Summary
rejecting due process and equal protection challenges to act regulating practice of naturopathy
Summary of this case from Sloan v. South Carolina Board of Physical Therapy ExaminersOpinion
17200
August 20, 1956.
Messrs. Price Poag, of Greenville, for Plaintiffs, cite: As to naturopathy being a well recognized branch of the healing art: 219 P. 469; 70 C.J.S. 808; 219 S.C. 66, 64 S.E.2d 138; 209 S.C. 512, 41 S.E.2d 208. As to the Act of the General Assembly of South Carolina, approved on February 29, 1956, being violative of both State and Federal Constitutions: 11 Am. Jur. 1131, 1136, 1144, 1147; 84 S.C. 552, 66 S.E. 1049; 188 S.C. 39, 198 S.E. 419; 105 A. 495; 298 Ill. 304, 131 N.E. 809, 16 A.L.R. 703; 118 U.S. 356, 30 L.Ed. 220; 149 S.W.2d 619; 244 U.S. 59, 61 L.Ed. 1336; 262 U.S. 390, 67 L.Ed. 1042; 219 S.C. 66, 64 S.E.2d 138; 209 S.C. 512, 41 S.E.2d 208; 152 U.S. 133, 38 L.Ed. 385; 316 U.S. 535, 86 L.Ed. 1655; 75 S.C. 62, 54 S.E. 136; 57 Colo. 74, 141 P. 132, Ann. Cas. 1915 D. 1188; 191 S.C. 271, 2 S.E.2d 36; 160 S.C. 104, 158 S.E. 214; 207 S.W.2d 243.
Messrs. T.C. Callison, Attorney General, and James S. Verner, Assistant Attorney General, of Columbia, for Defendant, cite: As to the General Assembly of South Carolina, by exercising its police power, being able to control or abolish the practice of Naturopathy: 104 F.2d 728; 348 U.S. 483, 99 L.Ed. 563; 112 S.E. 62, 119 S.C. 213; 88 S.E.2d 683, 227 S.C. 538; 38 S.E.2d 644, 208 S.C. 469; 194 S.E. 439, 185 S.C. 472. As to the Act in question being constitutional: 61 A.L.R. 346; 154 U.S. 116, 38 L.Ed. 929; 89 F. Supp. 309, 180 F.2d 143; 120 U.S. 64, 30 L.Ed. 563; 54 S.E.2d 777, 215 S.C. 193; 42 S.C. 222, 20 S.E. 221; 253 U.S. 350, 64 L.Ed. 946; 41 Am. Jur. Par. 45; 41 Am. Jur. 150; 188 U.S. 505, 47 L.Ed. 563; 150 Ind. 607, 50 N.E. 750; 162 Ga. 246, 134 S.E. 42; 41 Am. Jur., 172; 294 U.S. 608, 79 L.Ed. 1086; 162 Ga. 246, 134 S.E. 42; 198 S.E. 419, 188 S.C. 39; 88 S.E. 648, 104 S.C. 268; 19 S.E. 458, 41 S.C. 220; 21 S.C. 292; 152 S.E. 865, 156 S.C. 299; 68 S.E.2d 334, 220 S.C. 414; 12 S.E.2d 851, 196 S.C. 79; 167 S.E. 674, 168 S.C. 440; 290 U.S. 169, 78 L.Ed. 247; 336 U.S. 220, 93 L.Ed. 632; 83 S.E.2d 153, 225 S.C. 490; 84 S.E.2d 132, 226 S.C. 136; 77 S.E.2d 798, 224 S.C. 150; 49 S.E.2d 12, 213 S.C. 254; 336 U.S. 220, 93 L.Ed. 632; 28 S.E.2d 850, 204 S.C. 275; 207 S.W.2d 343; 92 L.Ed. 1338; 57 N.M. 400, 259 P.2d 356, 39 A.L.R.2d 595; 39 A.L.R.2d 609; 162 L.R.A. 861, 54 A.L.R. 594; 274 U.S. 720, 71 L.Ed. 1321.
Messrs. Price Poag, of Greenville, for Plaintiffs, in Reply, cite: As to Naturopathic Physicians not being in a single classification: 209 S.C. 512. As to vast difference between regulation and prohibition: 225 P. 491; 182 N.Y. 83, 70 L.R.A. 722; 129 U.S. 115, 52 L.Ed. 623.
COMPLAINT
Plaintiffs complaining of the defendant allege:
1. Plaintiffs are citizens of the United States of America and the State of South Carolina and are officers and members of the South Carolina Naturopathic Association, Inc., a Corporation created under the laws of the State of South Carolina. This action is brought by plaintiffs in their official capacity, and also individually for the benefit of themselves and all members of the Association and all duly licensees who are practicing in the State under a duly issued and lawful license. Membership in the Association is confined solely and exclusively to regularly licensed Naturopathic Practitioners in South Carolina. Doctors M.S. Dantzler and J.B. Branyon and W.T. Bidwell are the Board of Examiners. All of the plaintiffs as individuals have been naturopathic physicians under the law of South Carolina since 1937. All of the licensed Naturopathic Physicians in south Carolina, except the last ten licensees, were admitted to practice in compliance with the law prior to June, 1946. The last ten practitioners were admitted under the amended Naturopathy Act of 1949, which greatly increased the education and professional qualification of applicants.
2. The defendant, Honorable T.C. Callison, is Attorney General of South Carolina, and is made a party defendant in pursuance of Section 10-2008 of the South Carolina Code of 1952, as this is an action seeking a declaratory judgment as to the rights of the plaintiffs and to declare unconstitutional the Act of the General Assembly of South Carolina as follows:
"An Act To Repeal Sections 56-901 Through 56-919, Code Of Laws Of South Carolina, 1952, Relating To The Practice of Naturopathy; To Make It Unlawful For Certain Persons To Practice Naturopathy In This State; And To Provide Penalties For Violating The Provisions Of This Act."
The body of the Act reads as follows:
"Be it enacted by the General Assembly of the State of South Carolina:
"Section 1. Sections 56-901 through 56-919, Code of Laws of South Carolina, 1952, are hereby repealed.
"Section 2. It shall be unlawful for any person whether heretofore licensed or not under the laws of this or any other state to practice naturopathy in this State; Provided, however, that any person now authorized to practice naturopathy in South Carolina who is a graduate of an accredited college for pre-medical training and who has, in addition thereto, graduated from a medical college recognized at the time of his graduation by the state in which it was located, and who has heretofore for a period in excess of five years engaged in the practice of medicine in the State of South Carolina under the supervision of a licensed medical doctor by special request or by special permission of the State Board of Medical Examiners, or agents thereof, shall be examined by the State Board of Medical Examiners on the same basis as other applicants to the Board are examined, and upon the making of a passing grade on this examination, shall be licensed to practice medicine in this State.
"Section 3. Any person violating the provisions of Section 2 of this act shall, upon conviction, be guilty of a misdemeanor and be fined not exceeding five hundred dollars or be imprisoned for a period of not exceeding one year or both in the discretion of the court.
"Section 4. All acts or parts of acts inconsistent herewith are hereby repealed.
"Section 5. This act shall take effect upon its approval by the Governor. [In the Senate House the 23rd day of February In the Year of Our Lord One Thousand Nine Hundred and Fifty-six.]
3. Plaintiffs allege that the act in question is in violation of their rights as citizens of the United States of America and of South Carolina as provided in the Fifth and Fourteenth Amendments of the United States Constitution in that it deprives the plaintiffs of their property and property rights without due process of law, and denies them of the equal protection of the laws and is arbitrary and discriminatory in that it singles out naturopathy, one of a number of special practitioners in the art of healing and abolishes their profession only.
4. Plaintiffs further allege that the Act in question violates the following provisions of the Constitution of the State of South Carolina: Article 1, Section 5; Article 1, Section 17, and Section 17, Article 3 in that said Act deprives plaintiffs of their property and property rights without due process of law and denies them of the equal protection of the laws and is arbitrary and discriminatory in that it singles out naturopathy, one of a number of special practitioners in the art of healing and abolishes their profession only. With reference to Section 17, Article 3 of the Constitution of South Carolina of 1895 plaintiffs allege that the Act violates this Section in that it relates to more than one subject which is not expressed in the title. The proviso in the Act deals with a specific provision for the licensing of medical doctors, which in no way has any connection with the title of the Act and such proviso discriminates within the Naturopathic Practitioners.
5. Plaintiffs further allege that all of the Naturopathic Physicians in South Carolina entered the practice as a means of livelihood for themselves and to support their families. They have invested much time and great sums of money, more or less, in perfecting themselves for the practice of their profession. Section 56-901 of the South Carolina Code of 1952 defines Naturopathy as follows:
"`Naturopathy' is hereby defined to mean the use and practice of phychological, mechanical and material health sciences to aid in purifying, cleaning and normalizing human tissues for preservation or restoration of health according to the fundamental principles of anatomy, physiology and applied psychology, as may be required. Naturopathic practice employs, among other agencies, heat, light, water, electricity, psychology, diet, massage and other manipulative methods."
Naturopathy has been recognized by the Legislative Law of South Carolina since the Medical Practice Act of March 10, 1920, and to do the things permitted under the Act of necessity requires the use of equipment for the employment of such agencies as heat, light, water, electricity, psychology, diet, massage and other manipulative methods and all of the plaintiffs and those whom they represent have spent large amounts of money, more or less, in the purchase of necessary equipment, which they use in the practice of their profession.
6. Plaintiffs recognize the right of the Legislature to regulate their profession by the passage of any regulatory methods within the constitutional limits. Plaintiffs allege, however, that the above entitled Act destroys their profession and means of livelihood and would make acts which are perfectly lawful to become criminal acts subject to punishment by the court upon conviction. The Act in question is prohibitory and not regulatory in a field of Medical practice and/or art of healing that could be and can be properly regulated.
7. That plaintiffs are entitled to have the Supreme Court declare their rights and to pass upon the constitutionality of the above statute and to further declare the same null and void because of its violation of plaintiffs' constitutional rights.
Wherefore, plaintiffs pray for relief as follows:
(1) A judgment of this Court declaring the aforesaid Act to be unconstitutional and therefore null and void;
(2) For a judgment by the Court declaring the rights of the plaintiffs and to order and command the Attorney General and all law enforcement officers in the State of South Carolina not to in any manner interfere with the plaintiffs in the practice of their lawful profession;
(3) For such other and further relief as the plaintiffs may be entitled to under the circumstances of this case.
ANSWER
The Defendant, T.C. Callison, Attorney General of the State of South Carolina, answering the Complaint herein, respectfully shows to the Court:
1. That he denies all allegations of the Complaint not hereinafter admitted, qualified or explained.
2. That, upon information and belief, he admits the allegations of Paragraph 1 of the Complaint.
3. That he admits the allegations of Paragraph 2 of the Complaint.
4. That he denies the allegations of Paragraphs 3 and 4 of the Complaint.
5. Answering Paragraph 5 of the Complaint upon information and belief, this defendant admits that the plaintiffs are claiming to be Naturopathic physicians practicing in South Carolina as a means of likelihood and as a means of support to their families. The defendant admits that Sec. 56-901 of the 1952 Code of the State as amended, reads as set out and that Naturopathy has been recognized in various forms in the State since 1920; further, upon information and belief, this defendant admits the use of such equipment, as is referred to in Paragraph 5 of the Complaint, is employed by Naturopaths but has no knowledge of the sums invested therein.
6. This defendant admits so much of Paragraph 6 of the Complaint as alleges that the Act in question destroys the practice of Naturopathy as a separate cult, branch or profession of the healing art, and admits that it makes unlawful certain acts by plaintiffs, otherwise lawful, but lawful only to those qualified as general medical practitioners, or those qualified in specialized branches of the healing arts under the requirements of our laws, but the defendant alleges that the provisions of the said Act, the purpose of which is to protect the public's health and welfare, are within the police power of the State, are a valid exercise of said police power, and are neither arbitrary nor discriminatory.
7. Further answering the Complaint, this defendant alleges that the State has a vital concern in the health of everyone within its borders, the practice of medicine and healing being one of the fields peculiarly subject to control and regulation under the police powers of this and every other government. That the practice of medicine and of the healing arts can be lawfully prohibited by the State except upon the conditions imposed by it, which said conditions are subject to change from time to time to keep pace with the advance of educational and scientific progress, the plaintiffs and no other persons having any fundamental or property rights to engage in any form of the healing arts free from regulation, such as is true of those employments and trades not peculiarly within the concern of the police power.
8. That the plaintiffs have no contractual or property right granted to them by any pre-existing laws of this State allowing the practice of Naturopathy or granting licenses to them which are not subject to modification or denial in the proper exercise of the police power of the State in its promotion of the public health, plaintiffs' licenses creating in them no permanent or vested interest, such licenses not being within the inhibition against impairment of contract, and being revocable under the police power at the discretion of the sovereignty.
9. That the mere fact that the plaintiffs may suffer pecuniary injury because of the proper exercise of the police power of the State in forbidding the practice of Naturopathy in South Carolina, does not render the Act unconstitutional, because all private property is held and all callings are exercised in this State subject to the proper exercise of the police power of the State.
10. That the prohibition of the practice of Naturopathy as a separate branch of the healing art is a proper application of the police power of the State to a particular class practicing arts peculiar to themselves, there being no means of any practical regulation due to the close and confidential nature of the relationship between the Naturopath and patient with the consequent impossibility of supervising and confining such practice within lawful bounds.
11. That the Act in question does not prevent plaintiffs from practicing any lawful branch or type of healing formerly open to them as Naturopaths, as they may still, upon qualifying as medical doctors under the laws of this State, practice all lawful forms of healing and treatment, the Act making special provisions for those who have had proper medical training to take the examinations provided for medical doctors, with other laws leaving open the taking of these examinations by those who qualify themselves therefor hereafter.
12. That the Act attacked by the plaintiffs applies equally to all persons now practicing Naturopathy and that said classification is reasonable, operating alike on all within its provisions. That the Act is not discriminatory and does not deny the equal protection of the law to those within the class upon which it operates, there being no duty upon the State to recognize all peculiar schools and groups of those seeking to practice healing arts.
13. That the practice of medicine is not a Federal privilege or immunity within the purview of the Fourteenth Amendment to the Constitution of the United States, and is peculiarly within the control of the State and not of the United States.
14. That the title of the Act clearly shows its purpose and discloses to anyone interested that it is prohibiting the practice of Naturopathy in this State, relating to that one subject or matters fully germane thereto, in accordance with the provisions of Article III, Section 17 of the Constitution of this State.
Wherefore, this defendant prays that the Honorable Court do adjudge and decree that the Act in question is constitutional and valid in all respects and binding upon the plaintiffs and all others seeking to practice any form of the so-called Naturopathic Profession.
August 20, 1956.
This action was brought in the original jurisdiction of this Court, and as the pleadings will be printed, we only state very briefly the allegations thereof.
The plaintiffs allege that the individual plaintiffs are all licensed naturopathic physicians and were admitted to practice in compliance with the law prior to June, 1946, and that the last ten practitioners admitted in the State were admitted under the amended act of 1949. During the 1956 Session of the General Assembly of South Carolina, the following act was adopted:
"Section 1. Sections 56-901 through 56-919, Code of Laws of South Carolina, 1952, are hereby repealed.
"Section 2. It shall be unlawful for any person whether heretofore licensed or not under the laws of this or any other state to practice naturopathy in this State; Provided, however, that any person now authorized to practice naturopathy in South Carolina who is a graduate of an accredited college for pre-medical training and who has, in addition thereto, graduated from a medical college recognized at the time of his graduation by the state in which it was located, and who has heretofore for a period in excess of five years engaged in the practice of medicine in the State of South Carolina under the supervision of a licensed medical doctor by special request or by special permission of the State Board of Medical Examiners, or agents thereof, shall be examined by the State Board of Medical Examiners on the same basis as other applicants to the Board are examined, and upon the making of a passing grade on this examination, shall be licensed to practice medicine in this State." 49 St. at Large, p. 1624.
Section 3 provides for the punishment of the violation of the Act. Section 4 provides that all Act or parts of Acts inconsistent therewith were repealed.
The plaintiffs seek a declaratory judgment as to their rights and contend that the Act is unconstitutional in that it violates the Fifth and Fourteenth Amendments of the Constitution of the United States by depriving them of their property and property rights without due process of law and denies them the equal protection of the law; is arbitrary and discriminatory in that it singles out naturopathy, one of the arts of healing, and abolishes its practice. They further allege that the Act is in violation of Article 1, § 5; Article 1, § 17; and Article 3, § 17, of the Constitution of South Carolina in that it deprives them of their property and property rights without due process of law; denies them equal protection; is arbitrary and discriminatory; and that the Act relates to more than one subject which is not expressed in the title. It is further contended that the plaintiffs entered the practice of naturopathy as a means of a livelihood; they have invested much time and great sums of money; and that naturopathy has been recognized by the General Assembly of South Carolina since 1920; and it is finally contended that the Act is prohibitory and asks that it be declared null and void.
The answer admits that the individual plaintiffs have been practicing naturopathy since their admission and admits the passage of the Act, however, it denies that the Act is in violation of either the State or Federal Constitutions. It is also admitted that by the Act the practice of naturopathy, as a separate cult, is prohibited; and that it makes unlawful certain acts by the plaintiffs, otherwise lawful, but lawful only to those coming under the provisions of the law. Defendant contends that the purpose of the Act is to protect the public health and welfare and is a valid exercise of the police power of the State, and denies that it is either arbitrary or discriminatory.
We think it may be fairly stated that the questions involved are:
(A) Is the title of the act defective so as to render it unconstitutional in view of Section 17 of Article 3 of the South Carolina Constitution?
(B) Is the Act violative of either the Federal or State Constitutions?
(C) May the State, under the police power, so regulate?
The title of the Act in question is as follows:
"An Act To Repeal Sections 56-901 Through 56-919, Code Of Laws Of South Carolina, 1952, Relating To The Practice Of Naturopathy; To Make It Unlawful For Certain Persons To Practice Naturopathy In This State; And To Provide Penalties For Violating The Provisions Of This Act."
Section 17, Article 3 of the South Carolina Constitution reads as follows:
"Every Act or Resolution having the force of law shall relate to but one subject, and that shall be expressed in the title."
The purpose of this section is to prevent deception of the public and to prevent insertion of matters not germane to the general subject. Furman v. Willimon, 106 S.C. 159, 90 S.E. 700; Miles Laboratories v. Seignious, D.C., 30 F. Supp. 549.
This section is to be construed with great liberality. Gasque v. Nates, 191 S.C. 271, 2 S.E.2d 36.
This requirement should not be enforced in any narrow or technical spirit. It was adopted to prevent certain abuses and it should be reasonably and liberally construed on the one hand so as to guard against these abuses, and on the other hand so as not to embarrass or obstruct needed legislation. Alley v. Daniel, 153 S.C. 217, 150 S.E. 691.
There is no doubt in the mind of this Court as to the validity of the title of the Act, but even if there were some doubt, a statute should be upheld if possible, doubtful cases being resolved in its favor. Alley v. Daniel, supra.
The plaintiffs certainly knew the purpose of the Act, for when the bill was before the General Assembly, according to their brief, they say: "We appeared before the House Judiciary Committee and the Senate Medical Committee and filed a printed brief along the lines followed herein."
Plaintiffs rely upon Ex parte Wachovia Bank Trust Co. ( Nettles v. People's Bank of Darlington), 160 S.C. 104, 158 S.E. 214, however, we think this authority affords the plaintiffs no comfort as a study of that decision will reveal the difference between that and the instant case.
The purpose of this provision is to prevent "log-rolling legislation"; to prevent surprise or fraud upon the legislature by means of provisions in bills of which the title gave no indication, and which may be, therefore, overlooked and unintentionally adopted; and to apprise the people of the subject of the legislation in order that they may have opportunity of being heard, if they so desire. McCollum v. Snipes, 213 S.C. 254, 49 S.E.2d 12, and many other authorities therein cited.
What subject, if we may ask, is embraced in the Act which is not referred to in the title or not germane to the purposes of the Act? The plaintiffs direct our attention to none, and none does an examination thereof reveal. It is indeed the duty of this Court to sustain the constitutionality of a sacred act of the legislature unless the contrary most clearly appears from the language of the statute. This Court still adheres to the doctrine that it was not established by the people to assume the duties of legislation, and neither will it declare an act of the legislature unconstitutional unless the language of the Act itself plainly and unmistakably reveals its conflict with the Constitution.
The authorities seem to abundantly differ with plaintiffs' contention, and we so hold.
The plaintiffs contend that the main question for consideration is: "Does the Act deprive the plaintiffs of their property rights without due process of law, and does the Act deny to them equal protection of the law?"
"Naturopathy is one of a number of fields in the art of healing" * * * and has been recognized "as accepted processes of preventive and curative medicine," and every person so practicing, after being duly licensed, "stands for all purposes in the position of a physician in the orthodox fields of medicine * * *." Williams v. Capital Life Health Insurance Co., 209 S.C. 512, 41 S.E.2d 208, 210.
From the record, as well as from an independent examination, we conclude that Naturopathy is of comparatively recent recognition, so far as South Carolina is concerned. The area of its field of practice seems to have increased much more rapidly than the required educational qualifications of those who profess to practice. Indeed, it is rather difficult for the ordinary layman to understand how one may be permitted to practice "the use and practice of physotherapy, minor surgery, obstetrics, gynecology, autotherapy and biologicals," or to "purifying, cleansing and normalizing human tissues for preservation or restoration of health, according to the fundamental principles of anatomy and physiology," without first satisfactorily giving evidence of his unquestioned training and qualifications. Who is to set the standard for such persons? Shall it be the afflicted in mind and body, who plead day and night for relief, or shall it be those who are suddenly stricken in and about their hearts, lungs, stomachs or blood stream, when even the most perfect training, experience and care may not be enough? or should it be the State? The State may not say to its citizens what they must do or to whom they must go in time of mental and physical distress, but we think the State has the right to say and direct what the qualifications shall be of those persons to whom its citizens turn in their hour of need.
Regardless of anything which may appear to a layman's mind as to what should be the requirements of one who is to diagnose and find out what is the cause and treatment of his illness, it is not a judicial question. It is one of legislative authority. From the record, we find that before the Bill became an Act, the General Assembly provided for hearings before two of its standing committees, and we must assume that the Act is based upon bona fide, scientific grounds. State v. Barnes, 119 S.C. 213, 112 S.E. 62.
There is no reasonable doubt that the rights of those who have been duly licensed to practice medicine or other professions are property rights of value which are entitled to protection. Ezell v. Ritholz, 188 S.C. 39, 198 S.E. 419; and that the right of a person to practice his profession for which he has prepared himself is property of the very highest quality. Cavassa v. Off, 206 Cal. 307, 274 P. 523. However, it may be observed that no person has a natural or absolute right to practice medicine, surgery, naturopathy or any of the various healing arts. It is a right granted upon condition. Allopathic State Board of Medical Examiners v. Fowler, 50 La. Ann. 1358, 24 So. 809; Louisiana State Board of Medical Examiners v. Fife, 162 La. 681, 111 So. 58, 54 A.L.R. 594, affirmed 274 U.S. 720, 47 S. Ct. 590, 71 L.Ed. 1324.
A state may not prohibit the practice of medicine or surgery, yet it is very generally held that a state, under its police power, may regulate, within reasonable bounds, for the protection of the public health the practice of either by defining the qualifications which one must possess before being permitted to practice the same. Hawker v. People of State of New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002; Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623; and of course, it naturally follows that a legislature in defining the required qualifications cannot prescribe, as a condition to the right to practice, knowledge which bears no relation to the profession in question. However, this in no way means that the legislature, in enforcing its required qualifications which one, in its judgment, should possess to practice medicine, must make requirements for every school of medicine or of the healing arts which may exist, by requiring of those belonging to each particular school a knowledge only of those subjects which the theory of healing, advocated by each school, requires, as was said by the Supreme Court of Louisiana in Medical Examiners v. Fowler, supra. In Allopathic State Board of Louisiana v. Fowler, supra, the court said, "We know of no constitutional right given to particular persons, who, entertaining peculiar theories of medicine, group themselves together, and call themselves a special school of medicine under a selected name, to be recognized as and delt with as such." 50 La. Ann. 1374, 24 So. 816.
Section 56-901, now repealed, sets forth the field of practice for Naturopaths. Section 56-1354 defines the Practice of Medicine. There is nothing in the existing statutes which will prevent the practice of any subject covered in Section 56-901, now repealed, by any person who has been or may be admitted to practice in conformity with existing legal provisions. By the adoption of the Act complained of, the legislature in no way cut down the field of practice but it did raise the standards of those who would operate in such fields. It was not the profession but it was those who practice the profession that the General Assembly was dealing with. This Act should be treated and construed as imposing additional qualifications upon persons already in the profession. It is an effort on the part of the legislature to regulate one phase of the healing arts and should be construed in pari materia with other statutes relating to the subject. It is not for us to reason why or what prompted the legislature to adopt the statute. It was not without the benefit of the actions of its committees which initially considered the matter. As was said in Barsky v. Board of Regents of University of State of New York, 347 U.S. 442, 74 S.Ct. 650, 655, 98 L.Ed. 829, "It is equally clear that a state's legitimate concern for maintaining high standards of professional conduct extends beyond initial licensing. Without continuing supervision, initial examinations afford little protection."
In Williamson v. Lee Optical of Okla., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563, there was an attempt to strike down a statute which prohibited opticians from fitting or duplicating eye glasses without a prescription. The contention was made that the Act violated the due process clause of the Constitution. The Supreme Court of the nation denied this contention, holding that in matters of public health, the power of the legislature is exceedingly broad and it was not for the courts but for the legislature to determine the need for such regulation as a protection of the public.
We do not know what was the legislative mind. For good and sufficient reasons, it may have concluded that "a little learning is a dangerous thing" and that those who would undertake to treat or manipulate the human body must "drink deep or touch not." We of course must assume that it knew of the decisions of this Court involving Naturopathy in Dantzler v. Callison, 227 S.C. 317, 88 S.E.2d 64; Jacoby v. South Carolina State Board, 219 S.C. 66, 64, S.E.2d 138; and Williams v. Capital Life, supra, However, the right to practice medicine is a qualified one and is held in subordination to the duty of the State under the police power to protect the public health. Lawrence v. Board of Registration, 239 Mass. 424, 132 N.E. 174. The police power can not be stipulated or bartered away. Gray v. State of Connecticut, 159 U.S. 74, 15 S.Ct. 985, 40 L.Ed. 80.
No person can acquire a vested right to continue, when once licensed, in a business, trade or profession which is subject to legislative control and regulation under the police power, as regulations prescribed for such may be changed or modified by the legislature, in the public interest, without subjecting the action to the charge of interfering with contract or vested rights. State v. Hovorka, 100 Minn. 249, 110 N.W. 870, 871, 8 L.R.A., N.S., 1272, 1273.
The granting of a license to practice certain professions is the method taken by the State, in the exercise of its police power, to regulate and restrict the activity of the licensee. He takes the same, subject to the right of the State, at any time, for the public good to make further restrictions and regulations. It is a matter of common knowledge that derivatives of opium or similar drugs could be purchased in former years at even a country store. The State has now prohibited this and a druggist may not sell morphine or drugs of that nature without a prescription from a duly licensed authority. If the restrictions are reasonable, they would be upheld even though they actually prohibit some people from further engaging in such occupations or professions under a license previously granted. See note 8 L.R.A., N.S., 1273.
It is universally held that it is competent for the legislature to prescribe qualifications for those who are to practice medicine and thus to assure that they shall possess the requisite character and learning, Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623, and the State may change the qualifications from time to time, making them more rigid. Dent v. State of West Virginia, supra. It lies within the police power to require educational qualification of those already engaged in the practice of any profession. Hawker v. People of State of New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002.
In Commonwealth v. Zimmerman, 221 Mass. 184, 108 N.E. 893, 895, and in State v. Smith, 233 Mo. 242, 135 S.W. 465, 33 L.R.A., N.S., 179, we find that statutes somewhat similar to the instant statute were under attack along the same lines which the plaintiffs herein argue. It was there held: "The protection of the public from those who undertake to treat or manipulate the human body without that degree of education, training and skill which the Legislature has prescribed as necessary to the general safety of the people is within the police power of the state. * * * The protection of the public health is an object of such vital importance to the welfare of the state that any rational means to that end must be upheld."
Indeed we may assume that the Legislature, in its wisdom, may have concluded that "the limited practitioner is likely to do a great deal of harm, not only because he is not thoroughly educated as a physician, but as he is only licensed to use a certain system of treatment, he is apt to use it in cases to which it is not adapted."
In Williams v. Capital Life Health Ins. Co., supra, Mr. Chief Justice Baker, now retired, speaking for this Court, said: "While this is not in any sense controlling, we may advert to the fact that it is a matter of common knowledge that the people who purchase sick benefit policies of the industrial type constitute a large proportion of the patrons of practitioners of such branches of healing or medicine as naturopathy, and that it is generally believed by such people that they are dealing with licensed practitioners of medicine." May we ask, after all, why should not persons who hold themselves out to be doctors, regardless of what they may otherwise profess, be required to have the training of a medical doctor?
In Davis v. Beeler, Tenn., 207 S.W.2d 343, 347, in which an appeal was dismissed by the U.S. Supreme Court, 333 U.S. 859, 68 S.Ct. 745, 92 L.Ed. 1138, a statute strikingly similar to that here was contested on practically the same grounds as in the instant action. There the General Assembly adopted a statute which first repealed the act authorizing the licensing of naturopaths, and second, prohibited the practice of naturopathy. It appears that there were some two hundred licensed naturopaths in Tennessee at the time. Practically every question raised in the action before us was presented to the Tennessee Court which held adversely to the contentions of the plaintiffs there and here, the Court saying: "Evidently, the Legislature thought there was too much border-lining in the practice of naturopathy and determined to stamp out the evil that was not in the science but in the practicing of it, to the definite injury of credulous sufferers."
Where the primary duty and responsibility for determining a question rests with the Legislature, this Court will not substitute its judgment for that of the legislative authority.
It is our opinion that the enactment in question is a valid exercise of the police power of the State and that no unwarranted discrimination appears in the Act, and
It is so ordered.
Let the complaint and answer be published herewith.
STUKES, C.J., and OXNER, LEGGE and MOSS, JJ., concur.