People v. Schaeffer

• Decision Date: 13 February 1924
• Docket Number: No. 14738.,14738.
• Citation: 310 Ill. 574,142 N.E. 248
• Parties: PEOPLE v. SCHAEFFER.
• Court: Illinois Supreme Court

310 Ill. 574

142 N.E. 248

PEOPLE

v.SCHAEFFER.

No. 14738.

Supreme Court of Illinois.

Dec. 19, 1923.

Rehearing Denied Feb. 13, 1924.

Action by the People, for the use of the Department of Registration and Education, against Robert E. Schaeffer. Judgment for plaintiff, and defendant appeals.

Reversed.

Farmer, C. J., and Thompson, J., dissenting.

Appeal from the Municipal Court of Chicago; Theodore F. ehler, judge.

McCormick, Kirkland, Patterson & Fleming, of Chicago (Perry S. Patterson and Louis G. Caldwell, both of Chicago, of counsel), for appellant.

Edward J. Brundage, Atty. Gen. (Clarence N. Boord, of Springfield, of counsel), for the People.

DUNCAN, J.

The municipal court of Chicago rendered a judgment of $100 in favor of appellee, the people of the state of Illinois, for the use of the department of registration and education, against Robert E. Schaeffer, appellant, in an action of debt in a trial before the court without a jury. The statement of claim charged the violation of the Medical Practice Act of 1899 (Laws 1899, p. 273), section 9 of which provides:

‘Any person practicing medicine or surgery or treating human ailments in the state without a certificate issued by this board in compliance with the provisions of this act * * * shall, for each and every instance of such practice or violation, forfeit and pay to the people of the state of Illinois, for the use of said board of health, the sum of one hundred (100) dollars for the first offense and two hundred (200) dollars for each subsequent offense, the same to be recovered in an action of debt,’ etc.

The two defenses made before the municipal court were, first, that appellant's act, which he conceded to be practicing surgery without a license so to do, is not penalized by the statute; and, second, that the Medical Practice Act of 1899, and particularly sections 2, 3, and 7 thereof, are invalid or unconstitutional-which latter defense was specifically set up by his affidavit of defense. The appeal is therefore direct to this court.

The facts constituting the violation of the statute, briefly stated, are that in February or March, 1921, in the city of Chicago, appellant treated Mrs. Blanche Mehlen for a uterine hemorrhage. In the operative work he performed on Mrs. Mehlen he used a vaginal speculum, a vaginal bracing forceps, a curette, and an electric light. He removed a couple of clots of blood out of the cervix, inside of the uterus, but did not make a complete curettage. He directed the attending nurse to cleanse the external parts and the parturient canal with antiseptics.

As section 9 of the act imposes a penalty upon any person practicing surgery without such certificate, the appellant is within the prohibition of the statute, and the judgment must stand, unless his second claim that the statute denies to him a constitutional right is maintained.

Section 2 of the act of 1899 is as follows:

‘No person shall hereafter begin the practice of medicine or any of the branches thereof, or midwifery in this state without first applying for and obtaining a license from the state board of health to do so. Application shall be in writing and shall be accompanied by the examination fees hereinafter specified, and with proof that the applicant is of good moral character. Applications from candidates who desire to practice medicine and surgery in all their branches shall be accompanied by proof that the applicant is a graduate of a medical college or institution in good standing, as may be determined by the board. When the application aforesaid has been inspected by the board and found to comply with the foregoing provisions the board shall notify the applicant to appear before it for examination at the time and place mentioned in such notice.

‘Examinations may be made in whole or in part in writing by the board, and shall be of a character sufficiently strict to test the qualifications of the candidate as a practitioner. The examination of those who desire to practice medicine and surgery in all their branches shall embrace those general subjects and topics, a knowledge of which is commonly and generally required of candidates for the degree of doctor of medicine by reputable medical colleges in the United States. The examination of those who desire to practice midwifery shall be of such a character as to determine the qualification of the applicant to practice midwifery. The examination of those who desire to practice any other system or science of treating human ailments who do not use medicines internally or externally, and who do not practice operative surgery shall be of a character sufficiently strict to test their qualifications as practitioners.

‘All examinations provided for in this act shall be conducted under rules and regulations prescribed by the board, which shall provide for a fair and wholly impartial method of examination: Provided, that graduates of legally chartered medical colleges in Illinois in good standing as may be determined by the board may be granted certificates without examinations.’

The material parts of sections 3 and 7 of said act, so far as applicable to this case, are the following:

‘Sec. 3. If the applicant successfully passes his examination, or presents a diploma from a legally chartered medical college in Illinois of good standing, the board shall issue to such applicant a license authorizing him to practice medicine, midwifery or other system of treating human ailments, as the case may be: Provided, that those who are authorized to practice other systems cannot use medicine internally or externally or perform surgical operations: Provided further, that only those who are authorized to practice medicine and surgery in all their branches shall call or advertise themselves as physicians or doctors: And provided further, that those who are authorized to practice midwifery shall not use any drug or medicine or attend other than cases of labor.’

‘Sec. 7. Any person shall be regarded as practicing medicine, within the meaning of this act, who shall treat or profess to treat, operate on or prescribe for any physical ailment or any physical injury to, or deformity of, another: Provided, that nothing in this section shall be construed to apply to the administration of domestic or family remedies in cases of emergency, or to the laws regulating the practice of dentistry or of pharmacy. And this act shall not apply to surgeons of the United States army, navy or marine hospital service in the discharge of their official duties, or to any person who ministers to or treats the sick or suffering by mental or spiritual means, without the use of any drug or material remedy.’

On the second point raised by appellant, his testimony and the testimony of Dr. George A. Still established, without contradiction, the following facts: Appellant entered the American School of Osteopathy, at Kirksville, Mo., in which Still was professor of surgery and chief surgeon of its hospitals, on January 29, 1911, and completed the four-year course of that institution in January 1915, and received the degree of Doctor of Osteopathy. His course of studies embraced surgery, which he studied during the last two years of his attendance in said school, and also embraced the subjects of obstetrics and gynecology. The text-books on surgery that are used and taught at the school are the same text-books that are used and taught at all modern schools that teach the doctrine of healing by the use of drugs and medicines or the modern schools of the allopaths, who ordinarily style themselves ‘the Regulars,’ to wit: The text-books of Rose-Carless, Buck & Bryant, Whorton, Da Costa, Foote, Lovett, and Young. Surgery is taught and practiced in the same manner at said school as it is taught and practiced in the modern schools of the Regulars and by their graduates, and the course of surgery in the school is as thorough and as complete as it is in such modern schools. This was positively testified to by Dr. Still, who is himself a graduate from Northwestern Medical College of Chicago, and who by investigation has ascertained said facts. The evidence specifically shows that appellant in his course aforesaid studied and passed courses in anatomy, histology, general and physical chemistry, physiology, bacteriology, organic and physiological chemistry, embryology, demonstrative anatomy, pathology, hygiene, public health, dietetics, toxicology, dissection, regional and applied anatomy, physical diagnosis, neurology, special pathology, general surgery, eye, ear, nose, and throat, obstetrics, clinical practice, skin and venereal diseases, pediatrics, operative surgery, gynecology, laboratory diagnosis, and also osteopathic therapeutics, to wit, the principles of osteopathy,practice of osteopathy, osteopathic mechanics, and osteopathic clinics. This course includes the subjects taught by medical schools in good standing except the therapeutics of those schools and materia medica. Appellant's education and training necessarily embraced the study of various drugs that are used in connection with surgical operations, such as disinfectants, antiseptics, narcotics, etc., and other drugs or medicines applied externally. After graduating from the Kirksville school, appellant...