Woodson v. State

• Decision Date: 31 December 1980
• Docket Number: No. 46279,46279
• Citation: 95 Wn.2d 257,623 P.2d 683
• Parties: Dr. Thomas E. WOODSON, Petitioner, v. STATE of Washington; Washington State Board of Pharmacy, Division of Professional Licensing: the Office of the Attorney General, John Keith and David C. Campbell, Respondents.
• Court: Washington Supreme Court

Page 257

95 Wn.2d 257

623 P.2d 683

Dr. Thomas E. WOODSON, Petitioner, v. STATE of Washington; Washington State Board of Pharmacy,

Division of Professional Licensing: the Office of

the Attorney General, John Keith and

David C. Campbell, Respondents.

No. 46279.

Supreme Court of Washington, En Banc.

Dec. 31, 1980.

John Rosellini, MacDonald, Hoague & Bayless, Harold H. Green and Robert C. Randolph, Seattle, for petitioner.

Slade Gorton, Atty. Gen., Roger A. Gerdes, Asst. Atty. Gen., Seattle, for respondents.

STAFFORD, Justice.

The sole issue in this case is whether the license held by petitioner Thomas Woodson, an osteopathic physician, prevented him from prescribing, dispensing and administering drugs. The Court of Appeals affirmed the trial court's order granting partial summary judgment in favor of defendants and concluded Woodson was not so authorized. Woodson v. State, 22 Wash.App. 499, 589 P.2d 828 (1979). We affirm.

Since 1946 petitioner Woodson has held a "certificate to practice osteopathy" granted pursuant to Laws of 1919, ch. 4. It appears this is the only such limited certificate presently being used in this state. For some years he has limited his practice to weight control, operating clinics in Seattle, Everett and Prosser. The vast majority of his patients were prescribed various pharmaceuticals including amphetamines, barbiturates, and related drugs. Six- to eight-week supplies were dispensed by Woodson or his staff, which, although it included no registered nurses or licensed practical nurses, was also allowed to administer injections.

On January 15, 1973, the Attorney General informed the State Board of Pharmacy that Woodson's license did not permit him to prescribe or administer drugs in his practice. Partially as a result of the letter Woodson experienced various difficulties with federal drug enforcement authorities. After the federal proceedings were terminated in Woodson's favor, he brought the present action against the State, the Board of Pharmacy, the Division of Professional Licensing, the Attorney General, and two assistant attorneys general (hereinafter referred to collectively as the State). The State was granted partial summary judgment on its affirmative defense that Woodson was not authorized by state law to dispense and administer drugs.

Since we here review an order granting partial summary judgment, we must decide whether there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. Fahn v. Cowlitz County, 93 Wash.2d 368, 372-73, 610 P.2d 857 (1980); Sarruf v. Miller, 90 Wash.2d 880, 586 P.2d 466 (1978).

The material facts on which the trial court based its conclusion in support of summary judgment in this case are not essentially in dispute. Rather, the parties disagree on the legal conclusions to be drawn therefrom, and more particularly, on the construction to be given various legislative enactments on the subject of osteopathy and the practice of internal medicine and use of drugs.

The legislature first dealt with the licensing of osteopaths in Laws of 1909, ch. 192, § 6, p. 679-81. Only one type of certificate was authorized, that being a "certificate to practice osteopathy". Osteopathy was not defined.

The question whether an osteopath licensed under the 1909 statute could perform surgery and administer drugs first came before us in State v. Bonham, 93 Wash. 489, 161 P. 377 (1916). That case clearly demonstrated the court's understanding that osteopathy included neither the practice of surgery nor the prescribing or administering of drugs. To determine the healing methods included within the term "osteopathy", the Bonham court considered numerous sources, including statements in current course catalogs issued by schools of osteopathy, the "definition and description" given by the founder of the practice, dictionary definitions, and decisions of other courts. We concluded:

When tested by the foregoing definitions, it is manifest that the practice of osteopathy, as it was originally understood and as it was understood at the time of the enactment of our medical act, did not sanction the internal administration of medicines or the surgical use of the knife as a means for curing diseases.

(Italics ours.) Bonham at 499, 161 P. 377.

Apparently in recognition of subsequent advances in the practice of osteopathy, the legislature again addressed the licensing of osteopaths in Laws of 1919, ch. 4. The 1919 statute differed from the 1909 law in two respects relevant to this discussion. Section 4 authorized the issuance of two different types of certificates: "First, a certificate authorizing the holder thereof to practice osteopathy; second a certificate authorizing the holder thereof to practice osteopathy and surgery." ¹ (Italics ours.) Different requirements were established for the two certificates, notably the second, or "unlimited certificate", required a period of internship and additional testing.

Additionally section 17 of the 1919 Act attempted to define osteopathy by providing that:

(T)he term osteopathy, as used in this act, shall be held to be the practice and procedure as taught and recognized by the regular colleges of osteopathy.

Laws of 1919, ch. 4, § 17, pp. 16-17.

The question then becomes whether the 1919 statute changed the holding in Bonham that the holder of a certificate in osteopathy was not empowered to dispense drugs. We hold that it did not.

Woodson argues the legislature intended that osteopaths should be allowed to engage in any procedure taught by colleges of osteopathy, and offered evidence of courses taught both in 1919 and subsequent thereto. If the legislature had so intended, however, this would have been an unconstitutional delegation of legislative power to the Association of Osteopathic Colleges, to the faculties of schools of osteopathy, and to the writers of course catalogs. This would have authorized a nongovernmental group or nonstate agency to ultimately define osteopathy and determine what healing procedures an osteopath could employ, both then and in the future. Yet this is a nondelegable power which belongs solely to the state legislature. We made this abundantly clear in State ex rel. Kirschner v. Urquhart, 50 Wash.2d 131, 135-37, 310 P.2d 261 (1957), wherein we discussed accreditation of medical schools. There we held that when a legislature declares that schools on an existing list are deemed accredited and those not on such a list are not accredited, it is legislating. On the other hand, when it declares accredited schools shall be those that may thereafter be established by some private authority, it is clearly an unconstitutional delegation of legislative power. As Kirschner explained, 50 Wash.2d at page 136, 310 P.2d 261, the vice is not that the legislature adopts a standard of accreditation fixed by recognized medical societies, but that it defers to the adoption of standards such bodies may make in the future. The same principles apply here. In a similar vein, see State v. Crawford, 104 Kan. 141, 177 P. 360, 2 A.L.R. 880 (1919); State v. Emery, 55 Ohio St. 364, 370, 45 N.E. 319 (1896); Wagner v. Milwaukee, 177 Wis. 410, 188 N.W. 487 (1922). Of recent date we have held the same view as to legislative attempts to adopt or acquiesce in future federal rules, regulations or statutes. State v. Dougall, 89 Wash.2d 118, 570 P.2d 135 (1977). See also State v. Jordan, 91 Wash.2d 386, 588 P.2d 1155 (1979).

Since an interpretation which holds a statute constitutional is to be preferred over one which renders it invalid (Anderson v. Morris, 87 Wash.2d 706, 716, 558 P.2d 155 (1976), see also Hart v. Peoples Nat'l Bank, 91 Wash.2d 197, 203, 588 P.2d 204 (1978)), we conclude the 1919 legislature did not intend to redefine "osteopathy" in unconstitutional terms. Rather, it meant to adopt the Bonham holding as to the older or "limited certificates".

It is of interest that the question was previously decided by this court at a time 58 years closer to the actual legislative action and thus presumedly more attuned to the legislative intent of that time. In State v. Rust, 119 Wash. 480, 206 P. 33 (1922), we stated at 488:

The act of 1919 regulating the practice of osteopathy does not define the method or science except by reference. That reference is answered, however, we think by the case of State v. Bonham, supra, and the more recent case of In re Rust, 181 Cal. 73, 183 P. 548.

See also the discussions of the 1919 statutes in State v. Houck, 32 Wash.2d 681, 203 P.2d 693 (1949) and State v. Lydon, 170 Wash. 354, 16 P.2d 848 (1932).

Furthermore, the legislature is presumed to know the existing state of the case law in those areas in which it is legislating. State v. Fenter, 89 Wash.2d 57, 62, 569 P.2d 67 (1977), and cases cited therein. This is particularly true where, as here, only 2 months elapsed between the Bonham decision and the introduction of the bill which was to become the 1...