This action was instituted by the State of Oklahoma ex rel. Ross Rutherford, County Attorney of Jackson County, Oklahoma, in the District Court of that County, seeking a permanent injunction restraining W.B. Taylor from engaging in, offering to engage in, or holding himself out as qualified to engage in the diagnosis or treatment of any human ill as defined in Sections 731.1 to 731.6, 59 O.S. 1951, and from using the prefix or abbreviation "Dr." and the word "physician" before or after his name as provided by Sections 725.1 to 725.3 and Section 702, 59 O.S. 1951.
Plaintiff alleged that the statutes above cited and commonly referred to as the "Healing Arts Act" make it unlawful for any person to practice or offer to practice any branch of the healing arts or to engage in or hold himself out as qualified to engage in the diagnosis or treatment of any human ill as therein defined, unless he holds a legal license or certificate issued under the laws of Oklahoma authorizing him to do the things above set out.
It was alleged that W.B. Taylor held no such license or certificate but was engaged in such practice and holding himself out as qualified to do so, and that unless restrained he would continue to engage in the diagnosis and treatment of such human ills in violation of the statutes above referred to, to the irreparable damage or injury of the public and especially persons who may become a patient of the defendant, and that plaintiff is without adequate remedy of law.
Also, that defendant has appended the name or abbreviation "Dr." in front of his name and used the word "physician" in his advertising, both of which indicate that he was qualified for diagnosis and treatment of the healing arts in violation of Section 2, Title 59, Chapter 16, Session Laws of 1947, and prayed for a permanent injunction and restraining order forbidding the defendant from engaging in or holding himself out as qualified to engage in the diagnosis or treatment of any human ill as defined in the statutes hereinafter quoted and from using the prefix or abbreviation "Dr." or the word "physician."
The defendant filed a combined demurrer and motion to dismiss in which he alleged that the County Attorney is not the real party at interest; that the County Attorney has no authority to bring this action in the name of the State; that the petition fails to state facts sufficient to entitle plaintiff to injunctive relief; that the acts alleged provide a criminal penalty and that plaintiff has an adequate remedy at law; and that the statutes above cited are discriminatory and violate Section 2, Article II, of the Constitution of Oklahoma, and the 14th Amendment of the Federal Constitution.
The demurrer and motion were overruled and defendant filed an answer setting up the same matters urged in his motion and demurrer and in addition alleged that the practice of naturopathy does not come within the above statutory provisions or, that if it does, defendant has complied therewith.
Defendant alleged that Naturopathy is a nationally recognized professional practice; that the Act alleged to have been violated by defendant is a criminal statute, provides a criminal penalty for its violation, giving the plaintiff an adequate remedy at law and that an injunction denying the defendant the further practice of his profession would in effect be denying him the right to trial by jury in violation of the State and Federal Constitutions.
The pertinent provisions of 59 O.S. 1951 §§ 731.1 to 731.4 are as follows:
Sections 725.1 to 725.3, 59 O.S. 1951, are as follows:
The evidence offered by the plaintiff consisted of the testimony of several people who had been treated by the defendant.
Another witness testified defendant gave him several treatments with "some kind of an electric machine on my back" for arthritis and also gave him three injections or shots, one of which was in his arm and two in his hip; that defendant prescribed "Vitamore" for him and that such treatments stopped the pain but that such pain started again. He also testified as to the fees charged and paid.
A third witness testified that the defendant diagnosed her illness as "neuritis" and gave her several shots or injections in the arm; that the shots cost $4 each; that she understood the shots were "Panbile" or "dried ox bile", and that she had read defendant's advertisement in the Altus Times Democrat.
A fourth witness testified that defendant gave her treatments in March, 1954; that she first went twice a week and was given "machine treatments" and "shots" and "vitamins". Defendant told her she had "concrete regrowth of tissue" from an early injury and administered what she thought he said was "iodine" by way of some kind of pack. This witness testified that she had been to other doctors before going to defendant and prior to going to him she had lost much weight and had to go to bed each month on account of menstrual periods and that he used a machine on her and she obtained relief for the first time.
It was stipulated that the following sign appeared on the defendant's window and office door after the middle of January, 1954:
"Dr. W.B. Taylor N.D. Physician — General Practice"
Plaintiff introduced a prescription given by "Dr. W.B. Taylor, N.D." to Mrs. Hardage and also the six tablets so prescribed. Plaintiff also introduced the following advertisement:
Plaintiff introduced an advertisement "By the courtesy of the National Research Foundation" and defendant testified, "I was acting with the National Research Foundation", and in January, 1954, the following advertisement appeared:
The defendant testified that he is a "Naturopathic Doctor" and had been operating in Altus, Oklahoma, since January, 1954, and that his "license or certificate" to so practice is as follows:
The defendant also introduced a certified copy of the articles of incorporation of the "Oklahoma Naturopathic and Physiotherapy Physicians Association, Oklahoma City", and also the Charter or certificate issued to said association dated February 2, 1954. In regard to the certificate or license introduced by the defendant, he testified:
On cross-examination, defendant testified that since about January 1, 1954, he had "treated arthritis" in Jackson County, Oklahoma, and specialized in "rheumatism" and that for such ailments he gave "shots" "with a hypodermic needle" penetrating the flesh of his patients to whom he gave "vitamins" to relieve them. He testified that it was his theory that vitamins were not drugs and that he specialized in the treatment of colon disorders by mechanical therapy, that is by flushing out the lower intestines and that he also treated bursitis as an inflammation condition of the bursa under the tendons of the shoulder by means of ultra high frequency sound waves. He testified that he considered himself qualified to diagnose the diseases referred to in plaintiff's exhibit No. 4, including arthritis, rheumatism, neuritis or allied disorders and dissipation of gall stones and kidney stones without surgery.
Defendant stated that he did not know whether the Oklahoma State Board of Naturopathy, mentioned in his license, is authorized by the statutes of Oklahoma as one of the branches of healing arts of this State and that he secured such license after a very intensive examination in Oklahoma City, but that there was no college called the Oklahoma Association and College of Naturopathy and Physiotherapy Doctors and no teaching staff or equipment where he took the examination but that the examining board had offices there.
It is not denied that the defendant has no license or certificate authorized by the State of Oklahoma. Section 731.3, supra, expressly states that "No person shall in any manner engage in, offer to engage in, or hold himself out as qualified to engage in the diagnosis and/or treatment of any human ill unless such person is the holder of a legal and unrevoked license or certificate issued under the laws of Oklahoma authorizing such person to practice the healing art covered by such license * * *."
The defendant admits that he has no license or certificate issued by the State Board of Examiners. No board exists which is authorized to issue such license or certificate. He does hold a license issued by authority of an Oklahoma Corporation which was created and set up by the Naturopathy themselves. The certificate
Again the defendant admits that he uses the word "Doctor", or abbreviation thereof, and that he is not one of the six classes of persons given the exclusive right to use such word or any abbreviation thereof by Section 725.2, 59 O.S. 1951, commonly referred to as the "Doctor's Title Act."
The foregoing admitted facts and the undisputed evidence above outlined make it clear that the defendant is engaged in violating the statutes above quoted.
Defendant contends that neither the facts nor the pleadings are sufficient to entitle the plaintiff to injunctive relief. It is true that each of the acts quoted carries a criminal clause making a violation thereof a misdemeanor, and each day of violation constitutes a separate offense.
Defendant takes the position that the County Attorney is only authorized to represent the State in criminal actions and civil actions wherein the County is an interested party, or to abate a common nuisance.
Since the "healing arts act" does not create any State Board, it can only be enforced by a criminal or civil action brought by the County Attorney for the State. The County Attorney is authorized to appear in and prosecute certain actions by Section 183, 19 O.S. 1951, in the following language:
It is also provided by Section 738.1, 59 O.S. 1951, as follows:
Section 738.4, of the same Title, provides:
The two sections last quoted show that the Legislature evidently intended to give the County Attorney authority to institute an action to enjoin the violation of laws controlling the practice of the healing arts in this State. In State Bar of Oklahoma v. Retail Credit Ass'n, 170 Okl. 246, 37 P.2d 954, this Court had before it an action to enjoin a retail credit association from engaging in the practice of law. It was said in the syllabus:
The State Bar Act makes no mention of injunctions to prevent its violation but this Court, in a well considered opinion, upheld such a remedy and in the body of the opinion at page 957 of 37 P.2d stated:
In the body of the opinion the Court discussed cases from Utah, Louisiana and Kentucky, which appear to uphold the right of injunctive relief to prevent a violation of State laws which are also made criminal and provide a criminal punishment. In the case of Kentucky State Board of Dental Examiners v. Payne, 213 Ky. 382, 281 S.W. 188, the Supreme Court of Kentucky held that a court of equity might restrain one from unlawfully practicing dentistry in that State despite the fact that such acts constituted a criminal offense.
The case of Choctaw Pressed Brick Co. v. Townsend, 108 Okl. 235, 236 P. 46, is also cited. In that case an officer of the State was accused of disposing of prison-made pressed brick without marking the same as prison-made as required by the statutes. The Court held that an injunction against such practice was warranted despite the fact that such acts constituted a crime under a criminal statute.
The State also cited Unger v. Landlords' Management Corporation, 114 N.J. Eq. 68, 168 A. 229, where it was held that the mere fact that the practice of law without a license was punishable criminally, did not prevent the issuance of injunction to prevent its continuance.
In Nation v. Chism, 154 Okl. 50, 6 P.2d 766, 769, the Court said in the body of the opinion as follows:
We can conceive of no profession which affects the public welfare more than that of the practice of medicine and allied professions which seek to cure or alleviate human ills. We conclude that the mere fact that a violation of the statutes, here charged to be violated, constitutes a criminal offense, does not deprive a court of equity from granting injunctive relief to prevent such violations.
The defendant quotes extensively from the early case of State ex rel. West v. State Capital Co., 24 Okl. 252, 103 P. 1021, 1025, where the attorney general undertook to enjoin a newspaper from advertising the sale of whisky in another state, when such sale in Oklahoma constituted a violation of the law. In that case this Court quoted the following from State v. Patterson, 14 Tex.Civ.App. 465, 37 S.W. 478, on the question of whether an injunction would lie to prohibit the commission of an act which was a crime or a nuisance:
We think the admitted facts before the court justified the issuance of an injunction against the defendant. If the practice of Naturopathy is such as will benefit the people of Oklahoma, it seems that the Legislature should authorize its practice and provide such regulations in regard thereto as have been provided for the practice of the other healing arts above mentioned.
We do not deem it necessary to cite authorities to the effect that the right to practice any of the healing arts is a property right, where the right to practice is based upon a license or certificate issued by the authority of our State Statutes.
The above conclusions are reached upon the assumption that the various statutes above quoted are not in violation of the provisions of the State and Federal Constitutions.
Defendant contends that any injunction restraining the defendant from practicing his profession of Naturopathy violates his constitutional rights under Section 2, Article II of our State Constitution and the 14th Amendment of the Federal Constitution. Section 2, Article II of the Constitution of Oklahoma provides:
Section 1 of the 14th Amendment to the Federal Constitution is in part as follows:
In support of these propositions, the defendant cites the case of Nation v. Chism, supra. In that case the plaintiffs sought to enjoin enforcement of House Bill No. 23, Session Laws of 1931 (Chapter 24, Article II, commonly referred to as the "Barbers Bill"), 59 O.S. 1951 § 61 et seq., claiming that the Act was never enacted by the Legislature and never approved by the Governor. The Court said in considering a demurrer to the petition that:
The Court did discuss some constitutional questions and in the fifth paragraph of the syllabus said:
The defendant relies upon this decision but we are unable to understand how he may rely upon it in view of the Court's statement that it was not considering the constitutionality of the Barbers Bill.
There is also cited the case of Butchers' Union, etc., Co. v. Crescent City, etc., Co., 111 U.S. 746, 4 S.Ct. 652, 28 L.Ed. 585. An examination of this opinion discloses that it involves the validity of an ordinance of the City of New Orleans giving to one concern the exclusive right to land and butcher at the slaughter house all livestock entering the city, by virtue of the Act of The Assembly of Louisiana and entitled an Act to protect the health of the City. We do not find that it has a direct bearing upon the issues before us. In the first and
The holding in this case involves a discriminatory Act in that it gives certain privileges to one company and forbids the exercise of such privileges by others.
It is claimed also by the defendant that Chapter 16, Title 59, page 357, Session Laws of 1947, Sections 725.1 to 725.3, inclusive, 59 O.S. 1951, if applicable violates defendant's constitutional rights because it is a criminal statute and defendant is entitled to be tried by a jury for a violation thereof. The last cited statute is referred to as the "Doctors' Title Act." We have heretofore pointed out that courts of equity may enjoin certain acts affecting the rights, property and general welfare of the people, even though such acts are also made criminal offenses.
In Ex parte Herrin, 67 Okl.Cr. 104, 93 P.2d 21, 28, the defendant had been placed in jail for an alleged violation of the "Barbers Bill" and the Court said in part in quoting from Volume 7, page 614, Am.Jur.:
The Act provided that barber students may not charge for their services rendered in a barber school or college. The Act was held constitutional in Schwarze v. Clark, 188 Okl. 217, 107 P.2d 1018, wherein it was pointed out that the constitutional barrier is not against an Act regulating the practice of certain occupations but against any unlawful or unreasonable interference or abridgment of the right.
In State ex rel. Grigsby v. Silvers, 198 Okl. 526, 180 P.2d 657, the State sought to enjoin defendant from practicing optometry without a certificate from the State Board of Optometry. It is made clear that the injunction would have been granted except for the fact that upon being served with process the defendant ceased to practice optometry and declared that he had only done so while under the impression that he was not violating the law.
In State ex rel. La Prade v. Smith, 43 Ariz. 131, 29 P.2d 718, 720, 92 A.L.R. 168, it appears that the statutes of Arizona provided that "`anything which is injurious to health * * * is a public nuisance.'" Rev.Code 1928, § 4693. We have no statute in Oklahoma similar to the Arizona statute but we think the rule announced in that case is worthy of our attention in considering the matter before us. In the body of the opinion at page 719 of 29 P.2d it is said:
The practice of any branch of the healing arts certainly affects the health and well-being of the people of Oklahoma and so long as the law regulating such matters is reasonable and nondiscriminatory we think it is not unconstitutional and that a court of equity may properly enjoin such practice where there has been a failure to obtain a license authorized by the State Board of Medical Examiners as provided in the statutes above quoted.
The judgment of the trial court is affirmed.
JOHNSON, C.J., WILLIAMS, V.C.J., and WELCH, CORN, BLACKBIRD, and JACKSON, JJ., concur.