Johnson v. State

267 S.W. 1057

• Court: Court of Appeals of Texas
• Decided: December 6, 1924
• Docket: No. 9468. [fn*]
• Status: Published

Opinions

JONES, C. J.

This is a suit brought in the district court of Hunt -.county, Tex., by the state of Texas, represented by W. A. Keeling, Attorney General of Texas, Jas. W. Bassett, county attorney of Hunt county, and R. K. Hanger, district attorney of Tar-rant county, seeking an injunction to restrain W. L. Johnson, appellant, from unlawfully practicing medicine and from pursuing such occupation in this state. The case was tried before a jury, and at the conclusion of the evidence the court instructed a verdict in favor of appellee, and a judgment was duly entered which enjoined and restrained appellant from in any way practicing medicine in violation of the provisions of title 90, ch. 1, of the Revised Statutes of Texas, or in violation of the provisions of title 12; ch. 6, of the Penal Code of Texas; and also enjoined and restrained appellant from thereafter, in any way, treating or offering to treat any disease or disorder, mental or physical, or any physical deformity or injury, by any system or method, or to effect cures therefor, for money or other compensation within this state.

Appellant has duly perfected his appeal to this court and -seeks a reversal of this case on the grounds: (1) The overruling of his plea of privilege to be sued in Tarrant county, alleged to be his residence; (2) for the admission of evidence, both showing and tending to show the practice of his profession in Hunt county previous to the date of his conviction of the statutory crime of practicing medicine in said county without a license to do so; (3) a reversal and rendering of this cause in his favor because the Medical Practice Act of this state in many of its essential features is unconstitutional and therefore void; (4) article 5744b, which provides for the procedure had in this case, and which was added by. amendment to title 90, ch. 1, of the Revised Statutes of this state by the Thirty-Eighth Legislature (Acts 1923, c. 138, § 6), is unconstitutional and void. The specific ground on which the constitutionality of the above enactments is assailed will be specifically stated as .same are herein reviewed.

The undisputed evidence of this ■ case is that appellant, previous to June 11, 1924, the day on which this judgment was entered, had practiced his profession and, by numerous advertisements, had held himself out as a practitioner of such profession in Hunt county for a period of approximately eight months; that during this time he had an office in a building in the city of Greenville, in every way properly fitted and equipped for such practice; that previous to his locating in Greenville he had practiced his profession as a chiropractor in the city of Port Worth, Tex., for about four years; that he is a married man, his family consisting of himself, wife, and several children; that he did not own any property in Port Worth and, after locating at Greenville, he maintained no office in Port Worth and did not hold himself out in said city for the practice of his profession; that he had established his home in Port Worth when he located there, and voted in the city of Port Worth; that his family still resided in the city of Port Worth, and he had no present intention of removing his said family to Greenville; that when he ceased practicing his profession in Fort Worth he did so with the intention of securing another location, but the place for a permanent location had not been determined; that if he should decide to leave Greenville, it is problematical whether he would return to Port Worth or seek a new location; that his practice in Greenville had been fairly satisfactory and that his intention was to remain in Greenville as long as it was fairly satisfactory; that he owned an automobile and kept same in Greenville; that during the time he had been in Greenville he had a room at the Commercial Hotel, which he occupied at night and at other times when he was not engaged in his office or in recreation ; that during his stay in Greenville he would leave his home on Monday morning at about 6 a. m. and arrive in the city of Green-ville about 10 a. m. of said day, and remain in Greenville in the practice of his profession until 5 p. m. on Saturday afternoon, when he would leave for Fort Worth, returning again the following Monday morning; that on the 4th day of March, 1924, he was duly tried and convicted on information filed in the county court of Hunt county charging him with practicing medicine in violation of law as such an offense is defined by chapter 6, tit. 12, of the Penal Code of this state; that a judgment was entered in this case assessing his punishment at a fine of $100 and one day confinement in the county jail, and that such judgment had been fully satisfied by him; that he was pursuing his profession of chiropractor in Hunt county at the time of the trial of this case without having complied with the Medical Practice Act.

Appellant filed his plea of privilege to be sued in Tarrant county, and an issue on same was duly made by appellee’s controverting plea. The petition for injunction alleged that appellant resided both in Tarrant and Hunt counties.

Did the court err in overruling the plea of privilege? The specific contention of appellant on this issue is that in this suit it is the domicile of appellant, as distinguished from his residence, that determines the venue of this suit; that a person can have but one domicile, and, when that is once fixed, it remains until it is changed by the establishment of another; that regardless of his residence in Hunt county, appellant’s domicile was in the city of Port Worth, Tarrant county; and that this was not affected by his intent in the future to select another domicile. It is true, in the strict significance of the term, a person can have but one domicile, and if appellant is correct in his assumption that domicile, as distinguished from residence, controls the venue of this suit, then this case should be reversed and transferred to Tarrant county, for such county is undoubtedly his “domicile” if that word is given, its strict meaning. Our venue statutes sometimes use the word “domicile” and sometimes use the word “residence,” for which reason our courts have denied to the word “domicile” its strict meaning, and given it the meaning of “residence” in such statutes. Pearson v. West, 97 Tex. 238, 77 S. W. 944; Taylor v. Wilson, 99 Tex. 651, 93 S. W. 109; Latham v. Continental Supply Co. (Tex. Civ. App.) 230 S. W. 230; Wrenn v. Brooks (Tex. Civ. App.) 257 S. W. 299; Littlefield v. Clayton (Tex. Civ. App.) 194 S. W. 194; Armstrong v. King (Tex. Civ. App.) 130 S. W. 629; Funk v. Walker (Tex. Civ. App.) 241 S. W. 720.

These cases establish the proposition that under the venue statutes of this state a person may have more than one legal residence, and that such person cannot plead his privilege if sued in a county where he had established one of these residences. Residence requires only bodily presence as an inhabitant in a given place, while “domicile,” in its strict sense, requires residence in that place together with an intention to make it the home. The evidence on the plea of privilege establishes that appellant was an inhabitant of the city of Greenville and had established a residence there for the purpose of pursuing his profession. This fixes such a residence of appellant in Hunt county as gives the district court of that county venue of this suit.

In addition to these decisions construing the word “domicile” as used in the venue law, said article 5744b is strongly suggestive that the intention of the Legislature was that the venue of the injunction suit authorized by its provisions should be in the county in which the defendant resides for the purpose of unlawfully practicing medicine, in that it provides that the suit may be instituted by the district attorney of the county in which the defendant resides, or the county attorney of the county in which he resides, and this suit was instituted in such county and by the officials so designated. The assignments of error on the issue of venue of the suit are overruled.

The article of the statute in question provides that the suit for injunction shall not be entertained in advance of the previous final conviction of the defendant in the injunction suit of a violation of the Medical Practice Act, as such offense is defined by title 12, eh. 6, of the Penal Code. In the trial of the cause evidence was admitted, over the timely objection of appellant, as to his treatment of patients for pay previous to such conviction, and this action of the court is assigned as error on the theory that under such act no evidence of unlawful acts and conduct of appellant previous to the conviction was admissible. We do not so construe the effect of that provision of said statute. This provision of the statute is enacted as a safeguard in behalf of the defendant against whom the injunction provision of the statute is invoked. Its effect is to render a person immune from the drastic provision of the injunction feature of the said' act until it has been established beyond a reasonable doubt, in a court of competent jurisdiction, that the defendant is unlawfully engaged in the practice of medicine. It is not, therefore, a limitation on the state in the matter of evidence. The assignment of error in reference to the admission of such evidence is overruled.

It is also urged that, as article 4653 of our Revised Statutes provides that writs of injunction for causes other than to stay proceedings in a suit, or executions on a judgment, shall be returned and tried in the proper court of the county of defendant’s domicile, and as the evidence disclosed that defendant’s domicile was in Tarrant county and not in Hunt county, the district court of Hunt county was without jurisdiction to try said cause. We see no reason why the word “domicile,” used in said article 4653, should be given a different meaning to the word “domicile” used in article 1830 of the general venue statute. Said article 1830 reads:

“No person who is an inhabitant of this state shall be sued out of the county in which he has his domicile, except in the following cases.”

Then follows the well-known exceptions to the venue statute.

In the case of Pearson v. West, supra, the Supreme 'Court construed the word “domicile” as used in article 1830. This was a suit by the plaintiff against the defendant for damages for an alleged assault committed upon plaintiff in Live Oak county, Tex. The suit was filed in the district court of Bexar county. Defendant contested the right of plaintiff to institute the said suit in Bexar county, and filed a plea in abatement, alleging his residence to be in Live Oak county and not in Bexar county. The undisputed evidence showed that defendant owned a large ranch in Live Oak county, moved his family on said ranch in a suitable residence, and established his domicile there with no intention of any' future change in respect thereto; that they had resided in the Live Oak county home for a number of years; that defendant voted therein, and always claimed it-as his place of residence; that for some years previous to the suit defendant and his wife would live about one-half of the year in the city of San Antonio, Bex-ar county, but would return to Live Oak county and live on his ranch during the re‘mainder of the year. During all these years of his divided residence he had fixed Live Oak county as his domicile; that he purchased a residence in San Antonio and, when he and his wife lived in said city, they occupied this residence. In a very able and lengthy discussion of the meaning of the term “domicile,” as used in the general venue statute, the Supreme Court, speaking through Judge Brown, held that the words “domicile” and “residence” had been used by the Legislature interchangeably and construed said venue statute’as if it read: “No person who is an inhabitant of this state shall be sued out of the county in which he has his residence.” That decision held that the defendant West had two residences within the state in which venue of a suit against him could be properly laid and sustained the venue of the suit in Bexar county.

The reason urged by the Supreme Court in Pearson v. West, supra, and the construction there given the word “domicile” as used in article 1830, are as applicable to said word when it is used in article 4653, and we adopt such construction. The assignments of error raising this question are overruled.

It is urged that title 90, ch. 1, of the Revised Statutes, and title 12, ch. 6, of the Penal Code, as amended by chapter 138 of the Thirty-Eighth Legislature of Texas, are unconstitutional and void. This contention is not based on the theory that the state, in the exercise of its legitimate police power, cannot enact reasonable regulatory legis-' lation in reference to those who engage in the practice of medicine in any form, but is based on the theory that the said legislative enactments are so framed in their terms as to exclude appellant and others who treat diseases on the chiropractic theory from such profession, and therefore discriminate between individuals seeking to follow the same profession. The logic of appellant’s contention is that, as the various schools established by the different systems of the practice of medicine to qualify one for the treatment of disease and human deformity are based on radically different theories, both as to the cause of said ills and a-s to their treatment, manifestly there can be prescribed by the Legislature no general or common educational test to determine the fitness of one to practice his own system of the “healing art.” Instead of the one common test as prescribed by the Medical Practice Act, the Legislature “must provide for an education' and examination appropriate to the particular school,” in order that such legislation will not fall within the constitutional inhibition against discrimination.

Articles 5739 and 5741 of the-Revised Statutes, which are a part of the Medical Practice Act, it is urged, are specially subject to this criticism. The first of these articles provides that all applicants for license to practice medicine in this state, not otherwise licensed under the provisions of law, must successfully pass an examination before the board of medical examiners. It also provides that before any one can be eligible for this examination, he must present, among other things, satisfactory evidence to the board of examiners that he is a graduate of a bona fide reputable me’dical school; that no school can be considered reputable within the meaning of, this law unless its entrance requirements and courses of instructions are as high as those adopted by the better class of medical schools of the United States whose course of instruction shall embrace not less than four terms of eight months each. The second of these articles provides that the examination shall be conducted by the medical examining board on the subjects of anatomy, physiology, chemistry, histology, pathology, bacteriology, diagnosis, surgery, obstetrics, gynecology, hygiene, and medical jurisprudence. It is contended that article 5739 discriminates against-the chiropractic college and against the graduate of such college practicing its system of healing, for the reason that it appears from the record of this case .that the course of the standard school of the chiropractic extends over three years of six months each, and hence does not meet the requirement of the law and cannot be denominated a bona fide reputable medical school, and that, notwithstanding how proficient the graduate of a chiropractic school may be in the practice of his system of healing, he is barred from the medical examination and is forbidden a license to pursue his- profession; that the chiropractic practitioner only practices in a special branch of healing, and his school thoroughly prepares him for this particular field; that1 such practitioners do not practice gynecology,, obstetrics, or surgery, and make no chemical examinations, and the long and extended course of study required for practice of regular medicine are not necessary or of any value to the chiropractor. The conclusion is therefore made that, as the school of the chiropractor is sufficient in all of its requirements thoroughly to prepare the student for this special branch of healing, the ifight to have legislative recognition of this fact is undoubted, and, as such recognition is denied by these statutes, they are-discriminatory and void.

Appellant clearly and succinctly states his position in this respect as follows:

The Legislature, in the exercise of its police power in regulating the practice of medicine in this state, (1) “must-not forbid the practice of any particular school of héaling, provided it be shown that this school is a recognized school or system of healing; (2) it must provide for an education and examination appropriate to the particular school, and not simply appropriate to and fitted for some other school of healing; (3) it must not discriminate between the different schools in any manner whatsoever.”

The vice that runs through the above propositions is that it assumes that the Legislature entered a broader filed in its exercise of police power than the enactments in question indicate. The Legislature did not by its enactment of the Medical Practice Act forbid the practice of any recognized school-or system of healing. Neither did it assume to provide for an education and examination appropriate to any particular school, nor did it discriminate between different schools of medicine. If the Legislature had entered such broader field and directed the entire course of study and technical training for one to take before he should be permitted to practice medicine, then its legislation would have to conform to the above-announced principles. In the interest of the public health and the general welfare of the people, the Legislature is authorized to prescribe such regulations to be conformed to by persons seeking to enter the practice of medicine as in its judgment will secure, or tend to secure, the people against the consequences of ignorance and incapacity, as well as of deception and fraud, and this without regard to any special system of practice or any established school of medicine. It is a matter of common knowledge that few, if any, professions require more careful preparation by one who seeks to enter it than does that of medicine. It deals with all those subtle and mysterious influences upon which health and life depend. Regardless of the school of medicine or system of practice followed by the practitioner of medicine in any of these systems, the general welfare of the people demands that such practitioner be, able to detect, readily, the presence of disease, and-to treat it in some manner recognized as appropriate for its removal. In order that assurance may be had that the one who treats diseases has this requisite qualification, the state has the undoubted right to prescribe a general preparation to be made by one entering such' profession, and also to prescribe that he shall have a knowledge of what the Legislature may deem the necessary scientific branches of such profession.

The conditions prescribed as necessary prerequisites in the matter of education and training for entry into the medical profession by articles 5739 and 5741 represent that which the Legislature in its wisdom deemed necessary in the interest of the public health and the public welfare as the state’s guaranty of fitness for this high calling. These conditions apply to all persons alike; they do not prescribe any method to be employed in healing disease, or, any system of practice to be adopted by the practitioner. If he possesses the qualifications prescribed by the statutes and is awarded a certificate to practice medicine, he is just as free to adopt the system of the chiropractor as he he is to adopt the system of the regular physician. The fact that it requires a broader education than is given by the chiropractic college to meet these conditions cannot be urged as a discrimination against such schools of medicine. It is easily within the power of a chiropractor to conform to the prescribed conditions. This record shows that all the subjects prescribed by this act for examination are taught by the chiropractic schools, except those of surgery and medical jurisprudence; so it may be said that these schools give substantial recognition to the essential qualifications prescribed by these statutes.

All of the assignments of error attacking the constitutionality of this legislation are overruled. Collins v. Texas, 223 U. S. 223, 32 S. Ct. 286, 56 L. Ed. 439; 21 R. C. L, 354, 355; Hicks v. State, 88 Tex. Cr. R. 438, 227 S. W. 302; Less v. State, 93 Tex. Cr. R. 154, 246 S. W. 382; Black v. State, 86 Tex. Cr. R. 253, 216 S. W. 181; Denton v. State, 83 Tex. Cr. R. 67, 201 S. W. 183; Milling v. State, 67 Tex. Cr. R. 551, 150 S. W. 434; Maier v. State, 90 Tex. Cr. R. 459, 235 S. W. 576; Dowdell v. McBride, 92 Tex. 239, 47 S. W. 524.

The injunction proceedings in the instant case were instituted under the provisions of article 5744b of the Revised Statutes, which article was added by amendment by the Thirty-Eighth Legislature to title 90, eh. 1, of the Revised Statutes. This aritcle reads as follows:

“The actual practice of medicine in violation of any of the provisions of title ninety (90), chapter one (1) of the Revised Civil Statutes of this state, or in violation of the provisions of title twelve (12), chapter six (6) of the Penal Code of this state, shall be enjoined at the suit of the state, but such suit for injunction shall not be entertained in advance of the previous final conviction of the party sought, to be enjoined, of the .violation of the provisions of title 12, chapter 6, of the Penal Code of this state. In suits for injunction so authorized by this act, it shall not be necessary to show that any person or citizen is personally injured by the acts complained of. Any person who may be so unlawfully practicing medicine in this state, or who may be about to so unlawfully practice medicine in this state, may be made a party defendant in such suit. The Attorney General, the district attorney of the district in which the defendant resides (the county attorney of the county in which the defendant resides), or any of them, shall have the authority, and it shall be their duty, and the duty of each of them, to represent the, state in such suits for injunction. No injunction either temporary or permanent, shall be granted by any court, until after a hearing on-complaint is had by a court of competent jurisdiction on its merits.

“In such suit no injunction or restraining order shall be issued until final trial and final judgment on the merits of the suit. If on the final trial it be shown that the defendant in such suit has been unlawfully practicing medicine, or is about to practice medicine unlawfully, the court shall by judgment perpetually enjoin the defendant from practicing or continuing the practice of medicine in violation of law as complained of in said suit. Disobedience of said injunction shall subject the defendant to the pains and penalties provided by lalw for the violation of an injunction. The procedure in such cases shall be the same as in any other injunction suit as nearly as may be. The remedy by injunction giving (given) hereby shall be in addition to criminal prosecution under the penal statutes of this state. Such causes shall be advanced for trial on the docket of the trial court, and shall be advanced and tried in the appellate courts in'the same manner and under the same laws and regulations as other suits for injunction.’' Acts 1923, c. 138, § 6.

By assignments of error and appropriate propositions of law, appellant attacks the constitutionality of this article; the gist of such contention being that the Legisla ture cannot confer upon the court any jurisdiction in equity not in accordance with the recognized' principles of equity jurisprudence. It is urged that the Legislature cannot confer upon a court of equity the power to prohibit any one from following a useful profession when the practice of such profession does not in fact amount to a nuisance. It is also urged that it is in violation of the inhibition of the state and federal Constitutions in reference to depriving one of his property rights without due course of law, and in denying him the right of trial by jury as guaranteed by our bill of rights.

The first contention is contrary to the policy of this state as shown by numerous enactments providing for injunction where such right did not lie under the English chancery practice. It may be stated as the settled law of this state that there is recognized a broad power in the Legislature of this state to change the boundaries of equity jurisprudence, as well as to regulate equity procedure, provided such legislation does not destroy or invade a constitutional guaranty. Ex parte Allison, 99 Tex. 455, 90 S. W. 870, 2 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 653; Ex parte Allison, 48 Tex. Cr. R. 634, 90 S. W. 492, 3 L. R. A. (N. S.) 622, 13 Ann. Cas. 684; Clopton v. State (Tex. Civ. App.) 105 S. W. 994; Burckell v. State, 47 Tex. Civ. App. 393, 106 S. W. 190; Ex parte Dupree, 101 Tex. 150, 105 S. W. 493; Ex parte Roper, 61 Tex. Cr. R. 68, 134 S. W. 334; Campbell v. Peacock (Tex. Civ. App.) 176 S. W. 774; State Board of Medical Examiners v, Blair, 57 Utah, 516, 196 P. 221.

The only question then to determine is: Does this enactment invade any constitutional guaranty of the citizen? It is urged that it denies him the right of trial by jury. In our state the right of trial by jury is given in cases of equitable cognizance as well as those of law. In th’e trial of the instant ease, appellant availed himself of this right and was awarded a jury in the case. It is true that if he violates this injunction and is cited for contempt, he will not be accorded a jury hearing; but this is not guaranteed to him by our Constitution, because this guaranty is universally construed to refer only to such cases as the right of trial by jury was given at common law. In cases for contempt no such right was given at common law, and hence no such guaranty is given by our Constitution. If appellant should be cited to answer in contempt, he is not tried for the offense denounced by the statute, but is tried for violating an order of court. The fact that a person enjoined from practice of medicine might be prosecuted for the doing of the very acts for which he was held and punished for contempt invades no guaranty of the citizen’s rights. In the criminal case he would be prosecuted for offending against the law; in th'e contempt case he would be tried for offending .against an order of a court.

The Legislature had the undoubted right to make this additional protection in the interest of the public health and the public welfare and, in so doing, violated no constitutional guaranty to the citizen. The statute is therefore constitutional, and all assignments of error attacking its constitutionality are overruled.

It is urged by proper assignment that the court was in error in instructing a. verdict in this case. The evidence was undisputed and established the fact that appellant was practicing medicine in -violatiori of law and that he had theretofore been convicted of such offense. There was therefore no disputed issue of fact made by the evidence to be submitted to the jury, and it became the duty of the court to construe the legal effect of the evidence and instruct the verdict to be rendered. The assignments of error raising this issue are overruled.

All other assignments of error have been carefully considered, with the result that we find no merit in them. It is therefore the opinion of the .court that this -case should be affirmed.

Affirmed.