice as chiropractor in said city of Omaha, Nebraska, until same has become a public nuisance and detrimental to the public welfare and dangerous to the public health and contrary tó and against public policy, which requires the examination of those who claim to cure or relieve the ills of the human body; and that defendant has been notified by the officers of the department of public welfare for the state of Nebraska, and by some of the assistants to the attorney general for the state of Nebraska, that unless she obtained-a license to practice chiropractic medicine, and if she continued to practice chiropractic medicine without obtaining such a license, a criminal complaint or complaints would be filed against her under the laws as aforesaid, and that defendant has publicly stated a number of times that she would disregard any criminal prosecutions filed against her for practicing chiropractic medicine without a license as aforesaid, and was certain of an acquittal or acquittals, and would continue to practice chiropractic medicine, notwithstanding the fact that one or more criminal prosecutions might be pending against her for practicing chiropractic medicine without a license.

“7. That the continuous persistent and intentional violation of the law in the treatment of the ills of men, women and children who are attracted to her office in said city of Omaha, Nebraska, by her advertising herself as a qualified chiropractor without procuring a license so to do from the statutory authorities, endangers the health of the public, defeats public policy of requiring skill and knowledge *588on the part of practitioners before they are licensed to practice on the bodies of the people of the state of Nebraska, and it. constitutes an open and continuous nuisance in said city of Omaha, Nebraska, that cannot be stopped or abated except by injunctive order made and issued in and by a court of equity.”

The statute is by construction a part of the petition. When both are considered they show that defendant is maintaining a public nuisance which should be abated by injunction. State v. Chicago, B. & Q. R. Co., 88 Neb. 669.

The jurisdiction and powers of courts of equity in Nebraska come directly from the Constitution and consequently are not limited by subsequent legislation. Matteson v. Creighton University, 105 Neb. 219.

The constitutional “right of trial by jury” is preserved as it existed at common law and under the statutes in force when the Constitution was adopted, but does not necessarily extend to new misdemeanors, like those committed by defendant, for which mere fines and jail sentences only are imposable. Bell v. State, 104 Neb. 203.

On the application for an injunction to abate the nuisance, therefore, the'court of equity is not hampered by the plea of defendant that she is entitled to a jury trial. When the state goes into a criminal court and charges her with a misdemeanor, the right, if any, which she may have to a jury trial will be protected by that court. The remedy by inflicting punishment for the misdemeanors constituting the nuisance which menaces the public health is inadequate under the petition and statute. Entertaining these views, I am compelled to dissent from the opinion and the judgment of the majority.