Ex Parte Halsted

• Citation: 182 S.W.2d 479
• Decision Date: 07 June 1944
• Docket Number: No. 22775.,22775.
• Parties: Ex parte HALSTED.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

182 S.W.2d 479

Ex parte HALSTED.

No. 22775.

Court of Criminal Appeals of Texas.

June 7, 1944.

Rehearing Denied October 11, 1944.

COPYRIGHT MATERIAL OMITTED

Commissioners' Decision.

Appeal from District Court, Johnson County; O. B. McPherson, Judge.

Habeas corpus proceeding by W. B. Halsted for discharge from arrest and custody on charges of practicing chiropractic without a license, advertising as a chiropractor without following his name with the term "chiropractor", and advising a parent against having his child treated by vaccination. From an order denying the writ and remanding relator to the arresting officer's custody, relator appeals.

Reversed, and relator ordered discharged.

Rogers, Spurlock & Love, of Fort Worth, for appellant.

E. B. Simmons, of San Antonio, General Defense Counsel, Texas State Chiropractic Ass'n., Inc.

E. T. Branch, of Houston, for Harris County Chiropractors.

Leonard Brown, of San Antonio, for Bexar County Chiropractors.

Louis Wilson, of Dallas, for Dallas County Chiropractors.

Kuykendall, Bauknight, Mann & Stevenson, of Austin, amici curiae.

Ernest S. Goens, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

By Chapter 359, Acts 1943, Regular Session, 48th Legislature, appearing as Arts. 4512a—1 to 4512a—18, Vernon's Annotated Revised Civil Statutes, known as the "Chiropractic Act," and hereinafter referred to as the "Act," the legislature set up, recognized, and defined, as an independent field of endeavor, the Science of Chiropractic, and prescribed rules and regulations governing the practice thereof, in this State. Among the offenses created in the Act, it is unlawful for anyone: (1) To practice chiropractic without a license; (b) to advertise as a chiropractor without following his name with the term "chiropractor"; and (c) for one practicing chiropractic to advise a parent against having his child treated by vaccination. The first two named offenses are misdemeanors; the other is a felony.

Relator stands charged, in the County Court of Johnson County, with having committed the misdemeanors, and, before the Justice Court of Precinct No. 1 of said County, as an examining court, with having committed the felony. He was arrested upon said accusations and taken into custody. By writ of habeas corpus before the District Court of said County, he sought his discharge from such arrest and custody, asserting that the Act mentioned was unconstitutional and void, and that the offenses charged against him were not based upon any valid law. After hearing, the relief prayed for was denied, and he was remanded to the custody of the arresting officer. From this order, he appeals to this court.

We are confronted, first, with the contention of the State, as respondent, that this court is without jurisdiction of this appeal, it being insisted that all matters relied upon by the relator may be properly and fully raised upon the trial of the cases pending against him, and that, in the event of conviction, he would be fully protected by an appeal to this court.

Ordinarily, respondent's contention is correct; but, there are exceptions to the rule, among which is that, where one claims that the statute which he is charged with having violated is void and unconstitutional, the writ of habeas corpus may be resorted to in order to test the validity of the statute. Branch's P.C., Sec. 258; Ex parte Patterson, 42 Tex.Cr.R. 256, 58 S.W. 1011, 51 L.R.A. 654; Ex parte Luna, 98 Tex.Cr.R. 458, 266 S.W. 415; Ex parte Oates, 91 Tex.Cr.R. 79, 238 S.W. 930; Ex parte Spelce, 135 Tex.Cr.R. 367, 119 S.W. 2d 1037; Ex parte Carter, 143 Tex.Cr.R. 46, 156 S.W.2d 986. It follows, therefore, that this court has jurisdiction of this appeal.

Relator contends that the Act is void and unconstitutional, and is violative of provisions of both State and Federal Constitutions, in that it is class legislation; that it violates the non-preference clause of Art. 16, Sec. 31, of our State Constitution, Vernon's Ann.St.; and that the definition given the term "chiropractic," and the practice thereof, is so vague, indefinite and uncertain as to be incapable of being understood or enforced.

Respondent contends that chiropractic and the practice thereof, as defined and set up in the Act, is a public health measure, and, therefore, a subject coming within the police power of this State; that, under such power, the legislature was authorized to give special treatment to, and to set up and establish, chiropractic and the practice thereof as an independent field of endeavor; and that the Act as a whole, and when viewed in that light, is valid. Upon these issues a construction of the Act is called for by this court.

In approaching a determination of the question thus presented, it is well that certain established rules of statutory construction be kept in mind.

Under our system of government, the legislature has the power to pass any and all laws which to it may seem proper, so long as same violate no provisions of our State or Federal Constitutions. A law must be sufficiently definite that its terms and provisions may be known, understood, and applied. An Act of the legislature which violates either of said Constitutions, or an Act that is so vague, indefinite, and uncertain as to be incapable of being understood, is void and unenforcible. A void law affords no basis for a criminal prosecution.

The power to determine the validity of an Act of the legislature rests with the courts. In the exercise of this power by the courts, certain rules of construction have been recognized and adopted, chief among which are: It is the duty of the courts to ascertain the intent of the legislature, and, where possible, to enforce it by giving effect thereto (39 Tex. Jur. 166; 50 Am.Jur., Statutes, Sec. 223); if the legislative enactment be susceptible of two constructions, to apply that which sustains rather than defeats it; to strike down no legislative enactment unless and until its invalidity definitely appears. In the exercise of this power and in determining the validity of any law, the courts are powerless to add anything thereto or to re-write or change the same. The courts must not, under the guise of construction, enter the field of legislation. 39 Tex.Jur. 162; 50 Am.Jur., Statutes, Sec. 228.

Art. 16, Sec. 31, of our State Constitution reads as follows:

"The Legislature may pass laws prescribing the qualifications of practitioners of medicine in this State, and to punish persons for mal-practice, but no preference shall ever be given by law to any schools of medicine."

By authority of this constitutional provision, as well as by the general police power to protect the public health, the legislature has, by law, specially defined the practice of medicine, and has prescribed rules and regulations governing the practice thereof, under what is known as the "Medical Practice Act," and which appears as Chapter 6, Title 12, of the Penal Code, and Chapter 6, Title 71, Revised Civil Statutes, passed in 1907.

The term "practicing medicine" is, in the Medical Practice Act, defined as follows, Art. 741, P.C., and Art. 4510, R.C.S.:

"Any person shall be regarded as practicing medicine within the meaning of this chapter:

"1. Who shall publicly profess to be a physician or surgeon and shall treat or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury, by any system or method, or to effect cures thereof.

"2. Who shall treat or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury, by any system or method, or to effect cures thereof and charge therefor, directly or indirectly, money or other compensation."

The Medical Practice Act, as well as the definition of "practicing medicine," has been sustained as valid—not only by this court, but also by the Supreme Court of the United States. Ex parte Collins, 57 Tex.Cr.R. 2, 121 S.W. 501; Collins v. State, 223 U.S. 288, 32 S.Ct. 286, 56 L.Ed. 439; Larson v. State, 106 Tex.Cr.R. 261, 285 S.W. 317, writ of error dismissed 273 U.S. 776, 47 S.Ct. 332, 71 L.Ed. 886; Allison v. State, 127 Tex.Cr.R. 322, 76 S.W. 2d 527, appeal dismissed 295 U.S. 717, 55 S.Ct. 828, 79 L.Ed. 1672. Said definition has not been changed or modified. The Act before us makes no attempt to do so.

In construing the Medical Practice Act, and in determining what constitutes the practice of medicine thereunder, it has been the long and consistent holding of this court that one who publicly professes to treat diseases or disorders, and to effect cures thereof, or one who in fact treats diseases or disorders, as a profession or avocation, is practicing medicine, regardless of the system or method employed, the name by which the system is known, or whether or not drugs or surgery are used. The practice of medicine, as contemplated and defined by law, is not restricted to the treatment of diseases and disorders of the human body by the use of drugs or surgery.

Such is the effect of the holding in cases where those practicing chiropractic, as known and generally understood, were convicted of practicing medicine, as shown by: Teem v. State, 79 Tex.Cr.R. 285, 183 S.W. 1144; Maier v. State, 90 Tex.Cr.R. 459, 235 S.W. 576; Guy v. State, 116 Tex.Cr. R. 392, 32 S.W.2d 460; Lemly v. State, 107 Tex.Cr.R. 67, 294 S.W. 856; Robertus v. State, 119 Tex.Cr.R. 370, 45 S.W.2d 595; Allison v. State, supra; Piner v. State, 131 Tex.Cr.R. 266, 97 S.W.2d 953. Such was also true of masseurs (Dankworth v. State, 61 Tex.Cr.R. 157, 136 S.W. 788; Milling v. State, 67 Tex.Cr.R. 551, 150 S.W. 434; Hyroop v. State, 79 Tex.Cr.R. 150, 179 S.W. 878); also, of osteopaths (Ex parte Collins, supra); and, of optometrists, prior to the passage of the Optometry Act (Baker v. State, 91 Tex.Cr.R. 521, 240 S.W. 924, 22 A.L.R. 1163).

This judicial history becomes an important factor in construing the Act before us. The legislature had notice thereof. So, when the Act as a...