Since the majority opinion assumes without deciding that the rule in noscitur a sociis results in a construction of the words "or other agency" in 1 Mason Minn. St. 1927, § 5717, as meaning "other agency" of the same general character of drugs or medicines, it follows that it was legal for the relator to practice his profession in Minnesota as a naturopath prior to the enactment of the "basic sciences" act. L. 1927, p. 228, c. 149, 1 Mason Minn. St. 1927, §§ 5705-1 to 5705-23. Relator was within his rights at common law, and there was no statute, prior to the "basic sciences" act, making his conduct criminal.
Section 8 of said act in part provides:
"Any person * * * who was lawfully authorized to practicehealing, as by this act defined, in this state on the date this act takes effect, and who was on that date regularly licensedor registered in the manner then by law provided," shall be entitled to receive the certificate of registration in the "basic sciences" without an examination.
This is the certificate that the relator now seeks. I have italicized the portions of the quotation which are here important.
I do not agree with the construction placed thereon by the majority opinion, which construes this language as meaning that such person must have two qualifications, viz. (1) He must be lawfully authorized to practice; and (2) he must be "licensed or registered in the manner then by law provided." In my opinion the requirement for a license or registration should be ignored as surplusage since it calls for an impossibility. "The impossibility of doing what the law requires excuses the performance." Coke Litt. 29a. *Page 9
The point is that relator was lawfully authorized to practice, but he was not licensed nor was he registered. Why not? Simply because there was no law under which he could be registered and no law requiring or providing for a license to be issued to him. This court now construes a statute as valid though it requires an impossibility. The construction of this statute means that the legislature said to the relator and others in his situation: "We will in words provide a way for you to have a certificate without being subjected to the examination under the law which we are now passing, but we will surround that favor to you with impossible restrictions which will prevent you from ever receiving the certificate which we in our language dangle before your eyes like a rainbow."
I do not believe that the legislature ever intended the result of this extremely literal interpretation now given to this statute.
It is pointed out that the word "and" not "or" is used, and the further requirement, the impossible one, is stated.
What support is there for such literal construction producing what I consider an absurd result? Of course the words are there. But that is not all there is to construction. Qui haeretin litera haeret in cortice. Our duty is to discover the true intention of the law, its purpose, the object intended, and the policy involved. It is the duty of the court to endeavor to give effect to the intention or purpose of the legislature as expressed in the statute. To ascertain that intent we may look not only to the language but to the subject matter of the act, the object to be accomplished, and the purpose to be subserved. The spirit and intention of the law should prevail.
A statute should be construed, if reasonably possible, so as to render it operative. The intent of a valid statute is the law. We must search for that intent. The real intent of the legislature, when ascertained, will always prevail over the literal sense of the words used in the statute. The reason and spirit of the statute are more important than the letter itself. It is our duty to give effect to the evident meaning of the statute. A statute should be *Page 10 so construed as to make its application equitable and just instead of inequitable and unjust. Advanced and more stringent requirements for any profession have almost invariably recognized the pioneer already actively and sincerely engaged therein under less strict prerequisite requirements. We may consider the effect and consequences of a proposed construction of a law to ascertain what is probably its true intent.
It seems clear to me that the legislature intended to say to one who was lawfully practicing his occupation, as the relator was, that we will give you a certificate so that you may continue to do as you are now lawfully doing, and the law which we now make will apply to those who hereafter enter into such occupation or profession. Upon the record before us the requirements of the school of naturopathy are very high and must command the respect of all.
Under the construction which the majority opinion gives this statute relator is guilty of a crime. It is a penal statute. See § 17.
But "it is a general rule * * * that penal statutes are to be construed strictly. A criminal offence should not be created by an uncertain and doubtful construction. * * * A statute is ineffectual to make criminal an act otherwise innocent, unless it clearly appears that such act is within the prohibition of the statute, the statute being reasonably construed for the purpose of arriving at the expressed intention of the legislature. It is not enough that the case be within the apparent reason and policy of the statute." 2 Dunnell, Minn. Dig. (2 ed. Supp.) § 2417; State v. De Guile, 160 Minn. 191,199 N.W. 569.
It is not an uncommon thing for the legislature, in enacting legislation of this character, to make it inapplicable to those already engaged in the practice of the particular profession to be licensed and regulated under a new law. If this man were lawfully allowed to practice naturopathy, how or why would the legislature have concluded not to authorize the issuance to him of the certificate which he now seeks? The legislature clearly intended to have certain persons have these certificates without taking the examination under the "basic sciences" act. No one can doubt *Page 11 that. But under the construction now given this statute by this court it would be impossible for anybody ever to receive such a certificate. This results from the fact that it was impossible for anybody ever to register or get a license. I am unable to understand how the conclusion can be reached that the legislature did not intend to have any such certificates issued. If that was the intent, why did they do anything about such certificates? In fact this conclusion makes practically all of § 8 a nullity. This section provides that applications must be made for such certificate on or before October 1, 1927; the applicant must furnish detailed information; he must pay a fee. Section 8 provides what shall be recited in the certificate and points out the duties of the state board of examiners under the "basic sciences" act. Now, this court in effect and in practice says that the legislature did not intend to have any such certificates issued at all. I cannot concur in that conclusion.
The legislature said that they would recognize and issue certificates to "any person who was lawfully authorized to practice healing." That would seem to have been sufficient. If he were "lawfully authorized to practice" he would of course have done everything that the law exacted of him. That would have included a license or a registration "in the manner then by law provided." Such language would seem sufficient for all possible purposes. But it is true that the legislature did not stop there. Continuing, it said: "and who was on that date regularly licensed or registered in the manner then by law provided." But the law did not provide for any license or for any registration. It was not possible for relator to get a license. And it was equally impossible for him to register. The law did not require it. The "basic sciences" act directed him to be licensed or registered "in the manner then by law provided." It really seems to me to be the height of absurdity to say that the legislature intended or expected the impossible. Nor do I think the legislature ever intended this statute, penal in its nature, to be so construed. What has become of the language of this court in the De Guile case,160 Minn. 191, 193, 199 N.W. 569, wherein it is said? *Page 12
"It is a familiar rule of construction that a statute regulating conduct which is not criminal or wrongful unless it has been made so by the statute is to be strictly construed, and the statute is not to be extended by implication to classes not clearly within its terms. * * * Before conduct hitherto innocent can be adjudged to have been criminal, the legislature must have defined the crime, and the act in question must clearly appear to be within the prohibitions or requirements of the statute."
But that is not all. Upon the construction now given this statute, the first provision, viz. "Any person * * * who was lawfully authorized to practice healing," is useless, and it was indeed written into this statute without purpose or meaning. Just idle words. If "regularly licensed or registered in the manner then by law provided," he would be necessarily authorized to practice. So I say if the second provision is mandatory, the first provision had no place in the law. This follows from the construction now given to the statute. Yet one of the fundamental rules for construction is that we should avoid absurd results.
It would seem much more reasonable to say that this statute means that the certificate was to be issued to any person lawfully authorized to practice healing and who had registered or procured a license if the law required registration or a license.
As above indicated, emphasis is placed upon the use of the word "and" instead of the word "or"; but in order to effectuate the intention of the legislature the word "and" has frequently been construed to mean "or." This is done for the purpose of carrying out the obvious intent of the legislature. I think we ought to say here that the legislature must have intended the desired certificate to be issued to somebody; and that, since there is nothing to indicate any reason why one who is "authorized to practice" should not have such certificate and no reason why one who is "licensed or registered in the manner then by law provided" should not have such certificate, it must be that the legislature intended that the certificate could be issued to one in either classification, and therefore we should construe the word "and" as "or" and thereby effectuate the *Page 13 legislative intent. This seems to me necessary in order to harmonize the statutory provisions. If it does harmonize them, it is not only permissible but it is our duty so to construe the word "and."
In Kanne v. M. St. L. Ry. Co. 33 Minn. 419, 23 N.W. 854,856, the plaintiff sought to recover possession of certain real estate, together with certain damages for withholding the same. The defendant pleaded condemnation proceedings. The statute in relation to the condemnation proceedings contained a clause:
"No proceedings under the law have been instituted,or are pending, to ascertain and assess such compensation."
Proceedings had been instituted but were no longer pending, and the court said [33 Minn. 421]:
"The sense of the statute requires that the word 'or,' above italicized, be construed in a conjunctive sense, in accordance with a familiar rule of statutory construction. State v. Brandt, 41 Iowa, 593, 615; Boyles v. McMurphy, 55 Ill. 236; Weston v. Loyhed, 30 Minn. 221, 14 N.W. 892. It could not have been meant, if proceedings had been once instituted and then abandoned or dismissed, or for any reason terminated without effecting a valid condemnation of the property, that the case would thereby be taken out of the statute."
It seems to me that it would be just as reasonable to construe the word "and" in the statute now before us as for the court to construe the word "or" to be "and" in the Kanne case. In my judgment it is our duty so to do.
This rule is not an unusual one and is found in many of the reports, including our own. See Eberle v. Miller, 170 Minn. 207,212 N.W. 190, and the cases there cited. See also 6 Dunnell, Minn. Dig. (2 ed.) § 8976. The Eberle case also emphasizes the rule that a statute should not be so construed as to produce absurd results.
The well established rule is that "and" may be interpreted to mean "or," and vice versa, where by so doing effect may be given to a statute in harmony with the plain legislative intent as gathered from all the provisions of the enactment. Armstrong v. State, *Page 14 72 Ind. App. 303, 120 N.E. 717, and cases cited; People ex rel. Fix v. Trustees of Northwestern College, 322 Ill. 120,152 N.E. 555.
This is permissible in order to effectuate a plain legislative purpose, or to accomplish the intent manifested by the entire act. Central Trust Co. v. Howard, 275 Mass. 153,175 N.E. 461, and cases cited; U.S. v. Fisk, 3 Wall. 445, 447,18 L. ed. 243; Dumont v. U.S. 98 U.S. 142, 25 L. ed. 65; 25 R.C.L. p. 977, § 226; Wilcox v. Warren Construction Co. 95 Or. 125,186 P. 13, 13 A.L.R. 211; Pompano Horse Club, Inc. v. State ex rel. Bryan, 93 Fla. 415, 111 So. 801, 52 A.L.R. 51; State ex rel. Rich v. Steiner, 160 Wis. 175, 151 N.W. 256.
As said in Ayers v. Chicago T. T. Co. 187 Ill. 42, 56,58 N.E. 318, 323:
"It is well settled, that the words 'or' and 'and' will not have their literal meaning, when to give them their literal meaning renders the sense of a statutory enactment dubious. Their strict meaning is more readily departed from than that of other words, and one will be read in the place of the other where the meaning of the context requires it."