Lucas v. State ex rel. Bd. of Medical Registration & Examination

• Decision Date: 21 June 1951
• Docket Number: No. 28686,28686
• Citation: 99 N.E.2d 419,229 Ind. 633
• Parties: LUCAS v. STATE ex rel. BOARD OF MEDICAL REGISTRATION & EXAMINATION.
• Court: Indiana Supreme Court

Page 419

99 N.E.2d 419

229 Ind. 633

LUCAS v. STATE ex rel. BOARD OF MEDICAL REGISTRATION & EXAMINATION.

No. 28686.

Supreme Court of Indiana.

June 21, 1951.

Flanagan & Miller, Ft. Wayne, for appellant.

J. Emmett McManamon, Atty. Gen., Thomas L. Webber, George W. Hand, Deputies, Alton L. Bloom, Pros. Atty., 38th Judicial District, Ft. Wayne, for appellee.

JASPER, Judge.

This is an action to permanently enjoin appellant from practicing medicine in the State of Indiana without a license, under § 63-1311, Burns' 1943 Replacement. Appellant filed an amended plea in abatement in two paragraphs, to which appellee filed a demurrer for failure to state facts sufficient to abate the action. The demurrer was sustained. After notice and hearing, a temporary injunction was issued. Appellant then filed an answer in three paragraphs, the first paragraph an answer in denial under our Rule 1-3, and the second and third paragraphs as affirmative answers in bar, raising the question of the constitutionality of the Board of Medical Registration and Examination. A demurrer was filed to the second and third paragraphs of answer, which demurrer was sustained by the trial court. By stipulation, the same evidence was submitted to the court as at the hearing on the temporary injunction, and a permanent injunction issued. Appellant assigns as error the sustaining of appellee's demurrer to appellant's amended plea in abatement, and the sustaining of appellee's demurrer to appellant's second and third paragraphs of answer.

Each assignment raises the same question, namely the constitutionality of the act of 1945, Acts 1945, chapter 80, § 2, page 173, § 63-1305, Burns' 1943 Replacement, 1949 Supp.

Appellee contends that the demurrer to the plea in abatement was properly sustained for the reason that such plea was a defense, and therefore could be raised only by a plea in bar. With this contention we agree. A plea in abatement must show a reason for abating the present action, but not one stating a defense to the cause of action. State ex rel. Gibson v. Board of Com'rs of Adams County, 1944, 222 Ind. 284, 287, 53 N.E.2d 347, 348. In the last-cited case, this court said: 'A plea in abatement is one which shows some reason for abating or defeating the pending action, but does not undertake to state a defense thereto. Such a plea is in the nature of an admission that the plaintiff may have a cause of action but asserts that he cannot maintain it at the present time, in the present form, or in the court in which it has been brought. It will not, if sustained, prevent the plaintiff from recommencing his action at the proper time or in the proper way or court. * * * Of necessity, then, matters in bar of the plaintiff's right of action are not properly assignable by way of a plea in abatement.'

In the case not before us, the plea in abatement raises solely a constitutional question, which, if sustained, would be a complete defense to the action, and there would be no proper time, way or court in which appellee could maintain its action. A plea in abatement must be certain in every particular, and not only point out the plaintiff's error, but also show him how to avoid the error in the amendment of his pleading or in another suit. Needham v. Wright, 1895, 140 Ind. 190, 39 N.E. 510. Appellant, by his plea in abatement, denies the existence of a cause of action. This court said, in the case of Swing v. Toner, 1912, 178 Ind. 102, 105, 96 N.E. 946, 947: "Whenever the subject-matter of the plea or defense is that the plaintiff cannot maintain any action at any time whether present or future in respect of the supposed cause of action, it may, and usually must, be pleaded in bar; but matter which merely defeats the present proceeding, and does not show that the plaintiff is forever concluded, should in general be pleaded in abatement." * * * The demurrer to the plea in abatement was properly sustained.

Appellant contends that the Medical Practice Act, § 63-1305, Burns' 1943 Replacement, 1949 Supplement, is unconstitutional in so far as it attempts to create a medical board to license chiropractors, (1) because the composition of the board is inherently discriminatory and prejudiced against chiropractors, (2) because each of the members of the medical profession has a pecuniary interest in the elimination of chiropractors, and (3) because an applicant for a chiropractic license could not receive a fair and impartial hearing before the medical board as constituted, all in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States and of Article 1, Section 23, of the Constitution of Indiana.

Appellant further contends that because of the last-cited act being unconstitutional the board is nonexistence, and appellant therefore is not required to have a license to practice chiropractics. This court has held that the practice of chiropractics is the practice of medicine. State ex rel. Board of Medical Registration & Examination v. Hayes, 1950, 228 Ind. 286, 91 N.E.2d 913. Under § 63-1301, Burns' 1943 Replacement, the Legislature made it unlawful to practice medicine without a license. Therefore, until appellant obtains a license, he cannot practice chiropractics. State ex rel. Board of Medical Registration & Examination v. Frasure, Ind. 1951, 98 N.E.2d 365. The Board of Medical Registration and Examination of Indiana was granted the authority to make rules and regulations and to set standards for medical schools, which includes chiropractic schools, and also to set the requirements which must be met by applicants for examination to practice chiropractics under a medical license. Section 63-1306, Burns' 1943 Replacement, 1949 Supp. An applicant for a license to practice chiropractics is exempted by statute from taking an examination in materia medica, surgery, and obstetrics. Section 63-1312, Burns' 1943 Replacement. In conformity with the statutes, the Board of Medical Registration and Examination adopted Rule No. 39, as amended by Rule No. 50, which rule prescribes the requirements for medical schools and the teaching of chiropractics. The rules, both as to schools of chiropractic and applicants for examination, specifically exempt the study of an examination in materia medica, surgery, and obstetrics, and thus meet the standards set by the Legislature. Blue v. Beach, 1900, 155 Ind. 121, 56 N.E. 89, 50 L.R.A. 64.

Appellant does not assert that the rules as adopted are unreasonable, or in excess of legislative authority, or a delegation of legislative authority, in violation of Article 4, Section 1, of the Constitution of Indiana.

In the case of Pitzer v. Indiana State Board, 1932, 94 Ind.App. 631, 638, 639, 177 N.E. 876, 878, the court said: 'It therefore follows that appellant is not entitled to an examination or a certificate and license to practice chiropractic until he has satisfied the Indiana state board of medical registration, by presenting evidence, that he is a graduate of a college maintaining a standard of medical education meeting the minimum requirements as fixed by said board.' Appellant has made no effort to comply with these rules and with the statutes.

Appellant attempts to set his own standards of qualifications for a license, and disregards the standards as set by the Legislature for education and examination. As has often been said by this court, the practice of medicine requires the highest standards of education. In State ex rel. Burroughs v. Webster, 1898, 150 Ind. 607, 616, 617, 618, 619, 620, 621, 50 N.E. 750, 753, 754, 755, 41 L.R.A. 212, the court said:

"Statutes similar to the one under consideration, denying to all physicians in the state, lawfully engaged in practice, the right to continue such practice, until they conform to the requirements of the statute, and restricting the practice of medicine to persons who are able to demonstrate their qualifications, have been held constitutional, as a proper exercise of the police power of the state in nearly every state of the union and in the supreme court of the United States. (Cases cited.) Similar statutes have been construed and recognized as the law in cases where their constitutionality was not questioned, as follows: (cases cited). Similar statutes have been sustained for the regulation of the practice of dentistry. (Cases cited.) It has been held that the practice of pharmacy may be similarly regulated. (Cases cited). It has been held that the state may regulate the trade of plumbing, and limit the privilege by examinations (cases cited); and also engineers (cases cited); and even lawyers (cases cited). In every one of these cases it has been held that it is within the power of the general assembly to prescribe qualifications for the practice of the professions or trades named, and to regulate and control these professions, even to the point of taking away the right to practice from persons lawfully engaged in the practice who may be deemed insufficiently qualified in the judgment of the board or official to whom the examination of the applicant has been intrusted.'

'In Eastman v. State, supra [109 Ind. 278, 10 N.E. 97], this court said: 'The practice of medicine and surgery is a vocation that very nearly concerns the comfort, health, and life of every person in the land. Physicians and surgeons have committed to their care the most important interests; and it is an almost imperious necessity that only persons possessing skill and knowledge should be permitted to practice medicine and surgery. For centuries the law has required physicians to possess and exercise skill and learning, for it had mulcted in damages those who pretend to be physicians and surgeons, but have neither learning nor skill. It is therefore no new principle of law that is asserted by our statute, but, if it were, it would not condemn the statute, for the statute is an exercise of the police power inherent in the state. It is, no one...