State v. Wehinger

• Decision Date: 03 July 1935
• Docket Number: 25574.
• Citation: 182 Wash. 360,47 P.2d 35
• Parties: STATE v. WEHINGER.
• Court: Washington Supreme Court

47 P.2d 35

182 Wash. 360

STATE v. WEHINGER.

No. 25574.

Supreme Court of Washington

July 3, 1935

Department 2.

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

A. O Wehinger was convicted of attempting to practice chiropractic without a license, and he appeals.

Affirmed.

Wright & Wright, of Seattle, and George G. Rinier, of Indianapolis Ind., for appellant.

Warren G. Magnuson and B. Gray Warner, both of Seattle, for respondent.

HOLCOMB, Justice.

This case was originally brought in a justice court of King county, Wash., who, after overruling a demurrer, found appellant guilty and assessed a fine against him, from which he appealed to the superior court. After the case reached the superior court, a jury trial was waived and the case was submitted upon an agreed statement of facts, as follows:

'It is hereby stipulated and agreed, between counsel for the state, and counsel for the accused, that the facts in the above entitled matter are as follows:

'1. That the defendant's name is 'A. O. Wehinger'; that he is residing in the City of Seattle.

'2. That he is a graduate of the Palmer School of Chiropractic, of Davenport, Iowa, a school of national reputation and prominence, well qualified in its instruction as a chiropractic school.

'3. That the defendant has not taken the examination for chiropractic practice, as provided by Chapter VII of an act defining physicians, surgeons and treatment of the sick, and particularly with sections 10098 to 10108, inclusive, of Remington's Revised Statutes.

'4. That he would not have been permitted to take the examination, as provided in Chapter VII of the act defining physicians and surgeons, and treatment of the sick, if he had so applied for examination, unless he had first taken an examination Before an examining committee, as provided in Chapter XIII of the same act pertaining to examinations of physicians and surgeons and others attempting to quality for treatment of the sick. In other words, he would not have been permitted to take the examination as a chiropractor until he had taken an examination in basic science, equivalent to materia medica.

'5. That notwithstanding all of the foregoing, the defendant in Seattle, King County, Washington, did on or about the 1st day of July, 1934, use the title 'Chiropractor' by advertising in the newspaper, according to advertisement hereto attached, marked Exhibit 'A,' and made a part of this stipulation. That since said July 1, 1934, the defendant has continued to so advertise according to the copy of the advertisement hereto attached and referred to as Exhibit 'A.'

'Dated this 11th day of October, 1934.'

The case was then taken under advisement by the trial court and arguments submitted by written briefs from respective counsel. During the course of the argument by briefs, counsel for the state suggested to the court that there was a mistake in the agreed statement of facts in that the last four words in paragraph 4 thereof, 'equivalent to materia medica,' had been inadvertently included therein and should be disregarded. Appellant objected to any change in the agreed statement in any particular. After having had the matter under advisement for some weeks, the trial court rendered a decision stating that the words, 'equivalent to materia medica,' in the agreed statement of facts would be disregarded. He thereupon adjudged appellant guilty and imposed a fine for the alleged offense. Before sentence, appellant moved for an order arresting judgment or, in the alternative, for a new trial, both of which motions were denied.

One of the grounds for a new trial was error of law occurring at the trial and excepted to by appellant in that it was error by the court to grant the request of the state to amend the agreed statement of facts.

The errors assigned by appellant on appeal are first in amending the agreed statement of facts; second, in overruling his motion in arrest of judgment and motion for a new trial; and, third, in finding appellant guilty and imposing a fine.

Since the enactment of chapter 5, Laws of 1919, chiropractic practice has been regulated by statute, Rem. Rev. Stat. §§ 10098 to 10111, inclusive.

After the passage of that law regulating chiropractic in 1927, the Legislature passed another law requiring applicants for chiropractic licenses to pass examinations in other subject, which was denominated the basic science law, now codified as Rem. Rev. Stat. §§ 10185-1 to 10185-8, inclusive. The first section of that act provides for the establishment of an examining committee of five members learned, respectively, in the sciences of anatomy, physiology, chemistry, pathology, and hygiene, to conduct and assist in conducting examinations of all persons applying for licenses or certificates to practice medicine and surgery, osteopathy, osteopathy and surgery, chiropractic or drugless therapeuties in the state of Washington as required by law. Provision is then made that this committee should be appointed by the Governor from the faculty lists of the University of Washington and Washington State College.

The second section prescribes that the examining committee shall conduct examinations in anatomy, physiology, chemistry, pathology, and hygiene at least twice in each year at such times and places as the examining committee and director of licenses may determine. The third section prescribes that the examinations shall be written and shall be of such a nature as to constitute an adequate test as to whether the person so examined has such knowledge of the elementary principles of such sciences as taught at the University of Washington and Washington State College, or in any college or university accredited by the University of Washington, equivalent to one year's instruction of 36 weeks.

Section 10185-4 reads: 'Any person desiring to apply to the director of licenses for a license to practice medicine and surgery, osteopathy, osteopathy and surgery, chiropractic, or drugless therapeutics shall first present to the director of licenses his credentials provided by law evidencing his qualifications to be admitted to license or to take the examination prerequisite to securing of such certificate or license and if the same are found satisfactory and the applicant is eligible to such examination, the said director of licenses shall issue to such applicant a certificate giving the name of such applicant and certifying that such applicant is entitled to take the preliminary examination provided for in this act, but without specifying the branch of therapeutics for which said applicant has applied for a license, and upon presentation of such certificate to said examining committee, to gether with an examining fee of ten dollars, said applicant shall be entitled to take the examination provided for in section 10185-3: Provided, that if such preliminary examination is conducted by the director of licenses as provided in section 10185-2, such preliminary examination may be given upon the payment of such ten dollars examining fee, and without such preliminary certificate.'

The fifth section establishes the minimum percentages necessary to be made by an applicant. The sixth section dispenses with a second examination on such subjects in cases where the existing law requires the examination in any one or more of the branches of anatomy, physiology, chemistry, pathology, or hygiene, as a prerequisite to the issuance of the license applied for. The seventh section fixes the compensation to be paid members of the examining committee. The eighth and final section provides that the act shall not be construed or held to apply to or interfere in any way with the practice of religion or to regulate in any way any kind of treatment by prayer.

The original law regulating chiropractic practice also provided that applicants for license to practice such system should pass examinations in writing on anatomy, physiology, hygiene, symptomatology, nerve tracing, chiropractic orthopedy, principles of chiropractic and adjusting, as taught by chiropractic schools and colleges; and that such applicants should answer 75 per cent. of all questions asked and should not be entitled to receive a license if such applicant failed to answer correctly 60 per cent. of the questions on any branch of the examination.

It is thus plain that two things only are included in the so-called basic science law (Rem. Rev. Stat. § 10185-1 et seq.), which were not included in the chiropractic law; namely, chemistry and pathology. Materia medica was not included in the basic science law nor in the original chiropractic law. It is also clear that the so-called basic science law includes physicians and surgeons as well as the other classes of healers, all of whom are regulated by law in this state, as well as the chiropractor, unless they have been previously examined and passed in one or more of the subjects specified.

The advertisement stipulated as that which appellant had published was one giving the outline of a female form and with a list of 26 human disorders that his advertising said he could find and remove the cause. All of the ailments were aligned with some part of the spine, with the vertebrae apparently bare.

For the purpose of eliminating useless discussion and the review of many statutes and decisions, about which much ado is made in the briefs of appellant, we grant these propositions: (1) Chiropractic is specifically defined by statute in this state, Rem. Rev. Stat. § 10098, et seq.; (2) chiropractic is distinguished from all other healing arts; (3) the use of drugs and instruments is not within the scope of chiropractic and would be illegal; and (4) chiropractic does not include and is outside of the scope of materia...