State v. Smith

• Decision Date: 07 March 1911
• Citation: 233 Mo. 242,135 S.W. 465
• Parties: STATE v. SMITH.
• Court: Missouri Supreme Court

135 S.W. 465

233 Mo. 242

STATE v. SMITH.

Supreme Court of Missouri, Division No. 2.

March 7, 1911.

1. INDICTMENT AND INFORMATION (§ 111) — STATUTORY OFFENSES — NEGATIVING EXCEPTIONS.

An information charging that accused practiced medicine without having a license sufficiently charges a violation of Rev. St. 1909, §§ 8311-8319, without negativing the exception in section 8319, providing that the article does not prohibit gratuitous service to and treatment of the afflicted.

2. STATUTES (§ 114) — TITLE — SUFFICIENCY.

Acts 1901, p. 207, entitled "An act to regulate the practice of medicine and surgery and midwifery, and to prohibit treating the sick and afflicted without a license, and to provide penalties for the violation thereof," contains but one subject clearly expressed, as required by Const. art. 4, § 28, for the subject of the act is, broadly speaking, the public health, since the treatment of the sick and the practice of medicine and surgery are in natural relation.

3. STATUTES (§ 107) — TITLE — SUFFICIENCY — "SINGLE SUBJECT."

Where all the provisions of a statute fairly relate to the same subject, have a natural connection with it, or are the incidents or means of accomplishing it, the subject is single within Const. art. 4, § 28.

4. STATUTES (§ 194) — CONSTRUCTION — EJUSDEM GENERIS.

The rule of ejusdem generis is resorted to merely as an aid in the construction of statutes, and, where on a consideration of the whole subject and the purposes sought to be effected it is apparent that the Legislature intended the general words to go beyond the class specially designated, the rule does not apply, and, where the particular words exhaust the class, the general words must be given a meaning beyond the class or be discarded.

5. PHYSICIANS AND SURGEONS (§ 6) — "PRACTICING MEDICINE" — STATUTES — CONSTRUCTION.

Acts 1901, p. 207, making it a misdemeanor for any person to practice medicine or surgery or to attempt to treat the sick without first obtaining a license from the State Board of Health, is not limited to attempts to treat by medicine or surgery, but includes those who practice neither medicine nor surgery in any of its departments, but who profess to cure, and who treat or attempt to treat the sick by means other than medicine or surgery.

6. PHYSICIANS AND SURGEONS (§ 6)—"PRACTICING MEDICINE" — STATUTES — CONSTRUCTION.

The system of practice called "chiropractic," consisting of an examination of the spine with the fingers, and the adjustment of vertebræ, thereby removing the cause of disease, involves diagnosis and physical treatment, and is within Acts 1901, p. 207, prohibiting any person from practicing medicine or surgery or from attempting to treat the sick without first obtaining a license.

7. PHYSICIANS AND SURGEONS (§ 6)—"PRACTICING MEDICINE."

One is practicing medicine when he visits his patient, examines him, determines the nature of the disease, and prescribes the remedies he deems appropriate, and one professing to be able to ascertain by examination of his patient the cause of his trouble, and to indicate the proper treatment, is practicing medicine.

8. CONSTITUTIONAL LAW (§ 70) — JUDICIAL POWERS — ENCROACHMENT ON JUDICIARY — WISDOM OF LEGISLATION — STATUTES — VALIDITY.

The court in determining the validity of a statute will not consider the wisdom or propriety of the statute.

9. CONSTITUTIONAL LAW (§ 81) — POLICE POWER.

The Legislature may pass all necessary laws to guard the morals, safety, and health of the people, though such laws in some degree operate as a restraint on recognized constitutional rights, but a law which unnecessarily and oppressively restrains a citizen from engaging in any traffic, though passed under the pretense of preserving the public health, is void.

10. PHYSICIANS AND SURGEONS (§ 2)—REGULATION OF PRACTICE OF MEDICINE — STATUTES—VALIDITY.

Acts 1901, p. 207, making it a misdemeanor for any person to practice medicine or surgery or to attempt to treat the sick without first obtaining a license, though construed to include those who profess to cure, and who treat or attempt to treat the sick by means other than medicine or surgery, is valid as an exercise of the police power to protect the public health.

11. HEALTH (§ 20)—POLICE POWER—REGULATION OF PUBLIC HEALTH.

The Legislature may regulate, in such manner as it may think proper, callings that are related to the public health.

Appeal from Circuit Court, Webster County; Geo. H. Williams, Special Judge.

George Smith was convicted of practicing medicine without a license, and he appeals. Affirmed.

See, also, 225 Mo. 579, 125 S. W. 460.

This is an appeal from Webster county, where the defendant was convicted of the offense of treating and attempting to treat the sick and afflicted without first having obtained a license from the State Board of Health. His punishment was assessed at a fine of $50. The case reaches this court by transfer from the Springfield Court of Appeals upon a constitutional question. The information upon which the defendant was tried reads as follows: "J. E. Haynes, prosecuting attorney, duly elected, commissioned sworn, qualified, installed, and acting as such in and for said county of Webster, in the state of Missouri, upon his oath and upon his hereto appended oath, informs the court, and upon his said oath and upon his hereto appended oath, does depose, present, aver, and charge, that said defendant, George Smith, on or about the 1st day of July, 1908, and from said date until November 6, 1908, at the said county of Webster, did then and there unlawfully, wrongfully, willfully practice medicine and surgery, and did attempt to treat the sick or others afflicted with bodily and mental infirmities, and did then and there represent and advertise himself by means of certain printed matter, the exact nature of which is to this informant unknown, so as to indicate that he was authorized to practice medicine and surgery, and that he was authorized to treat the sick and afflicted with bodily and mental infirmities, without then and there having a license from the State Board of Health, contrary to the form of the statute in such cases made and provided, against the peace and dignity of the state of Missouri." The information is based upon sections 1 and 5 of an act regulating the practice of medicine and surgery, approved March 12, 1901 (Sess. Acts of 1901, p. 207), reading as follows:

"Section 1. It shall be unlawful for any person not now a registered physician within the meaning of the law to practice medicine or surgery in any of its departments, or to profess to cure and attempt to treat the sick and others afflicted with bodily or mental infirmities, or engage in the practice of midwifery in the state of Missouri, except as hereinafter provided."

"Sec. 5. Any person, except physicians now registered, practicing medicine or surgery in this state, and any person attempting to treat the sick or others afflicted with bodily or mental infirmities without first obtaining a license from the state board of health, as provided in this act, shall be deemed guilty of a misdemeanor and punished by a fine of not less than fifty dollars nor more than five hundred dollars, or by imprisonment in the county jail for a period of not less than thirty days nor more than one year, or by both such fine and imprisonment for each and every offense, and treating each patient shall be regarded as a separate offense. Any person filing, or attempting to file, as his own a license of another or a forged affidavit of identification, shall be guilty of a felony, and, upon conviction thereof, shall be subject to such fine and imprisonment as are made and provided by statutes of this state for the crime of forgery in the second degree. Said fines to be turned into the state treasury when collected."

Said section 1 appears, without change, as section 8311 of the Revision of 1909, and section 5, with some amendments not material to the case at bar, appears as section 8315 of said Revision.

The evidence shows that the defendant practiced what he called the "science of chiropractic," which science is thus defined in defendant's brief: "The theory of this science is that the center and seat of all intelligence and body-controlling force is in the brain; that all function depends upon this nerve force, universal intelligence, or whatever it may be, that is seated in the brain; that it is transmitted from the brain to the muscles and organs through, first, the spinal cord, and then thence through the nerves radiating from the spinal column; that, while it is not impeded, all bodily function is normal and the body is well; that, when it is impeded, function is not normal, and the organ or muscle cut off from, or not in free communication with the brain, becomes diseased; that it can be impeded only by pressure or pinching of the nerves, known to chiropractic as `impingement'; that nerves are impinged only where passing between bones; that they pass between bones in going through the intervertebral foramina, and are impinged when the vertebræ are from a blow, contraction of muscles, as by a draught of cold air or other cause, more or less displaced or `subluxated,' as the chiropractor terms it. The slightly misplaced bones pinch or impinge the nerves, impeding the flow of mental impulse. The effect is the same as the introduction of a rheostat or other resistance on the circuit between an electric dynamo at a power station and an electric motor supplying power for a factory. The motor representing a vital organ, not receiving the required amount of electricity, is hindered in its work, just as a vital organ becomes diseased by not being in free communication with the brain. When all mental impulse is cut off, for example by what the laymen term a `broken back,' the portion of the body and the organs beyond the point where the impulse is cut off becomes paralyzed, just as the motors of a huge shop, beyond...