Board of Medical Examiners of State of Utah v. Freenor

CourtSupreme Court of Utah
Citation47 Utah 430,154 P. 941
Decision Date14 January 1916
Docket Number2794
PartiesBOARD OF MEDICAL EXAMINERS OF STATE OF UTAH v. FREENOR

Appeal from District Court, Second District; Hon. J. A. Howell Judge.

Suit by Board of Medical Examiners of the State against F. J Freenon. Judgment for plaintiff, defendant appeals.

AFFIRMED.

A. E Pratt and George Halverson for appellant.

A. R. Barnes, Attorney Gen., and J. C. Davis, Dist. Atty., of Ogden for respondent.

RESPONDENT'S POINTS.

The legislature can enact new rules of equity, which would give the Court power to grant injunctions, which it otherwise would not have had. (Allopathic State Board of Medical Examiners v. Fowler, 24 So. 809 [Ala.]; Littleton v. Fritz, 65 Ia. 488, 22 N.W. 642; State Tax Law Cases, 54 Mich. 350, 20 N.W. 493; State ex rel Cutris v. Durein, 46 Kan. 695, 27 P. 148; State v. Jordan, 72 Ia. 377, 34 N.W. 285; State ex rel Rhodes v. Saunders, 66 N.H. 39, 25 A. 588; Brennan v. Roberts, 125 Ia. 615, 101 N.W. 460; Ohlrogg v. District Court, 126 Ia. 247, 99 N.W. 178; Ex parte Allison, 90 S.W. 870, 2 L. R. A. [N. S.], page 1111.)

STRAUP, C. J. McCARTY, J. FRICK, J., concurring.

OPINION

STRAUP, C. J.

The defendant, upon a complaint filed by the state board of medical examiners, was enjoined from practicing medicine within the state until he obtained a license. He appeals. His chief complaints are that injunction will not lie, and that the proved committed acts did not constitute practicing medicine within the meaning of the statute. Any person practicing medicine within the state without a certificate or license is guilty of a misdemeanor. C. L. 1907, Section 1739. "Practicing medicine" is defined thus:

"Any person shall be regarded as practicing medicine within the meaning of this title, who shall diagnose, treat, operate upon, or prescribe or advise for, any physical or mental ailment or any abnormal, mental or physical condition of another, after having received or with the intent to receive therefor, either directly or indirectly, any fee, gift, compensation or other pecuniary benefit, reward or consideration; or who shall hold himself out by means of signs, cards, advertisements or otherwise, as a physician or surgeon," etc. Laws 1911, p. 135.

It further is provided (C. L. 1907, Section 1737) that:

"Any person practicing medicine, surgery, or obstetrics within the state contrary to law may, at the instance of the board [medical examiners] herein created appearing as plaintiff in the district court, be enjoined by said court from practicing medicine, surgery, or obstetrics in this state until such person shall have been by said board lawfully admitted to practice," etc.

The case was tried to the court, who found the issues in favor of the plaintiff. The first point made is that the alleged, and found facts, if they constitute practicing medicine within the meaning of the statute, were criminal, and not invasions of property rights, and that equity will not lend its aid by injunction to restrain mere violations of public or penal statutes, except so far as it may be incidental to its enforcement of property rights or other matters of equitable cognizance. To support this numerous cases and authorities are cited, among them 1 High on Injunction (4th Ed.) Section 20; 6 Pomeroy's Equity, Section 644; 22 Cyc. 902; Taylor v. Marshall, 255 Ill. 545, 99 N.E. 638; Tiede v. Schmeidt, 99 Wis. 201, 74 N.W. 798; Ewing v. Webster City, 103 Iowa 226, 72 N.W. 511. It is not made to appear that there, as here, express authority by statute was conferred to grant relief in the particular instance by injunction. We need not inquire whether, in the absence of the statute, equity had jurisdiction. It is not claimed that the statute is unconstitutional. It is claimed that it in no manner conferred equitable power which the court theretofore, under its general power, did not have. We think the statute enlarged the power. As to this the court, in the case of Allopathic State Board of Medical Examiners v. Fowler, 50 La. Ann. 1358, 24 So. 809, said:

"The General Assembly, having the authority to attach prior conditions to the practice of medicine, was vested with the right to enforce enactments on that subject by prescribing penalties for violations of the same, either by fine, by imprisonment, or by civil remedies. The right to practice medicine being conditioned by law upon the prior obtaining of a certificate from a medical board, plaintiffs were clearly authorized [under an act], when they had reason to believe that defendant was violating the law in this respect, to test the facts of the case through injunction."

Supporting this are also the cases of Ex parte Allison, 99 Tex. 455, 90 S.W. 870, 2 L. R. A. (N. S.) 1116, 122 Am. St. Rep. 653; Sumner v. Crawford, 91 Tex. 129, 41 S.W. 994; State ex rel Duensing v. Roby, 142 Ind. 168, 41 N.E. 145, 33 L. R. A. 213, 51 Am. St. Rep. 174; Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; Eilenbecker v. Plymouth County, 134 U.S. 31, 10 S.Ct. 424, 33 L.Ed. 801; Ohlrogg v. Smith, 126 Iowa 247, 99 N.W. 178; State ex rel v. Durein, 46 Kan. 695, 27 P. 148; North American Insurance Co. v. Yates, 214 Ill. 272, 73 N.E. 423. These cases and the following, Littleton v. Fritz, 65 Iowa 488, 22 N.W. 641, 54 Am. Rep. 19, State Tax Law Case, 54 Mich. 350, 20 N.W. 493, and State v. Saunders, 66 N.H. 39, 25 A. 588, 18 L. R. A. 646, also answer the further contentions that a proceeding by injunction in such particular is a denial of the right of trial by jury, and, as the defendant may be punished on a criminal prosecution, if he also be made subject to an injunction and deprived of his calling, he is punished twice for the same offense or act. Unless prevented by some constitutional provision, which is not claimed, we think the Legislature had the power to change, abolish, or enact rules of equity, and hence are we of the opinion that the court, by reason of the statute, had jurisdiction to proceed as it did.

This brings us to the facts and to the question of whether the defendant practiced medicine within the meaning of the statute. That he had no license or certificate is, on the record, not in dispute. He is what is termed a chiropractor. As defined by Nelson's Ency., chiropractic is:

"A system of therapeutic treatment for various diseases, through the adjusting of articulations of the human body, particularly those of the spine, with the object of relieving pressure or tension upon nerve filaments. The operations are performed with the hands, no drugs being administered."

By the International Ency.:

"A system of manipulations which aims to cure disease by the mechanical restoration of displaced or subluxated bones, especially the vertebrae, to their normal relation. It is claimed that slight displacements of the spinal segments are frequent, that they constrict important nerves and arteries, and that chiropractic adjustment corrects the displacement and relieves the pressure."

The defendant had a common school education, and one year in a high school. From the time he was sixteen to thirty-one years of age he was a machinist working in machine shops. Then he took a one-year's course and graduated in chiropractic at Dr. Palmer's school at Davenport, Iowa and thereafter, for about four years, and until these proceedings, practiced his profession or calling. The statute (Laws 1911, p. 132) provides:

"The board (medical examiners) shall have power to examine any person of good moral character who furnishes satisfactory proof of having received a degree or diploma from a legally chartered medical college, the requirements whereof shall include the following subjects as required by the board at the present time, namely: Histology, anatomy, physiology, chemistry, toxicology, urinalysis, therapeutics, bacteriology, pathology, theory and practice of medicine, or osteopathy, surgery, obstetrics, materia medica or osteopathic therapeutics, gynecology, pediatrics, dermatology, hygiene, medical jurisprudence, ophthalmology, otology, rhinology, laryngology. The foregoing showing an aggregate of 3,500 hours and any legally chartered school having the foregoing requirements shall be deemed a recognized school of medicine. Said applicant shall present a certificate from a high school of the first grade or its equivalent, and shall have furnished evidence of at least two units work in Latin and German, * * * and if upon examination of such person, the board is satisfied with his educational attainments, and that the applicant is qualified to practice medicine and surgery, then the board shall issue a certificate to such person so qualified and examined."

It is not claimed that Dr. Palmer's school met these requirements or that the defendant had studied or had knowledge of any of these subjects, except anatomy, physiology, toxicology, urinalysis, and obstetrics. And thus is it apparent that he did not possess a degree or diploma of such a college as is required by the statute to entitle him to take an examination. He maintained an office at Ogden, and in the newspapers advertised as a "Graduate Chiropractor. No drugs, or surgery, or osteopathy. Try chiropractic. Rooms 212-13-14 Col. Hudson Building. Phone 311." Just what he did is best shown by the testimony of his patients whom he treated or manipulated, and by his own testimony.

One of them testified:

That he took his little girl to the defendant for treatment. "I took the girl there to see what was wrong with her, and I asked the doctor what was the cause, and he said it was St Vitus' dance, and I asked him if he thought he could do any good, and he said he could; he undressed the baby and laid it on a sort of table and pressed on her spine, * * * and said there was some...

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