Nelson v. State Board of Health

• Decision Date: 20 June 1900
• Citation: 108 Ky. 769,57 S.W. 501
• Parties: NELSON v. STATE BOARD OF HEALTH. [1]
• Court: Kentucky Court of Appeals

57 S.W. 501

108 Ky. 769

NELSON v. STATE BOARD OF HEALTH. ^[1]

Court of Appeals of Kentucky.

June 20, 1900

Appeal from circuit court, Jefferson county, law and equity division.

"To be officially reported."

Action by Harry Nelson against the state board of health for an injunction. Judgment for defendant, and plaintiff appeals. Reversed.

E. E McKay and T. L. Edelen, for appellant.

Kohn Baird & Spindle, for appellee.

HOBSON J.

Appellant Harry Nelson, a citizen of this state, filed his petition in equity in the court below in which he alleged that, after he had taken a regular course of studies at the American School of Osteopathy at Kirksville, Mo., for a term of years, he became a graduate thereof on September 15, 1897; that since that date he has been practicing this system of healing for his support to the great comfort and relief of disease and sickness, having adopted it as his vocation in life; that osteopathy is a perfect system, having the approval of skilled and scientific men, and schools and colleges in which its doctrines are taught; that appellee was about to have him arrested for practicing osteopathy, or prosecute him therefor, under the act entitled "An act to protect citizens of this commonwealth from empiricism," approved April 10, 1893, and the amendment thereto approved March 18, 1898; that this act is in violation of the bill of rights, and is unconstitutional, or, if valid, that under it appellee is discriminating against the system of medicine known as "osteopathy," refusing to recognize his diploma, or to give him a certificate; that the school referred to at which he graduated is a reputable medical college chartered by the laws of Missouri, with a large body of learned professors, and a large patronage of pupils, and as such is entitled to be recognized and indorsed by the appellee. He prayed that appellee be enjoined from molesting him in his business or profession as an osteopath, or pursuing him criminally therefor, and, if he was not entitled to this relief, then that a writ of mandamus be awarded him compelling appellee to recognize and indorse the American College of Osteopathy at Kirksville, Mo., and issue him a certificate entitling him to follow his calling in this state. Appellee answered, denying the allegations of the petition, and pleading specially that the school referred to was not a reputable medical college, and that plaintiff, as a graduate of it, was not entitled to a certificate from it. On final hearing the court below dismissed the action, refusing the complainant any relief, and the correctness of this judgment is the question to be determined on this appeal.

The proof shows that osteopathy is a new method of treating diseases, which is said to have originated with Dr. A. T. Still, of Kirksville, Mo., about the year 1871. He practiced it more or less from that time until about the year 1890, when he opened a school for the instruction of others. In 1892 he obtained an imperfect charter for his school under the laws of Missouri. This was perfected in 1894 by a charter in regular form, under which the school has since been operating. At the time the proof was taken in this case there were in attendance at the school something over 500 scholars from 29 states of the Union, and several from Canada. In connection with the school was an infirmary, at which from 300 to 500 patients were regularly treated. There were 12 or 13 professors in the school. Of these four were regularly graduated physicians, besides Dr. Still, who was a surgeon in the army during the Civil War, and is said to have been a college graduate; but the proof as to this is not clear. Another of the professors is a fellow of the Royal Society of England, and still another was for many years the circuit judge of that district. The buildings of the school are shown to be commodious, and suitable for its purposes. While its equipment at first was meager, it has gradually increased from time to time until now it would seem in some respects to compare favorably with other colleges. The patients treated at the infirmary, as well as those treated by appellant, appear to have been satisfied with what they received, and many of them to have been materially benefited. There are four or five other colleges of osteopathy, which, with the one at Kirksville, form an association, and in five states of the Union osteopathy has been recognized by statute. The testimony of the witnesses, the character of the professors, and the evident sincerity of their statements, leave no doubt in our minds that the school at Kirksville is a reputable school of osteopathy; but whether it is a reputable school of medicine, within the meaning of our statute, or what are appellant's rights if it is not, are very different questions, depending upon the proper construction of the act itself. The purpose of the statute, as shown by its title, was to protect the people of this state from empiricism. Its material provisions are as follows (Ky. St. §§ 2611-2618):

"Sec. 2611. It shall be the duty of the county clerk of each county to purchase a book of suitable size, to be known as the 'Medical Register' of the county, and to set apart one full page for the registration of each physician. ***

"Sec. 2612. It shall be unlawful for any person to practice medicine in any of its branches, within the limits of this state, who has not exhibited and registered in the county clerk's office of the county in which he resides his authority for so practicing medicine as herein prescribed, together with his age, address, place of birth and the school or system of medicine to which he professes to belong. ***

"Sec. 2613. Authority to practice medicine shall be a certificate from the state board of health, and said board shall, upon application issue a certificate to any reputable physician who is practicing, or who desires to begin the practice of medicine in this state, who possesses any of the following qualifications: (1) A diploma from a reputable medical college legally chartered under the laws of this state. (2) A diploma from a reputable and legally chartered medical college of some other state or country, indorsed as such by the state board of health. (3) Satisfactory evidence from the person claiming the same that such person was reputably and honorably engaged in the practice of medicine in this state prior to February 23, 1864. (4) Satisfactory evidence from any person who was reputably and honorably engaged in the practice of medicine in this state prior to February 23, 1884, who has passed a satisfactory practical examination before said board. ***"

"Sec. 2616. Nothing in this law shall be so construed as to discriminate against any peculiar school or system of medicine, or to prohibit women from practicing midwifery, or to prohibit gratuitous services in case of emergency; nor shall this law apply to commissioned surgeons of the United States army, navy, or marine hospital service, or to legally qualified physicians of another state called to see a particular case or family, but who does not open an office or appoint any place in this state where he or she may meet patients or receive calls."

"Sec. 2618. Any person living in this state or coming into this state, who shall practice medicine, or attempt to practice medicine in any of its branches, or who shall treat or attempt to treat any sick or afflicted person by any system or method whatsoever, for reward or compensation, without first complying with the provisions of this law, shall, upon conviction thereof, be fined fifty dollars, and upon each and every subsequent conviction shall be fined one hundred dollars and imprisoned thirty days, or either or both, in the discretion of the court or jury trying the case; and in no case where any provision of this law has been violated shall the person so violating be entitled to receive any compensation for the services rendered. To open an office for such purpose or to announce to the public in any way a readiness to treat the sick or afflicted shall be deemed to engage in the practice of medicine within the meaning of this act."

Empiricism is defined as "a practice of medicine founded on mere experience without the aid of science or the knowledge of principles." The above act is therefore "an act to protect the people of this commonwealth from the practice of medicine founded on mere experience, without the aid of science, or a knowledge of principles." To secure this it requires a medical register to be kept by the county clerk of each county, and makes it unlawful for any person to practice medicine in any of its branches within the limits of the state until he has registered in the county of his residence. Authority to practice medicine under the statute can only be conferred by a certificate from the state board of health issued to a reputable physician having a diploma from a reputable medical college legally chartered under the laws of this state, or, if chartered under the laws of...