Johnson v. State

• Decision Date: 06 December 1924
• Docket Number: (No. 9468.)
• Citation: 267 S.W. 1057
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Appeals

267 S.W. 1057

JOHNSON v. STATE.

(No. 9468.)

Court of Civil Appeals of Texas. Dallas.

December 6, 1924.

Rehearing Denied January 17, 1925.

Appeal from District Court, Hunt County; Newman Phillips, Judge.

Suit by the State against W. L. Johnson. Judgment for plaintiff, and defendant appeals. Affirmed.

Thos. W. Thompson and Neyland & Neyland, all of Greenville, for appellant.

J. W. Bassett, of Greenville, R. K. Hanger, of Fort Worth, W. A. Keeling, Atty. Gen., and Clark & Clark, of Greenville, for the State.

JONES, C. J.

This is a suit brought in the district court of Hunt county, Tex., by the state of Texas, represented by W. A. Keeling, Attorney General of Texas, Jas. W. Bassett, county attorney of Hunt county, and R. K. Hanger, district attorney of Tarrant county, seeking an injunction to restrain W. L. Johnson, appellant, from unlawfully practicing medicine and from pursuing such occupation in this state. The case was tried before a jury, and at the conclusion of the evidence the court instructed a verdict in favor of appellee, and a judgment was duly entered which enjoined and restrained appellant from in any way practicing medicine in violation of the provisions of title 90, ch. 1, of the Revised Statutes of Texas, or in violation of the provisions of title 12, ch. 6, of the Penal Code of Texas; and also enjoined and restrained appellant from thereafter, in any way, treating or offering to treat any disease or disorder, mental or physical, or any physical deformity or injury, by any system or method, or to effect cures therefor, for money or other compensation within this state.

Appellant has duly perfected his appeal to this court and seeks a reversal of this case on the grounds: (1) The overruling of his plea of privilege to be sued in Tarrant county, alleged to be his residence; (2) for the admission of evidence, both showing and tending to show the practice of his profession in Hunt county previous to the date of his conviction of the statutory crime of practicing medicine in said county without a license to do so; (3) a reversal and rendering of this cause in his favor because the Medical Practice Act of this state in many of its essential features is unconstitutional and therefore void; (4) article 5744b, which provides for the procedure had in this case, and which was added by amendment to title 90, ch. 1, of the Revised Statutes of this state by the Thirty-Eighth Legislature (Acts 1923, c. 138, § 6), is unconstitutional and void. The specific ground on which the constitutionality of the above enactments is assailed will be specifically stated as same are herein reviewed.

The undisputed evidence of this case is that appellant, previous to June 11, 1924, the day on which this judgment was entered, had practiced his profession and, by numerous advertisements, had held himself out as a practitioner of such profession in Hunt county for a period of approximately eight months; that during this time he had an office in a building in the city of Greenville, in every way properly fitted and equipped for such practice; that previous to his locating in Greenville he had practiced his profession as a chiropractor in the city of Fort Worth, Tex., for about four years; that he is a married man, his family consisting of himself, wife, and several children; that he did not own any property in Fort Worth and, after locating at Greenville, he maintained no office in Fort Worth and did not hold himself out in said city for the practice of his profession; that he had established his home in Fort Worth when he located there and voted in the city of Fort Worth; that his family still resided in the city of Fort Worth, and he had no present intention of removing his said family to Greenville; that when he ceased practicing his profession in Fort Worth he did so with the intention of securing another location, but the place for a permanent location had not been determined; that if he should decide to leave Greenville, it is problematical whether he would return to Fort Worth or seek a new location; that his practice in Greenville had been fairly satisfactory and that his intention was to remain in Greenville as long as it was fairly satisfactory; that he owned an automobile and kept same in Greenville; that during the time he had been in Greenville he had a room at the Commercial Hotel, which he occupied at night and at other times when he was not engaged in his office or in recreation; that during his stay in Greenville he would leave his home on Monday morning at about 6 a. m. and arrive in the city of Greenville about 10 a. m. of said day, and remain in Greenville in the practice of his profession until 5 p. m. on Saturday afternoon, when he would leave for Fort Worth, returning again the following Monday morning; that on the 4th day of March, 1924, he was duly tried and convicted on information filed in the county court of Hunt county charging him with practicing medicine in violation of law as such an offense is defined by chapter 6, tit. 12, of the Penal Code of this state; that a judgment was entered in this case assessing his punishment at a fine of $100 and one day confinement in the county jail, and that such judgment had been fully satisfied by him; that he was pursuing his profession of chiropractor in Hunt county at the time of the trial of this case without having complied with the Medical Practice Act.

Appellant filed his plea of privilege to be sued in Tarrant county, and an issue on same was duly made by appellee's controverting plea. The petition for injunction alleged that appellant resided both in Tarrant and Hunt counties.

Did the court err in overruling the plea of privilege? The specific contention of appellant on this issue is that in this suit it is the domicile of appellant, as distinguished from his residence, that determines the venue of this suit; that a person can have but one domicile, and, when that is once fixed, it remains until it is changed by the establishment of another; that regardless of his residence in Hunt county, appellant's domicile was in the city of Fort Worth, Tarrant county; and that this was not affected by his intent in the future to select another domicile. It is true, in the strict significance of the term, a person can have but one domicile, and if appellant is correct in his assumption that domicile, as distinguished from residence, controls the venue of this suit, then this case should be reversed and transferred to Tarrant county, for such county is undoubtedly his "domicile" if that word is given its strict meaning. Our venue statutes sometimes use the word "domicile" and sometimes use the word "residence," for which reason our courts have denied to the word "domicile" its strict meaning, and given it the meaning of "residence" in such statutes. Pearson v. West, 97 Tex. 238, 77 S. W. 944; Taylor v. Wilson, 99 Tex. 651, 93 S. W. 109; Latham v. Continental Supply Co. (Tex. Civ. App.) 230 S. W. 230; Wrenn v. Brooks (Tex. Civ. App.) 257 S. W. 299; Littlefield v. Clayton (Tex. Civ. App.) 194 S. W. 194; Armstrong v. King (Tex. Civ. App.) 130 S. W. 629; Funk v. Walker (Tex. Civ. App.) 241 S. W. 720.

These cases establish the proposition that under the venue statutes of this state a person may have more than one legal residence, and that such person cannot plead his privilege if sued in a county where he had established one of these residences. Residence requires only bodily presence as an inhabitant in a given place, while "domicile," in its strict sense, requires residence in that place together with an intention to make it the home. The evidence on the plea of privilege establishes that appellant was an inhabitant of the city of Greenville and had established a residence there for the purpose of pursuing his profession. This fixes such a residence of appellant in Hunt county as gives the district court of that county venue of this suit.

In addition to these decisions construing the word "domicile" as used in the venue law, said article 5744b is strongly suggestive that the intention of the Legislature was that the venue of the injunction suit authorized by its provisions should be in the county in which the defendant resides for the purpose of unlawfully practicing medicine, in that it provides that the suit may be instituted by the district attorney of the county in which the defendant resides, or the county attorney of the county in which he resides, and this suit was instituted in such county and by the officials so designated. The assignments of error on the issue of venue of the suit are overruled.

The article of the statute in question provides that the suit for injunction shall not be entertained in advance of the previous final conviction of the defendant in the injunction suit of a violation of the Medical Practice Act, as such offense is defined by title 12, ch. 6, of the Penal Code. In the trial of the cause evidence was admitted, over the timely objection of appellant, as to his treatment of patients for pay previous to such conviction, and this action of the court is assigned as error on the theory that under such act no evidence of unlawful acts and conduct of appellant previous to the conviction was admissible. We do not so construe the effect of that provision of said statute. This provision of the statute is enacted as a safeguard in behalf of the defendant against whom the injunction provision of the statute is invoked. Its effect is to render a person immune from the drastic provision of the injunction feature of the said act until it has been established beyond a reasonable doubt, in a court of competent jurisdiction that the defendant is unlawfully engaged in the practice of medicine. It is not, therefore, a limitation on the state in the matter of evidence. The assignment of error in reference to the admission of such evidence is overruled.

It is also urged that, as article 4653 of our Revised Statutes provides that writs of...