Ellestad v. Swayze

• Decision Date: 29 October 1942
• Docket Number: 28727.
• Citation: 15 Wn.2d 281,130 P.2d 349
• Parties: ELLESTAD v. SWAYZE, Director of Licenses.
• Court: Washington Supreme Court

130 P.2d 349

15 Wn.2d 281

ELLESTAD v. SWAYZE, Director of Licenses.

No. 28727.

Supreme Court of Washington

October 29, 1942

Departmemt 1.

Action by Norman J. Ellestad against Thomas A. Swayze, as Director of Licenses of the State of Washington, for declaratory judgment to test the constitutionality of the Basic Science Law. From an adverse judgment, plaintiff appeals.

Affirmed.

Appeal from Superior Court, Thurston County; John M. Wilson, judge.

Henry Henry & Pierce, of Seattle, for appellant.

Smith Troy and John E. Belcher, both of Olympia, for respondent.

Laube &amp Laughlin and Patrick A. Geraghty, all of Seattle, amici curiae.

STEINERT Justice.

This action was instituted under the declaratory judgment act to test the constitutionality of chapter 183, Laws of 1927, p 219, Rem.Rev.Stat. §§ 10185-1 to 10185-8, (P.C. §§ 3726-11 to 3726-18), inclusive, commonly known as the 'Basic Science Law.' Plaintiff alleged that the act is unconstitutional and therefore void because it violates the due process and equal protection clauses of the fourteenth amendment to the United States constitution and Art. I, § 3, of the Washington constitution and, further, because it is discriminatory in its operation, constitutes class legislation, and is arbitrary and unreasonable. The defendant joined issue by answer, but upon the trial interposed an oral motion for dismissal of the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The court granted the motion and thereafter entered judgment of dismissal. The plaintiff has appealed.

Appellant, Norman J. Ellestad, is a graduate of the Palmer School of Chiropractic, of Davenport, Iowa, and holds a diploma, dated April 28, 1936, evidencing such graduation. In 1937, he obtained a license to practice chiropractic in the state of Nevada. That license has been renewed annually and is now in force. For some time prior to the commencement of this action, however, he has been a resident of the state of Washington and has recently made application to the director of licenses, respondent herein, for a license to practice chiropractic in this state. He requested that the license be issued to him without examination, on the basis of Rem.Rev.Stat. § 10108 (P.C. § 636n), alleged to be a reciprocity statute. The director refused to issue the license until appellant should have taken and passed the examination provided for in the basic science law. Appellant thereupon instituted this action.

In his complaint he prayed (1) that chapter 183, Laws of 1927, p. 219, Rem.Rev.Stat. § 10185-1 (P.C. § 3726-11) et seq., the basic science law, be declared unconstitutional in so far as it operates as a bar to the issuance of the requested license to him; (2) that he be relieved of the necessity of taking a basic science examination as a condition precedent to the issuance of such license; and (3) that he be deemed qualified to receive a reciprocity license to practice chiropractic in this state, based on his license to so practice in the state of Nevada.

Departing somewhat from his complaint, appellant does not in his brief, assign any error or advance any argument upon the question of his right to receive a license on a purely reciprocity basis, but confines himself solely to the constitutional question. The specific question thus presented for our decision may be stated as follows: Does the requirement of an examination in the basic sciences of anatomy, physiology, chemistry, pathology, and hygiene, as applied to one seeking a license to practice chiropractic, deprive such person of due process of law or of the equal protection of the laws, in violation of the fourteenth amendment to the Federal constitution and of Art. I, § 3, of the state constitution?

The legislature of this state has long recognized various methods of healing and the distinctions between them, and has provided separate and distinct licenses for the practice of the various systems pertaining to the healing art. In 1919, a series of legislative acts was passed regulating the practice of these several systems. Chapter 4, Laws of 1919, p. 4, relates to osteopathy, and to osteopathy and surgery. Chapter 5, p. 18, regulates the practice of chiropractic. Chapter 36, p. 64, governs the practice of drugless therapeutics. Chapter 134, p. 372, pertains to the practice of medicine and surgery.

The basic science law with which we are here particularly concerned was adopted in 1927, Chapter 183, Laws of 1927, p. 219, and is now codified as Rem.Rev.Stat. §§ 10185-1 to 10185-8 (P.C. §§ 3726-11 to 3726-18) inclusive. The first section of that act provides for the appointment by the governor of an examining committee of five members, learned respectively in the sciences of anatomy, physiology, chemistry, pathology, and hygiene, to conduct examinations of all persons applying for licenses or certificates to practice medicine and surgery, osteopathy, osteopathy and surgery, chiropractic, or drugless therapeutics in the state of Washington as required by law. Section 2 makes it the duty of the examining committee to conduct examinations in the sciences above named at least twice in each year, at such times and places as the examining committee and director of licenses may determine. Section 3 prescribes that the examinations be written and be of such a nature as to constitute an adequate test as to whether the person so examined has such knowledge of the elementary principles of such sciences as taught by the University of Washington and Washington State College, in one year's instruction of thirty-six weeks, or as taught in one year's instruction of thirty-six weeks at any college or university accredited by the University of Washington, or the equivalent thereof. Section 4, against which appellant's attack is particularly directed, provides as follows: 'Any person desiring to apply to the director of licenses for a license to practice medicine and surgery, osteopathy, osteopathy and surgery, chiropractic, or drugless therapeutics shall first present to the director of licenses his credentials provided by law evidencing his qualifications to be admitted to license or to take the examination prerequisite to securing of such certificate or license and if the same are found satisfactory and the applicant is eligible to such examination, the said director of licenses shall issue to such applicant a certificate giving the name of such applicant and certifying that such applicant is entitled to take the preliminary examination provided for in this act, but without specifying the branch of therapeutics for which said applicant has applied for a license, and upon presentation of such certificate to said examining committee, together with an examining fee of ten dollars, said applicant shall be entitled to take the examination provided for in section three hereof [§ 10185-3] * * *.'

It will thus be observed that the act here in question requires, as a prerequisite to qualification for any of the special licenses under the laws above mentioned, one general examination of the applicant, testing his knowledge of the elementary principles of anatomy, physiology, chemistry, pathology and hygiene.

The question submitted for our decision here has been squarely presented and decided by this court in State v. Wehinger, 182 Wash. 360, 47 P.2d 35, 40. In that case, the defendant, a graduate of the Palmer School of Chiropractic, had been charged in justice court with the crime of illegal practice of chiropractic. On conviction in that court, he appealed to the superior court, where he was tried on an agreed statement of facts. It was therein stipulated that the defendant had advertised himself to be a chiropractor without first having taken the examination prescribed by the act governing the practice of chiropractic, Rem.Rev.Stat. §§ 10098 to 10108 (P.C. §§ 636c to 636n), inclusive, and, further that he would not have been permitted to take an examination as chiropractor until he had first taken an examination in the basic sciences, as prescribed by the basic science law. From a conviction in the superior court, the defendant appealed to this court. In affirming the judgment of conviction, we said:

'This court in common with most courts in the Union has sustained legislation regulating the practice of medicine and surgery and the so-called other healing arts and drugless healing. All such acts for the regulation of medicine, surgery, and chiropractic have been sustained here and elsewhere as a valid exercise of the police power and not violative of any constitutional provision. [Citing cases.]

' In People v. Lewis, 233 Mich. 240, 206 N.W. 553, 42 A.L.R. 1337, the Michigan Supreme Court, upheld an act regulating the practice of the system of chiropractic and held that one desiring to practice that system is not deprived of the equal protection of the laws by requiring him, as a condition for securing a license, to pass an examination in anatomy, histology, embryology, physiology, chemistry, bacteriology, pathology, diagnosis, hygiene, and public health. It will be observed that act contained more subjects in which a chiropractor is required to be reasonably proficient than our basic science law. This law was upheld despite the fact that it was shown that such subjects were not taught in chiropractic schools. * * *

'[Here follows a discussion of the case of Louisiana State Board of Medical Examiners v. Fife, 162 La. 681, 111 So. 58, 54 A.L.R. 594]

'While our law does not go to the extreme, the statute of that state [Louisiana] does, and we might possibly not go to the lengths that court did in sustaining such an act, [in the Fife case], it cannot be doubted that no one has a natural or absolute right to

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