State v. Armstrong

• Decision Date: 31 December 1923
• Citation: 225 P. 491,38 Idaho 493
• Parties: STATE, Respondent, v. D. E. ARMSTRONG, Appellant
• Court: Idaho Supreme Court

225 P. 491

38 Idaho 493

STATE, Respondent, v. D. E. ARMSTRONG, Appellant

Supreme Court of Idaho

December 31, 1923

CHIROPODY - MEDICINE AND SURGERY - STATUTORY CONSTRUCTION - OBVIOUS INTENT-INTENT EXPRESSED-RIGHT TO FOLLOW CALLING-PROHIBITORY LEGISLATION-PROTECTION OF PUBLIC HEALTH-REGULATORY LEGISLATION-REASONABLENESS OF.

1. The practice of chiropody is not the practice of medicine and surgery.

2. The intent of the legislature must be gathered from the language used, but the obvious intent should prevail as against a literal construction if the language is sufficiently flexible to permit it.

3. The provisions of chapter 60, Sess. Laws 1923, apply to the practice of chiropody.

4. The right to follow a recognized and useful occupation is protected by the constitutional guarantee of liberty.

5. A calling may not be prohibited by the legislature unless it is inherently injurious to the public health, safety or morals or has a tendency in that direction.

6. The legislature cannot prohibit the practice of chiropody.

7. The legislature has power to regulate all callings related to the public health.

8. The legislature has power to regulate chiropody.

9. The regulation of a calling by the legislature must be reasonable and bear some relation to the object sought.

10. To require a chiropodist to obtain the education and license of a physician and surgeon, an osteopath, or a chiropractor, is not a reasonable regulation.

11. So far as it affects chiropody, chapter 60, Sess. Laws 1923, is void and inoperative.

12. So far as it affects the branches of the healing art licensed by the statutes, and all callings or practices sufficiently related to fall within them, chapter 60, Sess. Laws 1923, is valid.

13. The intent of sec. 2 of chapter 60, Sess. Laws 1923, is to prohibit the use of the word "doctor" and other words and abbreviations mentioned in such way as to falsely indicate that one is a licensed practitioner of one of the learned branches of the healing art.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Raymond L. Givens, Judge.

Prosecution for diagnosing, operating and prescribing for a disease injury and deformity, for compensation, and for advertising by the use of the word "doctor," without having a valid, unrevoked license. Judgment of conviction. Reversed and remanded for new trial.

Reversed and remanded.

J. R Smead, for Appellant.

It has not been the policy of our law-making body to undertake to prohibit, either directly or indirectly, the following of any legitimate occupation within the state of Idaho. (State v. Fite, 29 Idaho 464, 159 P. 1183.)

The intent must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. (Empire Copper Co. v. Henderson, 15 Idaho 635, 99 P. 127.)

A statute should be construed in the light of the purpose of the legislature in enacting the same. (Colburn v. Wilson, 24 Idaho 94, 132 P. 579.)

That which is not within the intent of a statute is not within the statute. (2 Lewis' Sutherland on Stat. Const., sec. 379.) A literal import of a statute does not govern as against its evident intention. (Idem, secs. 370-376.)

"A chiropodist is neither a physician nor a surgeon." (State v. Fisher, 119 Mo. 344, 24 S.W. 167, 22 L. R. A. 799.)

Laws are enacted to be read and obeyed by the people at large and words in common use among the people should be given the same meaning in the laws as they have among the people who are expected to read them. (Adams v. Lansdon, 18 Idaho 483, 110 P. 280.)

Appellant's right to practice is a valuable property right. (Ex parte Wall, 107 U.S. 265, 2 S.Ct. 569, 27 L.Ed. 552.)

The right of liberty includes the right to choose one's own occupation and follow it in one's own way. (Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042.)

It is the natural and constitutional right of every person to engage in any lawful business he may choose, subject only to reasonable regulation. (Moffit v. City of Pueblo, 55 Colo. 112, 133 P. 754; Hewitt v. Board of Med. Examiners, 148 Cal. 590, 113 Am. St. 315, 7 Ann. Cas. 750, 84 P. 39, 3 L. R. A., N. S., 896; Chenoweth v. Board of Med. Examiners, 57 Colo. 74, Ann. Cas. 1915D, 1188, 141 P. 132, 51 L. R. A., N. S., 958.)

The power to regulate does not entail the power to prohibit. (12 C. J. 931; People v. Weiner, 271 Ill. 74, Ann. Cas. 1917C, 1065, 110 N.E. 870, L. R. A. 1916C, 775; Ex parte Whitwell, 98 Cal. 73, 35 Am. St. 152, 32 P. 870, 19 L. R. A. 727; Tiedeman, Police Power, secs. 3, 85, 194; Re Jacobs, 98 N.Y. 98, 50 Am. Rep. 636; People v. Gilson, 109 N.Y. 389, 4 Am. St. 465, 17 N.E. 343; Cooley, Const. Lim., 6th ed., pp. 606, 607, 744; Ruhstrat v. People, 185 Ill. 133, 76 Am. St. 30, 57 N.E. 41; Ritchie v. People, 155 Ill. 98, 46 Am. St. 315, 40 N.E. 454, 29 L. R. A. 79; State v. Towessnute, 89 Wash. 478, 154 P. 805; Bonnett v. Vallier, 136 Wis. 193, 128 Am. St. 1061, 116 N.W. 885, 17 L. R. A., N. S., 486; People v. Erickson, 147 N.Y.S. 226.)

Hawley & Hawley, Amici Curiae.

Session Laws of 1923, chap. 60, was not intended to include practitioners of chiropody. (10 C. J. 757; State v. Smith, 25 Idaho 541, 138 P. 1107; Ex parte McNulty, 77 Cal. 164, 11 Am. Rep. 257, 19 P. 237; Robinson v. People, 23 Colo. 123, 46 P. 676; Hewitt v. Board of Medical Examiners, 148 Cal. 590, 113 Am. St. 317, 7 Ann. Cas. 750, 84 P. 39, 3 L. R. A., N. S., 896; United States v. Kirby, 7 Wall. (U. S.) 482, 19 L.Ed. 279; Wood v. Independent School Dist. No. 2, 21 Idaho 734, 124 P. 780; Oregon etc. R. R. Co. v. Minidoka etc. Dist., 28 Idaho 214, 153 P. 424; Howerton v. District of Columbia, 289 F. 628; State v. Prather, 79 Kan. 513, 100 P. 57, 21 L. R. A., N. S., 23; Melville v. State, 173 Ind. 352, 89 N.E. 490; Abrams v. Jones, 35 Idaho 532, 207 P. 724.)

If chapter 60, 1923 Sess. Laws, can be construed to prohibit chiropodists from practicing, then the act is unconstitutional. (Abrams v. Jones, supra; Hewett v. State Bd. of Med. Examiners, supra; Ex parte Wall, 107 U.S. 265, 2 S.Ct. 569, 27 L.Ed. 552; Constitution of Idaho, sec. 13, art. 1; Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746.)

Barber & Barber, Amici Curiae.

The citizen cannot be prohibited the exercise of his right to follow a lawful employment, except the restriction be exercised in behalf of public health, public morals or public safety; and then the burden is on the state to prove the existence of one of these conditions of exception before it may be permitted to exercise this restraint. (State ex rel. Kempinger v. Whyte, 177 Wis. 541, 23 A. L. R. 67, 188 N.W. 607; Hyatt v. Blackwell Lumber Co., 31 Idaho 452, 173 P. 1083; Crom v. Frahm, 33 Idaho 314, 193 P. 1013; In re Aubrey, 36 Wash. 308, 104 Am. St. 952, 1 Ann. Cas. 927, 78 P. 900.)

A. H. Conner, Atty. General, and Jas. L. Boone, Assistant, for Respondent.

Under the stipulated facts in this case the appellant is engaged in the practice of medicine and surgery. (C. S., sec. 2112; State v. Fite, 29 Idaho 463, 159 P. 1183; State v. Sawyer, 36 Idaho 814, 24 P. 222; State v. Herring, 70 N.J.L. 34, 1 Ann. Cas. 51, 56 A. 670; State v. Liffring, 61 Ohio 39, 76 Am. St. 358, 55 N.E. 168, 46 L. R. A. 334; Hayden v. State, 81 Miss. 291, 95 Am. St. 471, 33 So. 653; State v. Gallagher, 101 Ark. 593, 143 S.W. 98, 38 L. R. A., N. S., 328; State v. Lawson (Del.), 65 A. 593; State v. Smith, 233 Mo. 242, 135 S.W. 465, 33 L. R. A., N. S., 179.

Considering chiropody is not included in the definition of medicine and surgery, it is the intent of the legislature to include the practice of chiropody within the scope of the act. (Sec. 3, chap. 60, Laws of 1923.)

It is the intent of the legislature to include those skilled in electrolysis and who hold themselves out to the public as giving electrical treatments within the scope of chapter 60, Laws of 1923. (Sec. 3, chap. 60, Laws of 1923.)

A statute is passed as a whole, consequently each section should be construed in connection with every other part or section so as to produce a harmonious whole. (2 Lewis' Sutherland on Statutory Construction, p. 706.)

The act in question is a valid exercise of the police power of the state. (State v. Dolan, 13 Idaho 693, 92 P. 995, 14 L. R. A., N. S., 1259; In re Gemmill, 20 Idaho 732, Ann. Cas. 1913A, 76, 119 P. 298, 41 L. R. A., N. S., 711; Pike v. State Board of Land Commrs., 19 Idaho 268, Ann. Cas. 1912B, 1344, 113 P. 447; In re Inman, 8 Idaho 398, 69 P. 120; Barton v. Schmershall, 21 Idaho 562, 122 P. 385; State v. Smith, 233 Mo. 242, 135 S.W. 465, 33 L. R. A., N. S., 179; State v. Johnson, 84 Kan. 411, 114 P. 390, 41 L. R. A., N. S., 539; State v. Bragg, 134 Ala. 165, 32 So. 767.)

MCCARTHY, J. Dunn and William A. Lee, JJ., concur. WM. E. LEE, J., Concurring in part and Dissenting in Part.

OPINION

MCCARTHY, J.

Appellant was accused by an information of the crime of knowingly wilfully and unlawfully operating for and prescribing for a disease, injury and deformity of a certain person for a fee; the charging part of the information being as follows: That the said D. E. Armstrong on or about the 11th day of May, 1923, in the county of Ada, state of Idaho, did then and there knowingly, wilfully and unlawfully diagnose, operate for and prescribe for a disease, injury and deformity of a certain person, to wit, J. R. O'Donnell, for a certain fee and compensation, to wit, $ 5; the said D. E. Armstrong, then and there advertising in the daily newspapers published in Boise, Ada county, Idaho, and by printed letters on her door, by using the word "doctor" and the prefix "Dr."; the said D. E. Armstrong then and there having no valid unrevoked license...