Territory v. Newman

• Decision Date: 24 February 1905
• Citation: 79 P. 813,13 N.M. 98
• Parties: TERRITORY v. NEWMAN.
• Court: New Mexico Supreme Court

79 P. 813

13 N.M. 98

TERRITORY v. NEWMAN.

Supreme Court of New Mexico

February 24, 1905

For majority opinion, see 79 P. 706.

MANN J. dissenting.

I cannot concur in the opinion of the learned judges constituting a majority of this court, for reasons which I will attempt to briefly outline.

I heartily concur in all that has been said by the court with reference to the necessity and advisability of stringent laws regulating the practice of medicine, but contend that such laws must have for their primary object the protection of the people against the serious consequences resulting from the ignorant and incompetent administration of dangerous and poisonous drugs and nostrums, or the unskillful use of surgical instruments by those not sufficiently learned in the sciences of surgery and anatomy, if such laws propose to regulate and fix the qualifications of the practice of medicine. The term "practice of medicine" has a well-defined and well-understood meaning, and no person of ordinary intelligence is ignorant of it, in the common intelligence is ignorant of it, in the common acceptation of the term. The Legislature which passed the act in question (chapter 40, p. 61, Sess. Laws 1903) itself recognized the term in its ordinary sense, for section 1 of the act provides that the board of health shall consist of seven reputable physicians of known ability, who are graduates of medical schools of good standing, etc., and section 3, after providing that said board of health, upon the proper showing made, may license any reputable person who is a graduate of a medical college in good standing, to practice medicine surgery, and obstetrics, proceeds to define a medical school in good standing as one of 10 years' continuous existence, which now requires a high-school certificate as its equivalent for admission to it, and one which now or hereafter acquires an attendance on and gives four full courses in four separate years, and one which has ample clinical facilities, such as the furnished in large cities thus showing that the Legislature had in mind the regulation of that branch of the art of healing represented by the several schools of medicine and by physicians as they are generally known and understood by the public. As a further evidence that the whole field of healing was not intended by the act, I would call attention to the fact that the same Legislature, six days after the adoption of chapter 40, p 61, passed chapter 90, p. 164, Sess. Laws 1903, authorizing the practice of osteopathy in the territory; and such act does not require the osteopath to receive a certificate from the board of health, or require him to be a graduate of any "medical school in good standing," but only requires him to produce a diploma from a recognized school of osteopathy.

The only objectionable feature of chapter 40, p. 61, Sess. Laws 1903, is section 6, p. 63, of said act, which attempts to place upon the term "practice of medicine" an arbitrary meaning, contrary to its natural and ordinary significance, and thereby to change the evident object of a salutary law, from the purpose of protecting the public, to a vicious and outrageous attempt to oppress and abridge the constitutional rights of certain "healers," who are opposed to the use of drugs and surgical instruments, and of the people to employ such healers. Section 6 reads as follows: "Sec. 6. For the purposes of this act the words 'practice of medicine' shall mean to open an office for such purpose or to announce to the public or to any individual in any way, a desire or willingness or readiness to treat the sick or afflicted, or investigate or diagnose, or offer to investigate or diagnose, any physical or mental ailment or disease of any person or to suggest, recommended, prescribe or direct, for the use of any person, any drug, medicine appliance or other agency, whether material or not material, for the cure, relief or palliation of any ailment or disease of the mind or body, or for the cure or relief, of any wound, fracture or bodily injury or deformity, after having received, or with the intent of receiving therefor either directly or indirectly, any bonus, gift or compensation. Provided that nothing in this act shall be construed to prohibit gratuitous services in cases of emergency, or the domestic administration of family remedies, or women from practicing midwifery, and this act shall not apply to surgeons of the United States in the discharge of their official duties." Bouvier defines the "practice of medicine" as follows: "The practice of medicine includes the application and use of medicines and drugs for the purpose of curing, mitigating, or alleviating bodily diseases, while the practice of surgery is limited to manual operations usually performed by surgical instruments or appliances." 2 Bouvier, 394, citing 24 Hunter, 32. A "physician" is defined as "a person who has received the degree of doctor of medicine from an incorporated institution." 2 Bouvier, 669. And these definitions are the generally accepted meaning of the terms, and the practice of medicine, as so understood, was unquestionably a proper subject of regulation by the Legislature, and would, no doubt, be recognized by the courts, and chapter 40, p....