Territory of New Mexico v. Newman

OPINION OP THE COURT.

ABBOTT, J.

1 We take up the appellant’s objections to the judgment appealed from in the inverse order of their importance; and, first, the claim that it was error to instruct the jury that there was no evidence to warrant a conviction on the first and third subdivisions. of Section 6, of Chapter 40, of the Session Laws of 1903, and that they should take into consideration only the evidence bearing on the second sub-division. The instruction objected to was as follows: “The practice of medicine. . . means (1) to open an office for the practice of medicine, or (2) to announce to the public or to any individual in any way, a desire or willingness, or readiness, to treat the sick or afflicted-, or investigate or diagnose or offer to investigate or diagnose, any physical or mental ailment or disease, of any person, or (3) to suggest, recommend, prescribe or direct for the use of any person any drug, medicine, appliance, or other agency, whether material or not material, for the use, relief or palliation of any ailment or disease of the mind or body, or the cure or relief of any wound, fracture, or bodily injury or deformity, after having received or with the intent to receive therefore, either directly or indirectly any bonus, gift or compensation.”

This instruction seems to us to have been favorable to the defendant rather than otherwise, since it greatly restricted the number of acts which the jury might otherwise have found the defendant committed in violation of the statute. The sub-division complained of was a proper and appropriate one, under the circumstances.'

2 The appellant objects, further, that by the statute in question a new, unusual and false meaning was given to the phrase “practicing medicine;” that he never engaged or offered to engage in the practice of medicine, that on the contrary the evidence showed him to be a practitioner of a system of drugless healing, and that the legislature could not so extend the meaning of said words “practice of medicine” as to cover and include methods of healing diametrically opposed to the practice of medicine as theretofore commonly understood and defined, and he cites in support of his contention, State of North Carolina v. Biggs, 133 N. C. 720, in which that doctrine is strongly set forth and adopted as the opinion of the court. But it seems to us that the opinion makes the question one of form rather than substance, whereas, it is the thing prohibited, and not the words by which it is described that is alone important. It would perhaps have been possible for the legislature to choose a better phrase under which to group healing methods of all lands, although the use of the expression “practicing medicine” to mean the art of healing is by no means new, but rather a return to the original meaning of the word medical.

But whatever may be thought of the terms in which . the prohibition-of the statute is expressed, there can be no doubt of their meaning, -and the appellant was clearly forbidden to do that which the evidence shows, and he does not deny, that he did, without a license from the board of health provided for by the statute. That it is not claimed, he had, and, if the.statute is valid, he is liable to the penalty imposed by it.

The appellant, however, contends that the statute is invalid; first, if we correctly understand the brief submitted in his behalf, because certain acts are made punishable if done for fee or reward, which otherwise are not prohibited, and generally because it is contrary to the 14th amendment of the constitution of the United States which forbids class legislation. It should be noted at the outset that the statute does not forbid the use of methods which the appellant- says he follows for the cure of disease or any other methods whatever; but only requires that those who prescribe or make use of them in the practice of medicine as defined by the statute shall have qualified' themselves for such practice and received a license as evidence of .such qualification.

That the practice of the art of healing in whatever form and under whatever name it may be followed, is subject to regulation-by legislative enactment, under the police power of the state, is not questioned by the appellant, and, indeed, the principle is so well established that it is no longer open to question. If there were no such rights and regulations it would be necessary to create it for the protection of the public against those who take advantage of the wide spread ignorance which exists in relation to the human organism to impose their useless and often- harmful nostrums, and treatments on those who are, or may be led to believe they are in some way diseased. In Bent v. West Virginia, 132 U. S. 114, Field, J., says:

“Few professions require more careful preparation by one who seeks to enter it than that of medicine. It has to deal with all those -subtle and mysterious influences upon which health and life depend, and requires not only a knowledge of the properties of vegetable and mineral substances, but of the human body in all its complicated parts’ and their relation to each other as well as their influence upon the mind. Every one may have occasion to consult him, (the physician). But comparatively few can judge of the qualifications of learning and skill which he possesses. Reliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he possesses the requisite qualifications.” State ex rel. Burrough v. Webster, et al., 150 Ind. 607.

It is equally certain that the right to regulate should be exercised only in the public interest and not to create monopolies, or otherwise to violate those fundamental rights which are secured to all citizens.

Have the rights of the appellant been thus infringed by the statute in question ?

That certain acts should be made punishable if done for gain which are not prohibited if done without bad motive, seems to us to be a matter properly within the discretion of the legislature. It may reasonably have been assumed that the public needed no protection against charitable or friendly ministrations in which the elements of good faith and sincerity of belief in the remedies prescribed would naturally be present, and in which greed could have no place.

3 The appellant further contends that by the statute in question a favored class is created, and that he is prevented from following his calling and is deprived of a valuable right without process of law. This he says is accomplished by requiring him to obtain a license, as a prerequisite to the exercise of his art, from a board composed exclusively of doctors of medicine, whereas he uses no medicine and is in fact a disbeliever in and opposed to the practice of medicine as commonly understood. It is true that the statute commits the licensing power to a board composed of physicians who shall be graduates of some medical school in good standing, but the inclusion under the term “practice of medicine” of what it is made to cover by the statute might reasonably be construed to extend the meaning of the words used to describe the members of the board, in like manner. Whether that view be taken or not, it is certain that the board provided for could be held by the courts to the exercise of its powers in a reasonable and just manner and would have no right to refuse to issue a license to any one merely because of his being a practitioner of some school of healing different from that to which the members of the board belong.

The appellant claims, also, that -the educational qualifications imposed by the statute are not adapted to or required in the simple method of healing which he follows and that they amount to a prohibition of his constitutional right to follow his calling. In an able and exhaustive opinion on the construction of a statute differing in no essential feature frorii the one under consideration, G-illett, X, says, in Parks v. State, 159 Ind. 211; 59 L. R. A. 190: “We think the legislature is the appropriate tribunal to determine' the degree of learning that those who gain a livelihood by seeking to relieve the bodily ailments of .others should posess,” and in Dent. v. West Virginia, supra. it is said: “The nature and extent of the qualifications required must depend primarily upon the judgment of the state as to their necessity. If they are appropriate to the calling or profession and attainable bv reasonable study or application, no objection to their validity can be raised because of their stringency or difficulty. It is only when they have no relation to such calling ox profession, or are unattainable by such reasonable study and application, that they can operate to deprive one of his right to' pursue a lawful vocation.”

It is true that “no impediment should be interposed to the pursuits of any one except as applied to the same pursuits bv others under like circumstances.” Barbier v. Connely, 113 U. S. 27. But the requirements are the same for all who purpose to engage in the practice of medicine as defined by the statute in question, and therefore not open to the objection that any particular class is unduly favored.

William J. Mills, C. J., Frank W. Parker, A. J., John E. McFie, A. J., concur. Mann, -A. J., dissents. Pope, A. J., having heard the case below did not participate in this decision.