Johnson v. State , 267 S.W. 1057 ( 1924 )

The writer regrets that there should exist any disagreement on his part with the majority opinion of the court as to the constitutionality of chapter 1, title 90, of the Revised Statutes, and chapter 6, title 12, of the Penal Code, as amended by the Thirty-Eighth Legislature of Texas. The constitutionality of the Medical Practice Act has been quite often before the courts of this state, especially the Court of Criminal Appeals, and as often its constitutionality sustained; and it is only in view of the fact that the constitutionality of the act of the Thirty-Eighth Legislature, or at least some of its provisions, have not been passed upon by the higher courts of the state and the importance of the act in its bearing and operation upon the rights of those of our citizenship engaged in the practice of chiropractic as a science or art of healing, as well as on those who, as patients, believe in the virtue of same, that the writer has been emboldened, and without reserve, to express his views in opposition to the constitutionality of said act. Furthermore, he is reminded that, as to the swift is not always the race, or to the strong the battle, so neither is right with the majority always to be found. This is clearly recognized by one of the cardinal principles of constitutional government, to wit, that Constitutions are made more for the protection of the weak against the strong, or the minority from the power of the majority, than for the strong against the weak or the majority from the minority, and this must be upon the ground that it is not to be expected that right and justice will always be found in the camp of the majority.

The writer is aware of the great weight of authority sustaining the validity of the provisions of the Medical Practice Act heretofore passed upon, and that only the new provisions of the act of the Thirty-Eighth Legislature present in any measure a virgin field for research, and that, in assailing the validity of same, he assumes the laboring oar.

In this connection a brief review of the rise and progress of the vicissitudes that have attended the advent of the healing art known as "chiropractic" may with some benefit be made. When several of these decisions, possibly most of them cited and relied upon by appellee, were rendered, chiropractic could hardly be called a science, being merely in the embryonic stage, or in the making. Its practice was largely empirical. There was no essential agreement with respect to the general principles upon which this science is founded or as to its practice. Many of those attempting to practice chiropractic were either entirely without education in its science and art, or with very imperfect education. There were schools of chiropractic that could rightly be denominated mere "diploma mills," just as in the case of medicine a little more than a quarter of a century ago in this country. The whole matter of this science and practice was, so to speak, influx. Just as in the case of regular medicine, the science and art of chiropractic have become fixed and systematical. The great schools of chiropractic now extant have essentially the same standardized course, almost invariably a course of three years of six months each. This school of healing is now recognized and in most states placed upon an equal footing with the practice of regular medicine as that term is understood by the courts. The schools are recognized, have separate boards, and separate examinations test the applicant's knowledge of those branches essentially necessary and applicable to the healing art as practiced by him. Repeated decisions show that courts take judicial cognizance of the methods and practice of the regular schools of medicine and what is meant by the practice of regular medicine and surgery and the methods which the M. D.'s and surgeons in general use; and, following the line of reason used by the courts in arriving at the conclusion that judicial cognizance should be taken of those matters, it is the opinion of the writer that courts should take judicial cognizance that chiropractic is a system of healing entirely separate and distinct from the practice of regular medicine, just as judicial cognizance of the fact that the practice of dentistry is different from the practice of regular medicine and requires, in a large measure, a different education.

Article 5741, Revised Statutes, as amended by Acts of Thirty-Eighth Legislature, p. 288, requires the applicant for a license to practice medicine to pass an examination in, among other things, anatomy, physiology, chemistry, histology, pathology, bacteriology, diagnosis, surgery, obstetrics, gynecology, hygiene, and medical jurisprudence. By article 5739, Id., all applicants, to be eligible for examination, must be graduates of reputable medical schools whose courses of instruction are as high as those adopted by the better class of medical schools of the United States and whose course of instruction shall embrace no less than four terms of eight months each. Chiropractic, as shown by the testimony, is a special branch of healing, and of this fact the writer is of the opinion courts should take judicial cognizance. Its practitioners do not practice gynecology, obstetrics, or surgery, and they make no chemical examinations. The testimony shows that the regular standard chiropractic college or school has a three-year course of six months each, and further shows that the long and extended courses of study required for practice of regular medicine are not necessary or of any value to one practicing the chiropractic art of healing.

The provision of the law that no school of medicine should be considered reputable, unless it has at least a four-year course of not less than eight months in each year, manifestly bars all of the standard schools of chiropractic. It is to be assumed that no regular medical school such as would be admitted to the accredited list teaches the chiropractic science of healing. This is evident because the two sciences of medicine and chiropractic, as shown by the testimony, are entirely different. Manifestly, the practitioners of the two schools pursue practically the same course in the two fundamental studies of anatomy and physiology; but, outside of these, just as manifestly the courses would be very dissimilar. It is axiomatic that the state, in the exercise of its police power, can, and should, regulate the practice of the healing art, whether followed by the regular physician or the so-called drugless school. This is based upon the proposition that the citizenship has a right to require, and should require, every practitioner to be educated in his particular line of practice to safeguard, not only the health, but often to protect the very life of people with respect to the practice of healing art; and, within the exercise of such power, the Legislature may, and should, enact reasonable and appropriate laws prescribing qualifications for and regulating the practice of each of the different schools of healing. However, in such regulation, the fact that there are different schools of healing, based upon a different philosophy and having a different science and different methods of practice, should be recognized. Article 16, § 31; Constitution of the State of Texas 1876. While the Legislature, in the exercise of its police power, may, and should, entirely forbid the exercise of the healing art by charlatans, fakirs, and empirics, because the practice of such people is not only not valuable but is detrimental to the health of the public, yet it cannot absolutely forbid the practice of a business or profession beneficial to the people and not detrimental to the public health and welfare. It may regulate in the exercise of its police power, but it cannot destroy a useful and inoffensive business or profession. Article 14, § 1, Constitution of the United States.

A recognized school of medicine is one having set or organized principles, philosophy, science, and method of healing. 30 cyc. 1571; Grainger v. Still, 187 Mo. 197, 85 S.W. 1114, 70 L.R.A. 49; Nelson v. Harrington, 72 Wis. 591, 40 N.W. 228.

Tested by this definition, is chiropractic a regular recognized school of healing? To determine this the evidence introduced must be looked to. Mr. Harris, an expert chiropractor, testified to the effect that chiropractic effects cures and can do no person any injury; that it is of great value to the public; that chiropractors do not diagnose disease, they simply analyse the spine; that this is done to find whether it is in its natural and proper alignment and each bone thereof in its natural position with respect to adjacent bones. His testimony further shows that chiropractic is a special branch of healing, having to do with the backbone alone; that the chiropractic gives no medicine, prescribes no hospital treatment nor dieting, and does not perform any surgical operations; that he uses his hands alone in the adjustment of the bones of the spine, and in replacing them in their natural position.

Manifestly, this testimony shows that the study of drugs is not necessary to the chiropractic art of healing; that the study of embriology is not necessary; that the study of bacteriology, to the extent and as taught in medical schools, is not necessary; that ordinary diagnosis is not necessary; that the study of anatomy, especially of the nerves and bony structure, and the study of physiology, are extremely important and necessary; that the study of symptomatology is necessary to enable the chiropractic to determine whether he is obtaining the results which should be obtained through his adjustment; that the study of the brain and its functions and of the functions and structure of the nerves must be thoroughly pursued; and that there must be connected with chiropractic an extensive clinical experience to enable the chiropractic to discover the maladjustments and to apply with proper force, in the proper manner, to secure a readjustment of the spine.

The testimony of this witness further shows that the chiropractic schools require a three-year course of six months each; that this was required in the Carver School of Chiropractic, of which he was a graduate; that said school has about 4,000 students.

The Legislature in the exercise of its police power is prohibited by article 16, § 31, supra, from discriminating between different methods of healing. Each and every law must be equal upon all following the same or similar business.

In the opinion of the writer it has been shown that there are different schools of medicine or healing, notably, the regular schools where the practice of medicine and surgery is taught, and chiropractic schools, and that the chiropractic as well as the regular schools of medicine is a recognized school or system of healing. Therefore the Medical Practice Act passed for the purpose of regulating the practice of medicine or healing, in order not to be discriminating between such different schools, should have provided for an education and examination appropriate to each particular school, and not simply appropriate to and fitted for some other or particular school of healing; and that, in not conforming to these principles and to that extent, the above act is unconstitutional and void. This, although the act on its face appears to be just and fair to all schools alike, in that, if the medical board, in carrying out the provisions of same, violates the above requirements or any of them, it thereby deprives the person injured of a constitutional right, and such person would be within his rights in disregarding and refusing to conform to such practice of the board.

It is asserted that chiropractic is not excluded by the provisions of said act; that a chiropractor, on complying with the rules and regulations therein prescribed, may practice in Texas. True, to this extent the law is fair upon its face, and does not, by the language employed, discriminate between any of the schools of medicine embraced within its terms, but the purpose of this statute must be determined from the natural effect of the statute when put into operation and not from the proclaimed purpose. Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937, 944, 3 Ann.Cas. 1133.

What is the natural effect of this legislative enactment when put in operation? First, to discriminate between the chiropractic school of healing, which only requires a course of three years of six months each, in favor of the regular schools of medicine requiring four terms of eight months each, and, further, in that the chiropractor is required to attend such a school teaching all of the courses provided in said act, of which three are absolutely useless and unnecessary to the chiropractor in order to practice the chiropractic art of healing. It being shown that the chiropractic school of healing is a regular systematic school, benefiting the community and not injuring it, it is the opinion of the writer that it cannot, by the device of said legislative enactment or of the medical board acting thereunder in carrying out its terms and provisions, be excluded and forbidden in the state of Texas. What will be, in fact, the effect of the statute and the effect of the action of the board under the provisions of same if permitted to stand and to be enforced as sought in the case at bar? In the opinion of the writer, it is manifest that the effect will be to destroy chiropractic in the state of Texas and to prevent the practice of this school of healing, unless the chiropractor abandons the chiropractic school of healing and conforms to the unnecessary and burdensome requirement of the act. This is unjust discrimination, pure and simple, and not in the interest of the public health or service. It would be but denying to the chiropractor the wholesome rule of law announced by Mr. Justice Bradley in Butchers' Union S. H. L. S. L. Co. v. Crescent City L. S. L. S. H. Co., 111 U.S. 746, 4 S. Ct. 652, 28 L. Ed. 585, to wit:

"The right to follow any of the common occupations of life is an inalienable right; it was formulated as such under the phrase `pursuit of happiness' in the Declaration of Independence. * * * This right is a large ingredient in the civil liberty of the citizen. * * * I hold that the liberty of pursuit — the right to follow any of the ordinary callings of life — is one of the privileges of a citizen of the United States. * * * But if it does not abridge the privileges and immunities of a citizen of the United States to prohibit him from pursuing his chosen calling, and giving to others the exclusive right of pursuing it — it certainly does deprive him (to a certain extent) of his liberty; for it takes from him the freedom of adopting and following the pursuit which he prefers; which, as already intimated, is a material part of the liberty of the citizen."

That courts should look beyond the placid and innocent face of the law in order to determine the validity of its enactment, so as to prevent wrongs from being covertly inflicted upon any of the citizenship through the enforcement of its provisions, is recognized by the Supreme Court of the United States in the following cases: Minnesota v. Barber,136 U.S. 313, 10 S. Ct. 862, 34 L. Ed. 455; Brimmer v. Rebman, 138 U.S. 78, 11 S. Ct. 213, 34 L. Ed. 862; Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220.

It has often been held that courts will scrutinize legislative enactments closely when the constitutionality of same is called into question, in order to see to it that rights are not invaded in the guise of some legislative enactment not authorized by or contrary to the organic law of the land. In this respect it has been well and fittingly said that —

"It is impossible for us to shut our eyes to the fact that many of the laws of this character, which passed under what is claimed to be police power for the purpose of protecting the public health or welfare, are in reality passed for other motives. We are justified in saying so, when, from the character of the law and subject upon which it legislates, it is apparent that the public health or welfare bears but remote relation to the law. The purpose of a statute must be determined from the natural and legal effect of the language employed; and whether it is or is not repugnant to the Constitution of the United States must be determined from the natural effect of such statutes when put into operation, and not from their proclaimed purpose."

This is performed in the discharge of the solemn duty imposed upon courts to guard the constitutional rights of the citizen against merely arbitrary power. It is the purpose of the organic law on which our federal and state governments are founded, and which should always be borne in mind by courts, that there shall be accorded to all citizens alike equal and exact justice, and that no legislative enactment shall stand which carries on its face, or covertly, unjust discrimination between persons in similar circumstances material to their rights, whether as a class or as individuals. The law as passed, in all of its requirements, is just to that class of practitioners whose schools require attendance for four terms of eight months a year, the curriculums of which require the branches to be taught as stated in the act for the purpose of completing the course required by such schools, but is unjust discrimination in its requirements that other recognized schools of medicine or healing shall unnecessarily conform to such requirements, with the penalty that, unless the graduates of such other schools do comply therewith, they shall not be permitted to practice the art of healing as taught, for instance, by the chiropractic schools. This is in direct conflict with the following well-recognized rule of law:

"The rights of every individual must stand or fall by the same rule of law that governs every other member of the body politic under similar circumstances; and every partial or private law which directly proposes to destroy or affect individual rights, or does the same thing by restricting the privileges of certain classes of citizens and not of others, when there is no public necessity of such discrimination, is unconstitutional and void."

The act is discriminatory and unreasonable, in that it requires a chiropractor to study many branches which are of value only to the regular practitioner, and the examination provides for no examination in the science and art of chiropractic. Some of the studies required in article 5741, supra, the chiropractor, of course, in common with the regular physician, is taught in his school, which is especially true of anatomy, histology, and physiology. Others of this list of branches manifestly the chiropractor has no use for. The chiropractor studies symptomatology, not for the purpose of diagnosing the disease and applying specific remedy to it, but for the purpose of knowing whether the results of his work are satisfactory. The pathology that he is taught and should know is not manifestly the same as taught in the medical schools; it is a special pathology, suitable to his theory of practice. These facts appear from the testimony and are perfectly obvious. There is no requirement in article 5741 under which the chiropractor can be examined in his school of healing. The examination required of a chiropractor should be one calculated to test his knowledge of the philosophy, science, art, and practice of his particular school of healing. People v. Love, 298 Ill. 304, 131 N.E. 809, 16 A.L.R. 703. An examination by regular medical doctors restricted to the study as taught in the regular schools of medicine, and of use to the regular practitioner only, is not a fair examination. Suppose all physicians and surgeons were required to pass an examination in the branches taught in a chiropractic school, could such an examination be considered fair and reasonable? Certainly not. It would be unfair to the practitioner and to the public he serves, and would be absolutely unreasonable because it would not tend at all to test his fitness for the practice of medicine and surgery. To-day, in the regular schools, almost as much time is given to surgery and surgical treatments as to all other studies. It is the most important part of modern medicine. Chiropractic being a separate system, based upon a different philosophy and method of practice, it is certainly discriminatory and unreasonable to require the chiropractor to pass such an examination as the statute provides. People v. Love, supra. A statute similar in its enactment, scope, and effect has been recently before the Supreme Court of North Carolina in the case of State v. Biggs. 133 N.C. 730, 46 S.E. 401, 64 L.R.A. 139, 98 Am. St. Rep. 731, from which the following quotation is made as aptly applying to the facts of this case:

"It is not only in the scope of the police power for the state to regulate the `practice of medicine and surgery' and to throw around the public any reasonable protection against unfit members of that honorable profession and provide against malpractice, but the General Assembly can prohibit any pretended art of healing which is calculated to deceive and injure the public. It is also within its power to protect the public against the ignorant and vicious who profess knowledge and skill in any art or profession of healing in which technical knowledge and learning are required to safely and properly practice it. But it is not found here that the defendant is deceiving and injuring the public or is ignorant and incompetent, to the detriment of the public, in the application of the methods he uses. It may be that if he were not there some of the patients might call in an M. D., but that is due possibly to the ignorance or perversity of the patients who may prefer the defendant's methods and scale of fees. The police power does not extend to such cases."

Likewise, the Supreme Court of Tennessee recently passed upon a statute in many repects similar to the Texas statute, to wit, in the case of Hastings et al. v. Norman et al., (not for publication), from which the following extract is quoted as being peculiarly applicable to the case under discussion:

"The court thinks that chiropractors cannot be classed along with charlatans and fakirs. This science of healing is well developed and recognized in many jurisdictions and many believe in its efficacy. It is not suggested on the record that the practice of the science is in any way deleterious to the human body.

"Our statutes undertake to provide that no one shall practice any healing art until he has been examined by our various boards and duly licensed. As a condition to obtaining license, the applicant must pursue a course of study covering many subjects. Chiropractors have no occasion to apply much of this learning. The court is of the opinion that since their treatments are not shown to be injurious to anybody — they do not give medicine, operate, or subject the body to injurious manipulation — the requirement that they study and be examined on subjects in no way pertaining to their occupation is an arbitrary and unreasonable attempt to restrict their liberties and the liberty of the people who wish to patronize them. Such regulations have no reasonable tendency to promote the public safety and welfare.

"The court recognizes fully the power of Legislature to regulate the practice of chiropractic by appropriate legislation. A board may be created to do this, or the present board empowered to regulate this profession under suitable regulations; an innocent business, however, cannot be prohibited under the guise of regulation.

"Our statutes, therefore, if they may be said to prohibit the practice of chiropractic, are invalid to this extent."

Therefore, it is the opinion of the writer that said Medical Practice Act is, as pointed out, in conflict with article 16, § 31, of our state Constitution, and article 14, § 1, of our federal Constitution.

The above presents the reason for the position of the writer anent the constitutionality of said legislative enactment, and why he dissents from the majority view. Therefore, no necessity exists to further prolong the discussion of the principle involved by reviewing especially the many cases that may be found contrary to those cited by the writer in support of the conclusion reached by him, in order to demonstrate the merit or demerit of the cases cited in the majority and this dissenting opinion.