Hayden v. State

• Decision Date: 02 March 1903
• Court: Mississippi Supreme Court
• Parties: HENRY HAYDEN v. STATE OF MISSISSIPPI

33 So. 653

81 Miss. 291

HENRY HAYDEN v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

March 2, 1903

FROM the circuit court of Alcorn county. HON. EUGENE O. SYKES Judge.

Hayden appellant, was convicted of practicing medicine without a license so to do, and appealed to the supreme court. The facts are stated in the opinion of the court.

He made a previous effort to appeal from the verdict of the jury before judgment, but the appeal was dismissed. See Hayden v State, ante 55.

Judgment reversed, indictment quashed and defendant discharged.

J. A. P. Campbell and Boone & Curlee, for appellant.

The question is as to the meaning of the term "physician" in § 1258 of the code. The implication of the section is that he may be examined and get license, mere mockery if he cannot. Section 3243 of the code requires every person who desires to practice medicine to obtain license, and by § 3244 every such person must be examined upon, among other things, "materia medica" and "surgery" while the next section speaks of "medical studies," "medical lectures" and "medical schools," "practice of medicine," etc.

Provision is made for licensing all named in § 1258 as prohibited from practicing without license showing that those made subject to a penalty for practicing without license are those for licensing whom provision is made by the code.

Physis is medicine, drugs, and a physician is one who uses medicine; a surgeon is one who uses instruments and performs operations with them.

The requirement of proficiency in materia medica as a condition of obtaining license to practice as a physician is to prohibit from practicing as physicians in the large sense of ministering to the suffering all who do not rely on drugs and would embrace nurses and many others and would not be constitutional according to State v. Gravett, 65 Ohio St. 749.

The true view is maintained by Smith v. Lane, 24 Hun., 639; Nelson v. State of Kentucky, Ky. Ct. of Ap., reported in 50 L. R. A., 383; State v. Lefring, 61 Ohio St. 39.

The cases in other states are on statutes widely different from ours and do not conflict with the views contended for in this brief. The case of Eastman v. The People, 71 Ill.App. Ct., 206 is clearly right and doubtless those from other states are so, but it is just as clear that our statutes do not embrace osteopaths or any others who do not practice medicine.

The act of March 19, 1896, acts p. 79, makes clear beyond dispute the meaning of "physician" and practicing medicine as dealt With by our law and certainly the writer of that act had never heard of osteopathy or did not intend to include it in the act.

It is clear that an osteopath cannot obtain license for the prescribed examination excludes him, and no state board would grant him license. The facetious brief of the attorney-general is an argument in favor of a law requiring osteopaths to be examined as to qualification in their profession and to that they have no objection, their complaint is that they cannot get license and yet are prosecuted for not getting it.

Monroe McClurg, attorney-general, for appellee.

January 15, 1815, is the earliest date of the English statute requiring that every medical man should give evidence that he possessed some knowledge of his profession before he began to practice, and that all apothecaries, who were then a class of physicians, should be licensed. Then, as now, it was charged that selfish purposes actuated the law, but it is an historical truth, that with "The Apothecaries' Act" began a revolution in medicine. Cuppers, leechers, bleeders, herb-doctors, and all kindred classes began to lose ground. They are not all dead yet, but their ranks are thin. The English act has been, in some form, followed in this country. Many states have similar statutes. That they are wise and have been a great blessing to mankind will not be questioned. The great controlling purpose has been to benefit mankind, not merely by undertaking to regulate the use of any drug in a scientific manner, not to regulate the practice of medicine artfully, but by laws which will protect the public, not against a certain class of physicians, but against all persons whomsoever who shall undertake to minister unto them for their ailments. Our statute, at least, cannot fairly be given the narrow construction contended for by appellant. The history of our legislation on this subject justifies and demands a broader construction; and looking at the legal history in the light of general history on this subject, it is next to preposterous to contend for limitations short of the general good in its broadest sense. Dentists and pharmacists are likewise required to be licensed. In short, the broad purpose is to weed out the incompetent men, rather than the inefficient remedy or the hurtful drug. When we secure a competent man, the pure "drug," the correct "agency," the scientific "appliance" follows.

The defense rests upon the mistaken idea that the practitioner of osteopathy is to be skilled alone in the art of manipulation; that it is not essential for him to be able to make a scientific diagnosis. Art is what we may do; science is what we know. Art and science are both required in the practice and knowledge of osteopathy. The practitioner must know scientifically what bone is fractured, what nerve or blood vessel is pressed, what muscle is diseased, in order to understand what manipulation is needed, and then be able to skillfully, or artfully, apply the manipulation to secure the desired effect. The osteopath, the same as the allopath, the homoepath or the practitioner of any other school, claims to possess both the science and the art desired by the patient; hence, on foundation principles, there is no difference between them. It is but common knowledge that he who treats by manipulation, the bones, muscles and ligaments of the human body for any of the countless ailments of which they are susceptible, should possess at least as high a degree of the knowledge of the science of physiology, or anatomy, or of hygeine, or of medical botany, as the one who treats by some other method. "Treats" and "practice" are synonymous as used in this connection. There can be no reason for any substantial difference.

The real defense is not that the appellant is not a physician, but that the statute is not broad enough to include his particular class or school of doctors. The purpose of the act of 1896, as gathered from its title as well as from the context, is to "define the practice of medicine." That the practice of medicine is not limited by the act of drugs, or to allopathic practice is plain; any "drug," any "medicine," any "appliance," or any "other agency," either of which is "material" or "immaterial." "Appliance" is not used here strictly in a mechanical sense, nor does "other agency" refer to the same kind of drugs, medicine or appliances, but to any other thing except those used to the same end as those things are used, namely, "the cure, relief or palliation of any ailment or disease of mind or body, or for the cure or relief of any wound, or fracture, or other bodily injury or deformity." The plain, unambiguous language of the statute is a rule of construction sufficient unto itself. Its humane purpose is to protect the public from the dangers of pretenders and impostors. One afflicted with a broken limb, or rheumatic muscles, may suffer as much injury from unskilled manipulation as from ineffectual medicines or medicines unwisely administered. Indeed, the words "appliance" and "other agency" so far from being words of limitation broaden the statute to include even "faith doctors" and "christian scientists." Mental application is a cure, or the agency of faith, rest, air, water, light, and numberless other practices, are the "agencies" contemplated by the statute. So, the argument that the law does not include manipulation scientifically and professionally administered or applied is answered by the statute itself. 23 Am. & Eng. Ency. Law, p. 442, notes 3 and 4, and Ib., 446-70, notes. The case of Bragg v. State, Alabama, reported in 32 So. 767, takes the correct view of the question. The Ohio, Rhode Island and Kentucky cases cited by counsel, 61 Ohio St. 30, and 40 Ohio, N. P. 163 and Mylod's case (Rhode Island) 41 L. R. A., 428, and Nelson's case, 22 Ky. 438, are not only upon narrow statutes, but the reasoning of the courts in those cases is too much restricted. The Alabama case is respectfully commended to the court as announcing the correct rule upon this subject, especially in showing what "the practice of medicine" means, and that the osteopath comes clearly within the true definition. See also in point Little's case, 51 L. R. A., 717.

In the July, 1902, Journal of Osteopathy, published by the American School of Osteopathy, at Kirksville, Mo. may be found the...