State v. Dodd

• Citation: 149 P. 481,51 Mont. 100
• Decision Date: 08 June 1915
• Docket Number: 3521.
• Parties: STATE v. DODD.
• Court: United States State Supreme Court of Montana

149 P. 481

51 Mont. 100

STATE v. DODD.

No. 3521.

Supreme Court of Montana

June 8, 1915

Appeal from District Court, Cascade County; J. B. Leslie, Judge.

W. E Dodd was convicted of practicing medicine without a license. From the judgment and an order denying a new trial, he appeals. Affirmed.

C. H Benton, of Great Falls, for appellant.

D. M Kelly, Atty. Gen., and W. H. Poorman, Asst. Atty. Gen., for the State.

HOLLOWAY J.

The defendant was convicted of practicing medicine without first having obtained a certificate from the state board of medical examiners. The notice of appeal recites that defendant has appealed from the judgment and from an order denying his motion for a new trial.

If any judgment has ever been rendered or entered in this action the record fails to disclose the fact. The recital in the minutes, "The court ordered that the defendant be punished by paying a fine of three hundred dollars ($300.00)," is not a judgment. Every question which appellant seeks to have reviewed, however, arises upon the appeal from the order denying his motion for a new trial.

The principal contention made is that the statute regulating the practice of medicine is unconstitutional. Section 1587 of that act provides that any person wishing to practice medicine or surgery in this state shall first secure a certificate from the state board of medical examiners. Section 1591 provides that every person practicing medicine or surgery without such certificate shall be guilty of a misdemeanor. The same section further defines "practicing medicine or surgery" and contains this proviso:

"Nothing in this section shall be construed to restrain or restrict any legally licensed osteopathic practitoiner * * * under the laws of this state."

The right of the state in the exercise of its police power to regulate the practice of medicine by appropriate legislation is conceded, but it is insisted that section 1591 is arbitrary and unreasonable class legislation and not a valid police regulation for that reason. Counsel for appellant insists that the effect of that section, with the proviso quoted, is to deny to every person, except osteopaths, the right to practice medicine or surgery in Montana without a certificate from the state board of medical examiners, and that, in excepting licensed osteopaths from the operation of its provisions, those persons thus favored are free to engage in the practice of medicine or surgery without having to submit to the ordeal of an examination and without having the certificate required of every other one who seeks to engage in the like practice. If the construction thus sought to be placed upon the language of section 1591 is justified, we might readily assent to the conclusion that the classification made is an arbitrary one, and that the case presented upon this appeal falls within the rule announced in State v. Cudahy Packing Co., 33 Mont. 179, 82 P. 833, 114 Am. St. Rep. 804, 8 Ann. Cas. 717, and that the statute in its operation denies to the appellant the equal protection of the laws.

In assuming, however, that section 1591 permits an osteopath to practice medicine without a certificate from the state board of medical examiners, counsel for appellant errs and with the fall of this, his fundamental premise, goes his entire argument.

We shall not trace the history of the statute regulating the practice of medicine in this state from its origin. As it appeared in the Political Code of 1895, §§ 600-608 (Rev. Codes, §§ 1585, 1593), it contained no proviso or exception in favor of osteopaths or others. It was a general statute of uniform operation, which required every person who wished to practice medicine or surgery in this state to submit to an examination before the state board of medical examiners and secure a certificate from that board. In 1901 an act was passed to regulate the practice of osteopathy. Laws 1901, p. 48. Section 11 of that act declared that the practice of osteopathy shall not be deemed the practice of medicine or surgery, within the meaning of the law regulating the practice of medicine or surgery. In 1905 the act of 1901 was superseded by a more elaborate measure upon the same subject, section 13 of which contained the same provision as section 11 of the act of 1901. Laws 1905, c. 51.

In the act of 1901, above, the practice of osteopathy was not defined specifically, but the meaning of the phrase was so well understood that the Legislature was competent to say that, whatever it might comprehend, it did not include the practice of medicine or surgery. This authority thus assumed by the Legislature is challenged, and it is urged that it is beyond the scope of lawmaking power to say that the performance of acts tending to cure, treat, relieve, or palliate any ailment, disease, or infirmity of the human mind or body is not the practice of medicine or surgery. Much of this argument fails of its mark. In the first instance, we approach the consideration of the subject confronted with the well-established rule that our Constitution is a limitation upon power, particularly legislative power, and that, in the absence of some constitutional restriction, the Legislature is free to enact any measure which does not infringe the supreme law of the land. State v. French, 17 Mont 54, 41...