State Ex Rel. Shenk v. State Board of Examiners , 189 Minn. 1 ( 1933 )

Reargument has convinced us that, principally through error of the writer, we probably misconstrued § 8 of the basic sciences law (L. 1927, p. 228, c. 149). The section is ambiguous in that it first authorizes "any person not hereinafter excepted * * * 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," to registration in the basic sciences without examination. Later in the section (and this was inexcusably ignored in the writing of the former opinion), the disjunctive "and" is succeeded by the alternative "or." Literally, the latter provisions authorize registration without examination upon furnishing satisfactory evidence that, on the effective date of the act, the applicant was "lawfully authorized to practice healing or registered according to law in the particular branch or system of healing by him pursued."

We shall not now attempt, by construction, to remove this conflict of language. The attempt along that line in the former opinion has been made to appear sufficiently doubtful to deprive it of conclusiveness.

We return to the question, heretofore passed by mere negative assumption, whether petitioner as a naturopath was engaged in the practice of medicine within the definition of statute (1 Mason Minn. St. 1927, § 5717) when the basic sciences law took effect. We now decide that he was practicing medicine and that such practice was unlawful. Hence he is not entitled to the benefit of the provisions of § 8 concerning registration without examination.

The practice of medicine as defined by § 5717 includes anyone 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."

Certainly the essence of naturopathy, sufficiently explained in the first opinion, demonstrates that its practitioners resort to natural remedies such as herbs and other so-called natural methods for the alleviation of the ills of the human body. Any allowable argument to the contrary will still leave unabated the rather obvious conclusion that the methods of the naturopath are, in any event, within the legislative inclusion of "other agency for the treatment, care or relief of any * * * bodily injury, infirmity or disease." Our statute defining the practice of medicine "was not enacted for the benefit of any profession or of any school or theory of medicine. It was designed to secure the public in whole and in every part" against the possibility of mistreatment of their ailments of any kind by any unqualified person. State v. Oredson, 96 Minn. 509,

512, 105 N.W. 188, 189. That purpose is now confirmed and implemented by the basic sciences law and the registration thereby required. There are now schools of healing excepted by statute from the category of practitioners of medicine who otherwise would be included within its broad scope. For example, chiropractors are "declared" by statute not to be engaged in the practice of medicine, surgery, or osteopathy. 1 Mason Minn. St. 1927, § 5731(c). In like manner, osteopaths are put by statute in a distinct category. §§ 5735-5740. Naturopaths have not yet been placed in such a separate classification by statute. In Commonwealth v. Zimmerman,221 Mass. 184, 188, 108 N.E. 893, 895, Ann. Cas. 1916A, 858, a chiropractor was held engaged in the practice of medicine under a statute which did not except them. "The acts which he did and their manifest design," said the court, "are to be examined rather than the words used, in order to ascertain the true nature of the defendant's conduct." The absence of the use of medicines and surgical operations in the ordinary sense was considered unimportant. The defendant's method of treatment was [221 Mass. 189] "found to have such relation to the cure or prevention of disease or the relief of pain as to constitute the practice of medicine." Naturopathy, as the petitioner himself explains it, has no escape from that conclusion.

For the reason above stated, the result reached in our former decision is adhered to, and the order appealed from stands affirmed.

DEVANEY, Chief Justice, and HILTON, Justice, took no part on reargument.