State v. Smith

• Decision Date: 07 March 1911
• Parties: THE STATE v. GEORGE SMITH, Appellant
• Court: Missouri Supreme Court

135 S.W. 465

233 Mo. 242

THE STATE v. GEORGE SMITH, Appellant

Supreme Court of Missouri, Second Division

March 7, 1911

Appeal from Webster Circuit Court. -- Hon. Geo. H. Williams, Judge.

Affirmed.

Samuel Dickey, Wright Bros., and Morris & Hartwell for appellant; T B. Harvey amicus curiae.

(1) The information is fatally defective in that it does not state that defendant Smith does not belong to one of the classes not included in the operation of the law. State v Hamlett, 129 Mo.App. 70; State v. Connor, 142 N.C. 700; State v. Carmody, 50 Ore. 1; Marshall v. State, 119 S.W. 310. (2) The statute contemplates nothing but medicine and surgery. State v. Biggs, 133 N.C. 729; State v. Liffring, 61 Ohio 30; Nelson v. State Board, 22 Ky. L. Rep. 438; Hayden v. State, 88 Miss. 281; State v McKnight, 131 N.C. 717; State v. Mylod, 20 R. I. 632; Smith v. Lane, 24 Hun 632; Bennet v. Ware, 61 S. E. (Ga.) 546. The Missouri courts have already decided that osteopathy, which is like chiropractic in that it does not administer drugs or remedies, and which consists principally in manipulating and flexing the body of the patient, is not the practice of medicine or surgery. State v. School of Osteopathy, 76 Mo.App. 439. It is illogical to presume that the Missouri Legislature has taken the position that there is no science other than that of medicine, which, according to the statement of physicians themselves, has not to exceed a half dozen specifics of disease. Chiropractors practice neither medicine nor surgery. According to the undisputed testimony in this case none of the theories or agencies used by medicine are used by chiropractors. It also brought within the act those persons who "profess or attempt" to do the same thing. In other words it not only made it an offense to profess or attempt to actually practice medicine and surgery without complying with the law but also made it an offense to profess or attempt to practice medicine or surgery. The law was made to protect the public, not the doctors, and this provision was wisely added that the charlatan might be apprehended before the public should actually suffer at his hands, that any attempt to violate the law should be an offense as well as the actual violation of it. The rule that where special words are followed by general words, the general words will be held to apply to the same class of things as the special words is applicable here, the words "profess or attempt," etc., meaning "profess or attempt," etc., "medically or surgically." State v. Diness, 109 Mo. 434. This rule of ejusdem generis is most strongly and appropriately applied in construing penal laws and the courts are averse to holding guilty those whose acts are not within the concluding words. Shirk v. People, 131 Ill. 61; State v. Black, 75 Wis. 492; People v. Richards, 108 N.Y. 137; State v. Summer, 10 Vt. 587; McDude v. People, 29 Mich. 50; Nichols v. Paulson, 6 Ohio 305. The use of the word treat also shows the intention of the Legislature not to broaden the scope of the law beyond medicine and surgery. Statutory terms are interpreted in the commonly accepted sense. Again, effect, in this case disease, is treated. A cause is never treated. Medical men deal with remedies aimed at the effect, disease. Defendant Smith and the chiropractors do nothing with the effect, disease, but adjust the cause. At common law the healing sciences were open to all without restriction. Denton v. State, 21 Neb. 445; State v. Carey, 4 Wash. 424; State v. Morrel, 7 Ohio Dec. 52. Penal statutes must be construed strictly as against the accused, but liberally in his favor, and they are not to be extended by implication to cases not clearly within their terms. Sutherland on Statutory Construction, paragraphs 208, 349, 350; Am. & Eng. Ency. Law, pp. 375, 377, 382; Hall v. State, 20 Ohio 7; United States v. Sheldon, 2 Wheat. 118; Brooks v. State, 88 Ala. 122; Railroad v. Cohen, 49 Ga. 627. Statutes in derogation of common right, such as those restricting or regulating the pursuit of useful occupations and callings, are to be construed strictly. 23 Am. & Eng. Ency. Law, pp. 383, 385, 386; Sutherland on Statutory Construction, par. 367; Com. v. Standard Oil Co., 101 Pa. St. 119; Gunther v. Lockey, 30 Ala. 591. (3) The statute under which the information is drawn, if it includes other healing sciences besides medicine and surgery, is unconstitutional and void as contrary to section 28, article 4, of the Constitution of Missouri, in that it was passed and enacted as a bill containing more than one subject. State ex rel. v. Borden, 164 Mo. 221; State v. Persinger, 76 Mo. 346; State ex rel. v. County Court, 102 Mo. 351; Shiverly v. Lankford, 174 Mo. 535; City of Kansas v. Payne, 71 Mo. 159. (4) The statute relating to medicine and surgery, under which the information is drawn, is unconstitutional in this, that if it includes healing sciences besides medicine and surgery it is in contravention of section 28 of article 4 of the Constitution of Missouri, because no intent to broaden the scope of the act is expressed in the title. Gerhart v. Railroad, 171 Mo. 84; State ex rel. v. Miller, 100 Mo. 439; State ex inf. v. Borden, 164 Mo. 221; State v. Persinger, 76 Mo. 346; State ex rel. v. County Court, 102 Mo. 531; State v. Dinesse 109 Mo. 434; State ex rel. v. Backer, 129 Mo. 484; Witzmann v. Railroad, 131 Mo. 612; State ex rel. v. Heege, 136 Mo. 112; State v. Coffee & Tea Co., 171 Mo. 634. (5) The medical statute is void if it includes other healing sciences besides medicine and surgery, as it attempts to define that as the practice of medicine and surgery which is not either the practice of medicine or surgery, and it undertakes to determine a question of science in that it undertakes to make any and all kinds of treatment of disease with or without the use of drugs the practice of medicine and requires the person so treating or attempting to treat to be licensed by the State Board of Health as a physician or surgeon, and furnish satisfactory evidence of having received a diploma from some reputable medical college of four years' requirements at the time of graduation. State v. Biggs, 133 N.C. 529; Bennet v. Ware, 61 S. E. (Ga.) 546; State v. Liffring, 61 Ohio 30; Nelson v. Board of Health, 22 Ky. L. Rep. 438. See cases cited under 2. Medicine has a well understood meaning and contemplates the administration of drugs, and surgery as clearly means the use of instruments. The Legislature in the exercise of the police power of the State has the right to regulate the practice of medicine and surgery and to fix the standard to be attained by those desiring to practice the same, but just as clearly, it seems to us, it has no right to include under medicine and surgery other methods of treating disease. When it undertakes to do that it goes too far, and undertakes to settle a question of science. It might as well undertake to say that two and two make five or that a horse is a cow as to say that a thrust with the hand is a drug or surgical instrument. (6) The medical act is illegal because it makes the lawfulness or the unlawfulness of the act depend upon whether or not a fee is charged. State v. Biggs, 133 N.C. 729. (7) If it includes other sciences of healing besides medicine and surgery the statute is unconstitutional and void because it is an abuse of the police power of the State. It is unreasonable and void because under the guise of protecting the public's interest it imposes unusual and unnecessary restriction upon the useful occupations. It is class legislation in that it compels all persons desiring to practice medicine or surgery in this State to furnish satisfactory evidence of having received a diploma from some reputable medical college of four years' requirements at the time of graduation, regardless of the applicant's knowledge of medicine and surgery, thereby making the receipt of said diploma, and not the applicant's knowledge, the standard from which to judge his qualifications. State v. Biggs, 133 N.C. 729; State v. Liffring, 61 Ohio 30; Nelson v. State Board, 108 Ky. 769; Hayden v. State, 88 Miss. 291; State v. McKnight, 131 N.C. 717; State v. Mylod, 20 R. I. 632; Smith v. Lane, 24 Hun 632; Bennet v. Ware, 61 S. E. (Ga.) 546.

Elliott W. Major, Attorney-General, and Chas. G. Revelle, Assistant Attorney-General, for the State.

FERRISS, J. Kennish, P. J., and Brown, J., concur.

OPINION

FERRISS, J.

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 fifty dollars. 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 6th, 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...