author: FERRISS, J.

text:
    THE STATE ex rel. WESTERN TIE & TIMBER COMPANY, Appellant, v. JOHN A. PULLIAM et al.
    Division Two,
    March 7, 1911.
    1. TAXATION; Board of Equalization: Correcting Assessment. The county board of equalization, bas power, at its meeting in September, to correct the assessment of property for taxes theretofore made by the assessor for the current year.
    2. -: -: Omitted Property. Under the Act of 1903 (Laws 1903, p. 253) and Sec. 8546, R. S. 1899, the county board of equalization, at its meeting in September, can revise the assessment books for the current year by adding omitted property for that year. But the board under that act, has no power, either at its September or annual meeting, to add property for other years omitted from the assessment books for such years.
    3. -: -: -: Manufacturers. Sec. 8546, R. S. 1899, applies to manufacturers, and it and Sec. 8486 give the county board of equalization, at its September meeting, power to correct assessments against manufacturers for the current year, or to add omitted property for that year.
    4. -: Insufficient Description: Tram Railroad. An assessment of a “tram railroad” without any statement whatever as to its character, location, length, equipment, construction or use, excepting that it is operated in connection with the business of manufacturing timber products by the designated owner, is insufficient to afford a proper basis for an assessment for taxation.
    5. -: -: -: Tools, Etc. A tram railway is not a “tool, machine or appliance” of a manufacturing business.
    Appeal from Ripley Circuit Court. — Now. J. C. Sheppard, Judge.
    Reversed and remanded (with directions).

      John M. Atkinson and Block & Sullivan for appellant.
    - (1) Without express statutory power, a hoard of equalization cannot add omitted property to the assessment roll. Railroad v. Cass Co., 53 Mo. 30; State ex rel. v. Cunningham, 153 Mo. 652. ■ (2) No- jurisdiction has been conferred on a county board of equalization over manufacturers’ returns, quoad manufacturers. R. S. 1899, sec. 8546; Id., see. 8486. (3) At its September sitting, the board has no power to add omitted property to the assessment returns. R. S. 1899, sec. 8546; Laws 1903', p. 253; R. S. 18991, sec. 9130. (4) The power to add property omitted conferred upon the hoard at its April sitting could not be exercised at the September sitting. St. Joe Lead Co. v. Simmons, 108 Mo. 222. (5) No power has been conferred upon the hoard at any term to assess property omitted in previous fiscal years. R. S. 1899, sec. 8546; Laws 1903, p. 253; Cape Girardeau v. Buehrman, 148 Mo. 203; Hannibal v. Bowman, 98 Mo. App. 107. (6) The property assessed was real property. R. S. 1899, sec. 9123. And the attempted assessment is void for want of a sufficient description. Jefferson City v. "Whipple, 71 Mo. 5201; State ex rel. v. Railroad, 114 Mo. 5; State ex rel. v. Sanford, 127 Mo. 372; State ex rel. v. Bur-rough, 174 Mo. 706.

      Thomas F. Lane for respondents.
    (1) Respondents are the board of equalization ■of Ripley county and had express' statutory power to assess the property mentioned in this record. 4 Mo. Ann. Stat. .1906, sec. 9134; Laws 1903, p. 253; As no return of this property was made by appellant for the years .1904 and 1905, they could have added it to the assessment rolls under Sec. 91501, R. S. 1899'. State ex rel. v. Baker, 170 Mo. 388. The Legislature in pass>ing the Act of 1903, intended to and did give the county board of equalization plenary power on the question of adding property to the assessment book or rolls. (2) Appellant makes the specific objection that the county board of equalization has no power or jurisdiction over manufacturers’ returns, and cites Secs. 8546' and 8486, R. S. 1899. The Act of 1903, supra, does not mention any particular class of persons and does not classify any particular kind of property, but it says that the county board of equalization, in addition to the power’s now conferred by law, shall have authority to assess and equalize the value of any property that may have- been omitted from the assessor’s books then under consideration by said board. It is broad enough to cover every character of property and every class of persons whose property may be taxable under -the law. All property is taxable under the laws of this State, except such as is specifically • exempt. State ex rel. v. Free School, 162 Mo. 332. (3) Appellant further points out that no power has been conferred upon the board, at any time, to assess property emitted in previous fiscal years, and cites thereunder Sec. 8546, 'R. S. 1899, Laws 1903, p. 253; etc. Section 8546 relates to merchants’ licenses, making and filing the affidavits, etc., as provided by said section, setting out the largest amount of goods, wares and merchandise that he may have on hand at any time between the first Monday 'of March and first Monday of June of the next preceding year. It seems that both this section and the Act of 1903, referred to, are practically silent on this- specific question. I see nothing whatever to preclude thfe board from adding property of the previous years when it appears that it has been omitted from assessment and escaped taxation. (4) Appellant contends that the property assessed is real property. It appears from the record that the property is a tram railroad and used for the purpose of carrying on a manufacturing business by áppellant. For the purposes of taxation, it is personal property. State ex rel. v. Dulle, 48 Mo. 282; State ex rel. v. Railroad, 103 Mo. 192.
   FERRISS, J.

Appeal from a judgment of the circuit court of Ripley county, quashing a writ of certiorari theretofore issued by that court and directed to respondents, composing the county board of equalization of said county. The case arises upon the following facts: .

Respondents, composing said board of equalization, met at the office of the county clerk of said county on the first Monday in September, 1905, and took an oath that they would “fairly and impartially adjust the merchants and manufacturers statement book of all the merchants and" manufacturers within Ripley county, Missouri, as assessed by the county ■ assessor June 1st, 1905.” Among other proceedings was the following:

“Added by the board of equalization: Western Tie & Timber Co., Naylor, Mo., for 1904, tram R. R., $12,000; Western Tie & Timber Co., Naylor, Mo., for 1905, tram R. R., $25,000.

“The board finds that the above named parties are operating in Ripley county, Missouri, in the manufacture of timber products, and that the Western Tie and Timber Co. is operating a tram railroad in connection with business, and that said parties are liable to taxation as manufacturers, and that the said Western Tie and Timber Co. has been operating as such during the years of 1904 and 1905; therefore it is ordered by the board that said parties be assessed upon the merchants and manufacturers tax book.”

Thereafter, on the fourth Monday in September, 1905, the board met and reduced the said assessment on said tram railroad, for the year 1904, from $12,000 to $8000, and for the year 1905, from $25,000 to $12,000.

I. We are of the opinion that the board of equalization had power at the September session to correct the assessment for 1905' by adding thereto property which had been omitted.

Section 8546, Revised Statutes 1899, under which the board was-acting, provides that at the meeting in September the board “shall have the same powers and shall proceed in the same manner as provided in article 1 of chapter 149, Revised Statutes 1899.” Article 1 of chapter 149, referred to in section 8546, gave no power to the-board to add omitted property. [State ex rel. v. Cunningham, 153 Mo. 652.] Consequently, there was nothing in such article 1 at that time which authorized' the board to add omitted property.

It is claimed, however, that the enlarged powers given to the board by the Act of the Legislature passed in 1903 (Laws' 1903, p. 253), authorized the board, at its September session, to add the omitted property for 1905, the current year. The Act of 1903 was, in effect, an amendment to article 1, chapter 1491, of the Revision of 1899, enlarging the powers of the board at the- annual meeting so as to authorize the board to revise the. assessment books for the current year by adding omitted property for that year. Consequently, the board; at its September session, could exercise the enlarged powers granted by the amendatory act of 1903.

II. We think that section 8546 applies to manufacturers, so far as the power of the board is concerned. The Manufacturers’ License Act (R. S. 1899', sec. 8486) provides that manufacturers shall be licensed and taxed on “tools, machinery and appliances, ’ ’ in the same manner as is now or may be provided by law for the licensing and taxing of merchants.

III. The attempted addition of property for 1904 was invalid for the reason that neither in the Act of 1903, nor elsewhere, is there power given to the board of equalization to add for assessment property omitted for any year prior to the then current year. The Act of 1903 provides that the board shall have power to “assess and equalize the value of any property that may have been omitted from the assessor’s bQoks then under examination by said’board.” This plainly refers to the books for the current year only, as they are the only ones “under examination by said board. ’ ’

IV. The return designates the property added by the board as a “tram railroad,” without any statement whatever as to its character, location, length, equipment, construction or use, excepting that it is operated in connection with the business of manufacturing timber products. This description is insufficient to afford a proper basis for assessment for taxation. [City of Jefferson v. Whipple, 71 Mo. 520; State ex rel. v. Railroad, 114 Mo. 5.]

Y. We are unable to agree that a tram railroad, as designated and described, of, more accurately speaking, not described, is either a tool, a machine or an appliance of a manufacturing business. Reference to a dictionary will show that the term ‘ ‘ tram railroad” has no settled, well-defined meaning, and is a term often applied to a street railroad, carrying passengers. In some places it is commonly used as the equivalent for the term “street railroad.” It is also applied to a road-bed and cars for transporting coal and other freight. There are also overhead tramways. This record gives us no information on the subject.

For the foregoing reasons the judgment is reversed and the cause remanded, with directions to the circuit court to quash the return to the writ.

Kennish, P. J., and Broiun, J., concur.


source: Caselaw Access Project

author: KENNISH, P. J.

license: Public Domain

text:
    Ex Parte WALTER DIPLEY, Petitioner.
    Division Two,
    March 7, 1911.
    1. CAPITAL OFFENSE: Appeal: Stay of Execution. An appeal from a judgment adjudging defendant guilty of murder in the first degree and assessing his punishment at imprisonment in the penitentiary for life, does not of itself operate as a stay of execution, and does not preclude the sheriff from delivering the defendant to the warden of the penitentiary, and' does not entitle defendant to remain in jail until his appeal is determined.
    2. -: -: Statute: No Order Finding Probable Cause. The statute (Sec. 5294, BL S. 1909), providing that no appeal shall stay execution, “except in capital cases,” unless the proper court or judge “shall be of the opinion that there is probable cause foT such an appeal” and “shall make an order expressly directing that such appeal shall operate as a stay of proceedings on the judgment; but in capital cases the order granting the appeal shall operate as such stay absolutely,” does • not mean that defendant who has been indicted and convicted of murder in the first degree and his punishment fixed at life imprisonment, cannot be confined in the penitentiary during the pendency of the appeal. The words “in capital cases” mean cases in which the punishment has been fixed at death; and the statute means that in all cases of appeal from judgments of conviction included within the provisions of that statute, by which the death penalty has not been assessed, and in which the convict is either not entitled to bail, or being so entitled has not been admitted to bail, the execution of the judgment is not to be stayed or delayed, except upon an order based upon a finding of probable cause.
    Habeas Corpus.
    Prisoner remanded.

      Geo. R. Clay for petitioner.

      Elliott W. Major, Attorney-G-eueral, and James T. Blair, Assistant Attorney-General, for the State.
   KENNISH, P. J.

This is an application for a writ of habeas corpus by Walter Dipley, petitioner. It appears from the facts stated in the petition in the case that the petitioner on the-day of January, 1911, in the circuit court of Webster county, at the January term,' 1911, thereof, upon an information theretofore filed in said court, was> tried and convicted of the crime of murder in the first degree and his punishment assessed at imprisonment in the penitentiary for the period of his natural life. Judgment was pronounced and sentence passed in accordance with the verdict, and the petitioner, in due form, appealed to this court. It further appears that the sheriff of said county procured from the clerk of said court a duly certified copy of the said sentence and judgment, and by virtue of the authority thereof transported the petitioner to the penitentiary of this State and delivered him into the care and custody of Henry Andrae, the warden thereof, who now has the petitioner in Ms custody, confined within the walls of the penitentiary, and that he is how so confined and restrained of his liberty. The prayer of the petition is that a writ of habeas corpus be issued and that the petioner may be discharged from such unlawful imprisonment.

It does not appear that this court, or a judge thereof, or the said circuit court of Webster county, in which the judgment was rendered, or the judge of said court, made an order expressly directing that such appeal should operate as a stay of the proceedings on the judgment so pronounced against the petitioner.

Duly certified copies of the information, sentence and judgment, and order granting the appeal in said cause, are attached to the petition.

The petitioner waived the production of Ms body in court, and the warden waived the issuance of a writ and filed his return to the petition herein.

It is alleged in the return of the warden that the said Walter Dipley is now in his custody and imprisoned in the penitentiary of the State of Missouri, at the City of Jefferson, in the county of Cole, under a judgment and sentence and order of the circuit court of Webster county, Missouri, copies whereof are attached to the application for the writ in this case.

The return admits the truth of the facts stated in the application of the petitioner, and prays the judgment of the court thereon.

Suggestions by the Attorney-General, accompanying the return of the warden, are on file, but no brief has been filed on behalf of the petitioner.

We gather from the pleadings and suggestions that the petitioner bases his right to be discharged from his present confinement in the penitentiary on the ground that having been convicted of murder in the first degree, the order granting' an appeal from the judgment, as a matter of law, operated as a stay of execution and that, therefore, he was entitled to remain in the county jail pending his appeal.

Section 5294 of the Revised Statutes of 1909, covering this subject, is as follows: “No such appeal or writ shall stay or delay the execution of such judgment or sentence, except in capital cases, unless the Supreme Court, or a judge thereof, or the court in which the judgment was rendered, or the judge of such court, on inspection of the record, shall be of opinion that there is probable cause for such an appeal or writ of error, or so much doubt .as to render it expedient to take the judgment of the Supreme Court thereon, and shall make an order expressly directing that such appeal or writ of error shall operate as a stay of proceedings on the judgment; but in capital cases the order granting the appeal shall operate as such stay absolutely.”

Prior to the year 1889 no exception was found in the foregoing statute, and, as it then existed, unless upon an order of probable cause, as therein provided, an appeal did not operate in any ease as a stay of execution of the judgment.' In that year the law was amended so that capital cases were excepted, and it was then provided by such amendment that the order granting the appeal in capital eases should operate to stay the execution of the judgment, and so the law has remained.

There is no question involved in this case as to the right of the petitioner to be admitted to bail pending his appeal. The sole question is whether, in the absence of an order finding probable cause for an appeal and directing that the appeal shall operate as a stay of proceeding’s upon the judgment, the order of the court granting petitioner’s appeal, of its own force, had the effect of staying the enforcement of the judgment.

Prom this brief statement it is apparent that the decision of the question presented depends upon ■whether the petitioner’s appeal was from a judgment and sentence in a “capital case.” If it was, then by the express terms of the statute the appeal stayed the execution of the judgment and the petitioner is entitled to be discharged from his present imprisonment ; otherwise, he should be remanded to the custody of the warden.

The petitioner contends that the words “ capital cases,” as found in the section of the statutes under consideration, mean and include all cases in which the conviction • was under an indictment or information which charged a capital crime, whether the punishment assessed be capital or not. The other construction is that the words “capital cases,” as so used, refer to the status of the convict when the appeal’is taken and, therefore, mean only cases in which the sentence and judgment imposes capital punishment.

It is the settled law in this State that an offense in which the punishment may be death is a- capital crime, and, under the first construction, in every conviction of murder or manslaughter in any degree, upon a charge of murder in the first degree, or in any conviction upon a charge of treason, rape, train robbery or other capital offense, regardless of whether the punishment assessed be capital or imprisonment in the penitentiary or county jai], the ease would fall within the meaning of the words “capital cases” and, in all such eases, in the absence of an order of probable cause for an appeal and staying execution, the convict would be entitled, by virtue of an appeal and as a matter of law, to remain in the county jail until his appeal was disposed of. This has not been, the construction placed upon'this statute by the judiciary of this State in the enforcement of the criminal law, nor do we think -such a construction was intended by the Legislature.

This question has been considered in the recent cases of Ex Parte Vickers, 201 Mo. 643, and Ex Parte Heath, 227 Mo. 393. In the former, the petitioner was convicted of rape and his punishment assessed at fifty years in the penitentiary. He applied for a supersedeas of the judgment in the trial court, which was denied. He was then conveyed to the penitentiary in accordance with the judgment and sentence, and filed his petition in this court for a writ of habeas corpus, basing hi's right to a discharge upon the same ground as in the petition in this cause. The court in that case held that the words, “in capital cases,” were used in their primary sense and meant cases where the sentence was death.

. In the Heath Case, supra, it is disclosed by the facts that the petitioner had been convicted of murder in the first degree and sentenced to imprisonment in the penitentiary for life. He appealed from the judgment and applied in the trial court for a supersedeas staying the execution of the judgment pending his appeal. The application was denied and he then applied- for , the same relief in this court and, upon a consideration thereof, his application was sustained and the judgment was superseded pending the appeal.

The petitioner contends that under the law as declared in the Heath Case, his conviction was of a capital offense and that, therefore, his appeal operated as a stay of execution of the judgment. That case was an application for a. writ of habeas corpus, for the purpose of having' the petitioner admitted to bail, and the question now before this court was not directly involved. The fact that this court had granted a supersedeas in that case conclusively shows that the court did not regard the appeal as taken in' a capital case within the meaning of Said section 5294; otherwise the appeal itself would have stayed the judgment and this court -would have held an order of 'court for that purpose unnecessary. The fact that this court 'reitoárMéd the petitioner to the custody of the sheriff of EaWrence county is of uo significance for' the" reason' that this court liad previously,- as authorized upon a showing of probable cause, made an order staying execution of the judgment pending the appeal and, therefore, the petitioner was properly in the custody of the sheriff instead of the warden of the penitentiary.

For the reasons given, we hold that in all cases of appeal from a judgment of conviction included within the provisions of said section 5294, for which the death penalty has not been assessed and in which the convict is either not entitled to bail or, being so entitled, has' not been admitted to bail, the execution. of the judgment shall not be stayed or delayed, unless upon an .order based upon a finding of probable cause, as- provided in said section 5294.

Entertaining the foregoing views, we hold that the petitioner is not entitled to his -discharge, and he is remanded to the custody of the warden of the penitentiary of this State to abide the judgment of this court on the pending appeal.

Ferriss and Brown, JJ., concur.-


text:
    Ex Parte GOLDIE SMITH, Petitioner.
    Division Two,
    March 7, 1911.
    CAPITAL OFFENSE: Appeal: Imprisonment in Penitentiary. A defendant who has been convicted of murder in the first degree and sentenced to life imprisonment in the penitentiary, and who has not been admitted to bail, is not entitled to -remain in the county jail during his appeal, unless there is an order of the proper court or judge finding there is provable cause for such appeal. •
    Habeas Corpus.
    Petitioner, remanded.

      Geo. B. Clay for petitioner.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
   KENNISH, P. J.

This is an application for a writ of habeas corpus. The facts and questions of law involved are the same as in the case of Walter Dipley, decided at the present term of this court. The petitioner in this case was prosecuted upon an information charging her jointly with said Walter Dipley with murder in the first degree, was convicted of that offense, has appealed to this court, is now confined in the penitentiary' of the State of Missouri, and bases her application for a writ of habeas corpus upon the same facts as were presented to this, court in the Dipley Case. For the reasons given in that case the writ is denied and the petitioner is remanded to the warden of the penitentiary of this State to abide the judgment of this court on the petitioner’s pending appeal.

Ferriss and Brown, JJ., concur.


text:
    THE STATE v. GEORGE SMITH, Appellant.
    Division Two,
    March 7, 1911.
    1. INFORMATION: Negativing Exception of Class. Where the act concerning the practice of medicine and surgery in' one section says, “If is not intended by this act to prohibit gratuitous service to and treatment of the afflicted,” it'is not necessary to negative such exception in the information. Treating the sick gratuitously is not a part of the description .of the offense of practicing medicine or surgery without a license from the State Board of Health.
    2. CONSTITUTIONAL LAW: Medical Act of 1901: Title: Caption: One Subject. 'The caption of the act is not its title. A title which is, “An Act to regulate the practice of medicine, sur- . gery and midwifery, and to prohibit treating the sick and afflicted without a license, and to provide penalties for the violation thereof,” clearly expresses that the one subject of the act is the public health, and that being the sole subject of the act, the act is valid. The treatment of the sick and the practice of medicine and surgery are in natural relation, and are but one subject.
    S. EJUSDEM GENERIS: Attempting to Treat the Sick: Limited to Treatment by Medicine. The general words of the statute, “Any person attempting to treat the sick or other persons afflicted with bodily or mental infirmities,” found in the clause, “Any person practicing medicine or surgery in this State, and anjr person attempting to treat the sick or others afflicted with bodily or mental infirmities, without first obtaining a license from the State Board of Health,” etc., are not', by the application of the rule of ejusdem generis, to be limited to attempts to treat by medicine or surgery. That is made clear by the various amendments to the original act, in which the words “treating the sick” are not found. The Legislature by this amendment, “And any person attempting to treat the sick,” intended to include those who practice neither medicine nor surgery, but who profess to cure, and who treat or attempt to treat the sick by means other than medicine or surgery — such as Chiropractic doctors. '
    4. -: Application of Rule: General Words. The rule of ejusdem generis is resorted to merely as an aid in construction. ■ If, upon consideration of the whole law upon the subject, and the purposes sought to be effected, it is apparent the Legislature intended the general words to go beyond the class specifically designated, the rule does not apply. If the particular words exhaust the class, then the general words must have a meaning beyond the class, or be discarded altogether.
    5. TREATMENT OF SICK: Chiropractic. A “chiropractor” treats the sick. He does not call it treatment, but “adjustment;” but it involves both diagnosis and physical treatment. Where the evidence shows that what defendant calls “chiropractic” is based on the theory that all diseases are due to the impingement of the vertebrae upon the nerves passing between them, and that such impingement is due .to a displacement of a nerve, and that the method of restoring the afflicted person to normal condition is to simply adjust the- nerve and thereby remove the cause; and that he did not take the patient’s temperature, nor examine the tongue, nor any part of the body except the spinal column, and asked no questions, but simply placed him on a cot, and. felt up and down his spine, and adjusted the displaced vertebrae and relieved the impinged nerves, .it shows that the practice involved skill, knowledge of anatomy, diagnosis, and physical treatment, and was an attempt *to “treat the sick or others afflicted with bodily or mental infirmities” within the meaning of Sec. 8315, It. S. 1899.
    6. PRACTICING MEDICINE AND SURGERY: Chiropractic. The practice of medicine is not confined to the administration of drugs, nor is surgery limited to the knife. When a physician advises his patient to travel for his health, he is practicing medicine. Broadly speaking, one is practicing medicine when he visits his patient, examines him, determines the nature of the disease, and prescribes the remedies he deems appropriate. If he advises him to sleep in the open air he is treating him; but such advice is based upon knowledge of the patient’s condition obtained by diagnosis. Hence, in the main, diagnosis is regarded as the test to determine whether a practice or treatment is included in the terms medicine and surgery. Tested by this rule, a defendant who calls himself a “chiropractor,” is practicing medicine when he examines a patient’s back, determines the trouble to be that a vertebra is displaced or “subluxated,” thereby impinging the nerve, and proceeds to employ what he considers an appropriate remedy, namely, a sudden downward pressure of the fingers, thereby adjusting the vertebra and relieving the impingement.
    7. STANDARD OF COMPETENCY: To Treat the Sick: Wisdom of Law. In determining whether or not the General Assembly had the power to enact a statute forbidding any one to treat the sick, who does not possess the technical knowledge required by the act to pass an examination before the State Board of Health, where such treatment does not involve such technical knowledge, and therefore in determining whether such statute denies to the people a constitutional right to determine, for themselves, how they shall be treated, and denies to citizens a constitutional right to pursue a lawful calling for a livelihood, the courts are not concerned about the wisdom or propriety of the act. Whether it is wise, necessary or proper, is a question for the General Assembly. The whole duty of the courts is to determine whether or not it is a reasonable exercise of the police power in the interest of the public health.
    8.-:--: Chiropractic:' Unrestricted Right to Contract. The Legislature has the power under the Constitution to pass all necessary laws to guard the morals, safety and health of the people, even if such laws, in some degree, operate as a restraint upon recognized constitutional rights. The people do not have an unrestricted right to determine how they shall be treated when sick, or when afflicted with physical or mental infirmities. Nor has any man an unrestricted right to pursue a lawful calling. The Legislature has the power to require those who undertake to treat the sick to possess a prescribed competency. The Legislature had the power to enact the Act of March 12, 1901, forbidding any person, except physicians then registered,, from “practicing medicine and surgery in this State,” and any other person from “attempting to treat the sick or others afflicted with bodily or mental infirmities, without first obtaining a license from the State Board of Health.” The act relates to the public health, and the requirements for competency and qualifications cannot he said to he capricious and unreasonable, even though its result may be to inhibit a harmless and useful treatment of the sick.
    9. PRACTICE WITHOUT A LICENSE: Chiropractic. The practice of what is called “Chiropractic Science” without a license from the State Board of Health, is an offense under the laws of this State, and such laws are valid.
    Appeal from Webster Circuit Court. — Row. Geo. H. Williams, Judge.
    Aebirmed.

      Samuel Dickey, Wright Bros., and Morris é Hartvjell for appellant; T. B. Harvey amicus curiae.

    (1) The information is fatally defective in that it does not state that defendant Smith does not belong to one of the classes not included in the operation of the law. State v. Hamlett, 129. Mo. App. 70'; State v. Connor, 142 N. C. 700; State v. Carmody, 50 Ore. 1; Marshall v. State, 119 S. W. (Tex.)'310. (2) The statute contemplates nothing but medicine and surgery. State v. Biggs, 133 N. C. 729; State v. Liffring, 61 Ohio 30; Nelson v. State Board, 22 Ky. L. Rep. 438; 'Hayden v. State, 88 Miss. 281; State v. McKnight, 131 N. C. 717; State v. Mylod, 20 R. I. 632; Smith v. Lane, 24 Hun 632; Bennet v. Ware, 61 S. E. (Ga.) 546. The Missouri courts have already decided that osteopathy, which is like chiropractic in that it does not administer drugs or remedies, and which consists principally in manipulating and flexing the body of the patient, is not the practice of medicine or surgery. State v. School of Osteopathy, 76 Mo. App. 439; It is illogical to presume that the Missouri Legislature has taken the position that there is no science other than that of medicine, which, according to the statement of physicians themselves, has not to exceed a half dozen specifics of disease. Chiropractors. practice neither medicine nor surgery. According to the undisputed testimony in this case none of the theories or agencies used by medicine are used by chiropractors. It also brought within the act those persons who “profess or attempt” to do the same thing. In other words it not only made it an offense to profess or attempt to actually practice medicine and surgery without complying with the law but also made it an offense to profess or attempt to practice medicine .or surgery. The law was made to protect the-public, not the doctors, and this provision was wisely added that the charlatan might be apprehended before the public should actually suffer at his hands, that any attempt to violate the law should be an offense as well as the actual violation of it. The rule that where special words are followed by general words, the general words will be held to apply to the same class of things as the special words is applicable here, the words “profess or attempt,” etc., meaning “profess or attempt,” etc., “medically or surgically.” State v. Diness, 109 Mo. 434. This rule of ejusdem generis is most strongly and appropriately' applied in construing penal laws and the courts are averse to holding guilty those whose acts are not within the concluding words. Shirk v. People, 131 111. 61; State v. Black, 75 Wis. 492; People v. Richards, 108 •N. Y. 137; State v. Summer, 10' Yt. 587; McDude v. People, 29' Mich. 50; Nichols v. Paulson, 6 Ohio 305. The use of the word treat also shows the intention of the Legislature not to broaden the scope of the law beyond medicine and surgery. Statutory terms are interpreted in the commonly accepted sense. Again, effect, in this case disease, is treated. A cause is never treated. Medical men deal with remedies aimed at the effect, disease. Defendant Smith and the chiropractors do nothing with the effect, disease, hut adjust the cause. At common law the healing sciences were' open to all without restriction. Denton v-. State, 21 Neb. 445; State v. Carey, 4 Wash. 424; State v. Morrel, 7 Ohio Dec. 52. Penal statutes must he construed strictly as against the accused, hut liberally in his fav- or, and they are not to he extended by implication to cases not clearly within their terms. Sutherland on Statutory Construction, paragraphs 208, 349', 350; Am. & Eng. Ency. Law, pp. 375, 377, 382; Hall v. State, 20 Ohio 7; United States v. Sheldon, 2 Wheat. 118; Brooks v. State, 88 Ala. 122; Railroad v. Cohen, 49 Ga. 627. Statutes in derogation of common right, such as those restricting or regulating the pursuit of useful occupations and.callings, are to be construed strictly. 23 Am. & Eng. Ency. Law, pp. 383, -385, 386; Sutherland on Statutory Construction, par. 3-67; Com. v. Standard Oil Co., 101 Pa. St. 119; Gunther v. Loekey, 30 Ala. 591. (3) The statute under which the information is drawn, if it includes other healing sciences besides medicine and surgery, ' is unconstitutional and void as contrary to section 28, article 4, of thé Constitution of Missouri, in that it was passed and enacted as a bill containing more than one subject. State ex rel. v. Borden, 164 Mo. 221; State v. Persinger, 76 Mo. 346; State ex rel. v. County Court, 102 Mo. 351; Shiverly v. Lankford, 174 Mo. 535; City of Kansas v. P'ayne, 71 Mo. 1591. (4) The statute relating to medicine and surgery, under which the information is drawn, is unconstitutional in this, that if it includes healing sciences besides medicine and surgery it is in contravention of section 28 of article 4 of the Constitution of Missouri, because no intent to broaden the scope of the act is expressed in the title. Gerhart v. Railroad, 171 Mo. 84; State ex rel. v. Miller, 100 Mo. 439; State ex inf. v. Borden, 164 Mo. 221; State v. Persinger, 76 Mo. 346; State ex rel. v. County Court, 102 Mo-. 531; State v. Dinesse 109' Mo. 434; State ex rel. v. Backer, 129' Mo. 484; Witzmann v. Railroad, 131 Mo. 612; State ex rel. v. Heege, 136 Mo. 112; State v. Coffee & Tea Go., 171 Mo. 634. (5) The medical statute is void if.it includes other healing sciences besides medicine and surgery, as it attempts to define that as the practice of medicine and surgery which is not either the practice of medicine or surgery, and it undertakes to determine a question of science in that it undertakes to make any and all kinds of treatment of disease with or without the use of drugs the practice of medicine and requires the person so treating or attempting to treat to be licensed by the State Board of Health as a physician or surgeon, and furnish satisfactory evidence of having received a diploma from some reputable medical college of four years11 requirements at'the time of graduation. State v. Biggs, 133 N. O. 5291; Bennet v. Ware, 61 Si E. (Ga.) 546; State v. Liffring, 61 Ohio 3«0; Nelson v. Board of Health, 22 Ky. L. Rep. 438. See cases cited under 2. Medicine has a well understood meaning and contemplates the administration of drugs, and surgery as clearly means the use of instruments. The Legislature in the exercise of the police power of the State has the right to regulate the practice of medicine and surgery and to fix the standard to be attained by those desiring* to practice the same, but just as clearly, it seems to us, it has no right to include under medicine and surgery other methods of treating disease. When it undertakes to do that it goes too far, and undertakes to settle a question of science. It might as well undertake to say that two and two make five or that a horse is a cow as to say that a thrust, with the hand is a drug or surgical instrument. (6) The medical act is illegal because it makes the lawfulness or the unlawfulness of the act depend upon whether or not a fee is charged. State v. Biggs, 133 N. O. 729'. (7) If it includes other sciences of healing besides medicine and surgery the statute is unconstitutional and void because it is an abuse of the police power of the State. It is unreasonable and void because under the guise of protecting the public’s interest it imposes unusual and unnecessary restriction upon the useful occupations. It is class legislation in that it compels all persons desiring to practice medicine or surgery in this State to furnish satisfactory evidence of having received a diploma from some reputable medical college of four years’ requirements at the time of graduation, regardless of the applicant’s knowledge of medicine and surgery, thereby making the receipt of said diploma, and not the applicant’s knowledge, the standard from which to judge his qualifications. State v. Biggs, 133 N. C. 729; State v. Liffring, 61 Ohio 30; Nelson v. State Board, 108 Ky. 769; Hayden v. State, 88 Miss. 291; State v. McKnight, 131 N. O. 717; State v. Mylod, 20 R. I. 632; Smith v. Lane, 24 Hun 632; Bennet v. "Ware, 61 S. E. (Ga.) 546.

      Elliott W. Major, Attorney-General, and Chas. G. Rev elle, Assistant Attorney-General, for the State.
   FERRISS, J.

This is an appeal from "Webster county, where the defendant was convicted of the offense of treating and attempting to treat the sick and afflicted without first having obtained a license from the State Board of Health. Has punishment was assessed at a fine of fifty dollars. The case reaches this court by transfer from the Springfield Court of Appeals, upon a constitutional question.

The information upon which the defendant was tried reads as follows: “J. E. Haynes, prosecuting attorney, duly elected, commissioned, sworn, qualified, installed, and acting as such in and for said county of "Webster, in the State of Missouri, upon his. oath and upon his hereto appended oath, informs the court, and upon his said oath and upon his hereto appended oath, does depose, present, aver and charge that said de - fendant, George Smith, on or about the 1st day of July 1908, and from said date until November 6th, 1908, ■at the said county of Webster, did then and there unlawfully, wrongfully, willfully practice medicine and surgery, and did attempt to treat the sick or others afflicted with bodily and mental infirmities, and did then and there represent and advertise himself by means of certain printed matter, the exact nature' of which is to this informant unknown, so as to indicate that he was authorized to practice medicine and surgery, and that he was authorized to- treat the sick and afflicted with bodily and mental infirmities, without then and there having a license from the State Board of Health, contrary to the form of the statute in such cases made and provided, against the peace and dignity of the State of Missouri.”

The information is based upon sections 1 and 5 of an act regulating the practice of medicine and surgery, approved March 12, 1901 (Laws 1901, p. 207), reading as follows:

“Section 1. It shall be unlawful for any person not now a registered physician within the meaning of the law to practice medicine or surgery in any of its departments, or to profess to cure and attempt to treat the sick and others afflicted with bodily or mental infirmities, or engage in the practice of midwifery in . the State of Missouri, except as hereinafter provided. ’ ’

“Section 5. Any person, except physicians now registered, practicing medicine or surgery in this State, and any person attempting to treat the sick or others afflicted with bodily or mental infirmities without first obtaining a license from the State Board of Health, as provided in this act, shall be deemed guilty of a misdemeanor and punished by a fine of not less than fifty dollars nor more than five hundred dollars, or by imprisonment in the county jail for a period of not less than thirty days nor more than one year, or by bo-tb such fine and imprisonment for each and every offense, and treating each patient shall be regarded as a separate offense. Any person filing, or attempting to file, as his own, a license of another or a forged affidavit óf identification, shall be guilty of a felony, and, upon conviction thereof, shall be subject to such fine and imprisonment as are made and provided by the statutes of this State for the crime of forgery in the second degree. Said fines to be turned into the State Treasury when collected. ’ ’

Said section 1 appears, without change, as section 8311 of the Revision of 1909', and section 5, with some amendments not material to the ease at bar, appears as section 8315 of said revision.

The evidence shows that the defendant practiced what he called-the “science of chiropractic” which science is thus defined in defendant’s brief:

“The theory of this science is that the center and seat of all intelligence and bodily controlling force is in the brain; that all function depends upon this nerve force — universal intelligence, or whatever it may be, that is' seated in the brain; that it is transmitted from the brain to the muscles and organs through, first, the spinal chord, and thence through the nerves radiating from the spinal column; .that while it is not impeded, all bodily function is normal and the body is well; that when it is impeded, function is not normal, and the organ or muscle cut off from, or not in free communication with the brain, becomes diseased; that it can be impeded only by pressure or pinching of the nerves, known to the chiropractic as impingement; that nerves are impinged only where passing between bones; that they pass between bones in going through the intervertebral foramina, and are impinged when the vertebrae are from a blow, contraction of muscles, as by draught of cold air or other cause, more or less displaced or subluxated, as the chiropractor terms it. The slightly misplaced bones pinch or impinge the nerves, impeding the flow of mental impulse. The effect is the same as the introduction of a rheostat or other resistance on the circuit between an electric dynamo at a power station and an electric motor supplying power for a factory. The motor represents a vital organ; not receiving the required amount of electricity, it is hindered in its work, just as'a vital organ becomes diseased by not being in free communication with the brain. When all mental impulse is cut off, for example by what laymen term a broken back, the portion of the body and the organs beyond the point where the impulse is cut off become paralyzed, just as the motors of a huge shop, beyond a break in a wire leading from a dynamo, stop when the break is so complete as to cut off all or nearly all electricity coming to it. The experienced chiropractor, by 'passing his hand up and down the spinal column, is able to detect these subluxations or slight dislocations, and by a swift downward movement places the vertebrae back in their normal position, removing the pressure on the impinged nerve, and again opening up free communication between the brain and the organs controlled by the nerve so impinged.”

In actual practice the chiropractor makes no physical examination outside of the spinal column. He does not feel the pulse, take the temperature, prescribe any diet, or use any instruments. He simply examines the spinal column, determines whether or not a subluxation, as he calls it, exists, and if he finds it, adjusts the same. Defendant practiced according to this system. Testimony was given by one of his patients, by defendant himself, and by an expert brother chiropractor.

The evidence for the State tended to show that the defendant maintained an office in the town of Seymour, Webster county, Missouri, over the door of which was a sign reading, “Chiropractor.” He circulated through the community 'certain printed matter in which he advertised and held himself ont as “Dr. George F. Smith.” flis office was equipped with some charts showing the different parts of the human body and a table which the witness says was split in the middle, and upon which defendant placed his patient for examination and treatment. The witness called at defendant’s office, received and paid for a chiropractic treatment, was placed on the table by defendant, who examined his spine, told him it was in a bad shape, and then manipulated and rubbed his spine with his hands and fingers.

Defendant was formerly a watchmaker by trade. He testified that he did not practice medicine; that he did not treat his patients, but adjusted them; that he did not consider the nature of the disease, but dealt only with the cause, and that this system of removing the cause by relieving the nerve impinged between the vertebrae of the back, applied to all diseases — small pox, measles, tuberculosis, etc. Further reference will be made to the facts in evidence in the course of the opinion.

I. It is claimed that “the information is fatally ' defective in that it does not state that defendant Smith does not belong to one of the classes not included in the law. ’ ’

Section 83191, Revised Statutes 1909', the same being the last section of the article entitled “Medicine and Surgery,” provides: “It is not intended by this article to prohibit gratuitous service to and treatment of the afflicted, and this article shall not apply to commissioned surgeons of the United States army, navy, public health and marine hospital service.”

This objection is evidently based upon the rule that where an exception is contained in the act creating the offense, and constitutes a part of the description of the offense, such exception must be'negatived in the information. The rule does not apply to this case. The exception referred to, viz., treating the sick gratuitously, is not a part of the description of the offense. It simply exempts certain classes from the operation of the law, which is completely defined in the previous sections.

In State v. Doerring, 194 Mo. l. c. 414, the court, in discussing an objection to an indictment which charged the defendant with practicing dentistry without a license, which objection was that the indictment failed to negative the exception which was incorporated in a separate section, quoted from State v. O’Brien, 74 Mo. 549, as follows: “When an exception is contained in a statute defining an offense, and constitutes a part of the offense, an indictment for such offense must negative the exception; but when the statute contains a proviso exempting a class therein, referred to from the operation of the statute, an indictment need not negative the proviso. The accused must make the exemption a ground of defense.” [Syllabus].

In State v. Connor, 142 N. C. 700 (cited by defendant), the rule is thus stated: “When a statute creates a substantive criminal offense, the description of the same being complete and definite, and by a subsequent clause, either in the same or some other section, or by another statute, a certain case or class of cases is withdrawn or excepted from its provisions, these excepted cases need not be negatived in the indictment.”

So in State v. Carmody, 50 Ore. 1, it is said: “Exceptions and provisos in a criminal statute need not be negatived in indictments unless they are descriptive of the offense, or a necessary ingredient in its definition. ’ ’

This court has held it to be the sound rule in this State that where the exception is contained in a subsequent section to the one which defines the offense, such exception need not be negatived in the information. [State v. Bockstruck, 136 Mo. l. c. 352.]

In the case at bar tbe exception, even if it were contained as a proviso in the section defining the offense, would not be descriptive of the offense, and hence would not require a negation in the information. The sufficiency otherwise of the information is not questioned.

II. The statute in question does not violate section 28 of article 4 of the Constitution. The act contains one subject, which is clearly expressed in the title. The title of the act is not “Medicine and Surgery,” as defendant asserts it to be in his brief. The words “Medicine and Surgery” are merely the caption. The title to the act is as follows: “An act to re-" guíate the practice of medicine, surgery and midwifery, and to'prohibit treating the sick and afflicted without a license, and to provide penalties for the violation thereof.” [Laws 1901, p. 207.]

The one “subject” of this act, within the meaning of the Constitution, is, broadly speaking, public health. [State v. Marble, 72 Ohio St. l. c. 36.] Treating the sick is well within the subject, and is specifically covered by the title. It is unnecessary to cite the cases in this State on this proposition: This' court has again and again, with patient repetition, expounded the law upon this constitutional provision, and the law so expounded is this: “Where all the provisions of a statute fairly relate to the same subject, have a natural connection with it, and are the incidents or means of accomplishing it, then the subject is single, and if it is sufficiently expressed in the title, the statute is valid.” [State v. Doerring, supra, and cases therein cited.] The practice of medicine, or surgery, and the treatment of the sick by whatever means employed, are certainly germane to each other and are germane to the general subject of health.

“This section of the Constitution is to be reasonably and liberally construed and applied, due regard being had to its object and purpose ... If all the provisions of the bill have a natural relation and-connection, then the subject is single, and this too though the bill contains many provisions.” [State ex rel. v. Bronson, 115 Mo. l. c. 276.]

If the treatment of the sick and the. practice of medicine and surgery are not in natural relation, then it will be difficult to conceive .of a case where two or more provisions in a bill relate to each other.

III. Defendant claims that the general words in the statute, “attempting to treat the sick,” should, by the application of the rule of ejusdem generis, be limit-' *ed to attempts to treat by medicine or surgery, which - are the special words preceding.

As early as 1877 the Legislature of this State enacted a law “to regulate the practice of medicine and surgery,” and made it a misdemeanor for any person “to practice or attempt to practice medicine or surgery” without complying with the provisions of the act: This provision was carried through the various revisions up to and including section 8517, Revised Statutes 1899, excepting only that the words “attempting to practice” were dropped, so that the revision of 189'9 reads: “Any person practicing medicine or surgery in this State without complying with the provisions of this article,” etc. The revisions of 1889 and 1899 also provided that “every person practicing medicine 'and surgery in any of their departments ’ ’ should possess the qualifications therein specified. In 1901 article 1 of chapter 128 of the 1899 revision, relating to medicine and surgery, was repealed, and a new act passed covering the subject. Section 3 of the act provided that “all persons desiring to practice medicine or surgery in this State, or to treat the sick or afflicted as provided in section 1,” should apply to the State Board of Health for examination.

This review of the history of the law affords a complete answer to the claim that the doctrine of ejusdem generis applies to this case. It is not a case of general words following a specific designation. There might be some ground for the claim if the general words “treating the sick” were in'the original act. As shown above, until 1901 the only designation was “medicine and surgery.” No one will claim that the general words, “and any person attempting to treat the sick,” added by amendment,. are ejusdem generis with the specific words of the original act.

Furthermore this rule of ejusdem generis is, after all, resorted to merely as an aid in construction. If, upon consideration of the whole law upon the subject, and the purposes sought to be effected, it is apparent that the Legislature intended the general words to go beyond the class specially designated, the rule does' not apply. If the particular words exhaust the class, then the general words must have a meaning beyond the class, or be discarded altogether. [National Bank v. Ripley, 161 Mo. l. c. 132; Lewis’s Sutherland on Stat. Const., sec. 437.] Certainly the words “medicine or surgery in any of its departments” exhaust the genus or class.

It is obvious that the Legislature, by this amendment, intended to include those who practice neither medicine nor surgery in any of its departments, but who profess to cure, and who treat or attempt to treat, the sick by means other than medicine or surgery. Evidently the Legislature, in order to guard the over-credulous against injury that might result from yielding to the solicitations and professions of men who ignorantly undertake to diagnose and treat human ailments, deemed it proper, in the exercise of its police power, to require all persons, who undertake to so treat the sick, to show that they possess the qualifications which the lawmakers prescribe as essential.

IY. Defendant argued that the record shows that he did not “treat” his patients. He calls what he did, not treatment, but adjustment. He says that he does not treat disease; he “ adjusts the cause. ’ ’ Call it what you will the fact remains that the system of practice called in this case “chiropractic,” as explained by defendant’s witnesses and his counsel, involves both diagnosis and physical treatment.

The patient testified: “Pie laid me down on a cot, and he felt up and down my spine, and he said my spine was in bad condition. ’ ’

The defendant testified: “I examined the spine with my fingers, and adjusted the subluxated vertebrae and relieved the impinged nerves. Q. How did you make the adjustment? A. By putting the fingers on the point of subluxation and giving a quick downward movement. Q. What did you do that for? A. To adjust the nerves. Q. What did you want to find the impinged nerves for? A. To remove the cause, of the disease. Q. What do you mean by removing the cause of the. disease? A. Well, simply this: The motory nerves begin in the brain and run through the spinal column, the spinal canal, and pass from there out to the different organs. There is another nerve passing back to the brain. We find the impingement of the motory nerve, which we call the cause of all trouble and the real trouble. We simply find the impinged nerves and adjust them. Q. What do you mean by an impingement of the nerves? A. An impingement of a nerve is caused by what we know in chiropractic as a subluxation of the vertebrae; an impingement of the nerve carrying the impulse to the muscle or muscles from the brain to the organ using the nerve. Q. According to that, then all force is from the brain? A. Yes, sir; it all comes from the brain; everything will be normal unless there is an impingement of some nerve. Q. By impingement do \ou mean pressure? A. Yes, sir.”

The foregoing practice clearly involves diagnosis; at least to a limited extent, knowledge of anatomy, and physical treatment. An expert witness for the defense, one educated as a regular physician and who had abandoned his practice and become a professional “chiropractor,” testifies as follows:

“Q. Now, why does the chiropractor call upon a patient — you do call upon patients, although you may call it by a different name — why do you call upon an individual professionally? A. Because they want us to do so. Q. Now, when you go you request them not to tell you what is the matter? A. Yes, sir. Q. When you are called you expect to find something the matter? A. Indeed we do. Q. You make an examination of some kind, but you may call it by a different name? A. Yes, sir, p.-of the spine. Q. A physician who is in the regular practice makes an examination in addition to taking statements? He may go through a different process, hut you are both trying to find out how the person is afflicted? A. Yes, sir. Q. If the person is not afflicted you do not offer any treatment? A. No, sir. Q. Now, then, if you do find he is afflicted you do give some kind of treatment; you may not call it treatment, but you go through some process? A. We go through a process. Q. The purpose of that process is to restore the man to a normal condition? A. Yes, sir. Q. In other words, you cure him or attempt to cure him? A. No, sir, we do not do any curing. Q: Before you had studied chiropractic you would.have called it a cure? A. If I had accomplished it. Q. When a physician treats a man whom he finds out of normal condition, and restores him to a normal condition, he calls it a cure? Yes,sir. Q. When a chiropractor finds a man out of his normal condition what does he do? A. He removes the cause; we would remove the cause.”

The defendant and his witness testify that they make no diagnosis; take no temperature; do not examine the tongue of the patient, nor any part of the body except the spinal column : that they do not treat the disease, but remove the cause, which is invariably found — no matter what the disease, whether consumption, small pox, or any other ill that flesh is heir to— located in the spine, and in every case consists in an imping-ement of the nerves caused by a “subluxation” —whatever that may be — of the vertebrae. Yet, notwithstanding all this, the practice does involve skill, knowledge of anatomy, diagnosis, and physical treatment.

V. It is a serious question whether defendant would not come within the original statute, as one practicing medicine or surgery. The practice of medicine is not confined to the adminstration of drugs; nor is surgery limited to the knife. When a physician advises his patient to travel for his health, he is practicing medicine. Broadly speaking, one is practicing medicine when he visits his patient, examines him, determines the nature of the disease, and prescribes the remedies he deems appropriate. [Bibber v. Simpson, 59 Me. 181.] Tested by this rule the defendant was practicing medicine when he examined the patient’s back, determined the trouble to be that a vertebra was' subluxated, thereby impinging a nerve, and proceeded to employ what he considered an appropriate remedy, viz., a sudden downward pressure with the fingers, thereby adjusting the vertebrae and relieving the impingement. When the defendant says that he does not “treat” but “ ad justs, ” and that he deals not with the “disease” but with the “cause,” he is merely juggling with words. Changing the name does not change the thing.

The defendant cites several cases to support his contention that the Missouri statute does not include a practice which eliminates drugs and surgical instruments. We will examine them.

Two cases from North Carolina hold, under a statute which prohibits practicing medicine or surgery without a license, that an osteopath, and also one who “treats by massage baths and physical culture, manipulates the bones, spine and solar plexus, and kneads, the muscles with the fingers of the hands, writes no prescriptions as to diet, but advises his patient what to eat and what not to eat, and the above'is administered to the exclusion of drugs,” are not included. [Biggs v. State, 133 N. C. 730; State v. McKnight, 131 N. C. 717.] These cases proceed upon the doctrine that the Legislature exceeds its power when it prohibits treatment of disease by any except a licensed doctor, and they are, therefore, not in point under the immediate discussion. [People v. Allcutt, 117 App. Div. (N. Y.) 546.]

The next case cited is State v. Liffring, 61 Ohio St. 39, which holds that an osteopath is not within a statute which provides that any person shall be regarded as practicing medicine who shall, for a fee, prescribe or direct any “drug, medicine or other agency for the treatment,” etc.; that the doctrine of ejusdem generis limits the word “agency” to drugs or medicines, and that osteopathy is not such an agency. This statute was subsequently amended so as to read, “who shall prescribe .... any drug, medicine, appliance, application, operation, or treatment of whatever nature.” In State v. Gravett, 65 Ohio St. 289, it was held by the same judge who rendered the opinion in the Liffring Case, to include osteopathy. The court said that the Legislature, in this amendment, had “attempted a comprehensive regulation of the practice of the healing art.” [L. c. 307.] This same statute was held in State v. Marble, 72 Ohio St. 21, to include Christian Science.

The next case cited is Bennett v. Ware, 4 Ga. App. 293. That ease involved a healing solely by supernatural or divine agency — by a “magic power direct from the Lord” — and is, therefore, not in point. So also is the case of Mylod v. State, 20 R. I. 632, not in point, where it was held that Christian Science was not within a statute forbidding the “practice of medicine and surgery, ’ ’ without a certificate from the Board of Health.

Smith v. Lane, 24 Hun. 632, holds that a system of practice * consisting of “rubbing, kneading and pressure” performed with the hand, was not within a statute which penalized the “practice of medicine or .surgery” without a license. This case is expressly overruled by the case of People v. Allcutt, supra, which latter case states that the doctrine of Smith v. Lane, and of cases that follow it, is opposed by Massachusetts, Maine, Michigan, Iowa, Missouri, Colorado, Nebraska, Illinois, Ohio, Alabama, Indiana, New Mexico, South Dakota, and Tennessee, which “refuse to restrict the ‘practice of medicine’ to. the administration of drug’s or the use of surgical instruments.” [L. C. 552.] In the Allcutt Case the defendant described his system as “mechano-neural therapy,” which meant ‘ ‘ mechanical nerve treatment; a gentle pressure on all parts of the body; that the whole theory of this science is that disease comes from the lack of blood circulation, and that the treatment proceeds upon the theory of assisting the circulation back into normal condition.” The analogy here to the “science” practiced by the defendant at bar is obvious.

Hayden v. State, 81 Miss. 291, rested upon a statute similar to the original Ohio statute. The court followed the Liffring and Mylod Cases, supra, but said that its own views would point to a different conclusion if followed. The holding was that osteopathy was not an “agency” within the meaning of the statute.

Nelson v. Board of Health, 22 Ky. L. R. 438, holds that a statute which forbids one to “practice medicine or attempt to practice medicine in any of its branches, or who shall treat or attempt to treat any sick or afflicted person by any system or method whatsover,” does not include an osteopath. This ruling, however, is put upon the ground, as was said in the Allcutt Case, supra, that it would be beyond the power of the State to prevent the practice of osteopathy, and therefore it would be presumed that the Legislature did not intend to include it within the statute; a doctrine which does not prevail in this State, as we shall show later on.

We do not desire to extend this opinion by citing on this point numerous cases which hold contrary to the defendant’s contention. Some of them are Parks v. State, 159 Ind. 211; State v. Yegge, 19 S. D. 234; Bragg v. State, 134 Ala. 165; State v. Buswell, 40 Neb. 158.

In the main, the cases regard diagnosis as the 576, Davidson was seeking to recover for services, rendered in giving electrical treatment. The defense was that Davidson was practicing medicine without a license. [Statute of 1879.] It was urged in his behalf that the services rendered were not medical. He held a diploma from an electric medical college. Judge Thompson, speaking for the court, in denying Davidson’s contention, said: “The obvious intention of the statute was to embrace any person who habitually holds himself out as a professor of the art of healing diseases.”

In the main, the cases regard diagnosis as the test to determine .whether a practice or treatment is included in the terms medicine and surgery. This is a practical test. A doctor who advises his patient to sleep in the open air is treating him. Such advice, however, is based upon a knowledge of the patient’s condition obtained by diagnosis.

The defendant professed to be able to ascertain by examination of the patient the cause of his trouble; a result rather beyond that which ordinarily attends the diagnosis of the regular practitioner. The method or extent of the examination is not the controlling feature. When the practitioner makes such examination of the patient as he regards sufficient to indicate to him the causé of the trouble, and to indicate its proper treatment, he has diagnosed the case.

VI. This brings us to defendant’s last contention, which is thus expressed in his brief:

“If it includes other sciences of healing besides medicine and surgery the statute is unconstitutional and void, because it is an abuse of the police power of the State of Missouri. It is unreasonable and void because, under guise of protecting the public’s interest, it imposes unusual and unnecessary restrictions upon the useful occupations. It is class legislation in that it compels all persons desiring to practice medicine or surgery in this State to furnish satisfactory evidence of having received a diploma from some reputable medical college of four years.’ requirements at the time of graduation, regardless of the applicant’s knowledge of medicine and surgery, thereby making the receipt of said diploma, and not the applicant’s knowledge, the standard from which to judge his qualifications.”

In discussing this proposition we are to deal with one question only — the power of the Legislature to pass this law. We are not concerned about its wisdom or propriety. Whether the law is wise, necessary or proper, is a question for the makers of the law. It is contended that to so construe this statute as to forbid any one to treat the sick without possessing the technical knowledge required to pass an examination before the State Board, where such treatment does not involve such technical knowledge, would result in denying to the people a constitutional right to determine how they shall be treated, and also denying to citizens, the constitutional right to pursue a lawful calling for a livelihood; in short, that such a construetion amounts to a deprivation of both liberty and property.

This contention begs two questions: 1st, Have the people an unrestricted right to determine how they shall be treated? 2nd. Has a man an unrestricted right to any lawful calling?

The Legislature has. the power under the Constitution to pass all necessary laws to guard'the morals, safety and health of the people, even if such laws in some degree operate as a restraint upon recognized constitutional rights. An absolute right to liberty, or property, or even life itself, does not exist. The State may, and does, deprive its- citizens of either of these so-called constitutional rights: When the lawmaking power forbids the manufacture of liquor, an absolute destruction of property results. Yet this may be done, in the exercise of the police power. Our jails and penitentiary are filled with inmates who have been deprived of their liberty for the public good. The power of the State to deprive its citizens of their lives for the public good has never been questioned. In other and various ways citizens, for the public good, may be deprived of liberty and property. True, these rights of the citizens are to be impaired only when necessary for the public good. But who is to judge whether the necessity exists ? The authorities agree that this power of judgment lies with the Legislature. If, under the guise of the police power, the Legislature unreasonably and capriciously restrains one’s liberty or property, the court may interpose the. Constitution and declare the law void.

This court in State v. Fisher, 52 Mo. 174, said: “A law which unnecessarily and oppressively restrains a citizen from engaging in any traffic, or disposing of his property as he may see fit, though passed under the specious pretext of being preservative of the health of the inhabitants, would be void. ” Yet, in that case the court sustained a law which gave certain pejfsons an exclusive privilege to render dead animals, and prohibiting all others, on the ground of public health. So in State v. Addington, 77 Mo. 110, this court approved a ruling by Judge Thompson of the Court of Appeals, that “the police power is a power to be exercised within wide limits of legislative discretion; and if a statute appears to be within the apparent scope of this power it would be a usurpation of jurisdiction for the judicial courts to inquire into its wisdom and policy, or to undertake to substitute their discretion lor that of the Legislature.” [State v. Addington, 12 Mo. App. l. c. 221.] The Addington Case involved the validity of a statute which prohibited the manufacture of oleomargarine. This court sustained an objection to evidence offered by the defendant to prove that oleomargarine was a healthful and useful food.

In the case of Booth v. Illinois, 184 U. S. 425, the United States Supreme Court had under consideration a statute of Illinois declaring option contracts illegal. It was contended that the Legislature did not intend to prohibit bona-fide options, but only those that Avere gambling contracts; that if it did intend to prohibit lawful option contracts, such act was beyond the scope of its police power. The Supreme Court of Illinois had construed the act to ‘ ‘ declare that unlawful which had theretofore been lawful,” and to include lawful options. The question before the United States Supreme Court was,‘£ taking the statute to mean what the highest court of the State says it means, is it unconstitutional ? ” [L. c. 428.] Judge Harlan, speaking for the court, says: ‘£ The argument then is that the statute directly forbids the citizen from pursuing a i calling which, in itself, involves no element of immorality, and therefore by such prohibition it invades his liberty as guaranteed by the supreme law of the land. Does this conclusion follow from the premise stated? Is it true that the Legislature is without poAver to forbid or suppress a particular kind of business, where such business, properly and honestly conducted, may not, in itself, be immoral? We think not. A calling may not in itself be immoral, and yet the tendency of what is generally or ordinarily or often done in pursuing that calling may be towards that which is admittedly immoral or pernicious. If, looking at all the circumstances that attend, or which may ordinarily attend, the pursuit of a particular calling, the State thinks that certain admitted evils cannot be successfully reached unless that calling be actually prohibited, the courts cannot interfere, unless, looking through mere forms and at the substance of the matter, they can say that the statute enacted professedly to protect the public morals has no real or substantial relation to that object, but is a clear, unmistakable infringement of rights secured by the fundamental law. [Mugler v. Kansas, 123 U. S. 623, 661; Minnesota v. Barber, 136 U. S. 313, 320; Brimmer v. Rebman, 138 U. S. 78; Voight v. Wright, 141 U. S. 62.]"

In Ex Parte Lucas, 160 Mo. l. c. 232, this court approved the following ruling by the Supreme Court of Minnesota: “Laws enacted for the purpose of regulating or throwing restrictions around a trade, calling, or occupation, in the interests of the public health and morals, are everywhere upheld and sustained. Such laws are within the police power of the State, and are universally sustained where enacted in the interests of the public welfare. The question presented in cases where the validity of such laws is called in question is no longer the power or authority, of the Legislature to enact them, but whether the occupation, calling or business sought to be regulated is one involving the public health and interests. A person engaged in such an occupation is not alone interested therein. The public served by him is also interested. He is interested to the extent that it provides and furnishes him with employment and a means of livelihood. The public is interested in his competency and qualifications, and it is eminently proper that there be thrown around the calling protection from intrusion by incompetents and others inimical to the public good.”

It is unnecessary to refer further to the repeated declarations of this court to the effect that the Legislature has the power to regulate, in such manner as it may think proper and wise, callings that are related to the public health.

Applying the principles announced to the case at bar, we cannot say that an act.which forbids treatment of the sick by one not possessing certain technical •knowledge evidenced by a license bears no reasonable relation to the purpose sought to be accomplished by the Legislature, namely, the protection of the public health. The Legislature thought, perhaps, that this act was necessary to protect credulous sick people from injury at the hands of charlatans and quacks, with their specious promises of a sure cure without drugs; or, it may have been thought necessary to forbid harmless, practices in order to insure protection against those that are dangerous and hurtful. Sick people sometimes grow desperate in their search for, a cure, or their judgment becomes weakened, so that they fall an easy prey to the ingenious and varied devices of the pretended healer. We know that some people are prone to give more weight to a skillfully worded advertisement than to the advice -of a competent physician. The Legislature, no doubt, thought that in view of all these considerations, the welfare of the- people requii'ed the sweeping law of 1901.

The method of practice disclosed by this record may be harmless and useful, but it is a treatment for the sick, related, to say the least, to the practice of medicine or surgery, and so is within the. terms of the statute. The Legislature may have been mistaken in thinking it necessary' to forbid such a method of practice, but tbe act was passed in the exercise of its' police power, and we are not prepared to say judicially that such exercise of the power was either unreasonable or capricious, or that it bears no relation to the public health.

The judgment is affirmed.

Kennish, P. J., and Brown, J., concur.