Commonwealth v. Cohen

RHODES, J. filed a dissenting opinion, in which STADTFELD, J. joined.

Submitted April 8, 1940. Defendant, a duly licensed osteopath, was charged with prescribing morphine sulphate, a derivative of opium, in violation of Section 4 of the Anti-Narcotic Act of July 11, 1917, P.L. 758, 35 PS 854. He demurred to the indictment on the ground that the information upon which it was based, named and described him, the defendant, as "Theodore R. Cohen, D.O., a duly licensed osteopathic physician." The lower court sustained the demurrer and quashed the indictment, whereupon the Commonwealth appealed, raising the narrow question whether one duly licensed under the acts of assembly regulating the practice of osteopathy, is a licensed physician excepted from the operation of the Anti-Narcotic Act. Since the ruling was against the Commonwealth on a pure question of law it has the right of appeal. Com. v.Simpson, 310 Pa. 380, 165 A. 498; Com. v. Kolsky, 100 Pa. Super. 596.

The above Act, after defining the word "drug" to include opium and any compound or derivative of opium, in part provides: `Section 4. No person shall have in his possession or under his control, or deal in, dispense, sell, deliver, distribute, prescribe, traffic in, or give away, any of said drugs. This section does not apply, in the regular course of their business, profession, employment, occupation, or duties, to . . . . . . (f) licensed physicians: . . . . . ." The Act does not define the term "licensed physicians" nor restrict its application to physicians of any particular school, theory or method. And while the purpose of the statute must be considered, the legislative intention primarily must be gathered from the language of the Act and since there is no doubt or ambiguity, effect must be given to the plain meaning of the words used. Rodebaugh v. Traction Co., 190 Pa. 358, 42 A. 953. Moreover the prohibition of this criminal statute carrying with it a penalty for violation must be strictly construed.

A "physician" is "a person skilled in physic or the art of healing; one duly authorized to treat diseases, especially by medicines": Webster's New International Dict. This is the accepted definition, and while the word is used most frequently to mean a doctor of medicine, yet, in ordinary usage, it connotes the disciples of other schools authorized to treat diseases and is not confined to the members of that one class. In its plain meaning the term "licensed physicians" refers to physicians licensed by the Commonwealth through boards or agencies created by the legislature for the purpose. Certainly the term includes those who are duly licensed to practice medicine, and whether osteopaths, also, are to be included must be determined by a consideration of the Act of March 19, 1909, P.L. 46 as amended June 14, 1923, P.L. 795 and June 5, 1937, P.L. 1649, 63 PS 261, et seq., regulating the practice of osteopathy in Pennsylvania.

The Act of 1923 as amended in 1937 defines osteopathy as "a complete and independent scientific system for the preservation of health and the relief and cure of bodily disorders, embracing a distinct etiology, prophylaxis and therapeutics applicable to all types and conditions of disease which in its practice deals with the human body as an intricate machine, holding as its foremost fundamental, (a) that the body when in perfect structural alignment will function correctly and health ensue; (b) that disease is the effect of anatomical abnormalities producing physiological discord, . . . . . . that pathogenic bacteria are secondary to the predisposing anatomical cause; and (c) which regards and uses non-drug adjunctive measures as palliatives; (d) embraces obstetrics, ophthalmology, subject, however, to the provisions herein as to surgery, subscribes to sanitation and hygiene, and to surgery when indicated and practiced from an osteopathic viewpoint; (e) employs antiseptics, anaesthetics, and germicides in case of necessity and antidotes in case of poisoning; and (f) opposes the introduction of drugs into the body organism as curative agencies." The Act as amended provides for the licensing of an applicant who has had a general preliminary education equivalent to that provided in a standard four years high school course, and not less than one year of college credits on special subjects and who has received a diploma conferring the degree in osteopathy from a "legally incorporated, reputable osteopathic college of the United States." One duly licensed may practice osteopathy in all its branches, including minor surgery and obstetrics without restriction, as above defined, and as taught in legally incorporated, reputable colleges of osteopathy.

The comparative merits of osteopathy and medicine as scientific systems for the treatment and cure of bodily disorders raises a controversial question in the public mind. That question is not for us to attempt to discuss. For the purposes of this appeal it is enough to say that the legislature has seen fit to recognize osteopathy as "a complete and independent scientific system" and in the various acts of assembly, supra, have given osteopaths the standing of physicians. The question in this case was correctly decided in the court below. The 1909 Act provides in section 12: "Osteopathic physicians shall observe and be subject to all State and municipal regulations relating to the control of contagious diseases, the reporting and certifying of births and deaths, and all matters pertaining to public health,the same as physicians of other schools, and such reports shall be accepted by the officers or department to whom the same are made." The title to the 1923 Act creates "a board to examine andlicense osteopathic physicians to practice operative surgery" (Italics supplied), and in no fewer than seven instances in the body of the Act those licensed to practice osteopathy are referred to as "osteopathic physicians." This classification of osteopaths in the very Act which determines their qualifications is conclusive of the question. Licensed "osteopathic physicians" are "licensed physicians" and, as such, are excepted from the prohibition of the Anti-Narcotic Act. As a general term "licensed physicians" comprehends licensed osteopaths. Waldo v. Poe,14 F.2d 749; Bandel v. Dept. of Health of New York, 193 N.Y. 133,85 N.E. 1067.

This conclusion is not affected by the Statutory Construction Act of May 28, 1937, P.L. 1019, Art. VIII, § 101, 46 PS 601 defining a "physician" as "an individual licensed under the laws of this Commonwealth to engage in the practice of medicine and surgery in any or in all of its branches." That Act provides that words and phrases shall have the meaning ascribed to them "unless the context clearly indicates otherwise." Not only the context but the language used by its plain meaning, indicate that the word "physician" in the Acts relating to the practice of osteopathy was not used in that restricted sense.

If this defendant has exceeded the authority in him as an osteopath, as the information tends to indicate, and by prescribing narcotics has invaded the field of medicine, the indictment should have charged a violation of the Act of June 3, 1911, P.L. 639, 63 PS 401, making it a misdemeanor to practice medicine without a license. Com. v. Dailey, 75 Pa. Super. 510.

Judgment affirmed.