Allison v. State

ON APPELLANT’S motion for rehearing.

HAWKINS, Judge.

Appellant urges the point that in prescribing higher qualifications for applicants under the Medical Practice Act than are required in the enactments relating to optometrists, chiropodists, etc., the Legislature violated section *326 31 of art. 16 of the Constitution, which reads as follows: “The Legislature may pass laws prescribing the qualifications of practitioners of medicine in this State, and to punish persons for mal-practice, but no preference shall ever be given by law to any schools of medicine.”

In support of his contention appellant cites Dowdell v. McBride, 47 S. W., 524 , in which the Supreme Court held that the constitutional provision above quoted prohibits the Legislature from inserting in laws prescribing the qualifications of practitioners of medicine any provision making a distinction in qualifications or punishment on account of the “school of medicine” to which any of such “practitioners of medicine” or “persons” may happen to belong. Specifically, it is appellant’s position that under the construction mentioned the Legislature was without power to place optometrists, dentists and chiropodists in classes separate and apart from practitioners of medicine as defined in the Medical Practice Act and at the same time require chiropractors to meet the more exacting requirements of the Medical Practice Act. Answering appellant’s contention, we quote from Baker v. State, 240 S. W., 924 , as follows: “The power of the Legislature to put the optometrists in a separate class, as it has done dentists and nurses, is without question. The expediency of doing so is a matter of policy with which the courts are not concerned.”

In the same case, on the State’s motion for rehearing, Judge Lattimore, writing for the court, said: “We are unable to agree with the State’s contention. As we understand the optometry bill passed by the recent called session of the Thirty-Seventh Legislature, no preference is therein given to any school of medicine, but this question is not now before us. While the Constitution forbids any legislation showing preference for any school of medicine, it does not forbid legislative definition of what does and also of what does not constitute the practice of medicine. The Medical Practice Act of this State has been upheld by this court and the Supreme Court of the United States as being constitutional and as not discriminating among or showing preference for any school of medicine. We think the Legislature has power to prescribe the duties of nurses, of opticans, and of optometrists, and also to define those things which shall constitute the practice of medicine in this State. Having such power, we also think the Legislature may make as a part of its definition of the practice of optometry, or the duties of opticians, a distinction between the powers and duties of same, and those which are to be considered as *327 the practice of medicine; and this is as far as the Legislature has gone in said optometry bill in our judgment.”

See also Robertus v. State, 45 S. W. (2d) 595 . In view of the decision from which we have quoted, we are unable to agree with appellant that the point he urges has never been passed on by this court. For a collation of authorities sustaining the constitutionality of the Medical Practice Act see Robertus v. State, supra.

The further contention is made that the act is being administered in a manner resulting in discrimination again members of the school of chiropractic. Appellant offered to prove that he presented his diploma from a reputable school of chiropractic to the Board of Examiners and was not permitted to take the examination. He urges that the agencies administering the law will not permit a graduate of the school of chiropractic to take the examination, but require that all applicants shall be graduates of schools of allopathy. In Stone v. State, 86 S. W., 1029 , this court held that the question as to whether the Board of Examiners arbitrarily refuses to permit the applicant to take the examination is a matter for the civil courts, and that in the absence of a license it is a violation of the statute to practice medicine, however much the applicant may have been wronged by the refusal to permit him to take the examination.

Our examination of the record in the light of appellant’s motion for rehearing leads us to the conclusion that the original disposition of the appeal was correct.

The motion for rehearing is overruled.

Overruled.