Schlichting v. Texas State Board of Medical Exam., A-6617

• Decision Date: 19 February 1958
• Docket Number: No. A-6617,A-6617
• Citation: 310 S.W.2d 557,158 Tex. 279
• Parties: Henry SCHLICHTING, Jr., Appellant, v. TEXAS STATE BOARD OF MEDICAL EXAMINERS, Appellee.
• Court: Texas Supreme Court

Page 557

310 S.W.2d 557

158 Tex. 279

Henry SCHLICHTING, Jr., Appellant, v. TEXAS STATE BOARD OF MEDICAL EXAMINERS, Appellee.

No. A-6617.

Supreme Court of Texas.

Feb. 19, 1958.

Rehearing Denied March 26, 1958.

McCarthy, Rose & Haynes, Amarillo, for appellant.

Will Wilson, Atty. Gen., Cecil C. Rotsch, John Reeves, Joe R. Carroll, Asst. Attys. Gen., Joseph H. Mims, Dist. Atty., Midland County, Midland, Leonard Howell, County Atty., Midland County, Midland, for appellee.

GARWOOD, Justice.

This is a direct appeal pursuant to article 1738a, Vernon's Tex.Civ.Stats., and Rule 499-a, Texas Rules of Civ.Proc., from the District Court of Midland County, by the appellant-defendant, Schlichting, a practicing naturopath or natureopath, to review, on constitutional and other grounds, a temporary injunction granted at the suit of the appellee-plaintiff Texas State Board of Medical Examiners, acting under Art. 4509, Vernon's Tex.Civ.Stats. as amended in 1953, ¹ and, in substance restraining the appellant-defendant from practicing the art of healing or treating persons for physical ills.

For the reasons more fully appearing below, we have concluded that the injunction in question must be upheld.

The general ground for the injunction is that the appellant-defendant is practicing medicine as defined in Art. 4510, Vernon's Tex.Civ.Stats., ² and is doing so without possessing (and thus without having registered with the District Clerk) 'the certificate evidencing his right to practice medicine' required by Art. 4498. ³ The restraints of the decree are, of course, conditioned upon the absence of such license and registration. The appellant-defendant did, indeed, prior to this suit, have a license to practice naturopathy under a statute known as Article 4590d, Vernon's Tex.Civ.Stats., which purported to recognize and regulate the practice of naturopathy, defining it as 'that philosophy and system of the healing art embracing prevention, diagnosis, and treatment of human ills and functions by the use of several properties of air, light, heat, cold, water, manipulation with the use of such substances, nutritional as are naturally found in and required by the body, excluding drugs, Surgery, X-ray and radium therapy, and the use of X-ray equipment.' However, in Wilson v. State Board of Naturopathic Examiners, Tex.Civ.App., 1957, 298 S.W.2d 946, the Austin Court of Civil Appeals rendered judgment declaring that statute to be unconstitutional, from which an application for writ of error was by us refused. Although our action was with the notation 'no reversible error', we necessarily approved the judgment declaring the statute to be void; and accordingly, since some little time prior to this suit, appellant-defendant has been actually practicing a healing art without a license of any kind.

The facts as above stated are admittedly to be taken as true from the pleadings and affidavits, which constitute the entire record so far as factual matters are concerned. About the only other material fact thus reflected is that the appellant-defendant had not, prior to this suit, been convicted in a criminal proceeding of violation of the laws regulating the practice of medicine. Other than as indicated by the above quotation from Art. 4590d, supra, the record is silent as to the character of naturopathy, its merits or demerits as a method of healing, its difference from other methods, and the character and amount of education and training required for one to become whatever may be meant by the term practicing naturopath.

The first attack of the appellant-defendant on the injunction is based on the alleged unconstitutionality of the particular provisions of Art. 4509, supra, under which this suit was brought, said provisions being additions to, and other changes in, the original article made by the amendment thereto known as H.B. 254, Ch. 426, Acts 1953, p. 1029, et seq. The original or unamended article, as it appears in the Revised Statutes of 1925, is also copied in the footnote ⁴ for purposes of comparison with the amended version copied as footnote 1. The former, entitled 'Injunction', deals almost exclusively with injunctions against 'the actual practice of medicine in violation of the provisions of this title, or * * * of Title 12, chapter 6, of the Penal Code', and provides that such injunction shall be 'at the suit of the State'. The words 'this title' refer to Title 71 dealing with public health, including Chapter 6, Arts. 4495-4512, entitled 'Medicine'. Admittedly, under this original Article 4509, a suit such as the present could only be maintained by the State, and thus not by the appellee-plaintiff Board, and, moreover, could 'not be entertained in advance of the previous final conviction of the party sought to be enjoined'. The latter provision also, were it presently applicable, would operate to defeat this suit, there having been 'no previous final conviction' of the appellant-defendant. However, the mentioned amendment eliminated this 'conviction' provision and also expressly authorized the Board to maintain whatever suits are authorized by the article. The purpose of the constitutional attack on the amendment is accordingly to make this suit subject to the restrictive provisions of the original article, which would prevent its being maintained.

The amendment deals with various articles regulating the practice of medicine and is said to be invalid in so far as Art. 4509 is concerned by reason of the inadequacy of the caption of the corresponding act or bill, which is fully quoted in the footnote ⁵. It is said not to 'express' sufficiently the 'subject' of the amendment in respect of Art. 4509, as required by Art. III, Sec. 35 of the Texas Constitution, Vernon's Ann.St. The object of requiring captions is, of course, to permit the reader of a bill, be he legislator, lawyer or 'man in the street', to inform himself of its subject matter without having to read the body of the bill. Obviously this purpose is not accomplished, if the caption, for lack of sufficient provision therein or by the misleading character of its provisions, does not convey of the reader the necessary information. But, with particular reference to the instant case, it is equally plain that the object of the requirement will not be well accomplished by a caption so detailed as to require anywhere nearly as much time to read as would the body of the act itself.

In the instant case, the caption states 'amending-Article 4509-.' It has been held that such a reference, although not specifying the nature of the amendments, is adequate, whether the subject matter of the actual amendments is 'germane' to that of the provision amended-the theory being that the reader of the bill will get enough information by looking at the earlier law and the caption of the amendatory bill. Whatever the justification for such a rule, it undoubtedly exists. See Board of Water Engineers of State v. City of San Antonio, Tex., 283 S.W.2d 722, and cases discussed therein.

The difficulty, of course, comes in determining whether the content of the amendment is 'germane' to the content of the original act, or portion thereof, in question. 'Germane' means, according to a reliable dictionary, 'closely allied; appropriate; relevant'; which meaning, in turn, repels that of identity. There is no point in speaking of an amendatory provision being germane unless we mean 'different from' as well as 'closely allied to' the original provision. Clearly the relationship that constitutes the germaneness may be of an somewhat general character.

In the Board of Water Engineers case, supra, we held that an amendatory provision prohibiting the withdrawal of water from the Guadalupe or Comal rivers to points outside their repective watersheds was not germane to an original law (Art. 1434a, Vernon's Tex.Civ.Stats.) providing for the organization and corporate powers of corporations 'for the purpose of furnishing a water supply * * * to towns, cities, private corporations, individuals'. That statute, as suggested by its number, was what might be termed a 'corporation statute', as distinguished from a 'water statute'; and, as stated in the opinion, it nowhere used 'a word such as 'river', 'stream', 'watercourse', 'watershed', 'dam', or 'lake'.' Its subject was remote from the regulation of water rights. Moreover, the caption in question described itself as 'amending Sections 1 and 2' of the earlier law, the former section being a general authorization for the kind of corporations above mentioned and containing provisions concerning dividends, sinking funds and the like as being properly includable in the charter, while Section 2 provided for general corporate powers such as that to contract with federal agencies and borrow money. The particular provision of the amending act repeated Section 1 word for word and then added a Section 1a with the provision in question concerning the two rivers. We think the decision is hardly persuasive in the instant case (although it undoubtedly is 'germane' to the latter).

It is true that the body of the amendment to Art. 4509 added several provisions about the powers and functions of the Board, which considerably broaden the more or less exclusive subject of the original, to wit, that of abating violations of the laws regulating the practice of medicine by injunction. But this is not to say that the new provisions or changes concerning the original subject of injunctions thus became nongermane to the latter. Even a layman reading the caption of the amendment and the original article, and being interested in the matter of such injunctions generally, should realize that he would quite possibly find something new on that very topic by reading the body of the amendment. As above stated, the judicial rule under discussion cannot possibly mean that the amendment, to be valid, must contain nothing new and no change that is important. The test is the closeness of...