{ "id": 1311016, "name": "State v. Gallagher", "name_abbreviation": "State v. Gallagher", "decision_date": "1912-01-08", "docket_number": "", "first_page": "593", "last_page": "598", "citations": [ { "type": "official", "cite": "101 Ark. 593" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "67 Ark. 359", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1152595 ], "opinion_index": -1, "case_paths": [ "/ark/67/0359-01" ] }, { "cite": "67 Ark. 159", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1152564 ], "opinion_index": -1, "case_paths": [ "/ark/67/0159-01" ] }, { "cite": "61 Ark. 502", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "98 Am. St. Rep. 731", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": -1 }, { "cite": "46 S. E. 401", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": -1 }, { "cite": "133 N. C. 729", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659504 ], "opinion_index": -1, "case_paths": [ "/nc/133/0729-01" ] }, { "cite": "95 Am. St. Rep. 471", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": -1 }, { "cite": "33 So. 653", "category": "reporters:state_regional", "reporter": "So.", "opinion_index": -1 }, { "cite": "81 Miss. 291", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 1695572 ], "opinion_index": -1, "case_paths": [ "/miss/81/0291-01" ] }, { "cite": "70 N. J. L. 34", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 619663 ], "opinion_index": -1, "case_paths": [ "/njl/70/0034-01" ] }, { "cite": "76 Am. St. Rep. 358", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": -1 }, { "cite": "124 S. W. 956", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "109 N. W. 730", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "124 N. W. 627", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "54 N. W. 513", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "51 L. R. A. 717", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": -1 }, { "cite": "61 Ohio 39", "category": "reporters:state", "reporter": "Ohio", "opinion_index": 0 }, { "cite": "84 Ark. 475", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1524370 ], "opinion_index": 0, "case_paths": [ "/ark/84/0475-01" ] }, { "cite": "61 Ark. 502", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "46 S. E. 401", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "133 N. C. 729", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659504 ], "opinion_index": 0, "case_paths": [ "/nc/133/0729-01" ] }, { "cite": "33 So. 653", "category": "reporters:state_regional", "reporter": "So.", "opinion_index": 0 }, { "cite": "81 Miss. 291", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 1695572 ], "opinion_index": 0, "case_paths": [ "/miss/81/0291-01" ] }, { "cite": "70 N. J. L. 34", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 619663 ], "opinion_index": 0, "case_paths": [ "/njl/70/0034-01" ] }, { "cite": "76 Am. St. Rep. 358", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "70 Ark. 451", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1509511 ], "opinion_index": 1, "case_paths": [ "/ark/70/0451-01" ] }, { "cite": "54 Ark. 612", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 1 } ], "analysis": { "cardinality": 654, "char_count": 13162, "ocr_confidence": 0.573, "pagerank": { "raw": 2.6847402829076743e-07, "percentile": 0.8269792949318667 }, "sha256": "e9ef8c4f58218ccc656986220dd022ac429b08eed9ed871c6ebe1bc7a8ab6866", "simhash": "1:7143b7b03dabb4f9", "word_count": 2228 }, "last_updated": "2023-07-14T18:07:15.186986+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "State v. Gallagher." ], "opinions": [ { "text": "Kirby, J.,\n(after stating the facts). The only question presented is whether the indictment charges appellee with the commission of a public offense under sections 5242 and 5243 of Kirby\u2019s Digest, which read as follows:\n\u201cSection 5242. Every person who shall practice or who shall attempt to practice medicine in any of its branches, or who shall perform or attempt to perform any .surgical operation for any person, or upon any person within this State, without first having complied with the provisions of this act, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than twenty-five dollars nor more than five hundred dollars; or by imprisonment in the county jail for a period of not less than ten days nor more than ninety days or by both fine and imprisonment; and each day of such practice shall constitute a separate offense; (b) provided, however, that this shall not apply to persons now engaged in the practice of medicine until ninety days after the passage of this act, the time allowed them for procuring their certificate. \u201d\n\u201cSection 5243. Any person shall be regarded as practicing medicine, in any of its departments, within the meaning of this act, who shall append \u2018M. D.\u2019 or \u2018M. B.\u2019 to his name; or repeatedly prescribe or direct, for the use of any person or persons, any drug or medicine or other agency for the treatment, cure or relief of any bodily injury, deformity or disease. Provided that nothing in this act shall be so construed as to prevent any person from administering domestic remedies without receiving any compensation therefor, and nothing herein shall apply to the so-called midwife.\u201d\nThe indictment accuses Doctor Gallagher of the unlawful practice of medicine, alleging that he \u201cdid unlawfully and repeatedly prescribe and direct for the use of Mrs. Randolph Gibson an agency commonly known as chiropractics for the treatment, cure and relief of a bodily disease of the said Mrs. Randolph Gibson; the said Doctor Gallagher not then and there having first procured a certificate authorizing him to practice medicine as provided by the revised statutes of the State of Arkansas. \u201d *\nAppellee is not charged with performing or attempting to perform any surgical operation, nor with having appended either the letters, \u201cM. D.\u201d or \u201cM. B.\u201d to his name, nor with prescribing any drug or medicine in the treatment of disease, but only with prescribing and directing for the use of the patient \u201can agency commonly known as chiropractics, for the treatment, cure and relief of a bodily disease,\u201d etc.\nIt is claimed by appellee that chiropractics is not an agency, within the meaning of the said law, and it is defined in his brief as \u201c the science and art of adjusting by hand the displacements of whatsoever character that may occur in the human anatomy, the three hundred articulations of the skeletal frame being prominent, but especially the fifty-two articulations of the vertebral column, to remove abnormal pressure and occlusion from the nerve trunks which supply vitality, sensation and motion to the entire body. * * * When the articulations of the skeletal frame are perfectly adjusted so that the improper pressure is relieved and removed, the nerve stimulus restores a normal vitalty, which is health. The chiropractor is a mechanic whose duty it is to see that the human anatomy is in working order. \u201d\nChiropractic is derived from the Greek, and means, primarily, to do by hand \u2014 hand manipulation. Webster\u2019s New International Dictionary defines chiropractics to be a system of healing that treats disease by manipulation of the spinal column. No benefit would be derived from reciting the definition of the practice of medicine, as given by Webster, the Standard Dictionary, or the statutes of other jurisdictions, our own statute having defined it as already set out in said section 5248. Foo Lun v. State, 84 Ark. 475.\nIn this definition the expression, \u201cmedicine, in any of its departments, \u201d is as broad and inclusive as the expression, \u201cmedicine, in any of its branches, \u201d contained in section 5242, and was doubtless used with the same meaning. It is not and can not be contended that chiropractics is a drug or medicine, within the meaning of the act, and, although it is an agency, in the common acceptation of the term; and if that term had been used without the association in which it is found, there is no doubt but that it would have included the practice of chiropractics, but it was not so used.\nUnder the familiar rule of construction, the doctrine ejusdem generis, this general term \u201cother agency\u201d must be limited by the meaning of the specific terms \u201cdrug or medicine\u201d preceding it, and can only include agencies of a like nature as those designated by said words. Lewis\u2019 Sutherland, Statutory Construction, \u00a7 422; Lee v. Huff, 61 Ark. 502.\nThis rule of construction, like others, can only be used in ascertaining the legislative intent, and not for the purpose of controlling it, or confining the operation of a statute within narrower limits than was intended by the Legislature. It does not, however, deprive the term \u201cother agency,\u2019\u2019soused, of all meaning, but only limits its meaning to agencies of the like nature and quality as those designated by the particular words.\nThe practice of medicine act was designed for the protection of the public against all who are not learned and skilled in the science of medicine and the treatment of diseases, and is to be liberally construed in that regard. Still it inures to the benefit of the favored class, those who are sufficiently learned and skilled, and are permitted by its terms to practice the profession, and creates a new offense for its violation unknown to the common law. On that account, it must be strictly construed.\nThe practice of chiropractics, as defined, understood and used in the treatment of ailments of the body, is not included within the definition of the practice of medicine in said statute, and not limited by it to those only who have procured certificates in accordance with said act.\nThe many cases cited from other States do not assist greatly in the construction of this statute, having arisen under statutes materially different from ours; but for a like construction of similar statutes, see State v. Liffring, 61 Ohio 39, 76 Am. St. Rep. 358; State v. Herring, 70 N. J. L. 34; 1 Am. & Eng. Ann. Cases 511. See also State v. Haydon, 81 Miss. 291, 33 So. 653; State v. Biggs, 133 N. C. 729, 46 S. E. 401.\nThis statute was not intended to include the practice of osteopathy, which chiropractics more nearly resembles than it does the practice of medicine, for the Legislature passed an act regulating that practice, which expressly declares that it is not included within the practice of medicine. It is not necessary to decide whether the statute regulating the practice of osteopathy was violated by appellee by the practice of chiropractics, the indictment not charging a violation thereof.\nWe are of the opinion that the indictment did not charge appellee with the commission of a public offense, and the court did not err in sustaining the demurrer. The judgment is affirmed.", "type": "majority", "author": "Kirby, J.," }, { "text": "Hart, J.,\n(dissenting). I believe that a chiropractor is amenable to the penalties of the statute under consideration. Our statute is broader than the statutes in the cases cited in the opinion of the majority. The statute under consideration specifically refers to the practice of medicine in all its branches.' This would include osteopathy except that a subsequent section of the same act expressly excludes it from the definition of the practice of medicine in all its branches. See Kirby\u2019s Digest, sections 5251-60. The latter section expressly exempts osteopathists from the operation of the statute.\nThe phrase \u201cother agency\u201d is a very broad term, and I think includes the use of the hands. The practice of medicine in all of its branches includes surgery, and surgery is practiced by manual operation as well as by instrumental appliances.\nIn the case of Wallis v. State, 54 Ark. 612, the court held: \u201cThe statute defining the crime of embezzlement by \u2018any carrier or other bailee\u2019 is not confined to bailees of the generic class \u2018carriers/ but embraces all bailees.\u201d See also Matthews v. Kimball, 70 Ark. 451.\nThe object of the statute under consideration is, broadly stated, for the protection of the public health, and the Legislature evidently intended to guard the overcredulous against injury that might result from yielding to the solicitations of those who undertake to diagnose and prescribe for human ailments without possessing the learning and qualifications prescribed by our statutes. The fact that the Legislature used the term \u201cpractice of medicine in all its branches,\u201d and expressly exempted osteopathists from the operation of the statute, convinces me that it intended to include all others, who practice the art of healing by the phrase \u201cother agency.\u201d", "type": "dissent", "author": "Hart, J.," } ], "attorneys": [ "Hal L. Norwood, Attorney General, and William H. Rector, Assistant, for appellant; John D. Arbuckle, Prosecuting Attorney, Thomas A. Pettigrew and Sam R. Chew, of counsel.", "Geo. S. Evans, for appellee." ], "corrections": "", "head_matter": "State v. Gallagher.\nOpinion delivered January 8, 1912.\nPhysicians and surgeons \u2014 violation of practice act \u2014 indictment.\u2014 An indictment which alleges that defendant did unlawfully and repeat, edly prescribe and direct for the use of a certain patient \u201can agency commonly known as chiropractics for the treatment, cure and relief of a bodily disease, \u201d etc., does not allege an offense within Kirby\u2019s Digest, sections 5242,5243, making it a misdemeanor to practice medicine without complying with such act, and providing that any person shall be regarded as practicing medicine within the meaning thereof \u201cwho shall append \u2018M. D.\u2019 or \u2018M. B.\u2019 to his name, or repeatedly prescribe or direct, for the use of any person or persons, any drug or medicine or other agency for the treatment, cure or relief of any bodily injury, deformity or disease. \u201d\nAppeal from Franklin Circuit Court, Charleston District; Jeptha H. Evans, Judge;\naffirmed.\nSTATEMENT BY THE COURT.\nAppellee was charged with , a violation of the practice of medicine act, in the Franklin Circuit Court, upon the following indictment:\n\u201cThe grand jury of Franklin County and Charleston District, in the name and by the authority of the State of Arkansas, accuse one Doctor Gallagher of the crime of unlawful practice of medicine committed as follows: The said one Doctor Gallagher on the 6th day of September, 1911, in the county and district aforesaid, did unlawfully and repeatedly prescribe and direct for the use of Mrs. Randolph Gibson an agency commonly known as chiropractics for the treatment, cure and relief of a bodily disease of the said Mrs. Randolph Gibson; the said Doctor Gallagher not then and there having first procured a certificate authorizing him to practice medicine as provided by the Revised Statutes of the State of Arkansas, against the peace and dignity of the State of Arkansas.\u201d\nTo the indictment a general demurrer was interposed and sustained, and from the judgment the State appealed.\nHal L. Norwood, Attorney General, and William H. Rector, Assistant, for appellant; John D. Arbuckle, Prosecuting Attorney, Thomas A. Pettigrew and Sam R. Chew, of counsel.\nThe prohibitions in the statute, Kirby\u2019s Digest \u00a7 \u00a7 5241 and 5243, are directed against the practice of medicine' by any school, or under any system, without authority prescribed by the law. Webster defines the practice of medicine as \u201cthe science and art dealing with the prevention, cure or alleviation of disease;\u201d and the Standard Dictionary defines it as \u201cthe' healing art \u2014 the science of the preservation of health and treating of disease for the purpose of cure.\u201d In view of these definitions, it is clear that the Legislature, in enacting the law regulating the practice of medicine, intended by the use of the term \u201cother agency\u201d to inhibit any and all methods and means of the practice unless the person engaged therein had in all respects complied with the law. Chiropractics comes within the meaning of the statute. 124 N. W. (Ia.) 167; 58 L. R. A. (Ala.) 925; 81 N. E. (N. Y.) 1171; 85 N. E. (Mass.) 858; 37 N. W. (Mich.) 888; 24 L. R. A. (Neb.) 68; 51 L. R. A. 717; 54 N. W. 513; 90 S. W. (Tenn.) 627; 55 N. E. (Mass.) 482; 101 N. W. (Ia.) 429; Id. 431; 124 N. W. 627; 109 N. W. 730; 103 N. W. (S. D.) 17; 121 S. W.. (Tex.) 501; 124 S. W. 956; 90 N. E. (Ind.) 62; 135 S. W. (Mo.) 465; 114 Pac. (Kan.) 390; 114 Pac. (Wash.) 897; 131 N. W. (Ia.) 659.\nGeo. S. Evans, for appellee.\nThis case turns upon the construction of the statute defining the practice of medicine, and in this the cases cited by appellant are of no assistance because the statutes upon which the decisions cited are based define the phrase \u201cpractice of medicine\u201d differently from ours. Words are limited by their environment; their meaning is ascertained from their context and their relation to other words. Such being the rule, the phrase \u201cother agency\u201d employed in the statute does not include chiropractics. Kirby\u2019s Digest, \u00a7 5243 ; 61 O. St. 39; 76 Am. St. Rep. 358; 70 N. J. L. 34; 1 Am. & Eng. Ann. Cases, 51; 81 Miss. 291; 33 So. 653; 95 Am. St. Rep. 471; 133 N. C. 729; 46 S. E. 401; 98 Am. St. Rep. 731. See also 61 Ark. 502; 67 Ark. 159; 67 Ark. 359." }, "file_name": "0593-01", "first_page_order": 613, "last_page_order": 618 }