{ "id": 8659504, "name": "STATE v. BIGGS", "name_abbreviation": "State v. Biggs", "decision_date": "1903-12-18", "docket_number": "", "first_page": "729", "last_page": "742", "citations": [ { "type": "official", "cite": "133 N.C. 729" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "41 L. R. A., 689", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "58 Ohio St., 599", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 941050 ], "opinion_index": 0, "case_paths": [ "/ohio-st/58/0599-01" ] }, { "cite": "106 N. C., 667", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651961 ], "opinion_index": 0, "case_paths": [ "/nc/106/0667-01" ] }, { "cite": "68 N. C., 505", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "64 N. C., 801", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "131 N. C., 723", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "121 N. C., 646", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 1065, "char_count": 26738, "ocr_confidence": 0.405, "pagerank": { "raw": 5.412612321660605e-07, "percentile": 0.9445755331681499 }, "sha256": "d5923929ce950f7a2144d56baea519778ee7cb451be2b91e028f6d5285f4e855", "simhash": "1:2f1475aaf4f6059a", "word_count": 4537 }, "last_updated": "2023-07-14T15:14:21.840787+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WalKBR, and OoNNOR, JJ., concur in result." ], "parties": [ "STATE v. BIGGS." ], "opinions": [ { "text": "Clare, O. J.\nThe defendant is indicted on a charge that he \u201cdid unlawfully and wilfully begin, engage in and continue the practice of medicine and surgery and the branches thereof for fee or reward, without having obtained a license so to do from the Board of Medical Examiners of the State of North Carolina.\u201d Upon the facts found the Oo-urt was of opinion that the defendant was guilty. The defendant appealed from the judgment imposed.\nTlie special verdict found that the defendant advertised bimself as a \u201cnon-medical physician\u201d; that be held himself out to the public to cure disease by a \u201csystem of drugless healing, and treats patients by said system without medicine, claiming not to cure by faith\u201d; that he advertises to- cure by \u201cnatural methods,\u201d without medicine or surgery. The only acts that he is found by the verdict to- have performed are that \u201che administers massage, baths and physical culture, manipulates the muscles, bones, spine and solar plexus, and kneads the muscles with the fingers of the hand. He writes no prescriptions as to diet, but advises his patients what to eat and what not to eat; all the above treatment is administered to the exclusion of drugs.\u201d It was admitted that the defendant was not licensed by the State Medical Board, and claims no exemption under the provisions of the act of 1903, as a nurse or midwife, nor as one curing by prayer, and then there is the important finding that \u201cthe defendant charges a fee or reward for his services,\u201d and has treated patients by the above treatment and received payment therefor since the passage of chapter 697, Laws 1903, \u201cTo define the practice of medicine and surgery.\u201d\nSection 3124 of The Code requires that every person who applies for license to practice \u201cmedicine or surgery or any of the branches thereof,\u201d shall stand an examination in \u201canatomy, physiology, surgery, pathology, medical hygiene, chemistry, pharmacy, materia, medica, therapeutics, obstetrics and the practice of medicine.\u201d There was added by chapter 117, Laws 18-85, the following provision: \u201cAnd any person who shall begin the practice of medicine or surgery in this State for fee or reward, after the passage of this act, without first having obtained license from said Board of Examiners (meaning the State Board of Medical Examiners) shall not be entitled to sue for or recover before any court any medical bill for services rendered in the practice of medicine or surgery or any of the branches thereof, but shall also be guilty of a misdemeanor and upon conviction thereof shall be fined not less than $25 nor more than one hundred dollars or imprisoned at the discretion of the Court for each and every offense.\u201d\nThe constitutionality of this last act has been vigorously assailed in the courts on the ground that every one had an \u201cinalienable right to life, liberty and the pursuit of happiness,\u201d as our great Declaration phrases it, and that by that guarantee it is the right of every one to earn his livelihood by pursuing any calling or vocation not unlawful, and that to place his liberty to do so within the power of a committee chosen by those already pursuing any given calling would be to infringe upon section 7, Article I of our State Constitution, which forbids exclusive privileges and emoluments to any set of men, and section 31 of the same article, which prohibits \u201cmonopolies and perpetuities.\u201d Of late years there has been added the argument that such act is also obnoxious to the Fourteenth Amendment to the Constitution of the United States, which prohibits any State \u201cto deny to any person the equal protection of the law.\u201d\nThere was undeniably great force in the argument on that side. The law-making power slowly in this State and in others yielded to the view that it could or should pass such act. In 1858-\u201959, chapter 258, it first incorporated \u201cThe State Medical Society,\u201d and authorized the above examination, and prohibited any one to practice medicine or surgery or prescribe for the cure of diseases for fee or reward without such license, but was careful to add a proviso that no one who should practice without such license should be guilty of a misdemeanor, the only penalty being that if he practiced on credit he could not recover his fees in the courts. The law remained thus till the above-recited act, passed in 1885, and which was made prospective. The constitutionality of this last statute was fully considered, and after a most able argument against it by counsel was sustained by this Court, but not without great hesitation, and upon the ground solely that the act was \u201can exercise of the police power for the protection of the public against incompetents and imposters, and in no sense the creation of a monopoly or special privilege.\u201d S. v. Call, 121 N. C., 646. If the object of the act could be construed as intended to give special and exclusive privileges to a special body of men, and not solely and in truth for the protection of the public, the Legislature was prohibited by the Constitution from enacting it, nor could the Legislature restrict the cure of the body to the practice of \u201cmedicine and surgery,\u201d or establish any State system of healing. State v. McKnight, 131 N. C., 723.\nAfter these decisions moderation and wisdom would have suggested that the matter rest. Those who wish to be treated by practitioners of medicine and surgery had the guarantee that such practitioners had been duly examined and found competent by a board of gentlemen eminent in that high and honorable profession, and those who had faith in treatment by methods not included in the \u201cpractice of medicine and surgery,\u201d as usually understood, had reserved to them the right to practice their faith and be .treated if they chose by those who openly and avowedly did not use either surgery or drugs in the treatment of diseases. The courts have declared that they possessed this right, and that the Legislature could not, under the Constitution, restrict all healing to any one school of thought or practice. What is \u201cthe practice of medicine and surgery\u201d is as well understood, and its limits, as the practice of dentistry. The courts have also held that of the many schools of \u201cmedicine and surgery\u201d the Legislature could not prescribe that any one was orthodox and the others heterodox, but that those professing, the different systems \u2014 \u201callopathic,\u201d \u201chomeopathic,\u201d \u201cThompsonian\u201d and the like \u2014 should be examined. upon a course, sucb as is taught in tbe best colleges of tbat school of practice, but that it is not essential that a member of each, or of any special school, should be upon the Board of Examiners.\nAt the last session of the General Assembly the following act (1903, oh. 697), was passed amendatory of section 3122 of The Code: \u201cFor the purpose of this act the expression \u2018practice of medicine and surgery\u2019 shall be construed to mean the management for fee or reward of any case of diseasei physical or mental, real or imaginary, with or without drugs, surgical operation, surgical or mechanical appliances, or by any other method whatsoever; provided that this shall not apply to midwives nor to nurses; provided further, that applicants not belonging to the regular school of medicine shall not be required to stand an examination except upon the branches taught in their regular colleges, to-wit, the osteopaths, shall be examined only upon descriptive anatomy, general chemistry, histology, physiology, urinalysis and toxicology, hygiene, regional anatomy, pathology, neurology, surgery, applied anatomy, bacteriology, gynecology, obstetrics and physical diagnosis; provided this act shall not apply to any person who ministers to or cures the sick or suffering by prayer to Almighty God, without the use of any drug or material means.\u201d\nChief Justice Pearson in McAden v. Jenkins, 64 N. C., 801,noted,asof common knowledge, and reiterated in Railroad v. Jenkins, 68 N. C., 505, that railroad charters are drafted by \u201cpromoters,\u201d and hence should be construed most strongly against the grantees and in the interest of the public. Though there maybe no promoters here, the same rule applies to this act amending the charter of this corporation, in whose supposed interests it was evidently drafted, and not solely in the interest of the public. Under the guise of \u201cconstruction\u201d of those well-understood terms, the \u201cpractice of medicine and surgery,\u201d tbe act essays to provide that the expression \u201cpractice of medicine and surgery shall be construed to mean the management Tor fee or reward\u2019 of any case of disease, physical or mental, real or imaginary, with or without drugs, surgical operation, surgical or mechanical appliances, or by any other method whatsoeverThat is, the practice of surgery and medicine shall mean practice without surgery or medicine if a fee is charged. If no fee is charged, then the words \u201csurgery and medicine\u201d drop back to their usual and ordinary meaning, as by long usage known and accustomed. Where, then, is the protection to the public, if such treatment is valid when done without fee or reward ? Tet, unless the act confers, and is intended solely to confer, protection upon the public, it is invalid. The Legislature cannot forbid one man to practice a calling or profession for the benefit or profit of another.\nAgain, the act means more than its friends probably intended, for it says: \u201cAny case of disease, physical or mental, real or imaginary.\u201d Is not a disease of the eye physical, and is not a disease of the ear, or of the teeth, or a headache, or a corn, physical ? Then every dentist and aurist and oculist is indictable unless he has also license from the State Medical Sbciety as an M. D., as is also every corn doctor who relieves aching feet, and every peripatetic of stentorian lungs on the court-house square who banishes headache, real or imaginary, by rubbing his hands over some credulous brow. He, too, must be an M. D. Then there is the closing expression forbidding treatment \u201cfor fee or reward\u201d by other than an M. D., \u201cby any other method whatsoever.\u201d This would take in all the old women and the herb doctors, who, without pretending to be professional nurses, relieve much human suffering, \u201creal or imaginary,\u201d for a small compensation. Then it is forbidden to relieve a case of suffering, \u201cphysical or mental,\u201d in any method unless one is an M. D. It is not even admissible to \u201cminister to a mind diseased\u201d in any method or even dissipate an attack of the \u201cbines\u201d without that label, duly certified. Is not this creating a monopoly and the worst of monopolies that diseases shall not be cured or alleviated, whether real or imaginary, mental or physical, though without medicine or surgery, \u201cif for a fee,\u201d unless one has undergone an examination on \u201canatomy, physiology, surgery, pathology, medical hygiene, chemistry, pharmacy, materia medica, therapeutics, obstetrics and the practice of medicine\u201d ? Such examination is eminently proper for one who holds himself out as an M. D., and those who wish to employ an M. D. should certainly have the guarantee that is given by his license that the M. D. is competent. But how about those who are too poor or too ignorant or too perverse to wish that kind of treatment? Is it requisite that the man who treats a -diseased ear shall really be competent in obstetrics, or that it is a penalty to treat a disease of the eye unless the operator understands chemistry, or that it is indictable in this State to remove corns or to plug teeth without full knowledge of the materia medica, or to banish headache by the application of the hands without having passed a satisfactory examination on anatomy, or to apply a fomentation without being able to \u201cpass'up\u201d on therapeutics, or to sell a little herb-tea for the stomach-ache without being scientifically versed in pathology and physiology? The act is too sweeping. Besides, the Legislature could no more enact that the \u201cpractice of medicine and surgery\u201d shall mean \u201cpractice without medicine and surgery\u201d than it could provide that \u201ctwo and two make five,\u201d because it cannot change a physical fact. And when it forbade all treatment of all diseases, mental or physical, without surgery or medicine, or by any other method, for a fee or reward, except by an M. D., it attempted to confer a monopoly on that method of treatment, and this is forbidden by the Oonstitution.\nOur early legislation naturally gave physicians no special privileges, but it was directed solely to fixing a limitation upon their charges and providing penalties for malpractice. Were a monopoly of all treatment of diseases conferred upon M. D.\u2019s it would necessarily follow that the Legislature would have to prescribe their scale of charges again. That matter could not, with due regard to the public interest, be left to a monopoly. The medical profession merited and obtained a due share of prosperity prior to above statute of 1903 and will receive no great detriment because the defendant cannot be punished under its provisions.\nThose not M. D'.\u2019s contend that the allopathic system of practice is contrary to the discoveries of science and injurious to the public. Some M. D.\u2019s doubtless believe that all treatment of disease except by their own system is quackery. Is this point to be decided by the M. D.\u2019s themselves through an examining committee of five of their own number, or is the public the tribunal to decide by employing whom each man prefers, whether allopath, homeopath, osteopath or the defendant? The law says that the M. D'.\u2019s may examine and certify whether an applicant is competent to be one of their number, and no one can practice medicine and surgery without it, but they cannot decide for mankind that their own system of healing is now and ever shall be the only correct one and that all others are to be repressed by the strong arm of the law. This act admits Christian Scientists to practice to cure diseases without such examination. By what process of reasoning can massage, baths and the defendant be excluded ? In the cure of bodies, as in the cure of souls, \u201corthodoxy is my doxy, heterodoxy is the other man\u2019s doxy,\u201d as Bishop Warburton well says. This is a free country, and any man has a right to be treated by any system he chooses. The law cannot decide that any one system shall be the system he shall use. If he gets improper treatment for children or others under Ms care, whereby they are injured, he is liable to punishment, but whether it was proper treatment or not is a matter of fact to be settled by a jury of his peers and not a matter of law to be decided by a judge nor prescribed beforehand by an act of the Legislature.\nThe practice of medicine and surgery, in the usual and ordinary meaning of that term, is of the highest antiquity and dignity. In the Obde of Hammurabi, King of Babylon, fifteen centuries older than The Oode of Moses, and which, engraved on a column of black diorite, was but recently dug up at Susa in ancient Elam, there are found (sections 215-225) regulations of the medical profession, fixing a scale of fees and penalties for malpractice. Physicians are mentioned in both the Old and New Testaments. Jeremiah asks: \u201cIs there no balm in Gilead ? Is there no physician there f\u2019 The public have a right to know that those holding themselves out as members of that ancient and honorable profession are competent and duly licensed as such. The Legislature can exert its police power to that end, because it is a profession whose practice requires the highest skill and learning. But there are methods of treatment which do not require much skill and learning, if any. Patients have a right to use such methods if they wish, and the attempt to require an examination of the character above recited for the application of such treatment is not warranted by any legitimate exercise of the police power. The effect would be to prohibit to those who wish it those cheap and simple remedies, and deprive those who practice them of their humble gains, by either giving a monopoly of such remedies to those who have the title of M. D'., or prohibiting the use of such remedies altogether, neither of which results the Legislature could have contemplated, and both of which are forbidden by the provisions of the Constitution above cited.\nIn this case tbe defendant is found guilty of the following acts, and no more:\n(1) Administering massage, baths and physical culture.\n(2) Manipulating muscles, bones, spine and solar plexus.\n(3) Eneading the muscles with the fingers of the hand.\n(4) Advising his patients what to eat and what not.\nAnd all this without prescriptions, without any drugs or surgery. These acts, by the terms of the statute, are harmless and not indictable \u201cunless done for fee or reward.\u201d There is nothing in this treatment that calls for an exercise of the police power by way of an examination by a learned board in obstetrics, therapeutics, materia medica and the other things, a knowledge of which is so properly required for one who would serve the public faithfully and honorably as a doctor of medicine.\nIt is not only in the scope of the police power for the State to regulate the \u201cpractice of medicine and surgery\u201d and to throw around the public any reasonable protection against unfit members of that honorable profession and provide against malpractice, but the General Assembly can prohibit any pretended art of healing which is calculated to deceive and injure the public. It is also within its power to protect the public against the ignorant and vicious who profess knowledge and skill in any art or profession of healing in which technical knowledge and learning are required to safely and properly practice it. But it is not found here that the defendant is deceiving and injuring the public or is ignorant and incompetent, to the detriment of the public, in the application of the methods he uses. It may be that if he were not there some of the patients might call in an M. D., but that is due possibly to the ignorance or perversity of the patients who may prefer the defendant\u2019s methods and scale of fees. The police power does not extend to such cases.\nThe law is thus stated in Lawton v. Steele, 152 U. S., pp. 137, 138: \u201cThe Legislature may not, under the guise of protecting public interests, arbitrarily interfere with private business or impose unusual or unnecessary restrictions upon lawful occupations. In other words, its determination of what is a proper exercise of its police power is not final or conclusive, but is subject to the supervision of the courts.\u201d After citing oases, it is said, on page 138: \u201cIn all those cases the acts were held to be invalid as involving an unnecessary invasion of the rights of property and a practical inhibition of certain occupations harmless, in themselves and which might be carried on without detriment to the public interests.\u201d See also State v. Pendergrass, 106 N. C., 667; Ohio v. Gardner, 58 Ohio St., 599, 41 L. R. A., 689.\nLicense is required for the practice of pharmacy, of dentistry, of law and many other skilled professions. We have a State system of law, for the \u201cLaw is the State,\u201d and laws are prescribed by the Legislature, and we also have a State system of education, yet it is not indictable for one not a lawyer to draw wills, deeds, bills of sale or any other legal instrument whatever, nor is it made punishable to settle litigation out of court by arbitration or otherwise without the aid of a lawyer, nor to teach in other than the State schools. Though there are many methods of treating disease, among which the Legislature is not authorized to select one as the State system, excluding all others, yet this act, if valid, would make it punishable by law to charge a fee for treatment of \u201cany disease, real or imaginary, mental or physical, by any method whatever,\u201d unless the party has been admitted by a committee from one school of treatment upon examination of that system, thus denying mankind any relief from pain and suffering except at the hands of that particular school of medical thought. It may be, and probably is, the best system. But that is a matter which must be decided by those who seek and must pay for the relief \u2014 not by the M. D.\u2019s themselves nor by tbe courts. Judges are lawyers and are not competent to decide, except for themselves as individuals, which is the best system of treatment, and those practitioners who eschew medicine and surgery may well object to leaving the question whether \u201cmedicine and surgery\u201d is the only permissible method of treatment to be decided by the practitioners of that method.\nThe defendant is not charged nor shown to be an osteopath, and disclaims being one. His learned counsel contends that the act of 1903, ch. 697, is further unconstitutional because of the following (quoted from his brief) : \u201cThere is no provision for the examination of any but allopaths and osteopaths. It provides that all persons, except midwives, nurses and those who profess to heal by prayer, who minister to the side for fee or reward \u2018by any other method whatsoever,\u2019 shall be construed to be practicing medicine or surgery, and then follows this language: \u2018Provided further*, that applicants not belonging to the regular school of medicine shall not be required to stand an examination except upon the branches taught in their regular colleges, to-wit, the osteopaths shall be examined only upon descriptive anatomy, general chemistry, histology, physiology, urinalysis and toxicology, hygiene, regional anatomy, pathology, neurology, surgery, applied anatomy, bacteriology, gynecology, obstetrics and physical diagnosis.\u2019 The osteopath is required to stand an examination in surgery and every other branch that those belonging to the regular school of medicine are required to be examined in, except pharmacy, materia medica, therapeutics and the practice of medicine, and in addition he is required to stand an examination in branches that the regular medical student' is not required to be examined on, as follows: \u2018histology, urinalysis and toxicology, regional anatomy, neurology, bacteriology, gynecology and physical diagnosis.\u2019 But it is remarkable that he is not required to pass examination in the brandies that bis profession recognizes and teaches to be of special importance in the practice of osteopathy, such as principles of osteopathy, osteopathic manipulations and osteopathic diagnosis.\u201d\nAs his client is not an osteopath, we are not called upon in this ease to pass upon the alleged discrimination against osteopaths in the prescribed course of study. But if it be objected that we have only shown that the defendant\u2019s practice did not call for the examination required, as above set out, for an allopath, it may be as well to say that the acts of which he was convicted of doing \u201cfor a fee,\u201d to-wit, using massage, baths, physical culture, manipulating muscles, bone, spine and solar plexus, and advising his patients as to diet, could be done as safely to the public, so far as shown, without an examination on \u201chistology, urinalysis and toxicology, bacteriology, neurology and gynecology,\u201d which are some of the things added to the course by the aforesaid act, for the comfort and convenience of those wishing to obtain license to practice osteopathy, and of course only to protect the public against incompetents in that line of practice.\nIt is possible, however, that an expert knowledge of gynecology is not essential in administering baths, and there is room for serious doubt whether bacteriology and toxicology are connected with massage in any way.\nThe term \u201cpractice of medicine and surgery\u201d embraces probably the larger and certainly by far the most profitable part of the \u201ctreatment of diseases,\u201d but is not co-extensive with the latter term and cannot be made so unless \u201csurgery and medicine\u201d are adopted as the State system of treatment, a monopoly, and all other methods are made indictable. On the other hand, the State Medical Society would hardly wish to broaden out so as to take in all methods of treatment of diseases, for this would be to take in practitioners and practices which they would not wish to recognize. All the law so far bas done or can do is to require that those practicing on the sick with knife and drugs shall be examined and found competent by those \u201cof like faith and order.\u201d Doctor Oliver Wendell Holmes, in an address before the Medical Society in Massachusetts, said: \u201cIf the whole materia medica was sunk to the bottom of the sea it would be all the better for mankind and all the worse for the fishes.\u201d An eminent medical authority in this State has said that out of twenty-four serious cases of disease three could not be cured by the best remedies, three others might be benefited, and the rest would get well anyway. Stronger statements could be cited from the most eminent medical authorities the world has known. Medicine is an experimental, not an exact, science. All the law can do is to regulate and safeguard the use of powerful and dangerous remedies, like the knife and drugs, but it cannot forbid dispensing with them. When the Master, who was Himself called the Good Physician, was told that other than His followers were casting out devils and curing diseases, He said: \u201cForbid them not.\u201d\nUpon the special verdict the defendant should be adjudged not guilty.\nReversed.\nWalKBR, and OoNNOR, JJ., concur in result.", "type": "majority", "author": "Clare, O. J." } ], "attorneys": [ "Robert D. Gilmer, Attorney-General, for the State.", "G. M. Steelman and E. J. Justice, for the defendant." ], "corrections": "", "head_matter": "STATE v. BIGGS.\n(Filed December 18, 1903.)\nPHYSICIAN'S AND SURGEONS \u2014 Licenses\u2014The Code, secs. 812%, 8124 \u2014 Acts 1903, oh. 69\"/ \u2014 Constitution of North Carolma, Art. I, | sees. 7, 81 \u2014 Const. U. 8., Fourteenth Amendment.\nUnder a special verdict finding that the defendant advertises himself as a non-medical physician, curing disease by a system of drugless healing and treating patients by such system without medicine, claiming not to cure by faith, but by natural methods, without medicine or surgery; and that he administers massage, baths and physical culture, manipulates the muscles, bones, spine and solar plexus, and kneads the muscles with the fingers of the hand, writes no prescriptions as to diet, but advises his patients what to eat and what not to eat, the defendant is not guilty of practicing medicine without license though he admits that he was not licensed to practice medicine by the state medical board; that he charges fees for his services, and does not claim exemption as a nurse, midwife, or as curing by prayer.\nINDICTMENT against Andrew G. Biggs, beard by Judge W. E. Allen and a jury, at May Term, 1903, of the Superior Court of Guileobd County. Erom a judgment of guilty on a special verdict tbe defendant appealed.\nRobert D. Gilmer, Attorney-General, for the State.\nG. M. Steelman and E. J. Justice, for the defendant." }, "file_name": "0729-01", "first_page_order": 767, "last_page_order": 780 }