People v. McGinley

• Decision Date: 24 February 1928
• Docket Number: No. 18196.,18196.
• Citation: 160 N.E. 186,329 Ill. 173
• Parties: PEOPLE v. McGINLEY.
• Court: Illinois Supreme Court

329 Ill. 173

160 N.E. 186

PEOPLE

v.McGINLEY.

No. 18196.

Supreme Court of Illinois.

Feb. 24, 1928.

Error to Rock Island County Court; George D. Long, Judge.

John J. McGinley was convicted of violating the Medical Practice Act, and he brings error.

Affirmed.

Duncan, J., dissenting.Francis C. King, of East Moline, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Benjamin S. Bell, State's Atty., of Rock Island, James B. Searcy, of Springfield, and Daniel H. McNeal, of Rock Island (Edward L. Eagle, of Rock Island, of counsel), for the People.

FARMER, J.

The state's attorney of Rock Island county filed an information on March 18, 1926, in the county court of that county, charging John J. McGinley (hereafter referred to as plaintiff in error) with having violated the Medical Practice Act. The information consisted of three counts. The first count charged that plaintiff in error treated human ailments without the use of drugs or medicine or operative surgery without having a valid license to treat human ailments. The second count charged that he treated human ailments by a system or method of treatment known as chiropractic without having a valid license to treat human ailments by such system. The third count charged that he maintained an office for the examination or treatment of human ailments without possessing a valid license therefor. The defendant pleaded not guilty, and a trial was had before a jury, which returned a verdict finding him guilty upon each of the three counts of the information. Motions for a new trial and in arrest of judgment were overruled. The abstract states the court rendered judgment upon the verdict but does not show what the judgment was. A writ of error has been sued out of this court to review the judgment.

Counsel for plaintiff in error contends that section 60 of the Civil Administrative Code (Smith's Stat. 1925, p. 2439) and subdivisions (a) and (b) of paragraph 2 of section 5 of the Medical Practice Act (Smith's Stat. 1925, p. 1675) are unconstitutional and void in so far as they relate to plaintiff in error; that the verification to the informationis insufficient to support it, and that the sentence imposed is erroneous.

The Medical Practice Act provides that no person shall practice medicine or surgery, or any system of treating human ailments, without a valid license therefor, and, except as otherwise provided in the act, no person shall receive such a license unless he shall satisfactorily pass an examination of his qualifications therefor, which examination shall be given by the state department of registration and education. The same act also provides that the examinations shall be conducted under rules and regulations prescribed from time to time by such department. Section 60 of the Administrative Code enumerates certain powers and duties which the department of registration and education shall have and perform in connection with the examination and licensing of various professions, trades, and occupations requiring licenses under the respective laws of the state. As is well understood, the director of registration and education is the presiding officer or official head of that department and is clothed with authority to execute the powers and discharge the duties legally vested in such department. Under said section authority is given to conduct examinations to ascertain the qualification and fitness of applicants; to prescribe rules and regulations for a fair and wholly impartial method of examination; to prescribe rules and regulations defining for the respective professions and trades what shall constitute a school, college, or university, or department of a university or other institution, reputable and in good standing, and to determine whether the same is such a place of learning and whether it is reputable; to establish a standard of preliminary education necessary for admission to a school, college, or university and to require proof of the enforcement thereof by such schools; and to conduct hearings to revoke or refuse renewal of licenses and to revoke or refuse the same. Following the powers just enumerated is this provision:

‘None of the above enumerated functions and duties shall be exercised by the department of registration and education, except upon the action and report in writing of persons designated from time to time by the director of registration and education to take such action and to make such report, for the respective professions, trades and occupations as follows.’

Then follow several paragraphs relative to such reports for various professions, trades, and occupations, among which is the following:

‘For the medical practitioners, and midwives, five persons, all of whom shall be reputable physicians licensed to practice medicine and surgery in this state, no one of whom shall be an officer, trustee, instructor or stockholder or otherwise interested, directly or indirectly, in any medical college or medical institution. For the purpose of preparing questions and rating papers on practice peculiar to any school, graduates of which may be candidates for registration or license, the director may designate additional examiners whenever occasion may require.’

Plaintiff in error contends that section 60 of the Administrative Code is unconstitutional because it violates section 2 of article 2 of the state Constitution, in that it is class legislation, discriminatory, arbitrary, and unreasonable. The substance of counsel's contention in this regard is that chiropractic is a separate and distinct science and the treatment by such system is entirely different in theory and practice from that used by the physician and surgeon; yet the chiropractor is compelled, under the law, to be examined by, and his present qualifications, his preliminary education, and the issuance of a license to practice chiropractic are subject to the supervision of, a board of five persons who are physicians licensed to practice medicine and surgery in Illinois. It is at least intimated that physicians and surgeons are not fully competent to give proper examinations, make correct rules for such examinations, and determine what shall comprise a correct course of study or properly equipped institution or school for the chiropractor. It is also stated that the chiropractor is placed or forced under the supervision and will of his rival or competitor-the physician and surgeon.

We are warranted in saying that, so far as this record is concerned, there is no showing whatever concerning the preliminary education of plaintiff in error, that he ever prepared himself to practice chiropractic, ever made application for license, or took any examination therefor. The case of People v. Love, 298 Ill. 304, 131 N. E. 809, 16 A. L. R. 703, is cited in support of plaintiff in error's contention. It is unnecessary to state all the facts in that case, which involved the conviction of a chiropractor for treating human ailments without a license. One of the points raised therein was that, under a regulation of the department of registration and education, the defendant and other persons in his class of restricted physicians were required to accompany their applications to take the examination for license by letters of recommendation as to their moral and professional character from at least two reputable medical men. The court referred to the intense and frequently unreasonable prejudice then existing against chiropractors by medical men, and held the regulation to be arbitrary and unreasonable because such a regulation would in all probability prevent or exclude a chiropractor from even taking the examination for a license. That point in the Love Case is somewhat different from the situation here presented, as we view it. Without question, the legislation included in the Medical Practice Act and the Administrative Code contemplates a fair, impartial, and reasonable...