Vest v. Cobb
| Decision Date | 28 July 1953 |
| Docket Number | No. CC803,CC803 |
| Citation | 138 W.Va. 660,76 S.E.2d 885 |
| Parties | VEST et al. v. COBB. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. In the absence of statute every citizen has the common law right to engage in the art of healing; that right, however, is subject to the exercise of the police power of the State in the protection of the public health.
2. The inherent object of Code, 30-3, regulating the practice of medicine and surgery, and Code, 30-14, regulating the practice of osteopathic physicians and surgeons, is the preservation of the public health.
3. Code, 30-3, regulating the practice of medicine and surgery, and Code, 30-14, regulating the practice of osteopathic physicians and surgeons, are reasonably designed to preserve the public health, and their enactment was within the police power of the State.
4. Under the express provisions of Section 1, Chapter 151, Acts of the Legislature, 1951, a license theretofore issued, authorizing its holder to 'practice osteopathy and surgery', is not affected by the enactment of the statute, except that the holder of a license issued prior to the enactment of said Chapter 151 is subject to all the provisions of the Act respecting the requirements and obligations prescribed therein for the continuance in force of such certificate or license to practice osteopathy.
5. Though Chapter 151, Acts of the Legislature, Regular Session, 1951, is remedial in the sense that it has as its overall purpose the preservation of the public health, it should be construed as prospective in operation.
6. Statutes which are remedial in their very nature should be liberally construed to effectuate their purpose.
7. Statutes which deal with the same subject matter should be read in pari materia, unless the statutes exhibit an intent on the part of the Legislature that they should be separately construed.
8. The primary rule of statutory construction is to ascertain and give effect to the intention of the Legislature.
9. It is a cardinal rule of statutory construction that a statute should be construed as a whole, so as to give effect, if possible, to every word, phrase, paragraph and provision thereof, but such rule of construction should not be invoked so as to contravene the true legislative intention.
10. Code, 30-14-10, which provides that osteopathic physicians and surgeons, licensed under Article 14, shall have the same right as physicians and surgeons of other schools, and, in particular, such rights as relate to the 'treatment of cases or holding of offices in public institutions', evidences a clear legislative intent that for the interpretation of the provisions thereof, reference should be had to Code, 30-3, relating to the practice of physicians and surgeons.
11. A statute may refer to another statute, in which case both statutes are to be read and construed in pari materia.
12. The Legislature, when it enacts legislation, is presumed to know of its prior enactments.
13. Statutes which are in pari materia should be construed, if possible to do so, so that none should fail.
14. Code, 30-3, providing for the licensing and regulation of physicians and surgeons, and Code, 30-14, providing for the licensing and regulation of osteopathic physicians and surgeons, should be read in pari materia, and should be construed to provide that osteopathic physicians and surgeons, duly licensed under Code, 30-14, have the right in the practice of their profession to treat 'any human ailment or infirmity by any method', as physicians and surgeons may do under Code, 30-3-2.
15. This Court should not, and will not, control the policy of the Legislature in the valid exercise of the policy power of the State pertaining to the public health.
T. D. Kauffelt, Asst. Atty. Gen., C. S. Worrell, Pineville, Kirke W. Dale, Arkansas City, Kan., for plaintiffs.
Arthur R. Kingdon, Mullens, Clarence E. Martin, Jr., Martinsburg, Joseph M. Sanders and Jerome Katz, Bluefield, for defendant.
In this certified case, coming here upon certificate of the Circuit Court of Wyoming County, Walter E. Vest, M. D., N. H. Dyer, M. D., W. P. Bittinger, M. D., D. D. Daniel, M. D., George F. Evans, M. D., Frank J. Holroyd, M. D., Cecil B. Pride, M. D., Calvin E. Bruce, D. S. C., Elsworth R. Johnson, D. S. C., R. E. Tripp, D. C., F. W. Remick, D. C., as members of and constituting The Medical Licensing Board of West Virginia, and R. C. Hatfield, M. D., John E. Sproles, M. D., E. M. Wilkinson, M. D., Coy T. Upchurch, M. D., and F. J. Zsoldos, M. D., filed in the Circuit Court of Wyoming County, West Virginia, their bill of complaint against the defendant, Glenn E. Cobb, a licensed osteopathic physician and surgeon, seeking to enjoin the defendant from administering and prescribing drugs, medicine and narcotics to and for his patients and from performing surgery. An amended and supplemental bill of complaint charged that the defendant on several occasions had used drugs, medicine, narcotics, and operative surgery in the treatment of his patients, contrary to the provisions of Code, 30-3, regulating the practice of medicine and surgery, and Code, 30-14, regulating the practice of osteopathy; that in doing so the defendant has unlawfully usurped the powers and privileges of plaintiffs; and thereby has caused and will continue to cause plaintiffs irreparable injury in the practice of their profession from an economic and monetary standpoint.
The defendant demurred to the amended and supplemental bill of complaint on the grounds that: (1) The amended and supplemental bill of complaint failed to state a cause of action; and (2) as a licensed osteopathic physician and surgeon, practicing the art of healing in West Virginia, defendant is authorized to administer and prescribe drugs, medicine and narcotics and perform surgery; and possesses, and is entitled to exercise, the same rights and privileges, as physicians and surgeons of other schools of medicine in the treatment of cases.
The circuit court overruled defendant's demurrer, and upon its own motion certified to this Court these questions:
'First: That the provisions of Article 14, Chapter 30, Code 1931, authorize and empower the defendant Glenn E. Cobb (who was in 1946 licensed thereunder to practice medicine and surgery in this State as an osteopathic physician and surgeon), to prescribe and administer narcotic and other drugs and medicines and to perform surgery by cutting and the use of instruments, in the treatment of his patients, in the same manner and to the same extent as physicians and surgeons of other schools of medicine licensed under the provisions of Article 3, Chapter 30, Code 1931, as amended; and
'Second: That the provisions of Chapter 151, Acts of the Legislature 1951, authorize and empower the defendant Glenn E. Cobb (who was in 1946 licensed under authority of Article 14, Chapter 30, Code 1931, to practice medicine and surgery in this State as an osteopathic physician and surgeon), to prescribe and administer narcotic and other drugs and medicines and to perform surgery by cutting and the use of instruments, in the treatment of his patients, in the same manner and to the same extent as physicians and surgeons of other schools of medicine licensed under the provisions of Article 3, Chapter 30, Code 1931, as amended.'
So the case has been certified to this Court solely for the purpose of testing whether an osteopathic physician and surgeon, duly licensed under Code, 30-14, may administer and prescribe drugs, medicine and narcotics, and perform surgery in the State of West Virginia in the same manner and to the same extent as physicians and surgeons of other schools of medicine.
The only error assigned on this certificate is that the trial court erred in overruling defendant's demurrer to the amended and supplemental bill of complaint. Thus, in effect, the circuit court held that the defendant, as an osteopathic physician and surgeon, is not authorized to administer and prescribe drugs, medicine and narcotics, and perform surgery in the treatment of cases as physicians and surgeons are authorized to do under Code, 30-3, the statute regulating the practice of medicine by medical physicians and surgeons.
Counsel for plaintiffs and defendant, both in their oral arguments and briefs, have discussed the statutory law of this State, which, in the final analysis, will govern the decision in this case.
Chapter 11, Acts of the Legislature, Regular Session, 1915, established a State Department of Health; the office of Commissioner of Health; and the Public Health Council of West Virginia, consisting of the Commissioner of Health and six other members, who, as provided by Section 3, shall be graduates of a regular medical school and shall have had at least five years' experience in the practice of medicine.
Section 12 thereof, provided in part: 'The public health council, * * * shall, in addition to the duties hereinbefore or hereinafter specified, examine all applicants for license for the practice of medicine and surgery in this state, and issue certificates of license to all applicants who are legally entitled to receive same; and said certificates of license shall be signed by the president of the council and by the commissioner of health as secretary thereof.'
Said Section 12 further provided that: 'The term 'practice of medicine and surgery' as used by this act shall be construed to be treatment of any human ailment or infirmity by any method.'
Later Section 1, Chapter 11, Acts of the Legislature, 1915, creating the State Department of Health, the office of Commissioner of Health, and the Public Health Council was incorporated in Code, 16-1-1; Section 3 of Chapter 11 of the statute was incorporated in Code, 16-1-3; and Section 12, Chapter 11 of the statute, providing that the public health council shall conduct examinations of...
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