Smith v. People

• Citation: 51 Colo. 270, 117 P. 612
• Case Date: July 03, 1911
• Court: Supreme Court of Colorado

117 P. 612

51 Colo. 270

SMITH
v.
PEOPLE.

Supreme Court of Colorado

July 3, 1911

Error to District Court, City and County of Denver; Hubert L. Shattuck, Judge.

Edward C. Smith was convicted of practicing medicine without a license, and brings error. Affirmed.

Edward C. Smith was tried, convicted, and sentenced to pay a fine in the district court of the city and county of Denver on an information charging: 'Practicing medicine without a license.' It contains three counts: The first, that he unlawfully practiced medicine by holding himself out to the public as being engaged in the diagnosis and treatment of diseases and injuries of human beings, without a license; the second, that he unlawfully practiced medicine by maintaining an office for the reception, examination, and treatment of persons suffering from disease and injury of mind and body, without a license; the third, that he unlawfully practiced medicine by attaching to his name the title 'Healer,' which indicated that he was engaged in the treatment and diagnosis of diseases and injuries of human beings, without a license. [117 P. 613]

[51 Colo. 272] W. T. Rogers, for plaintiff in error.

Benjamin Griffith, Atty. Gen. (Harry E. Kelly and Charles H. Haines, of counsel), for the People.

GARRIGUES, J. (after stating the facts as above).

1. Chapter 127, Rev. Stats. 1908, regulating the practice of medicine, is for the protection of the public health. It creates a state board of medical examiners, requires all persons desirous of practicing medicine within the state to obtain a license from the board, makes it a misdemeanor to practice medicine in the state without a license, and defines the practice of medicine. Defendant had no license.

Section 6069 defines the 'practice of medicine' to be, holding one's self out to the public as being engaged in the diagnosis and treatment of diseases or injuries of human beings, or the suggestion, recommendation, or prescribing any form of treatment for the intended palliation, relief, or cure of any physical or mental ailment of any person, with the intention of receiving therefor, directly or indirectly, any fee, gift, or compensation whatsoever; or the maintenance of any office for the reception, examination, and treatment of any persons suffering from disease or injury of body or mind; or attaching any word or abbreviation to one's name indicative that he is engaged in the treatment or diagnosis of diseases or injuries of human beings. It further provides, if any person shall hold himself out to [51 Colo. 273] the public as being engaged in the diagnosis and treatment of diseases or injuries of human beings, or shall suggest, recommend, or prescribe any form of treatment for the palliation, relief, or cure of any physical or mental ailment of any person with the intention of receiving therefor, directly or indirectly, any fee, gift, or compensation whatsoever, or shall maintain an office for the reception, examination, and treatment of diseased or injured human beings, or shall attach any word or abbreviation to his name indicative that he is engaged in the treatment of diseased or injured human beings, and shall not theretofore have received or shall not then possess a license to practice medicine under the laws of this state, he shall be deemed to be practicing medicine in violation of the statute. But nothing in the act shall be construed to prohibit the practice of the religious tenets or the general belief of any church whatsoever, not prescribing medicine. The information charges the violation of three provisions of the section: First, holding himself out to the public as being engaged in the diagnosis and treatment of diseases; second, maintaining an office for the reception, examination and treatment, for pay, of persons suffering from disease; third, attaching to his name the title, 'Healer,' indicating that he is engaged in the business of treating diseases.

If the Legislature had power to create the state board of medical examiners, and define the practice of medicine, and the acts of the defendant come within the statutory definition and are not excluded by the exemption, and the evidence shows he committed any one of the acts charged, the conviction should be sustained.

2. The Legislature under the police power of the state could create the state board of medical examiners and fix its powers and duties. The police power of the state relates to the preservation and promotion of the health, safety, and morals of the people. The law is settled that the Legislature may control the practice of [51 Colo. 274] medicine. Such enactments emanate from that branch of the police power of the state having to do with the protection of the public health. Harding v. People, 10 Colo. 387, 15 P. 727; Reetz v. Mich., 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563; Dent v. W. Va., 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623; Hawker v. N.Y., 170 U.S. 192, 18 S.Ct. 573, 42 L.Ed. 1002; State v. Marble, 72 Ohio St. 21, 73 N.E. 1063, 70 L.R.A. 835, 106 Am.St.Rep. 570; State v. Wilhite, 132 Iowa 226, 109 N.W. 730; State v. Davis, 194 Mo. 485, 92 S.W. 484, 4 L.R.A. (N. S.) 1023; Ex parte Whitley, 144 Cal. 167, 77 P. 879; Parks v. State, 159 Ind. 226, 64 N.E. 862, 59 L.R.A. 190; State v. Heath, 125 Iowa 589, 101 N.W. 429; Little v. State, 60 Neb. 749, 84 N.W. 248, 51 L.R.A. 717; State v. Buswell, 40 Neb. 158, 58 N.W. 728, 24 L.R.A. 68; Bragg v. State, 134 Ala. 166, 32 So. 767, 58 L.R.A. 925; People...