Frutiger v. State

• Decision Date: 13 January 1927
• Docket Number: 6 Div. 714
• Citation: 215 Ala. 451,111 So. 37
• Parties: FRUTIGER v. STATE ex rel. DAVIS, Sol.
• Court: Alabama Supreme Court

111 So. 37

215 Ala. 451

FRUTIGER v. STATE ex rel. DAVIS, Sol.

6 Div. 714

Supreme Court of Alabama

January 13, 1927

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Quo warranto proceeding by the State on the relation of Jim Davis, Solicitor of the Tenth Judicial Circuit to exclude E.C. Frutiger from treating diseases of human beings. From a judgment for petitioner, respondent appeals. Affirmed.

Drennen & Burns and Thomas Dozier, all of Birmingham, for appellant.

Jim Davis, Sol., and Frank M. Dixon, Deputy Sol., both of Birmingham, for appellee.

GARDNER J.

Action in the nature of quo warranto, brought in the name of the state against respondent (appellant here) for the purpose of excluding him from the exercise of his profession of treating, or offering to treat, diseases of human beings. Section 9932, subd. 1, Code 1923.

The complaint was sufficient, and the demurrer interposed thereto properly overruled. Donovan v. State (Ala.Sup.) 109 So. 290; Cummings v. State, 214 Ala. 209, 106 So 852; Ex parte Wideman, 213 Ala. 170, 104 So. 440.

Chiropractors are required by law to have a certificate of qualification to treat diseases of human beings. Section 2837, Code of 1923; Harris v. State (Ala.Sup.) So. 291. In this latter case it was said:

" 'Chiropractus' is specially named as one of the schools of 'mechanotherapy' in whose favor all educational qualifications are waived except a diploma showing graduation from such school. The subjects upon which the applicants are examined are limited. Code, § 2837. The certificate entitles the holder to treat in accordance with the teachings of his 'school' or 'sect.' Code, § 2839."

The foregoing sufficiently answers the argument here made on the construction of the statute by reason of the use of the word "mechanotherapy" therein, and which needs no further comment. Nor can sound objection be made to the statute in that the certificate so issued to the chiropractor is limited to treatment in accordance with his school. His examination is likewise limited, and the limitation of his certificate as prescribed by the statute is in accord with his methods of treatment.

It is further insisted the statute is unreasonably discriminatory in requiring examination upon some subjects which are not needed in the practice of this particular school. We think the following language of the court in State v Marble, 72 Ohio St. 21, 73 N.E. 1063, 70 L.R.A. 835, 106 Am.St.Rep. 570, 2 Ann.Cas. 898, is directly applicable in response to this insistence:

"To admit that a practitioner may determine what treatment he will give for the cure of disease, and that the state may examine him only respecting such treatment would be to defeat the purpose of the statute and to make effective legislation of this character impossible."

To like effect see Germany v. State, 62 Tex.Cr.R. 276, 137 S.W. 130, Ann.Cas.1913C, 477, and other authorities cited in note to People v. Love, 298 Ill. 304, 131 N.E. 809 16 A.L.R. 703.

It is averred in the answer that the medical board for examination of applicants is not sufficiently skilled and competent to pass upon the proficiency of one in respondent's line of work, and that the members thereof are prejudiced against it and that certificate could not therefore be obtained, though there is no allegation that respondent has ever presented himself for examination. ...