State v. Bonham

• Decision Date: 05 December 1916
• Docket Number: 13082.
• Citation: 93 Wash. 489,161 P. 377
• Parties: STATE v. BONHAM.
• Court: Washington Supreme Court

161 P. 377

93 Wash. 489

STATE v. BONHAM.

No. 13082.

Supreme Court of Washington

December 5, 1916

Department 1. Appeal from Superior Court, King County; J. T. Ronald Judge.

Clyde L. Bonham was convicted of practicing medicine and surgery without a proper certificate, and appeals. Affirmed.

Charles H. Miller, of Seattle, for appellant.

Alfred H. Lundin, W. F. Meier, and Joseph A. Barto, all of Seattle for the State.

FULLERTON J.

The defendant, Clyde L. Bonham, was convicted of the crime of practicing medicine and surgery within King county, state of Washington, without a certificate from the board of medical examiners of the state authorizing him so to do, and sentenced to pay a fine of $1, together with the cost of the prosecution. From the conviction and sentence he appeals.

The cause was tried before the lower court upon an agreed statement of facts. The statement shows that the appellant at the time named in the information, was the holder of a valid, unrevoked certificate, issued to him by the board of medical examiners of the state of Washington, authorizing him to practice osteopathy in such state, but was not the holder of any of the other forms of certificates the medical board is authorized to issue, and was entitled to practice medicine and surgery in the state of Washington only in such manner as his certificate, authorizing him to practice osteopathy, entitled him so to do; that on the day named in the information one Ray Johnson applied to the appellant to be treated for a diseased condition of the tonsils; that the appellant thereupon undertook his treatment, and in the course thereof administered to him 'an anesthetic, to wit, ether, and then and there, removed the tonsils of the said Ray Johnson, by placing a snare around each of said tonsils, and then and there cutting out said tonsils with a knife, * * * and then and there administered to the said Ray Johnson medicine, to wit, stypticin * * *'; that the method employed was the only method for removing the tonsils, and the method used 'was the only method in which the said Bonham received instruction' for the removal of diseased tonsils. The stipulation further shows that the appellant matriculated in the Los Angeles College of Osteopathy, of Los Angeles, Cal., in January, 1906, and graduated therefrom in June, 1908, after having completed the course of study prescribed by such college. It is shown, also, that the college named was a legally chartered college of osteopathy, requiring actual attendance, and having a course of instruction of more than 20 months.

The statutes of this state, regulating the practice of treating the sick and afflicted (Rem. & Bal. Code, §§ 8386-8407), provide for the appointment of a board of medical examiners consisting of nine members, five of whom must be chosen from the regular profession, two from the homeopathic profession, and two from the osteopathic profession. The board is given power to issue certificates to those entitled to practice the healing art, and practicing such art without holding such a certificate is made a misdemeanor. The board has authority to issue three forms of certificates:

'First, a certificate authorizing the holder thereof to practice medicine and surgery; second, a certificate authorizing the holder thereof to practice osteopathy; third, a certificate authorizing the holder thereof to practice any other system or mode of treating the sick or afflicted not referred to in this section.'

In order to procure a certificate to practice medicine and surgery applicants must present to the board 'a diploma issued by some legally chartered medical school, the requirements of which shall have been at the time of granting such diploma in no particular less than those prescribed by the Association of American Medical Colleges for that year,' together with certain prescribed preliminary and extraneous proofs; such, for example, as that the applicant is of good moral character, and that the diploma was not obtained by fraud. To obtain a certificate to practice osteopathy the applicant is required to present a diploma from 'a legally chartered college of osteopathy, having a course of at least twenty months, requiring actual attendance, and after 1909, of three years of nine months each,' together with proofs similar to those of the applicant's first mentioned. An applicant for a certificate to practice any mode or system of healing the sick or afflicted is required to file a diploma from a legally chartered college of the system or mode of treatment which the applicant claims or intends to follow. In addition to the foregoing requirements, all applicants for certificates must be personally examined by the board as to their qualifications in the 'following fundamental subjects, to wit: Anatomy, histology, gynecology, pathology, bacteriology, chemistry and toxicology, physiology, obstetrics, general diagnosis and hygiene.' Examinations in each subject shall consist of not less than ten questions, 'none of which shall relate to treatment.' Under the penalty of a misdemeanor the act makes it incumbent on holders of certificates to 'use no deception in the use of titles of his or her mode of treating the sick, but shall use such titles as are designated by his or her diploma; or those not having a diploma shall use only such title as he or she holds license to practice.' It is provided also that the act shall not be construed so as to discriminate against any particular school of medicine or surgery, or against osteopathy or any system or mode of treating the sick or afflicted, or so as to interfere in any way with the practice of religion, or be held to regulate any kind of treatment by prayer. The statute offers no definition of medicine and surgery, or of osteopathy, or of other modes of treatment mentioned for which certificates to practice may be issued, nor does it undertake to prescribe specifically what mode of treatment the holders of the various certificates may employ in their practice.

The appellant assails the judgment of conviction pronounced against him on two special grounds: First that the act is unconstitutional; and, second, that his certificate entitles him to employ for the treatment of diseased tonsils the methods employed by him in the treatment of the diseased tonsils of the patient mentioned in the information.

The first objection needs no extended discussion. The question has been twice before this court with reference to this particular act; first in the case of State v. Greiner, 63 Wash. 46, 114 P. 897, and later in the case of State v. Pratt, 80 Wash. 96, 141 P. 318, in each of which the constitutionality of the act was sustained as being within the police powers of the state. The appellant's learned counsel, however, suggests a reason for holding the act unconstitutional not suggested in the arguments in the cases cited, and this it may be well to specifically notice. The objection, stated in the language of counsel, is this:

'When the Legislature of 1909 incorporated in section 8391 of the act the following language: 'In order to procure a certificate to practice medicine and surgery the applicant for such certificate must file with said board, at least two weeks prior to the regular meeting thereof, satisfactory testimonials of good moral character, and a diploma issued by some legally chartered medical school, the requirements of which shall have been at the time of granting such diploma in no particular less than those prescribed by the Association of American Colleges for that year'--they granted to the American Medical Association, a nonlegislative body outside of the state, legislative functions, and by so doing aimed to establish a medical hierarchy, which would control the people from birth to death. The bureaucratic rule which it hoped to secure by the passage of that section in un-American in principle and despotic in spirit. It is monopolistic and tyrannical in the most offensive sense of those terms.'

But we think it manifest that the clause quoted by counsel cannot bear the construction he places upon it. By this clause the Legislature granted legislative functions to no one. It simply defined the medical schools from which an applicant to practice medicine and surgery in the state must produce a diploma before a certificate authorizing him to do so can be issued to him. The restriction may or may not be a wise one, but this is a question for the Legislature and not for the courts. With the courts the question is one of the power of the Legislature to impose the restriction, and we see no reason to question it.

Again, we think the restriction is not one of which the appellant can be heard to complain. He is in no manner affected by it. He applied for and received a certificate to practice osteopathy, and is entitled to practice that profession in the manner and to the extent the certificate permits.

It may be that should it be held that this particular clause was unconstitutional, and that it so far permeated the act as to render it void in its entirety, the appellant would be entitled to an acquittal for...