I concur in the judgment, but I am not in accord with the views expressed by the majority opinion in making disposition of the first point discussed therein. Considering the importance of the question mentioned, it is proper that I should state the grounds upon which I decline to concur in those views, presenting them in outline only and not with the assiduity which characterizes the treatment of the subject in the majority opinion. I shall then state with great brevity the reasons which impel me to concur in the judgment.
If any proposition of law is well settled, in most jurisdictions, at least, it is that every person has the constitutional right to resort to such established and legalized school or system of healing as he pleases for relief from his ailments. When men differ in opinion merely as to the efficiency of different schools or systems, it is not a proper subject of legislation to attempt to control or limit the right of any to act pursuant to his opinions or beliefs by resorting to the school or system of his choice (Eastman v. State,109 Ind. 278 [58 Am. Rep. 400, 10 N.E. 97]; State v. Liffring,61 Ohio St. 39 [76 Am. St. Rep. 358, 46 L. R. A. 334, 55 N.E. 168]; State v. Biggs, 133 N.C. 729 [98 Am. St. Rep. 731, 64 L. R. A. 139, 46 S.E. 401]; State v. Smith, 25 Idaho, 541 [138 P. 1107]; Bishop on Statutory Crimes, sec. 988a; Freund on Police Power, sec. 16. As having a general bearing upon the question, see, also, State v. Gravett, 65 Ohio St. 289 [87 Am. St. Rep. 605, 55 L. R. A. 791, 62 N.E. 325]; LouisianaState Board v. Carpentier, 140 La. 405 [73 So. 248];American School v. McAnnulty, 187 U.S. 94 [47 L.Ed. 90, 23 Sup. Ct. Rep. 33, see, also, Rose's U.S. Notes]). This principle has found frequent expression, not only in the cases cited, but in others, at the suit of the homeopath, the eclectic, the osteopath, the chiropractor, and the Christian Scientist.
A necessary corollary to the proposition just stated, so it seems to me, is that one may not be deprived, constitutionally, *Page 222 of his right to have alcoholic beverages prescribed for him as a medicine. If one may resort, without fear of legislative interference, to the duly qualified practitioners under the system in which that one believes, it must be true that he is also entitled, without fear of such interference, to use the medicines which his practitioner prescribes, as well as to submit himself to the rubbings or massage, or insist upon the benefit of the prayers, which are a part of the practitioner's system. Of what value is the patient's right to resort to the practitioner if he may be denied the services of the latter after he is called? Of what value is that right if the patient may be denied the medicines which the practitioner prescribes for his relief, whether alcohol or hot water? It appears to me, at least so far as the expressions of the majority opinion to the contrary are concerned, that a patient must have the constitutional right to resort, without stint or limitation, except as imposed by the practitioner in his prescriptions, to the medicine in which the school of the honest and qualified physician believes.
I am, therefore, impelled to the view that certain authorities which the majority opinion discredits are closer to the instant case than are those which it follows. The authorities which I have in mind are the ones to the effect that the legislative department may not prohibit the prescription and sale of intoxicating liquor as a medicine (seeSarrls v. Commonwealth, 83 Ky. 327; Commonwealth v. Fowler,96 Ky. 166 [33 L. R. A. 839, 28 S.W. 786]; McNulty v. Toof,116 Ky. 202 [75 S.W. 258]; Ex parte Cowert, 92 Ala. 94, [9 So. 225] ; Town of Selma v. Brewer, 9 Cal.App. 70 [98 P. 61]; Freund on Police Power, secs. 222, 223; Tiedeman on State and Federal Control of Persons and Property, sec. 122). It is clear to me that, if these authorities state the law, it logically follows that the amount to be sold cannot be limited by legislation. If it be conceded that the physician may prescribe and the patient use a certain drug, it must be true that the physician must be allowed a free and untrammeled judgment to determine the quantity to be prescribed and used. If he may not exercise that judgment the patient is deprived of his services, for if in the opinion of the physician a given quantity of any drug is necessary to a healing, for him to be forced to prescribe less were as if he were forbidden to prescribe at all. *Page 223
Notwithstanding all that I have said above, there are at least two decisions of the supreme court which appear to me to preclude the application of the principles to which I have referred. They are Abeel v. Clark, 84 Cal. 226 [24 P. 383], and French v. Davidson, 143 Cal. 658 [77 P. 663], and they establish the rule that compulsory vaccination laws are constitutional. There are certain differences between those cases and the one now before us, but it does not appear to me that the differences are such as to render the cases inapplicable here. It is upon those two cases alone that I base my present concurrence.