State v. Biggs
| Decision Date | 18 December 1903 |
| Citation | 46 S.E. 401,133 N.C. 729 |
| Parties | STATE v. BIGGS. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County; W. R. Allen, Judge.
Andrew C. Biggs was convicted of unlawfully practicing medicine and surgery, and appeals. Reversed.
An act passed in the supposed interest of a state medical society limiting the practice of medicine and surgery, will be construed most strongly against the society.
C. M Stedman and E. J. Justice, for appellant.
The Attorney General, for the State.
The defendant is indicted on a charge that he "did unlawfully and willfully begin, engage in, and continue the practice of medicine and surgery, and the branches thereof for fee or reward, without having obtained a license so to do from the Board of Medical Examiners of the State of North Carolina." Upon the facts found, the court was of opinion that the defendant was guilty. The defendant appealed from the judgment imposed.
The special verdict found that the defendant advertised himself as a ""nonmedical physician"; that he held himself out to the public to cure disease by a "system of drugless healing, and treats patients by said system without medicine, claiming not to cure by faith"; that he advertises to cure by natural methods, without medicine or surgery. The only acts that he is found by the verdict to have performed are that "he administers massage baths and physical culture, manipulates the muscles, bones, spine and solar plexus, and kneads the muscles with the fingers of the hand; he writes no prescriptions as to diet, but advises his patients what to eat and what not to eat; all the above treatment is administered to the exclusion of drugs." It was admitted that the defendant was not licensed by the State Medical Board, and claims no exemption, under the provisions of the act of 1903, as a nurse, or midwife, nor as one curing by prayer; and then there is the important finding that "the defendant charges a fee or reward for his services," and has treated patients by the above treatment, and received payment therefor, since the passage of chapter 697, p. 1074, Laws 1903, "To Define the Practice of Medicine and Surgery."
Section 3124 of the Code requires that every person who applies for license to practice "medicine or surgery or any of the branches thereof" shall stand an examination in "anatomy, physiology, surgery, pathology, medical hygiene, chemistry, pharmacy, materia medica, therapeutics, obstetrics and the practice of medicine." There was added by section 2, c. 117, p. 180, Laws 1885, the following provision: "And any person who shall begin the practice of medicine or surgery in this state for fee or reward, after the passage of this act, without first having obtained license from said Board of Examiners [meaning the State Board of Medical Examiners] shall not be entitled to sue for or recover before any court any medical bill for services rendered in the practice of medicine or surgery or any of the branches thereof, but shall also be guilty of a misdemeanor and upon conviction thereof shall be fined not less than $25, nor more than one hundred dollars or imprisoned at the discretion of the court for each and every offense."
The constitutionality of this last act has been vigorously assailed in the courts, on the ground that every one had an "inalienable right to life, liberty and the pursuit of happiness," as our great Declaration phrases it, and that by that guaranty it is the right of every one to earn his livelihood by pursuing any calling or vocation not unlawful, and that to place his liberty to do so within the power of a committee chosen by those already pursuing any given calling would be to infringe upon section 7 of article 1 of our state Constitution, which forbids exclusive privileges and emoluments to any set of men, and section 31 of the same article, which prohibits "monopolies and perpetuities." Of late years there has been added the argument that such act is also obnoxious to the fourteenth amendment to the Constitution of the United States, which prohibits any state "to deny to any person the equal protection of the law." There was undeniably great force in the argument on that side. The lawmaking power slowly, in this state and in others, yielded to the view that it could or should pass such act. In 1858-59 (Acts 1858-59, p 356, c. 258) it first incorporated "The State Medical Society," and authorized the above examination, and prohibited any one to practice medicine or surgery or prescribe for the cure of diseases, for fee or reward, without such license, but was careful to add a proviso that no one who should practice without such license should be guilty of a misdemeanor, the only penalty being that if he practiced on credit he could not recover his fees in the courts. The law remained thus till the above recited act passed in 1885, and which was made prospective. The constitutionality of this last statute was fully considered, and after a most able argument against it by counsel was sustained by this court, but not without great hesitation, and upon the ground solely that the act was "an exercise of the police power for the protection of the public against incompetents and impostors, and in no sense the creation of a monopoly or special privilege." State v. Call, 121 N.C. 646, 28 S.E. 517. If the object of the act could be construed as intended to give special and exclusive privileges to a special body of men, and not solely and in truth for the protection of the public, the Legislature was prohibited by the Constitution from enacting it, nor could the Legislature restrict the cure of the body to the practice of "medicine and surgery," or establish any state system of healing. State v. McKnight, 131 N.C. 723, 42 S.E. 580, 59 L. R. A. 187. After these decisions, moderation and wisdom would have suggested that the matter rest. Those who wish to be treated by practitioners of medicine and surgery had the guaranty that such practitioners had been duly examined and found competent by a board of gentlemen eminent in that high and honorable profession, and those who had faith in treatment by methods not included in the "practice of medicine and surgery," as usually understood, had reserved to them the right to practice their faith and be treated, if they chose, by those who openly and avowedly did not use either surgery or drugs in the treatment of diseases. The courts have declared that they possessed this right, and that the Legislature could not, under the Constitution, restrict all healing to any one school of thought or practice. What is "the practice of medicine and surgery" is as well understood, and its limits, as the practice of dentistry. The courts have also held that of the many schools of "medicine and surgery" the Legislature could not prescribe that any one was orthodox and the others heterodox, but that those professing the different systems--"allopathic," ""homeopathic," "Thompsonian," and the like--should be examined upon a course such as is taught in the best colleges of that school of practice, but that it is not essential that a member of each, or of any special school, should be upon the Board of Examiners.
At the last session of the General Assembly the following act (Act 1903, p. 1074, c. 697) was passed amendatory of section 3122 of the Code: "For the purpose of this act the expression 'practice of medicine and surgery' shall be construed to mean the management for fee or reward of any case of disease, physical or mental, real or imaginary, with or without drugs, surgical operation, surgical or mechanical appliances, or by any other method whatsoever; provided that this shall not apply to midwives nor to nurses; provided further that applicants not belonging to the regular school of medicine shall not be required to stand an examination except upon the branches taught in their regular colleges, to-wit, the osteopaths shall be examined only upon descriptive anatomy, general chemistry, histology, physiology, urinalysis, and toxicology, hygiene, regional anatomy, pathology, neurology, surgery, applied anatomy, bacteriology, gynecology, obstetrics and physical diagnosis; provided this act shall not apply to any person who ministers to or cures the sick or suffering by prayer to Almighty God, without the use of any drug or material means."
Chief Justice Pearson, in McAden v. Jenkins, 64 N.C. 801 noted, as of common knowledge, and reiterated in Railroad v. Jenkins, 68 N.C. 505, that railroad charters are drafted by "promoters," and hence should be construed most strongly against the grantees and in the interest of the public. The same construction can fairly be applied to this act amendatory of the charter of this corporation, in whose supposed interests it was evidently drafted, and not solely in the interest of the public. Under the guise of "construction" of those well-understood terms, the "practice of medicine and surgery," the act essays to provide that the expression "'practice of medicine and surgery' shall be construed to mean the management 'for fee or reward' of any case of disease, physical or mental, real or imaginary, with or without drugs, surgical operation, surgical or mechanical appliances, or by any other method whatsoever." That is, the practice of surgery and medicine shall mean practice without surgery or medicine, if a fee is charged. If no fee is charged, then the words "surgery and medicine" drop back to their usual and ordinary meaning, as by long usage known and accustomed. Where, then, is the protection to the public, if such treatment is valid when done without fee or reward? Yet, unless the act confers, and is intended solely to confer, protection upon the public, it is invalid. The Legislature cannot forbid...
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