State v. Maltby , 108 Neb. 578 ( 1922 )

Paine, District Judge.

This is a suit in equity brought by the state of Nebraska, through its attorney general, to enjoin Ethel Thrall Maltby, defendant, from maintaining a public office in the city of Omaha in which she gives chiropractic treatments and administers and prescribes drugs to her patients without first having obtained a license. A temporary injunction was granted by the district court for Douglas county, but later a demurrer was sustained and a permanent in-. junction denied, and the plaintiff electing to stand upon its demurrer, the case was thereupon dismissed, from which order the state of Nebraska plaintiff appeals to this court.

The petition may be briefly summarized as follows: That the defendant is a resident of and doing business and maintaining an office in the Elks Building in Omaha, Nebraska; that she has for more than two years there maintained an office in which she has engaged in the practice of chiropractic; that this profession consists in the treatment of diseases or ills of the human body by adjustment by hand of the vertebrae of the spine; that chapter 197, Laws 1915, requires that persons desiring 'to engage in chiropractic shall first pass an examination and secure a license, without which no person is permitted to practice chiropractic in this state; that defendant has failed refused and neglected to submit herself to such examination or to procure the required license; that during said time she has falsely represented herself to be a qualified. licensed chiropractor, and has used the title “D. C.” meaaing Doctor of Chiropractic, to induce any and all persons to submit their bodies to her manipulation • and adjustments; that the laws dealing with said practice were enacted for the protection of the health and welfare of the people, and designed to prevent ignorant and unskilled persons without proper knowledge of anatomy to make the adjustments which, it is claimed, will relieve the pressure on the nerves, and so allow nature's nerve energy to flow freely to and from the brain; that the lives of the public were endangered by quacks and charlatans who were practicing upon the bodies of men, women and children, without proper qualifications, thereby constituting themselves public nuisances; that the state board of chiropractic organized under the above law of 1915 has at all times been willing and ready to examine all applicants for licenses; that said board has frequently notified this defendant that she was violating the law and endangering the health and welfare of the people of Nebraska; that she has also been notified by the department of public welfare as well as by the attorney general’s department of this state that unless she obtained a license a criminal complaint would be filed against her; but that in open disregard thereof she has openly, publicly, persistently, intentionally and continuously refused to obey the law, and has publicly stated upon many occasions that she would disregard any criminal prosecutions filed against her for so practicing without a license, and was certain she would be acquitted if arrested and tried, and that she would continue to practice chiropractic even though one or more criminal prosecutions should be brought against her; that, in addition to the above, she has been guilty during all of said times of practicing medicine by administering and prescribing drugs to her patients, all without a license; that by such acts she has become a public nuisance, detrimental to the public welfare, dangerous to public health, against public policy, and contrary to the laws of the state of Nebraska; .that such acts and practice on the part of the defendant constitute an open and continuous public nuisance in the city of Omaha, which cannot be stopped ór abated except by an injunctive order of a court of equity, and that plaintiff is without an adequate remedy at law, or means whereby the open, continuous, persistent and repeated violations of the law may be prevented and the health and welfare of the public protected and conserved. Following these and many other allegations of the petition, there was a prayer in apt language asking that a temporary injunction be granted, and that upon a final hearing a permanent injunction should restrain Ethel Thrall Maltby, defendant, from continuing to practice chiropractic medicine in Douglas county without first procuring a license as pro-. vided by law.

It may aid in discussing the questions at issue to define the term involved herein. Chiropractic is a system of healing that treats disease by manipulation of the spinal column. There are three general classes of healing at the present time: (1) Medical, as followed by the general and ordinary physicians and surgeons. (2) Mechanical, as employed in osteopathy and chiropractic. (3) Mental healing, as taught by Christian Science and other sects.

The main question presented in this case is: Shall an injunction be granted to enforce the provisions of a criminal statute? Our law books are full of instances in which the same offense gives rise to a civil action and also to a criminal prosecution. In this case the petition recites facts which, taken as true for the purposes of this demurrer, show that the law relating to chropractic is being flagrantly violated at the office of the defendant in the city of Omaha, and the state maintains that such an office may be enjoined as a public nuisance affecting the health, morals or safety of the community. “In early times the English court of chancery, not without much protest on the part of common law courts, occasionally issued injunctions to restrain the commission of certain criminal acts. * * It is now the rule that, where acts complained of are violations of the criminal law, courts of equity will not on that ground alone interfere by injunction to prevent their commission, as they will not exercise their powers for- the purpose of enforcing criminal laws by restraining criminal acts.” 14 R. C. L. 376, sec. 78. However, in -the case of public nuisances, an exception to this general rule seems to be well recognized; “it being held that, though such a nuisance is indictable, yet a court of equity may, at the instance of the properly constituted public authority, issue an injunction as giving more effectual and complete relief than can be afforded in a court of law.” 14 R. C. L. 379, sec. 80. Examples of injunctions against public nuisances may be cited, such as an injunction from using a building to conduct an illegal prize fight in the case of Columbian Athletic Club v. State, 143 Ind. 98, 52 Am. St. Rep. 407; and the three cases combined in Res-pass v. Commonwealth, 131 Ky. 807, 21 L. R. A. n. s. 836, deciding that gambling houses or poolrooms where money was to be bet on horse races are public nuisances.' Injunctions have also been granted to restrain managers of ii lottery from proceeding with further drawings (State v. Maury, 2 Del. Ch. 141); and to restrain the pollution of a stream by draining water from a cemetery into it, which was also a crime (Barrett v. Greenwood Cemetery Ass’n, 159 Ill. 385, 31 L. R. A. 109).

In the case of Beisel v. Crosby, 104 Neb. 643, this court enjoined an undertaker from conducting a funeral home in an exclusively residential district of the city of Omaha for the reason that no relief the law afforded would remedy the wrong that was threatened.

Judge Sedgwick in State v. Chicago, B. & Q. R. Co., 88 Neb. 669, 34 L. R. A. n. s. 250, says: “The repeated, continuous and persistent violations of the statutes are what make them nuisances, independent of the express terms of the statute declaring them to be such. Indeed, we would think that every place where a public statute is openly, publicly, repeatedly, continuously, persistently and intentionally violated is a public nuisance.”

The attorney general contends that under this definition the practice of chiropractic by the defendant is a public nuisance. It is illuminating to note that the definition relied upon was taken from the case of State v. Crawford, 28 Kan. 726, 42 Am. Rep. 182, and was not given as a rule for equity courts to follow, but was founded upon a Kansas statute, in force since 1859, in which the legislature had declared that all places where intoxicating liquors were sold in violation of law Avere common nuisances and should be shut up and abated as public nuisances. And the court finds that, even after giving the Arery broad and general definition of public nuisances relied upon in this case, the Kansas court affirmed the lower court in refusing to grant the injunction prayed for, and said that keeping such an illegal saloon open may not be enjoined in a court of equity.

The granting of the injunction in the case of State v. Chicago, B. & Q. R. Co., supra, was necessary, because the attempt to stop the serving of liquor on dining cars by criminal arrest of each participant therein Avould be impossible, especially in those counties Avhere stops were infrequently made, and would result, not only in a multiplicity of suits, but might in the end be entirely futile and ineffectual; while in the case at bar there is but one individual offender avIio, it is alleged, has defied the law and threatens to continue to AÚolate the lavv, even though complaints are filed against her.

The cases examined thus far have all involved the misuse of buildings or property or dining cars, and do not establish any precedent for the use of an injunction against one Avoman Avho fails to follow the law requiring chiropractors to be examined and licensed. When new schools of practice come into existence, their adherents are not qualified to pass the examinations by boards already established. Failing to be licensed under existing laws, their followers must prevail upon the legislature to legalize their particular mode of practice or they can be arrested and punished. In response to such a call the legislature in 1915 passed a law licensing chiropractors and providing a fine of $200 and imprisonment up to one year in the county jail, or both, for failure to be examined and secure a license. In 1919 the legislature saw fit to amend this law as found in chapter 190, and cut the punishment provided to a fine of not to exceed $100, or by imprisonment of not to exceed three months.

Our attention has been called to a decision by the supreme court of Illinois which involves the exact point at issue. The attorney general and other state officers of that state brought a bill for injunction against an association consisting of 52 chiropractors, alleging conspiracy to defy the laws and continue practicing without a license, and, although many of the members had been arrested and punished with fines, the association protected its members by paying all fines and costs, and all of them continued to practice without a license. That case is much stronger than the case presented to this court, yet that court said: “All the bill alleges appellees to propose to do is to continue to practice without a license, which would be a misdemeanor for which punishment is provided and an adequate remedy at law exists.” People v. Universal Chiropractors’ Ass’n, 302 Ill. 228.

This court finds that the office or residence where a person is practicing chiropractic without a license is not a public nuisance, and neither is such an offender who violates the law in this respect. The statute of Nebraska regulating the practice of chiropractic recognizes such a profession as a legal one and undertakes to regulate it, and such a law is not prohibitive in its provisions, as is a liquor law, and therefore violations of its provisions should be punished by the criminal process, and not by injunction. If the punishment provided is not sufficient, recourse should be had to the legislature, and not to the equity side of the courts.

Affirmed.