Kirk v. State

• Decision Date: 21 November 1911
• Citation: 150 S.W. 83
• Parties: KIRK v. STATE.
• Court: Tennessee Supreme Court

Page 83

150 S.W. 83

KIRK v. STATE.

Supreme Court of Tennessee.

November 21, 1911.

Error to Criminal Court, Davidson County; A. B. Neil, Judge.

J. N. Kirk was convicted of crime, and he brings error. Reversed and remanded.

M. S. Ross, of Nashville, for plaintiff in error. Assistant Attorney General Faw, for the State.

SHIELDS, C. J.

J. N. Kirk, plaintiff in error, was convicted in the criminal court of Davidson county, Tenn., upon an indictment predicated upon chapter 78, Acts of 1901, as amended by chapter 543, Acts of 1907 (section 4 of the last act), charging that, being then and there an itinerant physician, he "did unlawfully, by means of printed matter, printed and published in a certain newspaper, to wit, the Nashville Banner, then and there published and widely circulated and read in said county, profess to treat and cure, in said county and state, divers diseases by the manipulation and operation of divers apparatus, a description of which apparatus is to the grand jurors unknown, in, against, and upon the bodies of persons suffering from divers diseases, and by the application of electricity and electro-radio power, to, in, upon, and through the bodies of persons suffering from divers diseases, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state."

The case has been brought to this court to review the judgment entered against him, and error assigned.

The first question arising is the constitutionality of the statute upon which the indictment is predicated. Its validity was challenged by a motion to quash the indictment upon the ground, as contended by counsel, that the particular section in question (section 4 of the amended act) contravenes article 1, section 8, of the Constitution of Tennessee, providing "that no man shall be * * * in any manner disturbed or deprived of his life, liberty or property but by the judgment of his peers, or the law of the land," the "due process" clause of the fourteenth amendment to the Constitution of the United States, and also that it is arbitrary and vicious class legislation.

The original act (chapter 78, Acts of 1901) is entitled: "An act to regulate the practice of medicine and surgery in the state of Tennessee, and to define and punish offenses committed in violation of this act," and consists of 24 sections, covering the entire subject. The second act (chapter 543, Acts of 1907) merely purports to amend the former, and, of course, the amendment must be confined to the subject expressed in the caption of that act.

Section 4 of the last act is in these words:

"Be is further enacted, that it shall be unlawful for any itinerant physician, or vendor of any drug, nostrum, ointment, or application of any kind intended for the treatment of disease or injury, to sell or apply the same, or for such itinerant physician or vendor, by writing, printing, or other methods, to profess to cure or treat diseases or deformity by any drug, nostrum, manipulation, or other expedient, in this state, and whoever shall violate the provisions of this section of this act shall be guilty of a misdemeanor, and, upon conviction thereof before a court of competent jurisdiction, shall be fined in any sum not less than $100 and not exceeding $400."

The contention of the plaintiff in error is that this is an unlawful discrimination against itinerant physicians and vendors, the prohibition not including physicians and vendors who have established places of business, and for that reason it is arbitrary and vicious class legislation, violating article 1, section 8, and article 11, section 8, of the Constitution of Tennessee, and that it prohibits itinerant physicians and vendors from selling and disposing of their property, and deprives them of the right to do so, and in this violates article 1, section 8, of the Constitution of Tennessee, and the "due process" clause of the fourteenth amendment to the Constitution of the United States.

The object of the Legislature in enacting these statutes — the original and that amending it — was to regulate the practice of medicine and surgery in the state of Tennessee, and the legislation in each act must be confined to this object; otherwise, the one-subject clause of the Constitution of Tennessee (article 2, section 17) would be violated.

The last contention is made through a misconception of the proper construction and meaning of the statute. It was not intended by the General Assembly to prohibit the sales of drugs, etc., but to forbid the sale and application of them. The disjunctive "or" is used in the statute in the sense of the conjunctive "and" between the words "sell" and "apply." This is clear from the subject expressed in the original act, "The regulation of the practice of medicine and surgery," and the body of both acts. There was no intention to go beyond the subject expressed, and legislate concerning the sale of drugs, nostrums, etc. It is the duty of the courts to always so construe statutes as to carry out the legislative intent, and where that intent is clear, upon reading the statute, words may be modified, altered, or supplied, so as to give effect to it. Nichols & Shepherd Co. v Loyd, 111 Tenn. 145-148, 76 S. W. 911; Wright v. Cunningham, 115 Tenn. 452, 91 S. W. 293; Lewis' Suth. Stat. Const. vol. 2, § 347.

In the work last cited (volume 2, § 397) it is said: "The popular use of `or' and `and' is so loose and so frequently inaccurate that it has infected statutory enactments. While they are not treated as interchangeable, and should be followed when their accurate reading does not render the sense dubious, their strict meaning is more readily departed from than that of other words, and one read in place of the other in deference to the context."

We think that this applies here. Reading the word "and" instead of "or" in the statute preserves it from the vice of containing two subjects, that of practicing medicine and that of engaging in the sale of medicine; while a literal reading renders it subject to that vice. It is always to be presumed that the General Assembly did not intend to pass an unconstitutional act, and when an act is susceptible of two constructions or...