State v. Johnson

• Decision Date: 11 March 1911
• Docket Number: 17,361
• Citation: 114 P. 390,84 Kan. 411
• Parties: THE STATE OF KANSAS, Appellant, v. P. W. JOHNSON, Appellee
• Court: Kansas Supreme Court

114 P. 390

84 Kan. 411

THE STATE OF KANSAS, Appellant, v. P. W. JOHNSON, Appellee

No. 17,361

Supreme Court of Kansas

March 11, 1911

Decided January, 1911.

Appeal from Stafford district court.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONSTITUTIONAL LAW--Regulating the Practice of any Healing Art. Under the constitutional grant of power the legislature may prescribe reasonable restrictions and regulations respecting the practice of any branch or department of the healing art.

2. CRIMINAL LAW--Practice of Chiropractic--License. Chapter 254 of the Laws of 1901, as amended by chapter 63 of the Laws of 1908, creating a state board of medical registration and examination and regulating the practice of medicine, surgery and osteopathy, is constitutional, and embraces within its terms one who without registration examination or license from such board, and for pay, practices or attempts to practice chiropractic by pretending to adjust the spine of one afflicted with bodily infirmities, or who advertises to treat, for pay, by chiropractic spinal adjustment, persons thus afflicted.

Fred S. Jackson, attorney-general, and Ray H. Beals, county attorney, for the appellant; Frank L. Martin, of counsel.

Prigg & Williams, and Morris & Hartwell, for the appellee.

OPINION

WEST, J.:

The first count of the information charges that the appellee "did then and there unlawfully and willfully practice medicine and surgery . . . by then and there attempting to treat for a fee one William Mershon, sr., who was then and there afflicted with bodily infirmities and who was then and there sick, the nature and extent of said sickness and bodily infirmities being to informant unknown, by then and there pretending to adjust the vertebrae of the said William Mershon, sr." A motion to quash was sustained, and the state appeals.

The second, third, fourth and fifth counts are similar to the first, except that they omit "pretending to adjust the vertebrae." The sixth count charges the appellee with advertising in a newspaper:

"Chiropractic. P. W. Johnson, D. C., the chiropractor of Hutchinson, Kan., will be in Stafford, at Hotel Brinkman, Tuesday and Friday, 9 A. M. to 1 P. M. If you are afflicted in any way, or have tried everything else without results, try chiropractic spinal adjustment."

The cause has been so presented and argued that we deem it proper to consider the first and sixth counts only. The record shows that the trial court sustained the motion to quash "for the reason that it is agreed by both sides that said P. W. Johnson is a chiropractic and practicing his profession as such, and is a graduate of some school which teaches chiropractic and stands ready to take an examination in chiropractic before the state board of medical registration, but that the statutes of the state make no provision for granting a license to one practicing chiropractic, and has applied to take. such examinations before said board, but it has refused to examine him or grant him a license to practice in Kansas."

The appellant contends that the appellee comes clearly within the well-known and well-defined meaning of the term "practice of medicine"; that the legislature may define the meaning, extend it, broaden it, make it more comprehensive; that chiropractic is an unknown word which can not be found in the dictionaries and which has been manufactured by a faker for use as a sham; that "he [appellee] does not belong in the class with physicians or surgeons, nor with any other class of men that are learned or have any knowledge of science."

The appellee insists that, being a graduate of a school which teaches chiropractic and standing ready to take an examination therein, he is not a physician, surgeon or osteopathist, and is not in any sense "practicing medicine and surgery"; and that the statute can not be extended to cover his case without violating the constitution in various ways.

We have no doubt whatever that the legislature may prescribe reasonable restrictions and qualifications touching the healing art in any of its departments without impairing any constitutional rights. (The State v. Creditor, 44 Kan. 565, 24 P. 346; The State v. Wilcox, 64 Kan. 789, 68 P. 634; Meffert v. Medical Board, 66 Kan. 710, 72 P. 247.) While the power does not exist to give one particular school of medicine a monopoly or to prohibit the citizen from using or employing the ordinary home remedies and neighborly ministrations, still, when one holds himself out to the public as a healer of disease by the use of means or methods vouched for by him, and for which he receives pay, the legislature may, for the protection of the citizen from quackery or imposture, require such person to possess and show certain qualifications for doing properly what he does and what he receives pay for doing.

It is essential to ascertain whether or not the legislature has made provision for a case of this kind. In 1870 chapter 68 was enacted, the title reading as follows: "A bill to protect the people of Kansas from empiricism, and to elevate the standing of the medical profession." Under this title provision was made with reference only to one "who shall practice or attempt to practice medicine in any of its departments, or perform or attempt to perform any surgical operations." (§ 2.) This was before the days of osteopathy, and certainly before chiropractic had become familiar. In 1901 chapter 254 of the laws of that year (Gen. Stat. 1909, §§ 8085-8089, 8091, 8092) was enacted with the following title:

"An act to create a state board of medical registration and examination, and to regulate the practice of medicine, surgery and osteopathy in the state of Kansas, prescribing penalties for the violation thereof, and repealing chapter 68 of the Session Laws of 1870."

Chapter 63 of the Laws of 1908 is entitled:

"An act amending chapter 254 of the Laws of 1901, the same being an act entitled 'An act to create a state board of medical registration and examination, and to regulate the practice of medicine, surgery and osteopathy in the state of Kansas, to provide penalties for the violation thereof, and repealing chapter 68 of the Session Laws of 1870,' and repealing section 6 of chapter 254 of the Laws of 1901."

This, it will be seen, leaves the title substantially as it was in 1901, so that the legislation now in force is to "regulate the practice of medicine, surgery and osteopathy." It is earnestly insisted that the act can be no broader than its title, and that chiropractic is not medicine or surgery or osteopathy, and therefore is left untouched by these provisions; that the rule of noscitur a sociis restricts the words found in the act of 1908 to their associates, medicine, surgery and osteopathy, and that this language can by no fair intendment be given sufficient elasticity to reach chiropractic. The language as amended is that anyone shall be "regarded as practicing medicine and surgery within the meaning of this act who shall prescribe, or who shall recommend for a fee, for like use, any drug or medicine, or perform any surgical operation of whatsoever nature for the cure or relief of any wounds, fracture or bodily injury, infirmity or disease of another person, or who shall use the words or letters 'Dr.,' 'Doctor,' 'M. D.,' or any other title, in connection with his name, which in any way represents him as engaged in the practice of medicine or surgery, or any person attempting to treat the sick or others afflicted with bodily or mental infirmities, or any person representing or advertising himself by any means or through any medium whatsoever, or in any manner whatsoever, so as to indicate he is authorized to or does practice medicine or surgery in this state, or that he is authorized to or does treat the sick or others afflicted with bodily infirmities, but nothing in this act shall be construed as interfering with any religious beliefs in the treatment of diseases; provided, that quarantine regulations relating to contagious diseases are not infringed upon. All persons who practice osteopathy shall be registered and licensed as doctors of osteopathy, as hereinbefore provided, but they shall not administer drugs or medicine of any kind nor perform operations in surgery." (Laws 1908, ch. 63, § 1, Gen. Stat. 1909, § 8090.)

The words italicized are the ones inserted by the act of 1908.

Webster's New International Dictionary defines chiropractic as "a system of healing that treats disease by manipulation of the spinal column." Counsel for appellee advises us that "the chiropractor claims that all the diseases which are in any way affected by his adjustments are caused by the partial displacement of the vertebrae, thus causing the nerves which pass through the openings in the vertebrae to press against the sides of the openings and prevent the life fluid from flowing freely through the nerve to the part of the human system to which the particular nerve reaches. Diseases not caused by the pressing of the nerves against the sides of these openings the chiropractor does not in any way treat. The chiropractor claims that the only treatment, so-called, which he uses is not a treatment, but merely an adjustment of the vertebrae, which restores the vertebrae and the nerves to their normal position and thus removes the cause of the disease. He does not practice surgery or medicine, and does not use any other manipulations whatever than the adjustment of the vertebrae." But the language of the 1908 amendment is very broad, and even under the foregoing description of chiropractic it may well be said that one whose vertebrae are partially displaced, causing impairment of nerve function, is one afflicted with bodily infirmity, and that one who restores the functional...