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Illinois Chiropractic Society v. Berns

OPINION FILED SEPTEMBER 24, 1959.

ILLINOIS CHIROPRACTIC SOCIETY ET AL., APPELLEES,

v.

P.H. BERNS, APPELLANT.



APPEAL from the Circuit Court of Clinton County; the Hon. DANIEL H. DAILEY, Judge, presiding.

PER CURIAM:

This is an appeal from a decree of the circuit court of Clinton County, enjoining the defendant from practicing chiropractic within such county, and especially within a competitive radius of plaintiffs, until he shall be validly licensed. Defendant raised the issue of the constitutionality of the Medical Practice Act, (Ill. Rev. Stat. 1957, chap. 91, pars. 1 et seq.) in the court below and, upon an adverse ruling, appealed directly to this court.

Plaintiffs are the Illinois Chiropractic Society, a corporation, and three duly licensed chiropractors who practice in Marion and Madison counties. Licensed chiropractors, who practice in Illinois, constitute the membership of the society.

The complaint alleged that defendant was practicing chiropractic in Breese, without a license, and that he thereby encroached upon the individual plaintiffs' franchises. Defendant moved to dismiss on the ground that the complaint did not state a cause of action for an injunction. The motion was denied. Thereafter, defendant filed an answer denying the allegations of the complaint and, as affirmative defenses, alleged that the plaintiff corporation had no right to bring this action; that the individual plaintiffs had an adequate remedy at law; and that sections 2, 3, 4, 5(2) (b), and 17a of the Medical Practice Act, (Ill. Rev. Stat. 1957, chap. 91, pars. 2, 3, 4, 5(2) (b), and 16b-1,) are unconstitutional.

Defendant graduated from the Missouri Chiropractic College in 1950. It was then recognized and accredited by the Department of Registration and Education of the State of Illinois. In 1952, he made application to take the Illinois chiropractic examination but failed to do so. Presently he is practicing chiropractic in Breese and the surrounding area without a license. He holds himself out as a chiropractor by signs, telephone listings and newspaper advertisements.

Christine Melvin, an investigator for the Department of Registration and Education, testified that she visited defendant's office on February 10, 1958; that she asked for a treatment and he took her into his office; that a Heartometer was on his desk and a Portosonic or Ultrasonic machine, an X-ray machine and a vertical adjusting table were also in the office; and that he wrapped a gray cloth, which was connected to the Heartometer and a round ball by a tube, around her upper left arm and asked her not to move or speak since such exertion would disturb the lines of the Heartometer.

She further testified that although she was in good health, she told defendant that she had a pain between her shoulder blades and under the right shoulder blade; that after eating she became nauseated and had a low back pain; that defendant told her the symptoms sounded like liver trouble, but to be sure he would have to give further tests, checking seventeen parts of the body; that on the next day, he repeated the procedure with the Heartometer and later reported orally and in writing that she had "congestion to a degree of the liver causing a circulation condition." She stated that he advised her to refrain from eating fried and greasy foods and gave her a bottle of vitamin pills labeled Pan-Enzyme and wrote "Three a Day" on the bottle; that he gave her a chiropractic adjustment; and that he charged her $10 for the examination, $4 for the vitamins and $2 for the adjustment.

The individual plaintiffs testified that they were licensed chiropractors, practicing in the same area as the defendant; and that the practice of chiropractic is any treatment of human ailments without the use of medicine, drugs or operative surgery.

Defendant produced four witnesses who were graduates of the Palmer School of Chiropractic in Davenport, Iowa. They testified that they were chiropractors and were practicing in Illinois without a license. They, like defendant, are members of the Prairie State Chiropractic Association, and define chiropractic as limited to the adjustment of the spine by hand for the removal of nerve pressure or interference. Defendant's witnesses, however, agreed that the diagnosis of a condition of the liver, advice on diet, and the giving of pills was not within their definition of chiropractic.

At the conclusion of the hearing, the trial court found the issues for the plaintiffs and entered a decree permanently enjoining the defendant from practicing chiropractic in Clinton County and especially within competitive radius of the practice of the individual plaintiffs, or within any competitive radius of the practice of the members of the corporate plaintiff, Illinois Chiropractic Society, until he shall be validly licensed to do so under the laws of Illinois. From this decree defendant appeals.

It is apparently conceded, and we think it patent, that defendant is engaged in the practice of medicine in one of its branches, and purports to treat human ailments by means of chiropractic, without a license, which constitutes a misdemeanor under the Medical Practice Act. (Ill. Rev. Stat. 1957, chap. 91, par. 16j.) Defendant, however contends that the Medical Practice Act, which requires chiropractors to be licensed is unconstitutional as to him, and in the alternative that injunctive relief is improper.

The constitutional attack is two-fold. Defendant first contends that the requirements of the Medical Practice Act are unreasonable and discriminatory as to chiropractors in that section 5(1) (a) requires that a candidate for an unlimited license to practice medicine need be only a graduate of a medical college, and have "completed a four years' course of instruction in a high school or its equivalent," while section 5(2) (b) requires that an applicant for a limited license, such as a chiropractor, must be a graduate of a professional school which requires as a prerequisite to admission thereto "a four years' course of instruction in a high school."

Defendant urges that this is an unconstitutional discrimination requiring of a chiropractor greater educational prerequisites than are demanded of a medical doctor. We believe that no discrimination exists. The defendant graduated from a then accredited school of chiropractic, and is therefore unaffected by such alleged discrimination.

The Medical Practice Act requires of the general medical practitioner two years of premedical school, four years medical school, and twelve months internship, all in schools, medical colleges and hospitals of good standing. An applicant for a limited license to treat human ailments without the use of drugs, medicines or surgery need only have four years of high school and four years instruction in a school of good standing which teaches the system or method of treating human ailments designated on his application. Thus, the Medical Practice Act prescribes far more stringent educational requirements for an unlimited ...


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