State v. Carlstrom

• Decision Date: 20 May 1930
• Docket Number: No. 4767.,4767.
• Citation: 28 S.W.2d 691
• Parties: STATE OF MISSOURI, APPELLANT, v. GRAYDON CARLSTROM, RESPONDENT.
• Court: Missouri Court of Appeals

28 S.W.2d 691

STATE OF MISSOURI, APPELLANT, v. GRAYDON CARLSTROM, RESPONDENT.

No. 4767.

Springfield Court of Appeals. Missouri.

May 20, 1930.

Appeal from Circuit Court of Dunklin County. — Hon. W.S.C. Walker, Judge.

AFFIRMED.

James V. Billings, Stratton Shartel, Attorney-General, and A.B. Lovan, Assistant Attorney-General for appellant.

(1) An osteopath is not a physician and surgeon and not authorized to prescribe and dispense drugs and medicines as a physician and surgeon, and it is a violation of law for an osteopath to prescribe, dispense and administer drugs and medicine. Sections 7334, 7330, 7332, R.S. 1919; State v. Smith, 233 Mo. 242; Grainger v. Still, 187 Mo. 197, l.c. 224; LeGrand v. Security Benefit Ass'n, 240 S.W. l.c. 854; Atkinson v. School of Osteopathy, 240 Mo. 338, l.c. 353; State v. Gravett, 65 Ohio St. 289; State v. Liffring, 61 Ohio St. 39; Ex parte Collins, 121 S.W. (Tex.) 501; Bragg v. State, 134 Ala. l.c. 170-1; Nelson v. State Board of Health, 108 Ky. l.c. 777; State v. McKnight, 131 N.C. l.c. 721; State v. Water (N.J.), 143 Atl. 749. (2) The qualifications of an osteopath are entirely different from that of a physician and surgeon. Sections 9202, 9204, R.S. 1919, and authorities above cited. (3) A demurrer does not admit conclusions of law. (4) The term "as taught and practiced in the American School of Osteopathy" is ejusdem generis to the general term of the "system, method or science of treating the human body commonly known as Osteopathy." Sec. 9202, R.S. 1919; State v. Smith, 233 Mo. 242; Atkinson v. School of Osteopathy, 240 Mo. 338, l.c. 353; State v. Wade, 267 Mo. l.c. 257; State v. Gravett, 65 Ohio St. 289. The term and "such other subjects as the board may require" is ejusdem generis with Osteopathy, and includes no pathology other than Osteopathy Pathology, and does not include nor authorize an examination upon subjects of materia medica. (5) Section 9204, R.S. 1919; State v. Wade, 267 Mo. 249, l.c. 257; State v. Smith, 233 Mo. 242; Grainger v. Still, 187 Mo. 197; Atkinson v. School of Osteopathy, 240 Mo. 338; State v. Gravett, 65 Ohio St. 289; State v. Liffring, 61 Ohio St. 39.

Orville Zimmerman for respondent.

(1) Osteopathy is a distinct system, method or science of treating diseases of the human body, from the system known as practice of medicine and surgery under Article 1 of Chapter 65 of Revised Statutes 1919, and an osteopath, while not being a "physician and surgeon," as that term is used in Article 1 of Chapter 65, Revised Statutes 1919, is an "osteopathic physician and surgeon." Section 9292, R.S. 1919; Section 9206, R.S. 1919; Sections 7330, 7331, and 7332, R.S. 1919; Grainger v. Still, 187 Mo. 197, l.c. 224; Atkinson v. School of Osteopathy, 240 Mo. 338, l.c. 353; Laws 1927, p. 361; Bruer v. Woolworth (Col.), 22 Fed. (2 S.) 577; Waldoe v. Poe (Col.), 14 Fed. (2 Series) 749, l.c. 753; People ex rel. Gage v. Simon, 278 Ill. 256; Boudell v. Dept. of Health, 193 N.H. 132. (2) There is no statutory restriction in this State upon the issuance and use of drugs by osteopathic physicians and surgeons in the treatment of diseases of their patients according to the method and system known as Osteopathy and as taught and practiced by the American School of Osteopathy of Kirksville, Missouri, and an offense will not be created by implication. Laws 1897, p. 206; Section 9202, R.S. 1919; State v. Bartley, 263 S.W. l.c. 96; State v. Jaeger, 63 Mo. l.c. 409; Laws 1927, p. 361; Catalog of American School of Osteopathy, 1899 and 1900 (pp. 5, 7, 18, 20, 21). (3) The American School of Osteopathy at Kirksville was the parent school of this science of healing and it is manifest that the intention of Legislature was to make the standard of that school the standard for osteopathy in Missouri. The clause "as taught and practiced in the American School of Osteopathy at Kirksville, Missouri," is merely explanatory of what osteopathy shall be in Missouri. The doctrine of ejusdem generis has no application. Section 9202, R.S. 1919; Bank v. Ripley, 161 Mo. 126, l.c. 131-132; Davis v. Roberts, 206 Mo. App. l.c. 131; Trust Co. v. Elza, 286 S.W. l.c. 377; Cades v. Lumber Co., 291 S.W. l.c. 180; Corona Coal Co. v. U.S., 21 Fed. (2 S.) l.c. 491. (4) The evident intention of the Legislature was to enable the Board of Examiners to examine applicants in the named subjects in osteopathy and in any other subjects in osteopathy the board might require for a license to practice. Any other construction of the statute would place the board in a straight-jacket and forever limit the examination of applicants to practice osteopathy to the specified subjects. Bank v. Ripley, 161 Mo. l.c. 131, 132; Davis v. Roberts, 206 Mo. App. l.c. 131; Trust Co. v. Elza, 286 S.W. l.c. 377; Cades v. Lumber Co., 291 S.W. l.c. 180; Corona Coal Co. v. U.S., 21 Fed. (2d S.) l.c. 491; 36 Cyc., p. 1119.

James M. Johnson, Amicus Curiae.

SMITH, J.

This is a case where the defendant, an osteopath, is charged with practicing medicine, to-wit: Issuing prescriptions for drugs, and medicines, without license to practice medicine, the charge being that of violating section 7334, Revised Statutes 1919.

On the 8th day of July, 1929, the prosecuting attorney of Dunklin County filed his amended information, against the defendant, which omitting caption and verification, is as follows:

"James V. Billings, Prosecuting Attorney within and for the County of Dunklin, in the State of Missouri, upon his hereto appended oath and upon his knowledge, information and belief informs the court and charges that on or about the 7th day of June, A.D., 1928, and from said date until June 1, 1929, at the County of Dunklin, in the State of Missouri, that one Graydon Carlstrom did then and there unlawfully, wrongfully and wilfully practice medicine and thereby attempt to treat the sick or others afflicted with bodily and mental infirmities by the issuance of prescriptions for certain drugs and by the issuance of said drugs, to-wit: Neo-Silvol, Protorgol, and Elix Lacto Pepsin, to said sick or others affected with bodily and mental infirmities, without then and there having a license from the State Board of Health of the State of Missouri, contrary to the form of the statute in such cases made and provided to-wit: Article 1 of Chapter 65, R.S. 1919.

                   "Against the peace and dignity of the State
                                        "James V. Billings."
                

Thereafter, on the 11th day of July, 1929, the defendant filed his verified plea in abatement, which omitting caption and verification is as follows:

"And now comes Graydon Carlstrom in his own proper person, and having seen and heard the information filed herein against him, for plea thereto says that the court should not take cognizance of the said offenses therein specified, and said cause should be abated for the reasons following:

"(1) That he is a bona-fide graduate of the American School of Osteopathy at Kirksville, Missouri, a legally chartered school of osteopathy in Missouri, receiving his diploma from said institution on the 30th day of May, 1925; that on the 13th day of June, 1925, he was duly and regularly licensed by the Board of Osteopathic Examination and Registration of Missouri to practice his profession as an osteopathic physician in Missouri and in all things complied with the requirements of chapter 79 of the Revised Statutes of Missouri for the year 1919 and all thereto providing for the licensing of osteopathic physicians; that on said date said board issued to defendant a certificate or license to so practice his profession in the State of Missouri; that thereafter, on the 8th day of September, 1926, he duly and regularly registered his certificate or license to practice osteopathy in the office of the Clerk of the County Court of Dunklin County, Missouri, as is required by law, said certificate or license being recorded in physicians register at page 14; that he is now, and was at all the times mentioned in the information filed herein, a duly qualified, licensed and registered osteopathic physician and entitled to practice his profession in Dunklin County, Missouri.

"(2) Defendant further alleges and shows unto the court that in issuing the prescriptions of the drugs mentioned in the information filed herein and by the issuance of the drugs called for in said prescriptions in the treatment of persons afflicted with bodily diseases, to-wit: Neo Silvae, Protargol, and Elix Lacto Pepsin, he was following the system, method or science of treating commonly known as osteopathy, and as taught and practiced by the American School of Osteopathy, of Kirksville, Missouri; that the system, method or science of treating certain diseases (the diseases defendant was treating at the time) known as osteopathy at Kirksville, Missouri, specifically teaches the prescribing and use of the drugs mentioned in the information for the treatment of diseases defendant was treating and for which said drugs were prescribed and used; that said school of osteopathy at Kirksville at which the defendant was educated and from which he graduated teaches the writing of prescriptions for the issuance and use of the drugs and medicines mentioned in the information and that in writing said prescriptions for said drugs and medicines and in the use of same he was following the method, system and science of treating the diseases he was treating known as osteopathy and as then and now taught by the American School of Osteopathy at Kirksville, Missouri; that the practice of osteopathy in Missouri has always called for the use of certain drugs and medicines for certain diseases and that the use of the drugs and medicines for certain diseases and that in the use of the drugs and medicines described in the information he was following and practicing the latest and best known methods of treating such diseases as taught and practiced by Osteopathy in Missouri, and the American School of Osteopathy at Kirksville, Missouri;...