Cummings v. State
| Decision Date | 17 December 1925 |
| Docket Number | 1 Div. 377 |
| Citation | 106 So. 852,214 Ala. 209 |
| Parties | CUMMINGS v. STATE ex rel. BIGGS, Solicitor. |
| Court | Alabama Supreme Court |
Rehearing Denied Jan. 21, 1926
Appeal from Circuit Court, Baldwin County; John D. Leigh, Judge.
Quo warranto by the State of Alabama, on the relation of Leonard S. Biggs, its Solicitor, against Ormand K. Cummings. From a judgment for petitioner, defendant appeals. Affirmed.
McMillan & Grove, of Mobile, for appellant.
Leonard S. Biggs, of Monroeville, for appellee.
The state of Alabama by its solicitor of the Twenty-First judicial circuit, Leonard S. Biggs, institutes this proceeding against Ormond K. Cummings. It is an action in the nature of a quo warranto, charging Cummings with intruding into the profession of treating diseases of human beings which requires a license or certificate of authorization, and which he did not obtain from the state board of medical examiners. This petition was filed by the solicitor for the state under subdivision 1, section 9932, Code 1923, under written direction from Hon. John D. Leigh, judge of the Twenty-First judicial circuit, as is permitted by section 9933, Code 1923. Robinson v. State, 212 Ala. 459 102 So. 693. The defendant filed general denial of the petition. The cause was tried by a jury; they returned a verdict in favor of the state, and from a judgment thereon by the court, excluding him from practicing this profession this appeal is prosecuted by him.
There are 16 errors assigned; only three are argued and insisted on in brief of appellant, and the others are thereby waived, so we will consider only the three urged as errors. L. & N.R.R. Co. v. Jones, 211 Ala. 158, headnote 3, 99 So. 919; A. & St. A.R. Ry. Co. v. Knight, 211 Ala. 213, headnote 9, 100 So. 233.
The court overruled demurrers of the defendant to the original petition. Section 2 thereof, at which the demurrer was directed, reads as follows:
"The relator gives the court further to understand and be informed, and does aver, that Ormond K. Cummings, in said county of Baldwin, Ala., and since the 18th day of August, 1924, has intruded into the profession of treating or offering to treat diseases of human beings [a profession requiring a license, or certificate or other legal authorization within this state], without having obtained a certificate of qualification from the state board of medical examiners of the state of Alabama, or the license required by law, and is still unlawfully practicing said profession in Baldwin county, Ala."
That part of the statute applicable under which petitioner is proceeding states:
"When any person *** intrudes into *** any profession requiring a license or certificate or other legal authorization within this state."
The treatment of diseases of human beings in this state is a profession, and this profession cannot be lawfully practiced by a person in this state without a proper license or certificate of qualification. Article 1, c. 52, vol. 1, p. 1279, Code 1923; section 5191, Code 1923; Robinson v. State, 212 Ala. 459, 102 So. 693.
The petition avers Cummings intruded into the profession of treating or offering to treat diseases of human beings in Baldwin county, Ala. This clearly shows the profession he is practicing, and it avers he is an intruder therein, that a license or certificate of qualification to practice this profession from the state board of medical examiners is required, and that he has not obtained this certificate or license. This is sufficiently definite and certain, and the court did not err in overruling demurrers to the original petition. Section 9932, Code 1923; Jackson v. State, 143 Ala. 146, 42 So. 61; Ex parte Wideman (Wideman v. State) (Ala.Sup.) 104 S. 441; Robinson v. State, 212 Ala. 459, 102 So. 693.
Before the cause was submitted to the jury, the state, by its solicitor, by leave and under order of the court, amended the petition by striking out the foregoing section 2 and inserting in lieu thereof the following:
"That relator gives the court to further understand and be informed, and does aver, that Ormond K. Cummings, in said county of Baldwin, Ala., and since the 18th day of August, 1924, has intruded into the profession of treating or offering to treat diseases of human beings by a system of treatment known as the chiropractic system, or did treat or offer to treat diseases of human beings as a chiropractor, a profession requiring a license or certificate or other legal authorization within this state, without having obtained a certificate of qualification from the state board of medical examiners of Alabama, or the license required by law, and is still unlawfully offering to treat disease of human beings, by said above named system, in Baldwin county, Ala."
The defendant demurred to the petition as thus amended, and the demurrers were overruled by the court.
It is true there are in this amendment two distinct disjunctive averments, as follows:
"Has intruded into the profession of treating or offering to treat diseases of human beings by a system of treatment known as the chiropractic system or did treat or offer to treat diseases of human beings as a chiropractor, a profession requiring a license or certificate."
But each alternative averment distinctly designates with certainty the profession--treating or offering to treat diseases of human beings. This petition as amended, when considered as a whole, sufficiently designates the profession he was practicing, the intrusion by him into it, that a certificate or other legal authorization within the state is required to practice it, and he has not obtained from the state board of medical examiners of Alabama a certificate or the license required by law.
This court, in construing this statute on demurrer to the petition filed under it in Jackson v. State, 143 Ala. 147, 42 So. 62, wrote:
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