State Ex Rel. Shenk v. State Board of Examiners

1 Reported in 250 N.W. 353. Mandamus, petitioner appealing from an order sustaining a general demurrer to his petition and quashing the alternative writ. Respondents constitute the state board of examiners in basic sciences, functioning under L. 1927, p. 228, c. 149, 1 Mason Minn. St. 1927, §§ 5705-1 to 5705-23, establishing the board for the purpose, as stated in the title, among other things, of regulating "the practice of healing" as defined in the act. Petitioner is not within the special exceptions made by § 16. He stands on the general exception of § 8, hereinafter construed. If he is so excepted, a peremptory writ should issue, because he made timely application, with tender of the proper license fee, for a license from the basic science board without examination and was refused. The general scope of the law appears from this partial quotation of the definition in § 1: "Whenever the term 'practicing healing' or 'practice of healing' is used in this act unless otherwise specifically defined, the same *Page 3 shall be understood and construed to mean and include any person not hereinafter excepted * * * who shall in any manner for any fee, gift, compensation or reward or in expectation thereof, engage in, or hold himself out to the public as being engaged in, the practice of medicine or surgery, the practice of osteopathy, the practice of chiropractic, the practice of any legalized method of healing or the diagnosis, analysis, treatment, correction or cure of any disease, injury, defect, deformity, infirmity, ailment or affliction of human beings." Petitioner does not claim to have been licensed as a naturopath or otherwise when the basic science law took effect. His submission is that he was then lawfully authorized so to practice without a license under 1 Mason Minn. St. 1927, § 5717. We do not stop to inquire into the effect of the amendment by L. 1927, p. 282, c. 188, § 4, effective April 14, 1927, making § 5717 inapplicable to "persons legally authorized to practice healing or excepted from the practice of healing * * * so long as they confine their activities within the scope of their respective licenses." It is significant that this statute was passed at the same session as the basic science law. Section 5717 made it unlawful to "practice medicine" without license. Any person is regarded as so practicing who shall "for a fee prescribe, direct or recommend for the use of any person, any drug, or medicine or other agency for the treatment or relief of any wound, fracture, or bodily injury, infirmity or disease." The argument is that the phrase concerning prescription of "any drug, or medicine or other agency" must be limited by construction; that the word "agency," under the rulenoscitur a sociis, must be so restricted by the preceding phrase "drug or medicine" as to eliminate all forms of "drugless healing." Without so deciding, we assume that view correct. Cited in its support are, inter alia, State v. Herring, 70 N.J.L. 34,56 A. 670, 1 Ann. Cas. 51; State v. Gallagher, 101 Ark. 593,143 S.W. 98, 38 L.R.A.(N.S.) 328; Bennett v. Ware,4 Ga. App. 293, 61 S.E. 546; State v. Liffring, 61 Ohio St. 39,55 N.E. 168, 46 L.R.A. 334, *Page 4 76 A.S.R. 358. There are at least implications to the contrary in Stewart v. Raab, 55 Minn. 20, 56 N.W. 256, and State v. Oredson, 96 Minn. 509, 105 N.W. 188. See also State v. Johnson, 84 Kan. 411, 114 P. 390, 41 L.R.A.(N.S.) 539, and Commonwealth v. Zimmerman, 221 Mass. 184, 108 N.E. 893, Ann. Cas. 1916A, 858. The assumption that petitioner does not practice medicine, as defined by § 5717, brings us to the question whether he is engaged in the practice of healing under the basic science law. Petitioner himself states that naturopathy "includes and embraces the diagnosis and practice of physiological, mechanical and natural sciences of healing." Treatment "includes the use of foods of such bio-chemical tissue-building products and cell salts as are found in the normal body, and the use of vegetable oils and dehydrated and pulverized fruits, flowers, seeds, barks, herbs, roots, and vegetables uncompounded and used in their natural state," exclusive of those narcotic or poisonous. The petition goes on to say that "diagnosis, as a term used in this definition, aims not merely to ascertain the pathological state of any patient from the manifest symptoms, in any given case, but primarily to discover the causes of weakness, sickness, or disease. It is obvious," as petitioner continues, that in order successfully to treat "any pathological condition its inciting causes must be ascertained and removed. The anatomy and physiology of the human body constitute a universal and common base for all branches of the healing art." No elaboration is needed of petitioner's characterization of his calling to show that, although supposed beyond reach of § 5717 because not practicing medicine, he is distinctly under the coverage of the basic science law because practicing the art or science of healing as therein defined. Pathology seems almost as important as in medicine. Diagnosis is stressed. That is as it should be. Diagnosis (see State v. Rolph, 140 Minn. 190,167 N.W. 553, L.R.A. 1918D, 1096) seems necessary to any skilful treatment, with the possible exception of the mental or spiritual sort. Even in that recognized field it ought to be helpful to both healer and patient if either or both can locate the seat of difficulty and so be enabled *Page 5 knowingly to focus thereon the acknowledged therapeutic power of correct thinking. An object of the basic science law is to require of all healers, other than those expressly excepted, such general knowledge of science in application to human anatomy as measurably to insure some diagnostic skill and, in consequence, some degree of dependability in result and some amount of directive knowledge for the ensuing treatment. Petitioner's claim is that he is within the general exception of § 8, couched in this language: "Any person not hereinafter excepted from the provisions of this act who was lawfully authorized to practice healing, as by this act defined, in this state on the date this act takes effect, and who was on that date regularly licensed or registered in the manner then by law provided, shall, upon application as herein provided, receive from the State Board of Examiners in the Basic Sciences a certificate of registration" without examination. Claiming no previous license or registration, petitioner insists that he was lawfully authorized "to practice healing" when the basic science act took effect. That is not enough. The requirement of § 8 is double, including not only authority of law to practice, but also, and in addition, regular license or registration. This is not a case where the disjunctive "or" can be substituted by construction for the conjunctive "and." Too plain is the legislative purpose to sweep within the law every practitioner of healing, not as previously defined by law, but as defined "by this act." (Compare State v. Oredson, 96 Minn. 509,105 N.W. 188.) Were we to hold now that the intention was to except those lawfully practicing the art of healing who for any reason were not "licensed or registered," the latter requirement would have to be put aside as surplusage. That would be amendment rather than construction of the statute. That as a naturopath petitioner was not eligible to registration or license under any law in existence when the basic science act took effect cannot help him. To allow his argument would require an implication not permitted by the plain purpose of the statute and the equally plain language used to express it. Very likely the *Page 6 sweeping language above quoted from § 8 was used, through abundance of caution, to make sure of embracing any and all persons who might have been practicing on the effective date some branch of the art of healing in such manner that, although lawfully so practicing, they were not then within any of the legislative categories such as medicine, osteopathy, and chiropractic already covered by registration statutes. That does not require the impossible of anyone. Nor does it refer to an impossible situation. It does stipulate two conditions for admission to the excepted class — lawful right to practice plus license or registration. In view of the fact that there were those lawfully practicing a healing art without license or registration, the intended scope of the general exception of § 8 is not difficult to delimit. The argument for petitioner turns back on itself with fatal result, for it puts petitioner squarely within the inclusion of § 1, which embraces not only physicians, surgeons, osteopaths, and chiropractors, but also anyone in "the practice of any legalized method of healing." The use of that broadly inclusive phrase emphasizes that the exclusionary effect of § 8 reaches only those who, on the determinative date, were both legally authorized to practice and then licensed or registered under existing law. Inasmuch as on the face of his petition it appears that petitioner is practicing and intends to practice the art or science of healing as defined by the basic science law, and is not within any of the exceptions therefrom, general or special, he is required to submit himself to the examination required. There is claim for petitioner that the basic science law is unconstitutional because abridging his privileges and denying him due process and equal protection of law. The point is without merit. The law does not ban naturopathy. It does regulate it. We are not interested in the extent to which the medical profession may have sponsored the law nor their motives in doing so. It is enough that, since the days of Hippocrates through those of Galen, Vesalius, and their modern successor anatomists, there has been great progress and splendid accomplishment in their science and *Page 7 the related arts of diagnosis and treatment. Lawmakers everywhere have taken note and have been doing so for a century or more. They began with laws facilitating the procuring of human bodies for dissection. Thereby doctors and their students were enabled to transfer their patronage from grave robbers, "body snatchers," to legitimate purveyors of cadavers. Other laws, regulatory and otherwise, followed. Finally came the restrictive regulation, through licensing, now familiar law everywhere. The basic science statute is the latest addition thereto. It departs somewhat from the older definition of the practice of medicine. Of its newer and broader category of the practice of healing, naturopaths have no complaint on constitutional grounds. In State v. Broden, 181 Minn. 341, 232 N.W. 517, we sustained the law against the objections then made based on its exclusions. What was then said is enough to dispose of present objections to its inclusions. Irrelevant on the constitutional point is the objection that petitioner was lawfully authorized to practice naturopathy under former law, and that at common law he might follow any ordinary occupation as an inalienable right. Allgeyer v. Louisiana, 165 U.S. 578, 17 S.Ct. 427,41 L. ed. 832. Time was when the same argument could have been made for aboriginal witch doctors or medicine men. But not now. We have reached a stage where many occupations are so affected with a public interest that they are subject to regulation by police power. The remaining question is whether the regulation is reasonable. Nothing has been brought to our attention to enable us to override the legislative judgment either as to the reasonableness of its regulation or the classification of the basic science law. Compare People v. Lewis, 233 Mich. 240,206 N.W. 553, 42 A.L.R. 1337, and the numerous authorities there cited, inter alia, Commonwealth v. Zimmerman, 221 Mass. 184,108 N.E. 893, Ann. Cas. 1916A, 858. The practice of healing, as much if not more than that of medicine (again postulating some real difference between them) is not attended by any right "not subordinate to the police power of the states." Lambert v. Yellowley, 272 U.S. 581, 596, 47 S.Ct. 210, 214,71 L. ed. 422, *Page 8 49 A.L.R. 575. For other cases involving alleged discrimination against various schools or methods of healing, see annotations 16 A.L.R. 709, 37 A.L.R. 680, and 42 A.L.R. 1342. The order appealed from is affirmed. HILTON, Justice, took no part.