State v. State Board of Examiners in the Basic Sciences

• Decision Date: 03 March 1933
• Docket Number: No. 29158.,29158.
• Citation: State v. State Board of Examiners in the Basic Sciences, 250 N.W. 353, 189 Minn. 1 (Minn. 1933)
• Parties: STATE ex rel. SHENK v. STATE BOARD OF EXAMINERS IN THE BASIC SCIENCES et al.
• Court: Minnesota Supreme Court

250 N.W. 353

189 Minn. 1

STATE ex rel. SHENK v. STATE BOARD OF EXAMINERS IN THE BASIC SCIENCES et al.

No. 29158.

Supreme Court of Minnesota.

March 3, 1933.

On Rehearing, October 6, 1933.

Appeal from District Court, Hennepin County; A. W. Selover, Judge.

Mandamus proceeding by the State, on the relation of William W. Shenk, against the State Board of Examiners in the Basic Sciences and others. From an order sustaining a general demurrer to the petition and quashing the alternative writ, the relator appeals.

Affirmed.

William M. Nash and Chester L. Nichols, both of Minneapolis. and Ray E. Lane, of Chicago, Ill., for appellant.

Henry N. Benson, Atty. Gen., James E. Markham, Deputy Atty. Gen., and F. Manley Brist, of St. Paul, for respondents.

STONE, Justice.

Mandamus, petitioner appealing from an order sustaining a general demurrer to his petition and quashing the alternative writ.

Respondents constitute the state board of examiners in basic sciences, functioning under Laws 1927, c. 149, establishing the board for the purpose, as stated in the title, among other things, of regulating "the practice of healing" as defined in the act. Petitioner is not within the special exceptions made by section 16. He stands on the general exception of section 8, hereinafter construed. If he is so excepted, a peremptory writ should issue, because he made timely application, with tender of the proper license fee, for a license from the basic science board without examination, and was refused.

The general scope of the law appears from this partial quotation of the definition in section 1: "Wherever the term `Practicing Healing' or `Practice of Healing' is used in this Act unless otherwise specifically defined, the same shall be understood and construed to mean and include any person not hereinafter excepted * * * who shall in any manner for any fee, gift, compensation or reward or in expectation thereof, engage in, or hold himself out to the public as being engaged in, the practice of medicine or surgery, the practice of osteopathy, the practice of chiropractic, the practice of any legalized method of healing or the diagnosis, analysis, treatment, correction or cure of any disease, injury, defect, deformity, infirmity, ailment or affliction of human beings."

Petitioner does not claim to have been licensed as a naturopath, or otherwise, when the basic science law took effect. His submission is that he was then lawfully authorized so to practice without a license under section 5717, Mason's Minn. St. 1927. We do not stop to inquire into the effect of the amendment by Laws 1927, c. 188, § 4, effective April 14, 1927, making section 5717 inapplicable to "persons legally authorized to practice healing or excepted from the practice of healing * * * so long as they confine their activities within the scope of their respective licenses." It is significant that this statute was passed at the same session as the basic science law.

Section 5717 made it unlawful to "practice medicine" without license. Any person is regarded as so practicing who shall "for a fee prescribe, direct or recommend for the use of any person, any drug, or medicine or other agency for the treatment or relief of any wound, fracture, or bodily injury, infirmity or disease." The argument is that the phrase concerning prescription of "any drug, or medicine or other agency" must be limited by construction; that the word "agency," under the rule noscitur a sociis, must be so restricted by the preceding phrase, "drug or medicine," as to eliminate all forms of "drugless healing."

Without so deciding, we assume that view correct. Cited in its support are, inter alia, State v. Herring, 70 N. J. Law, 34, 56 A. 670, 1 Ann. Cas. 51; State v. Gallagher, 101 Ark. 593, 143 S. W. 98, 38 L. R. A. (N. S.) 328; Bennett v. Ware, 4 Ga. App. 293, 61 S. E. 546; State v. Liffring, 61 Ohio St. 39, 55 N. E. 168, 46 L. R. A. 334, 76 Am. St. Rep. 358. There are at least implications to the contrary in Stewart v. Raab, 55 Minn. 20, 56 N. W. 256, and State v. Oredson, 96 Minn. 509, 105 N. W. 188. See, also, State v. Johnson, 84 Kan. 411, 114 P. 390, 41 L. R. A. (N. S.) 539, and Com. v. Zimmerman, 221 Mass. 184, 108 N. E. 893, Ann. Cas. 1916A, 858. The assumption that petitioner does not practice medicine, as defined by section 5717, brings us to the question whether he is engaged in the practice of healing under the basic science law.

Petitioner himself states that naturopathy "includes and embraces the diagnosis and practice of physiological, mechanical and natural sciences of healing." Treatment "includes the use of foods of such bio-chemical tissue-building products and cell salts as are found in the normal body, and the use of vegetable oils and dehydrated and pulverized fruits, flowers, seeds, barks, herbs, roots, and vegetables, uncompounded and used in their natural state," exclusive of those narcotic or poisonous. The petition goes on to say that "diagnosis, as a term used in this definition, aims not merely to ascertain the pathological state of any patient from the manifest symptoms, in any given case, but primarily to discover the causes of weakness, sickness or disease. It is obvious," as petitioner continues, that in order successfully to treat "any pathological condition its inciting causes must be ascertained and removed. The anatomy and physiology of the human body constitute a universal and common base for all branches of the healing art."

No elaboration is needed of petitioner's characterization of his calling to show that, although supposed beyond reach of section 5717 because not practicing medicine, he is distinctly under the coverage of the basic science law because practicing the art or science of healing as therein defined. Pathology seems almost as important as in medicine. Diagnosis is stressed. That is as it should be. Diagnosis (see State v. Rolph, 140 Minn. 190, 167 N. W. 553, L. R. A. 1918D, 1096) seems necessary to any skillful treatment, with the possible exception of the mental or spiritual sort. Even in that recognized field it ought to be helpful to both healer and patient if either or both can locate the seat of difficulty and so be enabled knowingly to focus thereon the acknowledged therapeutic power of correct thinking. An object of the basic science law is to require of all healers, other than those expressly excepted, such general knowledge of science in application to human anatomy as measurably to insure some diagnostic skill and, in consequence, some degree of dependability in result and some amount of directive knowledge for the ensuing treatment.

Petitioner's claim is that he is within the general exception of section 8, couched in this language: "Any person not hereinafter excepted from the provisions of this act who was lawfully authorized to practice healing, as by this act defined, in this state on the date this act takes effect, and who was on that date regularly licensed or registered in the manner then by law provided, shall, upon application as herein provided, receive from the state board of examiners in the basic sciences a certificate of registration" without examination.

Claiming no previous license or registration, petitioner insists that he was lawfully authorized "to practice healing" when the Basic Science Act took effect. That is not enough. The requirement of section 8 is double, including not only authority of law to practice, but also, and in addition, regular license or registration. This is not a case where the disjunctive "or" can be substituted by construction for the conjunctive "and." Too plain is the legislative purpose to sweep within the law every practitioner of healing, not as previously defined by law, but as defined "by this act." Compare State v. Oredson, 96 Minn. 509, 105 N. W. 188. Were we to hold now that the intention was to except those lawfully practicing the art of healing, who for any reason were not "licensed or registered," the latter requirement would have to be put aside as surplusage. That would be amendment rather than construction of the statute.

That as a naturopath petitioner was not eligible to registration or license under any law in existence when the Basic Science Act took effect cannot help him. To allow his argument would require an implication not permitted by the plain purpose of the statute and the equally plain language used to express it. Very likely the sweeping language above quoted from section 8 was used, through abundance of caution, to make sure of embracing any and all persons who might have been practicing on the effective date some branch of the art of healing in such manner that, although lawfully so practicing, they were not then within any of the legislative categories such as medicine, osteopathy, and chiropractic already covered by registration statutes. That does not require the impossible of any one. Nor does it refer to an impossible situation. It does stipulate two conditions for admission to the excepted class—lawful right to practice plus license or registration. In view of the fact that there were those lawfully practicing a healing art without license or registration the intended scope of the general exception of section 8 is not difficult to delimit.

The argument for petitioner turns back on itself with fatal result, for it puts petitioner squarely within the inclusion of section 1, which embraces not only physicians, surgeons, osteopaths, and chiropractors, but also any one in "the practice of any legalized method of healing." The use of that broadly inclusive phrase emphasizes that the exclusionary effect of section 8 reaches only those who, on the determinative date, were both legally authorized to practice and then licensed or registered under existing law.

Inasmuch as on the face of his petition it appears that petitioner is practicing and intends to practice the art or science of healing as defined by the basic science law, and is not...