delivered the opinion of the court:
In our view, the only question for decision here is, did the evidence offered upon the trial fairly tend to prove the defendant guilty, within the proper construction of the act?
It is contended by counsel for appellee that section 7 is unconstitutional because the title is not broad enough to include it, and that the act is liable to the objection that it confers special privileges upon certain classes. In answer to these contentions we only deem it necessai'y to cite the cases of Williams v. People, 121 Ill. 84, and People v. Blue Mountain Joe, 129 id. 370, in which these and other objections to the constitutionality of the law are fully discussed and the act sustained. It is true, these decisions were rendered under the acts of July 1, 1877, and July 1,1887; but neither of them is materially different from the present law, so far as the objections here made are concerned. It is clear, we think, from the several sections of this statute, that the State Board of Health is authorized to divide those who desire to practice medicine in this State into two classes, that is, those who desire to practice medicine and surgery in all their branches, and those who desire to practice any other system or science of treating human ailments without the use of medicine or instruments. Section 7 defines what shall be regarded as practicing physicians, within the meaning of the act, as including both classes, and we are-at a loss to perceive how it can be said that the defendant’s own testimony does not tend to show that he did treat and operate on patients for physical ailments, within the meaning of that section. It is true, he says his treatment was a mental science; but that statement is completely refuted by his testimony as to what' he did, and we think his evidence, as well as that of the witnesses sworn on bebalf of the People, at least fairly tended to prove, if it did not fully establish, that he did not use magnetic treatment, as commonly understood. He said: “I first make a diagnosis, then I remove the cause for that condition by working and freeing the nerve force; * * * I get as near the muscles as I can; if a person is fleshy it takes more force.” He also flexed, or, as one witness says, bent the limbs. In short, all the testimony tends to show that he practiced what is known as osteopathy — at least the treatment was of that nature.
It is insisted by appellee that the act does not include persons who do not use drugs, medicines or instruments, and in support of this position he cites Smith v. Lane, 24 Hun, 632; State v. Liffring, 46 L. R. A. 334; Nelson v. State Board of Health, (Ky.) 57 S. W. Rep. 501; State v. Mylod, (R. I.) 40 Atl. Rep. 753. We have carefully examined these cases, and find that neither of them sustains the contention. The question decided in each of those cases was, whether persons giving treatment, as the defendant did in this case, as osteopaths and as Christian scientists were prohibited by the statutes of. those States from administering to the sick and suffering, and it was held they were not. In other words, those decisions simply construe the statutes of their own States, none of which undertake, as does our act, to define the practice of medicine as including all “who shall treat or profess to treat, operate on or prescribe for any physical ailment or any physical injury to or deformity of another,” and none of the statutes construed in those cases undertook to classify physicians, as our statute does. It is true, the court said in the Nelson case, speaking of the defendant as an osteopath: “Appellant is in no proper sense a physician or surgeon. He does not practice medicine. He is rather on the plane of a trained nurse. If by kneading and manipulating the body he can give relief from suffering, we see no reason why he should not be paid for his labor, as other laborers. Services in kneading and manipulating the body are no more the practice of medicine than services in bathing a patient to allay his fever or the inflammation of a wound. Appellant may not prescribe or administer medicine or perform surgery, but so long as he confines himself to osteopathy, kneading and manipulating the body without the use of medicine or surgical appliances, -he violates no law and appellee should not molest him.”
We hardly think the large school of osteopathists, and those who believe in their method and system of treatment, would be willing to concede that such treatment is no more than that which a trained nurse might administer. While it may be truthfully said that it is not the practice of medicine in the common acceptation of that term, it cannot be claimed that it does not “profess to treat, operate on or prescribe for any physical ailment or any physical injury to or deformity of another,” and certainly it cannot be insisted that such persons do not practice another “system or science of treating human ailments withouj: the use of medicine internally or externally.” Section 17 of the statute of Nebraska regulating the practice of medicine and surgery in that State provides: “Any person shall be regarded as practicing medicine, within the meaning of this act, who shall operate on, profess to heal or prescribe for or otherwise treat any physical or mental ailment of another,” etc., and the Supreme Court of that State held in State v. Buswell, 58 N. W. Rep. 728, that the practice of treating patients for ailments by what is known as “Christian science” was a violation of that section.
But it is contended that the defendant in this case is shown by the testimony to be exempt from the operation of the statute by the last clause of the proviso to section 7, — that is, that he is a person “who ministers to or treats the sick or suffering by mental or spiritual means, without the use of any drug or material remedy.” We are unable to see how, under his own evidence, this position can be maintained. It is true, he does not use “drugs or other material remedy;” neither does he treat the “sick or suffering by mental or spiritual means,” and therefore whether the word “material” is to be construed as meaning other treatment similar to the use of drugs is wholly immaterial. Very clearly this provision means that those who pretend to relieve the ailments of others by mere mental or spiritual means shall not be considered within the act; but if the defendant, under the proof in this case, can bring himself within that exception, then everyone who treats diseases without administering medicine, either externally or internally, can also be brought within the exception. Pew, perhaps, if any, physicians attempt to treat the sick and suffering without appealing to the mental faculties, to a greater or less degree, in aid of the remedies they apply or prescribe; but that is not treating the sick by mental or spiritual means.
We all agree that the objects and purposes of this and similar statutes are to protect the sick and suffering, and the community at large, against the ignorant and unlearned who hold themselves out as being possessed of peculiar skill in the treatment of disease; from holding themselves out to the world as physicians and surgeons without having acquired any knowledge whatever of the human system or the diseases and ailments to which it is subject. Without some knowledge of the location and offices of the various nerves, muscles and joints, the manipulation of those parts and the flexing of the limbs cannot be intelligently, if, indeed, safely, practiced. Merely giving massage treatment or bathing a patient is very different from advertising one’s business or calling to be that of a doctor or physician, and, as such, administering osteopathic treatment. The one properly falls within the profession of a trained nurse, while the other does not.
We think the circuit court erred in instructing the jury to find for the defendant, and that the Appellate Court erred in affirming that judgment.
Reversed and remanded.