Dean v. State , 151 Ga. 371 ( 1921 )

George, J.

(After stating the foregoing facts.) The chancellor did not pass upon any issue of fact raised by the pleadings. He based his order enjoining the plaintiff in error from practicing his profession as a chiropractor expressly upon the ground that the act of the General Assembly, approved August 18, 1913 (Acts 1913, p. 101), and the several acts amendatory thereof, were valid statutes of this State and applicable to the plaintiff in error; and that the practice of his profession by the plaintiff in error without having complied with the provisions of the statutes aforesaid constituted a violation of the criminal law of the State. Since the chancellor did not exercise his discretion upon the disputed issues of fact involved, the evidence introduced at the interlocutory hearing becomes unimportant.

For the purposes of this ease, and for the purposes of this case onty, the validity of the statutes involved, as construed and applied by the chancellor, will be conceded. Section six of the act approved August 18, 1913 (Acts 1913, pp. 1Ó1, 103), declares that it shall be unlawful for any person to practice medicine in this State without having first taken the prescribed examination and obtained a license from the State board of medical examiners authorizing him so to do. Section sixteen of the act declares that any person practicing medicine in this State without complying with the provisions of the act shall be guilty of a misdemeanor, and upon conviction thereof shall be punished as prescribed in section 1065 of the Penal Code of 1910. Neither the act approved August 18, 1913, nor any of the acts amendatory thereof, declares one who engages in the practice of medicine in this State without having first taken the prescribed examination and obtained a license from the State board of medical examiners to be a public or common nuisance. None of the medical acts of this State undertake to extend the jurisdiction of equity over nuisances or to enlarge the category of public nuisances. The unlawful practice of medicine in this State is simply declared to be a misdemeanor. The question is, therefore, whether equity, at the instance of the State, will enjoin as a common nuisance one who is engaged in the practice of medicine (conceding that the plaintiff in error is engaged in the practice of medicine) who has not taken-the prescribed examination and obtained a license from the State board of medical examiners authorizing him to engage in the practice of medicine in this State. The question may be stated as follows: will equity, at the instance of the State, enjoin a person from practicing the profession of medicine simply because such person has failed to take the prescribed examination and to obtain a license from the State board of medical examiners authorizing him so to do, in violation of the penal laws of the State? To state tbe question is to answer it. The chancellor did not find that the practice of plaintiff in error’s profession worked hurt, inconvenience or damage to any particular person or to the public or to any particular part of the public. If the plaintiff in error had obtained tbe license required of practitioners of medicine, the same acts and conduct complained of in the petition, so far as determined by the chancellor, would have been legal and would have worked no hurt, inconvenience, or damage to any particular person, to the public at large, or to any part of the public. It is settled law that a private nuisance may injure either person or property or both, and in either case a right of action accrues to the person injured. Civil Code (1910), § 4456. It is also settled law that if a public nuisance causes special damage to a private citizen, he has a right of action therefor. Civil Code (1910), § 4485; Holman v. Athens Empire Laundry Co., 149 Ga. 345, 349 (100 S. E. 207, 6 A. L. R. 1564), and cases there cited. It is also settled in this State that as a general rule a public nuisance gives no right of action to any individual, but must be abated by process instituted in the name of the State. Civil Code (1910), § 4454. If a criminal act affect the whole community, or a part of the community necessarily brought in contact therewith, the act may be abated by process in the name of the State as a public nuisance, although criminal. Walker v. McNelly, 121 Ga. 114 (48 S. E. 718). Where an act, though made penal by statute, is per se a public nuisance, it may generally be abated by injunction on petition brought in the name of the State. Brindle v. Copeland, 145 Ga. 398 (89 S. E. 332). While “ equity has no jurisdiction, upon the petition of individuals, to interfere in matters merely criminal, or to enjoin any one from the commission of a crime, when it does not appear that the act complained of affected any property rights of the individuals ” (O’Brien v. Harris, 105 Ga. 732, 31 S. E. 745), equity has jurisdiction, in a proper case, to enjoin a public nuisance upon information filed by the solicitor-general. Under the Civil Code (1910), § 4454, “ Nuisances are either public or private. A public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals.” It may also be said that a nuisance is either public or private or mixed. It may likewise be said that a public nuisance is one which causes hurt, inconvenience, or damage to the public generally, or such part of the public as necessarily come in contact with it. It is obvious that a nuisance may be public though it does not necessarily consist in any act or thing which does in fact cause hurt, inconvenience, or injury to all of the public; generally it is sufficient if it injures those of the public who may come in contact with it-These general principles may be subject to certain limitations, but it is unnecessary to notice the limitations here. Before the first medical act of Georgia (Ga. Laws 1880-81, p. 172) it was not illegal to practice medicine, as such, in Georgia without examination and without license. The treatment of diseases according to the chiropractic method can not be classed as a common or public nuisance. It is not per se a nuisance. The chancellor has refused to find in this case (even if it be conceded that he was authorized so to find) that the treatment of persons according to the chiropractic method, as practiced by plaintiff in error, was harmful to his patients, or to any part of the public, or to the public generally as noted above. The mere fact that the plaintiff in error in practicing his profession without a license may be guilty of a misdemeanor will not authorize a court of equity to enjoin him from practicing his profession. If the medical acts of this 'State are applicable to the plaintiff in error, he is amenable to criminal prosecution. Unless the legislature sees fit to extend the jurisdiction of equity or to enlarge the category of public nuisances (conceding the power of the legislature so to do), equity will not enjoin the plaintiff in error from practicing his profession simply because in so doing he is violating the penal laws of the State (conceding the validity of the medical acts, as construed and applied by the chancellor).

Judgment reversed.

All the Justices concur, except Atkinson, J., disqualified.