State v. Johnson

114 P. 390, 84 Kan. 411, 1911 Kan. LEXIS 342

• Court: Supreme Court of Kansas
• Decided: March 11, 1911
• Docket: No. 17,361
• Status: Published

Opinions

The opinion of the court was delivered by

West, J.:

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: clearly within the well-known and well-defined meaning of the term “practice of medicine”; that the legislature may define the meaning, extend it, broaden it, make it more comprehensive; that chiropractic is an unknown word which can not be found in the dictionaries and which has been manufactured by a faker for use as a sham; that “he [appellee] does not belong in the class with physicians or surgeons, nor with any other class of men that are learned or have any knowledge of science.”

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 follows: “A bill to protect the people of Kansas from empiricism, and to elevate the standing of the medical profession.” Under this title provision was made with reference only to one “who shall practice or attempt to practice medicine in any of its departments, or perform or attempt to perform any surgical operations.” (§2.) This was before the days of osteopathy, and certainly before chiropractic had become familiar. In 1901 chapter'254 of the laws of that year (Gen. Stat. 1909, §§ 8085-8089, 8091, 8092) was enacted with the following title:

“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 meaning of this act who shall prescribe, or who shall recommend for a fee, for like use, any drug or medicine, or perform any surgical operation of whatsoever nature for the cure or relief of any wounds, fracture or bodily injury, infirmity or disease of another person, or who shall use the words or letters ‘Dr.,’ ‘Doctor,’ ‘M. D.,’ or any other title, in connection with his name, which in any way represents him as engaged- in the practice of medicine or surgery, or any person attempting to treat the sick or others afflicted with bodily or mental infirmities, or any person representing or advertising himself by any means or through any medium whatsoever, or in any manner whatsoever, so as to indicate he is authorized to or does practice medicine or surgery in this state, or that he is authorized to or does treat the sick or others afflicted with bodily infirmities, but nothing in this act shall be construed as interfering with any religious beliefs in the treatment of diseases; provided, that quarantine regulations relating to contagious diseases are not infringed upon. All persons who practice osteopathy shall be registered and licensed as doctors of osteopathy, as hereinbefore provided, but they shall not administer drugs or medicine of any kind nor perform operations in surgery.” (Laws 1908, ch„ 63, § 1, Gen. Stat. 1909, § 8090.)

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 system to which the particular nerve reaches. Diseases not caused by the pressing of the nerves against the sides of these openings the chiropractor does not in any way treat. The chiropractor claims that the only treatment, so-called, which he uses is not a treatment, but merely an adjustment of the vertebrae, which restores the vertebrae and the nerves to their normal position and thus removes the cause of the disease. He does not practice surgery or medicine, and does not use any other manipulations whatever than the adjustment of the vertebrae.” But the language of the 1908 amendment is very broad, and even under the foregoing description of chiropractic it may well be said that one whose vertebrae are partially displaced, causing .impairment of nerve function, is one afflicted with bodily infirmity,- and that one who restores the functional activity of the nerve on which the maladjusted vertebra had formerly pressed is treating or attempting to treat such afflicted person.

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 osteopathy under another guise without possessing the qualifications required of the osteopath. Osteopathy is defined as “a system of treatment based on the theory that diseases are chiefly due to deranged mechanism of the bones, nerves, blood vessels, and other tissues, and can be remedied by manipulations of these parts.” (Webster’s New Inter. Diet.) It has been judicially defined as “a method of treating diseases of the human body without the use of drugs, by means of manipulations applied to various nerve centers— chiefly those along the spine — with a view to inducing free circulation of the blood and lymph, and an equal distribution of the nerve forces. Special attention is given to the readjustment of any bones, muscles, or ligaments not in the normal position.” (6 Words & Ph. Jud. Def. p. 5070.) Medicine is defined as “the science and art dealing with the prevention, cure, or alleviation of disease; in a narrower sense, that part of the science and art of restoring and preserving health which is the province of the physician as distinguished from the surgeon and obstetrician.” (Webster’s New Inter. Diet.) The same authority defines surgery as the “art or practice of healing by manual operation; that branch of medical science which treats of mechanical or operative measures for healing diseases, deformities, or injuries.”

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), and which, in the code, was entitled “Of the practice of medicine” (p. 168). The court said:

“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. , held that the practice of medicine includes the practice of ophthalmology. The court said:

“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 suggestion and laying on of hands was held to be practicing medicine.

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.