Hayden v. State ( 1902 )

Terral, J.,

delivered the opinion of the court.

Hayden was indicted in the circuit court of Alcorn county for practicing as a physician without first having been examined and obtained -a license. so to do. The facts of his alleged offense were admitted to be as follows, and upon this admission the case was submitted to the jury: “That the defendant practiced in this (Alcorn) county what is known as ‘ osteopathy ’ in the American'School of Osteopathy, in Kirksville, Mo., from which school he is a graduate. That in treating diseases, and in his treatment of the witnesses for the state in this case, to-wit, W. W. Kemp and James A. Carter, he did not use any drug omedicine, but his treatment consisted of manipulating scientifically the limbs, muscles, ligaments, and bones which were pressing on the nerves of the blood supply. This treatment was had so that nature would have free action. That in his treatment of, diseases or pains he is confined solely to his manipulation as above described. That for said services to said Carter and Kemp he received pay. The witnesses were being treated for rheumatism, and claimed that they have entirely recovered, as a result of this treatment.” The above is agreed as being all the facts in the case. The court instructed the jury that, if they believed the admitted facts, they should convict the defendant. This they did, and thereupon the court imposed a fine of $20 upon the defendant. From this judgment he appeals.

The sole question is whether, under ch. 68, acts 1896, an osteopath is required to be examined and licensed for the practice of his branch of the healing art. The act of 1896, so far as it is necessary to be known for the right understanding of this case, provides: ‘ ‘ That the practice of medicine shall mean to suggest, recommend, prescribe, or direct for the use of any person, any drug, medicine, appliance or agency, whether material or not material, for the cure, relief or palliation of any ailment or disease of the mind or body, or for the cure or relief of any wound or fracture or other bodily injury or deformity, or the practice of obstetrics or midwifery, after having received, or with the intent of receiving therefor, either directly or indirectly, any bonus, gift, profit or compensation. ’ It is perfectly manifest, as we think, from the agreed statement of facts, that Hayden used neither drug nor medicine, as meant by the act of March 19, 1896. It is equally manifest to us that the legislature, by the use of the words ‘£ appliance and agency, ’ ’ did not intend to include such treatment as Hayden gave Carter and Kemp. Our attention has been called to no statement of osteopathic treatment in all the literature upon this subject which characterizes the treatment of an osteopath of his patient as an appliance or agency. There is an incongruity in such application of such words. Osteopaths themselves do not speak of their manipulation of the nerves, ligaments, bones, and other parts of the human body as being agencies or appliances of any sort or in any sense. In any strict and proper use of such words, they cannot be so denominated. If one not an osteopath directs a blow at their art, it is becoming that he use a term of description not to be mistaken. We conclude that the act of March 19, 1896, was not intended to regulate the practice of osteopathy in Mississippi. The course of study and examination prescribed in our law upon this subject seems to mark it out as a curriculum of the allopaths. It at least suits them in many respects, but its chemistry and materia medica are not specially adapted to assist the practice of osteopathy. They make no use of the immense learning contained on these subjects, so highly valued by the regular physician. It appears to us that our legislation upon the subject of the practice of medicine has been framed by the allopaths to 'suit their views of the medical art, and with the laudable design of excluding from the practice the unskillful ,and the ignorant; and it was not intended to set up a universal standard of therapeutics, from which none could depart. Courts in other jurisdictions where similar statutes prevail, have led the way for our decision in this case. While our own views of the subject would probably have led us to the conclusion we have reached, yet, if the case had been otherwise, we should have felt ourselves strongly constrained by the authority and reasoning employed by them. We refer to State v. Liffring, 61 Ohio St., 39 (55 N. E., 168; 46 L. R. A., 334; 76 Am. St. Rep., 358); State of Rhode Island v. Mylod, 40 Atl., 753 (41 L. R. A., 428); Nelson v. Board (Ky.), 57 S. W., 501 (50 L. R. A., 383). Alabama, with a statute widely different from ours, holds another view. But Bragg v. State, 32 South., 767, sheds no light upon the construction of our statu te.

A wise legislature some time in the future will doubtless make suitable regulations for the practice of osteopathy, so as to exclude the ignorant and unskillful practitioners of the art among them. The world needs and may demand that nothing good or wholesome shall be denied from its use and enjoyment.

The judgment below is reversed, the indÁetment quashed, and the defendant dÁscha/t'ged.