Opinion
6 Div. 714.
January 13, 1927.
Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.
Drennen Burns and Thomas Dozier, all of Birmingham, for appellant.
Mechanotherapy, as used in the statute, does not apply to or include appellant's profession, and no certificate is required of him. Brooks v. State, 88 Ala. 127, 6 So. 902. The statute under which appellant is proceeded against is void. Zeigler v. S. N. A. R. Co., 58 Ala. 594; Crook v. Newborg, 124 Ala. 479, 27 So. 432, 82 Am. St. Rep. 190; 298 Ill. 304, 131 N.E. 809, 16 A.L.R. 703. The complaint is subject to the demurrer.
Jim Davis, Sol., and Frank M. Dixon, Deputy Sol., both of Birmingham, for appellee.
It is not necessary to allege the branch or school of treatment that appellant was engaged in practicing. Wideman v. State, 213 Ala. 170, 104 So. 440; Cummings v. State, 214 Ala. 209, 106 So. 852; Robinson v. State, 212 Ala. 459, 102 So. 693. The practice of chiropractic is a treatment of diseases such as is included in the medical Practice Acts. Authorities, supra; Williamson v. State, 16 Ala. App. 392, 78 So. 308; Belding v. State, 214 Ala. 380, 107 So. 853; Harris v. State, ante, p. 56, 109 So. 291. The Legislature has the authority, under the police power of the state, to prescribe the qualifications and mode of examination of applicants to practice the profession of treating diseases of human beings. Bragg v. State, 134 Ala. 170, 32 So. 767, 58 L.R.A. 925; Fealy v. City of Birmingham, 15 Ala. App. 367, 73 So. 299; Smith v. State, 8 Ala. App. 352, 63 So. 28.
Action in the nature of quo warranto, brought in the name of the state against respondent (appellant here) for the purpose of excluding him from the exercise of his profession of treating, or offering to treat, diseases of human beings. Section 9932, subd. 1, Code 1923.
The complaint was sufficient, and the demurrer interposed thereto properly overruled. Donovan v. State (Ala. Sup.) 109 So. 290; Cummings v. State, 214 Ala. 209, 106 So. 852; Ex parte Wideman, 213 Ala. 170, 104 So. 440.
Ante, p. 56.
Chiropractors are required by law to have a certificate of qualification to treat diseases of human beings. Section 2837, Code of 1923; Harris v. State, ante, p. 56, 109 So. 291. In this latter case it was said:
" 'Chiropractus' is specially named as one of the schools of 'mechanotherapy' in whose favor all educational qualifications are waived except a diploma showing graduation from such school. The subjects upon which the applicants are examined are limited. Code, § 2837. The certificate entitles the holder to treat in accordance with the teachings of his 'school' or 'sect.' Code, § 2839."
The foregoing sufficiently answers the argument here made on the construction of the statute by reason of the use of the word "mechanotherapy" therein, and which needs no further comment. Nor can sound objection be made to the statute in that the certificate so issued to the chiropractor is limited to treatment in accordance with his school. His examination is likewise limited, and the limitation of his certificate as prescribed by the statute is in accord with his methods of treatment.
It is further Insisted the statute is unreasonably discriminatory in requiring examination upon some subjects which are not needed in the practice of this particular school. We think the following language of the court in State v. Marble, 72 Ohio St. 21, 73 N.E. 1063, 70 L.R.A. 835, 106 Am. St. Rep. 570, 2 Ann. Cas. 898, is directly applicable in response to this insistence:
"To admit that a practitioner may determine what treatment he will give for the cure of disease, and that the state may examine him only respecting such treatment would be to defeat the purpose of the statute and to make effective legislation of this character impossible."
To like effect see Germany v. State, 62 Tex. Cr. R. 276, 137 S.W. 130, Ann. Cas. 1913C, 477, and other authorities cited in note to People v. Love, 298 Ill. 304, 131 N.E. 809, 16 A.L.R. 703.
It is averred in the answer that the medical board for examination of applicants is not sufficiently skilled and competent to pass upon the proficiency of one in respondent's line of work, and that the members thereof are prejudiced against it, and that certificate could not therefore be obtained, though there is no allegation that respondent has ever presented himself for examination. The argument in support of these averments is addressed, however, to a wholly anticipated unfair administration of the law, and in no manner affects the validity of the law itself. The statute here assailed was enacted under the police power of the state in promotion of the public health, and has been upheld in previous decisions of this court. Harris v. State, supra; Ex parte Wideman, supra; Wideman v. State, 20 Ala. App. 422, 104 So. 438.
In the recent case of Ferguson v. State (Ala. Sup.) 110 So. 20, it was urged that the statute was violative of several provisions of the Constitution, both state and federal, but these insistences were held to be without merit. A further discussion, in view of these authorities, is not considered unnecessary.
Ante p. 244.
We entertain the view the statute is not unreasonably discriminatory or violative of any constitutional provision.
That the evidence for the plaintiff was sufficient to establish against defendant a prima facie case is not seriously questioned. The defendant offered nothing to the contrary, and the affirmative charge with hypothesis was properly given.
The assignments of error argued by counsel for appellant have been duly and carefully considered. We find no error, and the judgment will accordingly be here affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.