This is a proceeding in the nature of quo warranto, Code 1940, Tit. 7, § 1136, brought by the state on the relation of the solicitor of the Eighteenth Judicial Circuit charging P. C. White, appellant, a chiropractor, with intruding "into the profession of treating or offering to treat diseases of human beings, (a profession requiring a license or certificate or other legal authorization within the state), without having obtained a certificate of qualification from the State Board of Medical Examiners of the State of Alabama, or the license required by law," and further charging that he "is still unlawfully practicing said profession in Clay County, Alabama." Code 1940, Tit. 46, §§ 259, 261. The prayer of the petition is that defendant be required "to show cause by what warrant or authority he is practicing said profession"; that he be "excluded from said
This is the second trial and appeal in this case. On the first trial the trial court, on request of the state, gave the affirmative charge against defendant hypothesized upon a belief of the evidence. The jury returned a verdict for the defendant. The state then filed a motion to set aside the jury's verdict and grant a new trial. This motion being granted, the defendant appealed to this court. We affirmed. White v. State ex rel. Hardegree, 256 Ala. 18, 53 So.2d 599.
It appears from appellant's brief that the grounds relied on for reversal are as follows:
I. That § 259, Tit. 46, Code 1940, supra, "is discriminatory against chiropractors in that it violates the Fourteenth Amendment to the Constitution of the United States."
II. That a practitioner of chiropractic does not, in performing the work of his profession, "intrude into the profession of treating or offering to treat diseases of human beings", and, therefore, such practitioner is not subject to the provisions of Code 1940, Tit. 46, §§ 259, 261, supra.
III. That appellant was forced to give evidence against himself in violation of Constitution 1901, Art. 1, § 6.
IV. That the general affirmative charge without hypothesis, requested by the state, should not have been given.
V. That it was error to refuse to permit appellant's attorney to argue the case to the jury.
VI. That it was error to refuse to permit appellant's attorney to poll the jury.
VII. That the trial judge failed to sign his name to the requested written charges to the jury, as required by Code 1940, Tit. 7, § 273.
VIII. That the judgment, in excluding and prohibiting appellant from practicing his profession in the State of Alabama and not limiting the exclusion and prohibition to Clay County only, was not responsive to the pleadings.
We proceed to a discussion of these grounds in the order set out:
No authority is cited in support of this ground except a reference to the Fourteenth Amendment to the Constitution of the United States. It is apparent that appellant lays little store by this ground. Counsel's argument with respect to the present law, Code 1940, Tit. 46, § 259, supra, being unfair and discriminatory in not authorizing a separate board of chiropractors for examination of chiropractors, in the manner provided for chiropodists, is something which might be persuasive with the Legislature in seeking a change in the law. However, we are unable to accept the argument as a basis for declaring the present law, as applied to the profession of chiropractic, to be violative of either the state or the federal constitution. We think it was clearly within legislative competency, in the exercise of the police power of the state, to prescribe a method for examining chiropodists different from that prescribed for chiropractors. Although both professions
In support of this ground, appellant cites cases from several other jurisdictions. No Alabama case is relied on. We see no need to discuss these out of state cases since the question appears to have been definitely decided by the courts of Alabama contrary to the position taken by appellant. Owen v. State ex rel. Bailes, 240 Ala. 582, 583, 200 So. 412; Donovan v. State, 215 Ala. 55, 56, 109 So. 290; Robinson v. State ex rel. James, 212 Ala. 459, 460, 461, 102 So. 693; Ex parte Wideman, 213 Ala. 170, 172, 104 So. 440, denying certiorari in Wideman v. State, 20 Ala.App. 422, 104 So. 438. See Bragg v. State, 134 Ala. 165, 32 So. 767, 58 L.R.A. 925, holding that the practice of "medicine" embraces the practice of "osteopathy".
In Donovan v. State, supra [215 Ala. 55, 109 So. 291], the defendant (appellant) was charged with treating diseases of human beings without a license. When testifying as a witness, he was asked if he treated or offered to treat diseases. Objections to these questions were sustained. On appeal here, this court said:
From Robinson v. State, supra [212 Ala. 459, 102 So. 695], is the following:
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The appellant was called as a witness by the state. He willingly and without objection answered questions propounded to him. At no time was any point made that he was being "compelled to give evidence against himself". He was represented at the trial by able counsel. At one point during appellant's testimony, the trial judge directed attention to the rule against compelling an accused to give
IV, V, and VI
The following general rules are well established in this jurisdiction:
It is not questioned that the evidence of both the state and the appellant shows that appellant was engaged in the practice of chiropractic. Nor is it disputed that appellant has not received a certificate of qualification under § 259, Tit. 46, Code 1940, supra. The disputed issue is the insistence by appellant that the practice of chiropractic is not an intrusion "into the profession of treating or offering to treat the diseases of human beings". That question, however, has already been determined by decisions of this court contrary to appellant's insistence. See discussion under II, supra. Therefore, the giving of the general affirmative charge without hypothesis, as requested in writing by the state, was within the stated rule and not erroneous.
The giving of the peremptory instruction left nothing for the jury to consider. Their only duty was to sign the verdict as directed. Hence, error was not committed in refusing to permit appellant's counsel to argue the case to the jury. Chichester v. First Nat. Bank of Birmingham, 242 Ala. 227, 229, 5 So.2d 772; Harris v. State, 215 Ala. 56, 58, 109 So. 291, supra; Reed v. Ridout's Ambulance, Inc., 212 Ala. 428, 433, 102 So. 906; Dorough v. Alabama Power Co., 200 Ala. 605, 607, 76 So. 963. Nor was it error to refuse the request of appellant's counsel to poll the jury. Harris v. State, supra; Reed v. Ridout's Ambulance, Inc., supra. As stated in the Reed case, at page 433 of 212 Ala. at page 910 of 102 So.:
In brief of counsel for appellant it is stated that the requested written charges to the jury, instead of being signed by the trial judge as required by Code 1940, Tit. 7, § 273, were stamped with a rubber stamp bearing the judge's name. If such was the case, there is nothing in the record to indicate it. When the record does not disclose the fact assumed as a ground of an assignment of error, such ground for error cannot be considered on appeal. Davis & Co. v. Thomas, 154 Ala. 279, 283, 45 So. 897. On appeal, all questions must be determined by the record, and matter dehors the record will not be considered to contradict the record. Bell v. Bell, 245 Ala. 513, 514, 17 So.2d 872.
It is argued that it was error to prohibit appellant from practicing throughout the state since the petition sought only to prohibit him from practicing in Clay County. While the petition specifically prays that defendant be prohibited from practicing in Clay County, it also contains a prayer for "such other, further and different relief as the nature of the case may require". We judicially know that the requirement of a certificate of qualification under §§ 259 and 261, Tit. 46, Code 1940, supra, is co-extensive with the state and that, without such certificate, appellant will not be authorized to practice anywhere in the state. Our view is that error was not committed in prohibiting appellant from practicing throughout the state. This conclusion is supported by the case of State ex rel. Weatherly v. Birmingham Water Works Co., 185 Ala. 388, 414, 64 So. 23, 31, Ann.Cas.1916B, 160, where it was said:
This seems to be the general rule, thus stated in 74 C.J.S., Quo Warranto, § 49, p. 270:
From what we have said it follows that the judgment appealed from is due to be affirmed. It is so ordered.
All the Justices concur, except MAYFIELD, J., not sitting.