State ex rel. Beck v. Cooper

• Decision Date: 07 May 1938
• Docket Number: 33760.
• Citation: 147 Kan. 710,78 P.2d 884
• Parties: STATE ex rel. BECK, Atty. Gen., v. COOPER.
• Court: Kansas Supreme Court

78 P.2d 884

147 Kan. 710

STATE ex rel. BECK, Atty. Gen., v. COOPER.

No. 33760.

Supreme Court of Kansas

May 7, 1938

Syllabus by the Court.

The defendant, who claimed to be able to cure cancer by application of a secret compound of certain drugs, who advertised that claim, and who applied to patients that compound containing ingredient which had been used in treatment of cancer for many years, was engaged in "practice of medicine or surgery," within statute requiring license for practicing medicine. Gen.St. 1935 65-1005.

Evidence relating to alleged secret compound which defendant claimed could be applied without danger in treatment of cancer by anyone who had access thereto, and for use of which in treating patients defendant charged a fee, established that compound was not a "home remedy," as respects whether administration thereof constituted the practice of medicine.

The statute requiring persons practicing medicine to be licensed constituted a valid exercise of police power and did not violate Fourteenth Amendment. Gen.St.1935, 65-1005, 65-1006; Const.U.S. Amend. 14.

That practice of medicine without a license was as crime did not preclude state from enjoining defendant under statute from practicing medicine without a license. Laws 1937, c. 270; Gen.St.1935, 65-1006.

A statute authorizing injunctions against practice of medicine without a license was not invalid on ground that it denied defendant's right to a jury trial. Laws 1937, c. 270; Const.Bill of Rights, § 10.

Where no proper showing had been made concerning nature and substance of testimony of defendant's witnesses who were not permitted to testify by trial court, alleged error in trial court's action was not properly presented for review.

That term "cancer" was not specifically mentioned in medical practice act did not preclude court from enjoining defendant from engaging in unlawful practice of medicine by treating cancer without a license. Gen.St.1935, 65-1001 et seq.; Laws 1937, c. 270.

1. Chapter 270, Laws of 1937, authorizing injunctions against the practice of medicine and surgery without a license, is designed to enforce regulations looking to the health of the community, and as such is a proper legislative exercise of police power and is not affected by the Fourteenth Amendment to the Federal Constitution, nor is it invalid as authorizing an injunction against an act made criminal by G.S.1935 65-1006, or as denying the right to a jury trial in criminal cases guaranteed by section 10 of the Kansas Bill of Rights.

2. The record in an injunction suit on the relation of the Attorney General to enjoin the unlawful practice of medicine and surgery and the unlawful advertising of such a practice examined, and held, there was substantial evidence that (1) the compound applied by defendant in the treatment of cancer was not a home remedy; (2) his services were not gratuitous (3) defendant was not only engaged, without a license, in the practice and in the advertising of the practice at medicine and surgery as defined by G.S.1935, 65-1005, but was actively preparing for a continued practice of medicine and surgery with the assistance of others who had no license to engage in the practice of any of the healing arts.

3. Various trial errors urged have been examined, and no errors are disclosed.

Appeal from District Court, Wilson County; J. F. Cooper, Judge.

Suit by the State of Kansas, on the relation of Clarence V. Beck, Attorney General, against W. W. Cooper to enjoin the defendant from the alleged unlawful practice and the unlawful advertising of the practice of medicine and surgery. Judgment for plaintiff, and defendant appeals.

Judgment affirmed.

C. C. McCullough, of Emporia, for appellant.

Clarence V. Beck, Atty. Gen., and Theo. F. Varner, Asst. Atty. Gen., for appellee.

WEDELL Justice.

This was a suit on the relation of the Attorney General to enjoin the alleged unlawful practice and the unlawful advertising of the practice of medicine and surgery. The injunction was allowed, and the defendant appeals.

Defendant in substance admits: He had obtained no license to engage in the practice of medicine and surgery or any other branch of the healing arts; he advertised and held himself out to the public as one who treated and cured cancer; he received pay for his services. Defendant in substance contended: His treatment consisted in the application of a compound of certain drugs known only to himself which, if applied to a cancer in time, would kill cancer; he denied he had ever claimed to be a practicing physician as defined by the laws of this state, but insisted he was versed in the methods and ways of destroying cancer; that his treatment of cancer consisted in the application of a paste to a cancer itself and not to the human body and as a result of such treatment the cancer dies and the healing processes eject it from the body the same as any other foreign substance; the ingredients of his compound destroyed only abnormal tissue and had no effect on normal tissue; the remedy could be applied by anyone having access to the formula; it did not require the knowledge or professional services of a physician.

The defendant was 86 years of age and claimed to have learned something of the cure of cancer from his father. For many years defendant sold Baker's medicines, household remedies. As a result of numerous inquiries and discussions with others concerning the treatment of cancer, he finally prepared a compound of his own. It was in the form of a paste and was applied to the affected portion of the body. He conducted the practice in his home. In the front yard appeared a sign containing the following advertisement:

"CANCER HOME

** We Guarantee To **

KILL & REMOVE CANCERS

--Or No Pay--

Without Knife--Radium--X Ray--or Electricity

W. W. Cooper."

Among his advertisements was also the following:

"Cancers.

"Attention:

"Cancer is a very old disease. We can trace it almost as far back as we have knowledge of civilization. Familiar to the earliest physicians, it has persisted through the ages, and is baffling their efforts as effectively today as it did hundreds of years ago. And it is a fact there is no dangerous disease so easily cured as cancer, and none more dangerous if neglected too long or improperly treated.

"We guarantee to kill and remove them-- or no pay. Over thirty years successful practice and no failures. Proof of success is success itself. Write and we will send you the proof.

"W. W. COOPER, MGR.

THE CANCER HOME

ALTOONA,--KANSAS."

Other forms of advertisements were employed, including testimonials from patients. By reason of his age he had concluded to have his daughter and son-in-law assist him in his practice. Neither of them were licensed to practice any healing art. There was testimony to the effect that the defendant had moved from his former home and was contemplating converting that place into a cancer clinic, which was to be operated by his daughter and son-in-law, under his supervision. He had given them his formula and planned to oversee the work until they were as conversant therewith as he.

The law expressly enjoins the duty upon the secretary of the State Board of Registration and Examination, for the practice of medicine and surgery, to see that the act providing for such practice is enforced. G. S.1935, 65-1006. One Raymond Tice, a student of medicine, was employed to obtain information concerning reported unlawful practices. Tice consulted the defendant concerning a pigmented nevus or mole under his arm, during September of 1936 and May of 1937. The substance of Tice's testimony was as follows: In the first consultation defendant advised him the mole constituted a cancer and was in a very bad place but it could be cured; the fee was $50; he paid $3 at the time and defendant put some paste on adhesive tape and applied it to the mole; he was to return in about two weeks; immediately upon leaving defendant's residence the paste was removed; he returned in May of 1937, and a similar application was made; the fee was then reduced to $25 and he paid $5, and obtained a receipt therefor; upon leaving he again promptly removed the paste and it was examined by C. N. Watson, a chemist and bacteriologist at Independence, Kan.; the testimony of the defendant was to the effect that he was not certain whether Tice was affliced with cancer but that the paste would not be harmful in any event.

The testimony of Watson, in substance, was: "That he made an analysis of the paste on the adhesive tape, both quantitative and qualitative, and the analysis showed that the paste contained about 50 percent. chloride of zinc, starch, and some vegetable tissue, indicating it was a mucilaginous drug called "althaea," the exact proportions of the compound being 32 percent. water and 50 percent. chloride of zinc and starch which had been carmalized, making up the balance; he was familiar with the chemical properties of zinc chloride and that it was a caustic which would burn or eat animal tissue; as a chemist he was familiar with pastes or compounds containing similar formulae as that disclosed by the analysis; those formulae are given in the National Dispensary and United States Dispensary used by the medical profession; the compound used by the defendant was similar to that of Canquoin's paste used as a caustic in the treatment of cancer.

The testimony of the defendant was to the effect he always used the same paste and that its active ingredient on the cancerous tissue was zinc chloride.

The pertinent testimony of Dr. J. H. Hughbanks, a witness for the state, was in substance as follows: He was acquainted with and had an opinion concerning the effect of an application of paste composed of 30...