State ex rel. Wheat v. Moore

• Decision Date: 11 October 1941
• Docket Number: 35252.,35230
• Citation: 117 P.2d 598,154 Kan. 193
• Parties: STATE ex rel. WHEAT, Co. Atty., v. MOORE. STATE ex rel. COBEAN, Co. Atty., v. MUECKE.
• Court: Kansas Supreme Court

117 P.2d 598

154 Kan. 193

STATE ex rel. WHEAT, Co. Atty., v. MOORE.

STATE ex rel. COBEAN, Co. Atty., v. MUECKE.

Nos. 35230, 35252.

Supreme Court of Kansas

October 11, 1941

Rehearing Denied Nov. 14, 1941.

Syllabus by the Court.

The construction of a statute is the function of the judiciary being a "question of law" for the courts, and not a "question of fact" for a jury.

In construing a statute, the legislative intention is to be determined from a general consideration of the whole act, and effect must be given, if possible, to the entire statute and every part thereof.

In determining and giving effect to legislative intention, as expressed in a statute, it is a court's duty, so far as practicable, to reconcile the different provisions so far as to make them consistent, harmonious and sensible.

Statutes in pari materia are to be construed together.

In construing an act, the purpose of the Legislature is not discovered by an examination of one sentence or one section but by a comparison of the pertinent provisions of the various sections and by construing them in the light of the purpose to be accomplished.

Where a statute has been construed by the highest court having jurisdiction to pass on it, such construction is as much a part of the statute as if written into it originally.

The words of a statute must be taken in the sense in which they were understood at the time the statute was enacted.

The effect of the words "as taught and practiced in the legally incorporated colleges of osteopathy of good repute" as used in the statute dealing with application for examination, fee, qualifications, applications from other states, temporary permit, and revocation of certificate, is not to set at large the settled meaning of osteopathy and obliterate the distinction between the practice of osteopathy and the practice of medicine and surgery. Gen.St.1935 65-1201.

The purpose of the Legislature in enacting statutes dealing with examination and registration of osteopathic physicians was to exclude the unfit and thus protect the osteopathic profession as well as the public, and was not to enlarge the meaning of osteopathy, but to guard the profession from applicants who had graduated from schools of low standards. Gen.St.1935 65-1201, 65-1202.

For a college to be a reputable college of osteopathy within the meaning of the statute, the course of study taught and practiced must conform to the authoritative definitions of osteopathy. Gen.St.1935, 65-1201, 65-1202.

The statute providing that every license issued shall confer on the holder thereof the right to practice osteopathy in the state of Kansas as taught and practiced in the legally incorporated colleges of osteopathy of good repute does not authorize the holder of such license to practice outside the recognized field of osteopathy, even though the subjects outside such field may be taught in some osteopathic colleges. Gen.St.1935, 65-1201, 65-1202.

1. In construing a statute, the legislative intention is to be determined from a general consideration of the whole act, and effect must be given, if possible, to the entire statute and every part thereof.

2. In determining and giving effect to the legislative intention as expressed in statute, it is a court's duty, so far as practicable, to reconcile the different provisions so far as to make them consistent, harmonious, and sensible.

3. Statutes in pari materia are to be construed together.

4. Where a statute has been construed by the highest court having jurisdiction to pass on it, such construction is as much a part of the statute as if written into it originally.

5. The words of a statute must be taken in the sense in which they were understood at the time the statute was enacted.

6. The statute providing every license issued shall confer on the holder thereof the right to practice osteopathy in the state of Kansas as taught and practiced in the legally incorporated colleges of osteopathy of good repute does not authorize the holder of a license to practice outside the recognized field of osteopathy, even if the subjects outside such field are taught in osteopathic colleges. G.S.1935, 65-1201.

Appeals from District Court, Barber and Pratt Counties; Clark A. Wallace, Judge.

Action by the State of Kansas, on the relation of O. M. Wheat, County Attorney, against C. V. Moore, and action by the State of Kansas, on the relation of Raymond L. Cobean, County Attorney, against O. R. Muecke, to oust the defendants from the alleged unlawful practice of medicine and surgery. From adverse judgments, the defendants appeal, and the cases are argued together.

Appeals dismissed.

E. H. Hatcher, of Topeka, for appellants.

O. M. Wheat, Co. Atty., of Medicine Lodge, Milburn Geist, Co. Atty., of Pratt, and Theo. F. Varner, of Independence, for appellee.

ALLEN Justice.

As authorized by G.S.1939, Supp. 65-1010, the actions were brought to oust the defendants from the unlawful practice of medicine and surgery. The appeal in the Moore case, No. 35230, is from Barber county, in the Muecke case, No. 35252, is from Pratt county. The issues raised are similar and the cases were argued together at the bar of this court. It will be convenient to dispose of both cases in one opinion.

The petition in the Moore case, No. 35230, alleged:

"3. That the defendant, C. V. Moore, has never been and is not now licensed by the Board of Medical Registration and Examination of the State of Kansas, and the defendant is wholly without any right, power or privilege to engage in the practice of medicine and surgery in the State of Kansas. And particularly the defendant is without any right, power or authority to use drugs as remedial aids.

"4. That continuously for more than a year past the defendant, C. V. Moore, has usurped the right, power and authority to practice medicine and surgery. That the defendant, C. V. Moore, has on numerous occasions and at diverse times engaged in the unlawful practice of medicine and surgery in that he has prescribed and recommended, for a fee, drugs and medicines found in and comprising a part of materia medica, and that such drugs and medicines have been by the defendant prescribed and administered for the cure of bodily infirmities or diseases of other kinds and for a fee paid to this defendant. That the defendant has held himself out and represented himself to be lawfully engaged in the practice of medicine and surgery and has held himself out as authorized to treat the sick by means and through the use of drugs and medicines found in materia medica. That the defendant has treated medically and prescribed and dispensed medicines to a large number of persons whose names are to this relator unknown and for that reason not more particularly alleged.

"That unless ousted by an order of this court and enjoined from the further use of medicine and surgery and the use of medicine and drugs found in materia medica, the defendant, C. V. Moore, will continue to practice medicine and surgery within the County of Barber and State of Kansas without lawful right or authority and will continue to violate the Laws of the State of Kansas by such practice."

Two specific instances are set out where drugs were prescribed by the defendant. It was alleged that unless ousted by an order of the court the defendant will continue to practice medicine and surgery contrary to the laws of Kansas.

As the appeal is from an order of the court striking certain portions of defendant's answer, we set forth pertinent portions of the answer, and have inserted brackets to indicate that part of the answer which was stricken:

"The defendant admits that he is not now and never has been licensed by the Kansas State Board of Medical Registration and Examination. The defendant admits that he did on the 25th day of November, 1939, prescribe for a Mrs. Dewey McKaeg, as set out in Exhibit A attached to the petition, and that he did on the 25th day of October, 1939, prescribe for a Mrs. Leo House, as set out in Exhibit B attached to the petition, [but defendant specifically denies that in doing so he was practicing medicine and surgery as that term is used in the Medical Practice Act, and alleges that said prescriptions were given in connection with his practice as an osteopathic physician, and constituted a part of the practice of osteopathy as taught and practiced in legally incorporated colleges of osteopathy of good repute, all as he is authorized and licensed to do under the provisions of General Statutes of Kansas for 1935, 65-1201.

"Second Defense

"The defendant as a second full and complete defense to the cause of action attempted to be set out in the petition filed herein, alleges and states:

"1. That the defendant holds a certificate granting him the right to practice

as an osteopathic physician duly issued by the Board of Osteopathic Examination and Registration, as provided by the 1935 General Statutes of the State of Kansas, 65-1201, and has been duly licensed to practice osteopathy since March 4, 1929, and is duly registered as an osteopathic physician.

"2. That the Osteopathic Practice Act of the State of Kansas Gen.Stat.1935, 65-1201, grants to the defendant as a duly licensed and registered osteopathic physician, the right to practice osteopathy in the State of Kansas as taught and practiced in the legally incorporated colleges of osteopathy of good repute.

"3. That osteopathy is recognized as a school of medicine based upon the theory that the normal body when in correct adjustment, is a vital machine capable of making its own remedies against infections and other toxic conditions. The office of physicians of this school is to search for and when found, remove if possible, any peculiar condition in...