.
.i
,
OFFICE OF THE ATTORNEY GENERAL OF ‘fExAs
AUSTIN
Honorable W. A. Willlamson
Chairman, Committee on Public Health
house o~~Representative8
F' rty-Ninth Legislature
Austin, Texas
pear Sir: Opinion No. 0441';;
Re: Csnstltutionslity of House
Bill R . 34, :;egerdlty
cniropractic cractlce.
We have your request lor an opinion r: the ~Zttorney
General, which said request is as follows:
"Pursuant to instructions of the Committee
on Public Healtn; I submit herewith House Bill
No. 34 for your opinion as to Its constitution-
~allty."
TN enclose with tile said request a copy of OH. B.
No. 34, wrUcil is returned to you herewith. We thank you for
your thJughtlulness Ian sending same.
The 0~11 about which you inquire, as shown by the
caption and contents thereof; delines "chiropractor" and
"chiropractic," and is intended to regulate the practice of
chiropractic; It provide8 a source IrDm whence all expenses
incurred by provisions 01 tileact shall be paid; It creates
a B,oard o1 Examiners for the examination and licensing of
chiropractors, .and.prescrlbes.the powers, qualifications and
duties of such Examiners; it provides ior the registration of
chiropractor8 and ior the grantIn& of chiropractors' licenses
by reciprocity; it makes provision for the reqocation and
suspension of chiropractors1 licenses, and makes provision
for eniorcement of the act; it f,ixes penalties for violations
01 the act; it purports to give no authority to prescr~ibe or
use' medicine or surgery in tne treatment ol human disease;
it provides that the use jf the tltie of "chiropractor" and
the practice of "chiropractic," as defined.ln the act, shall
not oe construed as the practice of medicine; and it pre-
scribes the duties of district clerks with ref~erence to the
keeping of certain records.
Honorable W A. Williamson, page 2
Section 1 of the said Act speciilcally defines
"chlropractlc" as ioll~wu:
"Chiropractic is hereby deiined to be (a)
the employment of objective or subjective means,
with ut the use of drugs or surgery, lor the
purpose of ascertaining the alignment of the
vertebrae of the human spine, and (b) ths prac-
tice oi adjusting the vertebr-io by hand to co?-
rect or remedy any defect or *itnormal conditi.>n
oi alignment."
Sald'Section 1 furtiler Izovldes that "X:~tklr; here-
in shall be construed to permit chiropractors tc treet the
numan spine for any defect whatsoever
administer or prescribeam-
ever, unless such chiropractor is a r!
mlcian or surgeon under the laws 01 this State."
Said,Sectlon 1 defines a "Chiropractor" as follows:
"A chiropractor Is a practitioner of chiro-
practic, as that term is defined in this section."
Section 12 of the Act, among other provisions, re-
quires that candidates for license to become a chlI;opractor
and to practice chiropractic must successfully undergo ex-
amlnatlons~on "practical, theoretical and physiological
chiropractic, and in the anatomy, physiology end patnology
of the human spine as ap#lled to chiropractic."
The Act prI;vldes, among other things, that tnase
who successiully p&s the required examination forllcense.to
practice chlropractlc, shall be duly licensed thereto, and
shall receive certlflcates testifying to the fact that the
holder is duly licensed to practice chiropractic in the State
01 Texas.
Each pers:.n licensed to practice chiropractic, as
"chiropractic" Is defined In the Act, stmll annually pay a
registration fee of not more than $15.00 in order to keep in
lull force and effect his right to practice chiropractic In
Texas.
In regard t3 tnese matter8 we observe as follows:
Xonorable W. A. Williamson, page 3
Our courts have almost universally held that a law
is inoperative, ineffective, v.oid and unenforce able If it
Is so uncertain in its terms, - 93 Fajiue ic its expression,-
that it cannot be understood. W-x::-ea statute is 93 meaning-
less In its terms that the real intent of the Legislature in
eahctiw the law is .!smatter of csnjecture, the act Is not a
valid one. (See State v. Radle, 41 Tex. 404; Abbott v.
Andrews, (Corn. of App.) 45 S. W. (2dj 568, reversing 29 S W.
(2d)~ 885; I. & G. N. R. R. Co. v. Mallard, (Comm. of App.)
277 S W. 1051; Hines vi Foreman, (Comm. of App.) 243 S. W.
478; Sanders v. Lowrlmore, (Civ. App.) 73 S. W. (2d) 148;
Beaumont Traction Co. v. State 122 S W. 615; Pincus v.
State, (Cr. App.) 70 S. W. 2d) 417; Wilson v. State 123
Cr. R. 415; Kin& v. State, iCr. App.) 36 3 W. (2d) 490;
Anderson v. State, 113 Cr. R. 450; Cinadr v. State, 108 Cr.
R. 147; Ratcllf'fe v. State, 106 Cr. R: 37; ex parte Carrlgan,
32 Cr R..303, 244 S W. 604; ex prrte Slaughter, 32 Cr. R.
212; Parroccinl~v. State, 30 Cr. R. 320; Snider v. State, 85
Cr. R. 192. Russell v. State, 228 S W. 566; Griffin v. Statg
86 Cr. R. 498, 218 S W. 434; Augustine v. State, 41 Cr. R.
5;). 36,&n. S R. 765.)
A modification of the above stated doctrine well
recognleed in law, is that one indefinite,, or vague, non-.
understandable provision oi a .statute will not render the
remainder of the statute invalid unless the remainder is
tainted with the same ~vice oi uncertainty. (See Tarry Ware-
house & Storage Co. v. Price, 76 S. -hr.(2d) 162, error dis-
missed; Texas Employers Insurance gss::cl&tlJn,v. City of
Tyler (Civ. App.) 283 5. W. 323; Es parte Curry, 96 Grim.
Rep. 3, 255 S. W. 730.)~
But the hi&.hest authorities Ln'Texas hold that
where a part ol a law is Invalid, and the InvsEld part 18
such an Intimate part of the ramalnder that the remainder
can not beg separated lrom It and leave a whole, onderstand-
able law, then the entire law is invalid. This is partlcular-
ly true where the valid part and the invalid part are inter-
*pendent and non-separable. (See Abbott v. Andrew,s, (Corn.
App.) 45 S W. (2d) 568; Galveston , R. & S. A. R. Co. V. Duty,
(Corn. App.) 277 S W: 1057).
The application of human reason and of well known
rules of statutory construction to the sub'ect matter of this
opinF..n inform us that the deLFnitions of 'chiropractor" and
honorable W. A. Williamson, page 4
of “chiropractic” as contained in the Act under examination,
are the cornerstones upon which the whole Act la based; these
two definitions are Inseparable from the remainder -of it, and
without~ them the whole Act becomes instantly meaningless,
Now, an’ analysis of this Ull ae submitted to ua
discloses the following aituatlon will result from its pazs-
age, if it should be upheld by the courts:
A citizen ~111 successfully pass the required ex-
amination~ in the prescribed subjects of practical, theoretrc-
al and physiological chiropractic, and in t~he anatomy,.phy-
slology and pataology of the hunmn spine as applied to chiro-
practic. He will then become a licensed “chiropractor” -
that is to say, “One who practices chiropractic as chiro-
practic la defined In the Act.” He will duly receive a ll-
cenae lrom the State of Texas to practice chiropractic;
that la to sag, he will receive a license from the State to:
(a) “Employ objective .or aubjectlve means, without
the use of drugs or surgery,. lor the purpose of ascertaining
the alignment of the human spine, and --
(b) He will receive a~licenae from the State oft
Texas permitting him to practice the adjusting the vertebrae
by hand -to correct or remedy any defect or abnormal condl-
tlon of alignment.
Now the cniropractor, thus licensed by the State of
Texas, to follow his avocation as above set lout, and by the
terms of the license empowered ,to “adjust the vertebrae by
hand to correct or remedy any defect or abnormal condition
of alignment, ” will find himself forbldden by another sentence
la the same section ol the same act, “to treat the human apime
for any defect whatever in any manner,” and likewise he can-
not prescribe or administer any drug or physical treatment
whatever unless he is a regularly licensed doctor under tne
provisions of what 18 commonly known as the Medical Practice
Act.
11 he were already a regularly licensed practi-
tioner under the terms of the .Medlcal ,Practlce Act, he would
not need the permiasimto treat, according to the princlplea
ok chiropractic or any other healing method of his choice,
the mal-adjustment found by him.
.
Honorable W. A Willlamaon, page 5
So what, then, can the courts, by the application
of’any recognized rules oi atatut ry construe..tlon,f lnd or
say ~waa the intent o1 the Legislature in enacting a law li-
cenalng a citizen to do a tnlng, and tlien In tne same act
forbIdding him to ds It?
We tiiink the provisions or the Bill under examlna-
tlon, in the particulars pointed ant, are so vague, cmlused,
‘non-understandable and contradict ry as to ae meanilyleaa,
ano that Insomuch as the aald provislona pointed out as ao
tainted are non-severable from tile remainder of the hct, the
whole Act must la11 by reason oft this lovalid part. We th1nJ.c
a law la void whlcL def~lnea an avocation, licenses a cltlzen
t: practice that avocatlon, zeta up elab-rate machinery I :r
determini% h&s qualificati>na to practice that avoCetion,
and the forblda nim to practice it or a part of It under
pains and penaltlea ok the law. For authority ior this poal-
tlon we crte you to the cases which have been mentioned
herelnabove. :’
Moreiver , should this’Bill be reworded Y; as to
obviate the fatal contradictions therein whicil have been
animadverted to above, ,- should the Act be so reiormed as
to”glve’the khiropract,r in apt worda the power and author-
Ity and right t; do what Lie said act provides Sor him be-
1% licensed by the State oi Texas to ds, we are 01 the opin-
ion It would still te a nid~act because it would be in vio-
latlon of the provialoLra of the Texas CXiat~tutioL
your attention is reapectfuliy Invited to the pro-
vlaisns 2f Article lb, Sec. 31, of the Constitution oftTexas,
wLlicliis as follows:
“The @C;ialature may ‘pass,lawa preacrlo1~
the qualilicationa of practitioners of medicine
In thla State, and to punish persona for mal-
practice, but n3 .preference anal1 ever be riven
by law to any schools ol medicine. ” (Emphasis
oura)
The underscored portion ol aald constitutional
prsvlsion which we have copied above, means t~hat the prac-
titioners of medicine in Texas, oi whatever school, must be
admitted to the practice’of trie proieaaion ~1 medicine through
the same Late , and In bei% odmittec ii.2aald practice must
peaseas the same qualif lcatlona. The Constitution does not
.
Honorable W. A. Wllllamaon, page 6
require that these quallficatlona shall be the same for all
schools of medicine.
The Bill in question prescribed different educa-
tional quallflcationa for the practitioners oft chiropractic
than are those required by law of the other practitioners
of the healing art. The Bill does not repeal the require-
manta now prescribed by law for the other schools. This Bill
would therefore, in the face of the express prohibition con-
tafned In said Article 16., Section 31, of our Constitution,
set up an express preference for one school of medicine’ over
the other schools oft medicine.
The word “medicine” as used in the above quoted
constitutional provision does not hnve the narrow meaning of
a pill or potion. It has been Interpreted and defined by our
Court oi Criminal Appeals as meaning and embracing the art
of healing by whatever scientific or supposedly scientific
method . The court said that “the word rmedidlne’. as used in,
the constitutional proviai’an referred to (meaning Article 16,
Sec. 31, aupra) meant tne art of preventing, curing or al-
leviating diseases, and of remedying, as far as possible, re-
sults of violence or accident; the court held that “the word
‘medicines meant some ~thing or aoms method supposed to poa-
aeaa curative power. I’ (See Rx pnrte Collins, 57 Cr. Rep. p: 2,
opinion by Judge Brooks; affirmed by Supreme Court of United
States, 32 S Ct. 286.)
The Legislature does not have the power to amend
the above quoted provision of our Constitution by the device
of ‘changing the definition of a word uacd in the Constitution.
It is an elemental principle of law that the Constitution of
Texas cannot be amended by le.glalative act. ..~
By reference to the decisions of our courts in
cases where chiropractors have been tried for alleged vio-
lations of the medical practice act, 011 of which is judl-
cial history within the knowledge of the Legislature; by
reference to the pages of contempporary history, recording
present day facts to which the courts cannot close their
eyes, by reference to the leglalatlve history 01 enactments
relative to chiropractors, by common knowledge, and by refer-
ence to the terms of this Bill Itself, we are of the opinion
that our courts of last resort will unanimously hold that
chiropractic is a ache 1 of medicine within the meaning of
the Constitution. It is certainly so regarded and advertised’
by its practitioners, champions, friends and adherents as “an
art of healing by a scientific method.” -It claims to be,
Bonorable W. A. Williamson, page 7
moat certainly, an "art of.curing, preventing or alleviating
diaanaea," and it is squally certain tnot 1;: ;irofeasea to be
zi 'some tz,ln& or some mztiiod supposed to pos2(-:3acurative
power." It is erther described by those term:, or it la not.
I, it ia deacribod by those terms, it fells w:.tnln tne mean-
ing and purview of tne quoted conatitunonal provisions. If
it falls wltliout all of aald terms and is embraced within
none .:l them, tnen It uaa nought to do with puolic health
and tne Lz&ialature 1s wltimut power t3 regulate it. (See
opinion 01 our Court of Criminal Appenla written by Judge
Davidson in the case of~Ex park W B. Rolatead, 182 S. W.
(2d) 473.
We,heve (jiven your request for this opinion our
moat careful conalderotion, and we hope we hove answered
fully your inquiry.
We have made .no study to oacertain whether tae cap-
tion is auiiI.cient and fience express no opinin a3 t:, tiiis
matter.
Very truly y3uT'a
ATTORNEY GENERAL OF'TEXAS
BY
George P Bk%%
* Aaaiatnnt
GPB:m:do
ENCLOSURE
APPROVED M.4R. 8, 1345
/a/ Grover Sellers
ATTCRNEY GEEERAL OF TEXAS
APPROVED
Opinion Committee
By /a/ W.J F.
Chairmen