State ex rel. Bd. of Medical Registration & Examination v. Hayes

• Decision Date: 03 May 1950
• Docket Number: No. 28654,28654
• Citation: 228 Ind. 286,91 N.E.2d 913
• Parties: STATE ex rel. BOARD OF MEDICAL REGISTRATION & EXAMINATION v. HAYES.
• Court: Indiana Supreme Court

Page 913

91 N.E.2d 913

228 Ind. 286

STATE ex rel. BOARD OF MEDICAL REGISTRATION & EXAMINATION v. HAYES.

No. 28654.

Supreme Court of Indiana.

May 3, 1950.

J. Emmett McManamon, Atty. Gen., Thomas L. Webber, Deputy Atty. Gen., George W. Hand, Jr., Deputy Atty. Gen., James F. Biddle, Pros. Atty. 82d Judicial District, Columbia City, for appellant.

John W. Whiteleather, Columbia City, Flanagan & Miller, Fort Wayne, for appellee.

JASPER, Chief Justice.

This is an appeal from an interlocutory order denying a temporary injunction, under § 63-1311, Burns' 1943 Replacement.

Appellant brought this action to enjoin appellee from engaging in the practice of medicine without a license. An application for a restraining order against appellee was granted, and a notice of application for a temporary injunction was issued. On February 10, 1950, the restraining order was dissolved without notice to the Attorney General. On February 18th the petition for the temporary injunction was heard by the court, evidence was introduced on the issue, and the court entered an order denying the temporary injunction.

The sole question presented is the alleged error assigned in denying appellant a temporary injunction. Such assignment is proper to present the question on appeal. Koss v. Continental Oil Co., 1944, 222 Ind. 224, 52 N.E.2d 614.

It is necessary to bear in mind the distinction between a restraining order, a temporary injunction, and a permanent injunction. This court has held that a restraining order is issued without notice and upon an emergency, and that the granting or denial of the same is not appealable. A temporary injunction is issued upon notice and hearing, and is appealable to this court. A permanent injunction is appealable to the Appellate Court. Town of Wakarusa v. Bechtel, 1948, Ind.Sup., 78 N.E.2d 161; Swaim v. City of Indianapolis, 1930, 202 Ind. 233, 238, 171 N.E. 871, 173 N.E. 287; Mason v. Milligan, 1916, 185 Ind. 319, 114 N.E. 3.

This court has held that the practice of chiropractic is practicing medicine, and that the State may, by appropriate legislation, regulate the practice of medicine and restrict the same to those who have been licensed by it. State ex rel. Indiana State Board of Medical Registration and Examination, v. Cole, 1939, 215 Ind. 562, 20 N.E.2d 972.

Since the verified complaint reveals that appellee was practicing chiropractic without a license, the application for a temporary injunction was properly presented to the lower court under § 63-1311, Burns' 1943 Replacement, which reads as follows: "Practice of medicine' defined--Injunction to restrain unlicensed practicing.--To open an office for such purpose or to announce to the public in any way a readiness to practice medicine in any county of the state, or to prescribe for, or to give surgical assistance to, or to heal, cure or relieve, or to attempt to heal, cure or relieve those suffering from injury or deformity, or disease of mind or body, or to advertise, or to announce to the public in any manner a readiness or ability to heal, cure or relieve those who may be suffering from injury or deformity, or disease of mind or body, shall be to engage in the practice of medicine within the meaning of this act: Provided, That nothing in this act shall be construed to apply to or limit in any manner the manufacture, advertisement or sale of proprietary medicines. It shall also be regarded as practicing medicine within the meaning of this act, if any one shall use in connection with his or her name, the words or letters, 'Dr.,' 'Doctor,' 'Professor,' 'M. D.,' or 'Healer,' or any other title, word, letter, or designation intending to imply or designate him or her as a practitioner of medicine or surgery in any of its branches: Provided, however, That this law shall be construed as applying only to those persons who pretend, claim, assert, or advertise that they diagnose, or in any manner physically treat human disease, injury or deformity, and shall not apply to those who endeavor to prevent or cure disease or suffering by spiritual means or prayer: And, provided, That this law shall not be construed to prevent any person who now holds or may hereafter obtain and hold a lawful license to practice any profession, calling or vocation from practicing such profession, calling or vocation in accordance with the terms of such license: And, provided, further, That this act shall not be construed to apply to nonitinerant optometrists who are at this time engaged in, or who may hereafter engage in the practice of optometry in this state, nor to professional or other nurses, nor first aid or pharmacists in their professional duties. The attorneygeneral, prosecuting attorney, the state board of medical registration and examination, or any citizen of any county where any person shall engage in the practice of medicine, as herein defined, without having first obtained a license so to do, may, in accordance with the laws of the state of Indiana governing injunctions, maintain an action in the name of the state of Indiana to enjoin such person from engaging in the practice of medicine, as herein defined, until a license to practice medicine be secured. And any person who has been so enjoined who shall violate such injunction shall be punished for contempt of court: Provided, That such injunction shall...