
    The State of Ohio v. Liffring.
    
      Osteopathy — Not an agency within meaning of act of February 27, 1896 — Regulation of practice of medicine.
    
    The “system of rubbing and kneading the body commonly known as osteopathy” is not an “agency” within the meaning of the act of February 27, 1896, “to regulate the practice of medicine” (92 O. L., 44), which forbids the prescribing of any “drug or. medicine or'other agency” for the treatment of disease by a person who has not obtained from the board of medical registration and examination a certificate of qualification.
    (Decided October 24, 1899.)
    Exception to the ruling of the Common Pleas Court of Lucas county.
    In the court of common pleas the following indictment was returned against Liffring:
    The State of Ohio, Lucas County, ss.:
    Court of common pleas of the September term in the year of our Lord, one thousand, eight hundred and ninety-eight, the jurors of the grand jury of the State of Ohio, within and for the body of the county aforesaid, on their oaths, in the name and by the authority of the State of Ohio, do find and present that William J. Liffring, late of the county aforesaid, on the 20th day of September, in the year of our Lord, one thousand, eight hundred and ninety-eight, at the county aforesaid, did knowingly, wilfully, and unlawfully practice medicine in the State of Ohio without having first complied with the provisions of the act of the General Assembly of the State of Ohio, entitled: “An Act to Regulate the Practice of Medicine in the State of Ohio,” passed February 27, 1896, in this, that at the time and place aforesaid, he, the said William J. Liffring, did for a fee, to-wit: the sum of two and 50-100 dollars, prescribe, direct and recommend for the use of one Carey B. McClelland, a certain agency, to-wit: a system of rubbing and kneading the body commonly known as osteopathy, for the treatment, cure and relief of a certain bodily infirmity or disease, the name and nature whereof is unknown toi the grand jury. He, the said William J. Liffring, at the time aforesaid, not having left for record with the probate judge of that county, Lucas, a certificate from the State Board of Medical Registration and Examination of the State of Ohio, entitling him to practice medicine or surgery within the State of Ohio, as required by the act aforesaid, and he, the said William J. Liffring, at the time aforesaid, not being entitled under the act aforesaid, or the law of Ohio, to practice medicine and surgery, or either medicine or surgery, within the State of Ohio; contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Ohio.
    A demurrer was filed to this indictment, which, upon hearing, was sustained. To the ruling of the common pleas court in that respect an exception was taken. The case is brought here upon exception tO' obtain a decision of this court for the government of future cases.
    
      F. S. Monnett, Attorney General, Charles G. Sumner and R. E. Westfall, Associate Counsel for the State, for plaintiff.
    The object of all interpretations and construe-, tions of statutes is to ascertain the meaning and intention of the legislature to the end that the same may be enforced. U. S. v. Wiltberger, 5 Wheat, 76; U. S. v. Hartwell, 6 Wall, 385; U. S. v. Winn, 3 Sumner, 209; Ogden v. Strong, 2 Paine, 584; Smith v. People, 47 N. Y., 330; Koch v. Bridges, 45 Miss., 247; State v. Scarborough 110 N. Car., 232; State v. Stephenson, 2 Bail. (S. Car.), 334; Am. & Eng. Ency. of Law (1st Ed.) Vol. 23, p. 319; People v. Lacomb, 99 N. Y., 43; Commonwealth v. Kimball, 24 Pick. (Mass.), 370.
    The first and most elementary rule of construction is that it is to be assumed that words and phrases are used in their popular and common acceptation, unless the subject matter indicates that they are used in a technical sense. Woodworth v. State, 26 Ohio St., 196.
    Where to construe the words of a statute technically would render it inoperative, but to construe-them according to their popular signification, would give it a reasonable operation, the latter construction must prevail. Robinson v. Varnell, 16 Texas, 382; Reg. v. Pembridge, 3 Q. B., 901; Penna. Co. v. Pittsburgh, 104 Pa. St., 522.
    Every statute is to be construed with reference to its intended scope and the purpose of the legislature in enacting it; and where the language used is ambiguous or admits of more than one meaning,, it is to be taken in such a sense as will conform to the scope of the act and carry out the purpose of the statute. Baker v. Terrel, 8 Monn. 195; Henry v. Thomas, 119 Mass., 583.
    Where the intent of the legislature and the object and purpose of the law are plainly apparent,, and such manifest intent and purpose are not inconsistent with, or outside the terms of the law, it is not allowable to permit the intent and purpose to-be defeated merely because not defined and declared in the most complete and accurate language. State v. Wheatly, 55 N. W., 511; Croker v. Crane, 21 Wendling, 211; Maxwell on Interpretation (2nd. Ed.), 305; Burt v. Rattle, 31 Ohio St., 116.
    The words of a statute are to be construed with reference to its subject matter. If they are susceptible of several meanings that one is to be adopted which best accords with the subject to which the statute relates. Rupp v. Livineford, 40 Wis., 28; Smith v. Helmer, 7 Barb., 416; Comm. v. Council, 52 Pa. St., 391; Wyman v. Tabens, 111 Mass., 77.
    
    From the argument of counsel for defendant in error in the court below, we take it for granted that the points to be made for the defense, will be, first, that the words “or other agency” occurring in the part of section 4403/ above quoted, cannot be construed or interpreted as to have a more comprehensive significance than that of the words “drugs” and “medicine” preceding them, and that medicine is synonymous with drug, meaning an animal or mineral substance, hence the meaning of the word “agency” must be restricted so as to signify something of the same kind or class as that to which drugs belong. Second, that the facts as stated in the indictment, to-wit: “The system of rubbing and kneading the body, commonly known as osteopathy,” do not constitute the practice of medicine.
    We claim that the word medicine has a wider significance than has the word drug. A Treatise on the Principles and Practice of Medicine, by Austin Flint (Edition 1881), p. 17; A System of Medicine, by H. R. Arndt, Vol. 1, p. 17 (1885).
    From a copy of “The Ohio Osteopath,” Yol. 1, No. 1, published by the faculty of the Ohio Institute of Osteopathy, and devoted to the science of Osteopathy, on page 7, we have the information that a list of fifty diseases, beginning with “appendicitis” and proceeding alphabetically to “varicose veins/7 is successfully treated by osteopathy.
    We submit, without referring to other sections of this act for the purpose of ascertaining therefrom the legislative intent as to the scope and purpose of the act, it can be safely contended that it would be a strained and unwarranted application of the rule of ejusdem generis, which would restrict the .meaning of “agency" as it appears in section 4403† to a class or kind represented by drugs or chemicals administered or applied to the body.
    The evident purpose of the law was to guard and protect the public from being imposed upon by empirics and quacks without knowledge or skill fitting them to undertake the important responsibilities which are necessarily involved upon physicians of whose fitness for their discharge, the general public are unable to judge. State v. Goldman, 44 Texas, 104.
    It is a well established principle that even the rule requiring the strict construction of a penal statute, as against the prisoner, is not vitiated by giving every word of the statute its full meaning, unless restrained by the context. Woodworth v. State, 26 Ohio St., 195.
    The intention of the law makers must govern in the construction of penal, as well as other'statutes, though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. U. S, v. Wiltberger, 5 Wheat, 95.
    The admitted rule that penal statutes are to be strictly construed is not violated by allowing their full meaning, or even the more extended of two meanings, where such construction best harmonizes with the context and most fully promotes the policy and objects of the legislature. U. S. v. Hartwell, 6 Wallace, 385; U. S. v. Winn, 3 Sumner, 211.
    It is a familiar rule that that which is within the-spirit of a statute, though not within the letter, may sometimes be declared to be within the statute even-in criminal cases. U. S. v. Morrissey, 32 Fed. Reporter, 147.
    This rule, ejusdem generis, can only be used as-an aid in determining legislative intent, and not for-the purpose of controlling the intention of confirming the operation of a statute within narrower limits,, than were intended by the law makers. Sutherland Stat. Cons., p. 279, 449; Willis v. Mahon, 43 Minn., 140.
    Were the words “drug” and “medicine” as they appear in section 4403/' regarded as synonyms, they would completely and fully describe the class or-kind, and leave nothing to be signified or expressed-by the word “agency.”
    It is not to be presumed that the legislature would-add to the terms of its enactment, words which-could have no value or significance. Ellis v. Murray, 28 Miss., 129.
    It is not necessary for any strained or unusual-definition to be given to the word “agency” to support the contention of the plaintiff in error. It is only necessary that the word be given its commonly-accepted meaning.
    The professional services of a medical clairvoyant-are medical services within the meaning of the act providing that “No person except a physician or surgeon, who commenced prior to February 16, 1831, or has received a medical degree of a public medical institute in the United States, or a license from the-Maine Med. Assoc., shall recover any compensation for medical or surgical services, unless previous to-.such services, he had obtained a certificate of good moral character from the principal officers of the town where he then resides. Bibber v. Simpson, 59 Maine, 181; Eastman v. People, 71 Ill., App., 236; State v. Buswell, 58 N. W., 728; Davidson v. Bohlman, 37 Mo., App., 576; Hewitt v. Charter, 16 Pick. (Mass.), 359; Benham v. State, 116 Indiana, 112.
    I. N. Huntsberger; Foraker, Outcalt, Granger & Prior and Wilby & Wald, for defendants.
    Penal statutes must be construed strictly as against the accused but liberally in his favor, and they cannot be extended by implications to cases not falling within their terms. Hall v. State, 20 Ohio 7; Denbow v. State, 18 Ohio, 11; Schultz v. Cambridge, 38 Ohio St., 659; Eastman v. State, 4 O. N. P., 163; 6 O. D., 296. Sutherland Stat. Con., Sec. 208, 349, 350. 23 Am. & Eng. Enc. L., 375.
    The case must be a very strong one indeed which would justify a court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. To detemine that a case is within the intention of a statute its language must authorize us to say so. U. S. v. Wiltberger, 5 Wheat, 76; U. S. v. Sheldon, 2 Wheat, 119.
    Where the penal cause is less comprehensive than the body of the act, the courts will not extend the. penalties provided therein to classes of persons or things not embraced within the penal clause, even where there is a manifest omission or oversight on the part of the legislature. 23 Am. & Eng. Enc. L., 382; Brooks v. State, 88 Ala., 122; 6 So. Rep., 902; U. S. v. Ten Cases Shawls, 2 Paine (C. C.), 162; Southwestern Ry. v. Cohen, 49 Ga., 627; Endlich Int. St., Sec. 336. 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. Enc. L., 383; Carberry v. People, 39 Ill., App., 506; Gunter v. Leckey, 30 Ala., 591; Sutherland Stat. Con. Sec. 367.
    The rule of strict construction, in the case of penal statutes, requires, that where an act contains such an ambiguity as to leave reasonable doubt of its meaning, it is the duty of the court not to inflict the penalty; that where it admits of two constructions, that which operates in favor of life or liberty is to be-preferred. Endlich Int. of Stat. Sec. 330; Commonwealth v. Standard Oil Co., 101 Pa. St., 119; Hines v. R. R. Co., 95 N. C., 434; State v. Mylod, 40 At. Rep., 753.
    Where general or generic terms follow specific or-particular ones in a statute, the former are limited in meaning to things of the same kind or nature;, hence the words “other agency” can be held to embrace only such remedial agents as are like or similar to drugs or medicines. Woodworth v. State, 26 Ohio St., 196; Lane v. State, 39 Ohio St., 312; Myers v. Seabergen, 45 Ohio St., 232; Summers v. Boyd, 48 Ohio St., 660; Maxwell Int. St., 297; Endlich Int. St. Sec. 400 to 407; Sutherland Con. St. Sec. 268 to 275; 23 Am. & Eng. Enc. L., 439, 440, 441.
    This is a rule of common sense, for if the legislature had intended the word “agency” to have its broad and full significance, as claimed by counsel for the State, it would have covered the whole ground and there would have been no need of using the particular words, “drug” and “medicine.”
    The rule of ejusdem generis is most strongly and' appropriately applied in construing penal laws, and the courts are averse toward holding guilty those-whose acts are not within the specific terms of the statute but might appear to fall within the concluding general words. Lane v. State, 39 Ohio St., 312; Mitchell v. State, 42 Ohio St., 386; Shirk v. People,. 121 Ill., 61; State v. Black, 75 Wis., 462; Commonwealth v. Kammeron, 13 S. W. R. (Ky.), 108; People v. Richards, 108 N. Y., 137.
    The following cases further illustrate this rule: Queen v. Cleworth, 4 B. & S., 926; Queen v. St. George, 9 C. & P., 483; Regina v. Reed, 28 Eng. Law & Eqty, 133; State v. Summer, 10 Vt., 587, McDade v. People, 29 Mich., 50; Brooks v. Cook, 44 Mich., 617; 71 N. Y., 481.
    An additional consideration in determining the scope of these penal sections is the fact that the general provision of section 4403c. prohibits the practice of medicine and surgery in any of its branches, without a compliance with the act In this section the words medicine and surgery are not defined and no reference is made to section 4403/.. as is done in 4403g., where the penalty is imposed. Consequently their meaning in section4403c. may well be held to be broader than in the penal sections, and to include other branches, acts, or treatments, which are thereby prohibited but not made criminal under sections 4403/. and 4403(7-, and as to such services it would be sufficient protection to the public to invoke the rules of law laid down by the supreme court, denying to unauthorized practitioners the right to recover compensation and making them liable for malpractice. Nichols v. Poulson, 6 Ohio, 305; Musser v. Chase, 29 Ohio St., 577.
    In the construction of statutes there is a great difference between remedial and penal provisions;, the former being expanded and often having words interpolated by the courts from the context or other sections in order to carry out the apparent purpose of the act and include cases within its spirit; while the latter are not thus expanded, even though there is a manifest omission or oversight on the part of the legislature. Thomas v. Stephenson, 2 El. & Bl., 108; 75 E. C. L., 107; Coe v. Lawrence, 1 id., 516; 72 E. C. L., 516; Broadhead v. Holdsworth, L. R. 2 Exch. Div., 321; Ex Parte Nat’l Mercantile Bk. L. R. 15ch. Div. 42; Underhill v. Longridge, 29 L. J. M. C., 65; 6 Jur. (N. S.), 221; appeal of Chaffee, 56 Mich., 244.
    In view of the foregoing decisions, which are all in line with Hall v. State, 20 Ohio, 7, and show how the principle laid down in that case is practically •applied by the courts, we claim that the definition -of practicing medicine given in section 4403/, does not cover or include the case described in the indictment, “the kneading and rubbing of the body for the treatment, cure and relief of an infirmity or disease.”
    The subsequent words, “wound, fracture or bodily injury,” also tend to show that the word agency if used to signify something different from medicines was appropriated and intended by the legislature to refer wholly to the practice of surgery. Evans v. State, 6 Ohio N. P., 129.
    If this be the proper construction of the terms of ■section 4403/., the question then arises, whether the kneading and rubbing of the body is a drug, or a medicine, or is included in the term surgery.
    We maintain, that taking the definitions of drug and medicine as set forth in the State’s brief, so far •as they are applicable to those terms as used in section 4403/., the kneading and rubbing of the body ■cannot be considered as covered thereby. Smith v. Lane, 24 Hun., 632.
    The American School of Osteopathy at Kirksville, Missouri, is the parent college of the system of osteopathy in this country, and the statutes of Missouri recognize osteopathy as a “system or science of treating human diseases,” and declare such system or science not to be the practice of medicine and surgery, within the meaning of the act regulating the practice of medicine and surgery in that state. Missouri Acts of 1897, p. 206.
   Shauk, J.

Counsel for the State urge upon us the yiew that when Liffring did “prescribe, direct and recommend for the use of one Carey B. McClelland, a certain agency, to-wit: a system of rubbing and kneading the body commonly known as osteopathy, for the treatment, cure and relief of a certain bodily infirmity or disease,” as charged in the indictment, he practiced medicine as defined in section 4403f. of the act “to regulate the practice of medicine in Ohio,” passed February 27,1896 (92 O. L., 44), and not haying procured from the State Board of Medical Registration and Examination, and left with the probate judge of the county, a certificate of qualification to practice medicine or surgery as required by sections 4403c and 4403d of the act, he is guilty of the misdemeanor defined in section 4403y and subject to fine or imprisonment or both. The prac: tice which the act regulates is defined in section 4403†: “Any person shall be regarded as practicing' medicine or surgery within the meaning of this act who shall append the letters ‘M. D4 or 4M. B.; to his name or for a fee prescribe, direct or recommend for the use of any person, any drug or medicine or other agency for the treatment, cure or relief of any wound, fracture or bodily injury, infirmity or disease.”

It does not seem to be supposed that the indictment charges the practice of surgery. But the proposition urged by the attorney general is that the “system of rubbing and kneading the body known as osteopathy,” which ithe indictment does charge, is an agency within the meaning of the statute, and that prescribing and directing the use of such agency is the offense defined by the statute; and it is urged that unless we give so- comprehensive a meaning to the word “agency” the associated words ’’medicine” and drug” will be denied all meaning and the purpose of the act defeated. Our knowledge of osteopathy is not definite-. The word has not found recognition in the dictionaries. It is, however, certain that its use exceeds the suggestions of its etymology. The rubbing and kneading charged in the indictment are consistent with our general knowledge that, in practice, the adherents to osteopathy wholly reject drugs and medicines. The application of the theory that disease may be cured by the manipulation of different parts of the body would not, with close regard to the meanings of words, be called an agency. But assuming a meaning of the word which might justify its being so used, if that would be consistent with the associated words, we meet the suggestion that in obedience to the maxim, noscitur a \§ociis, the meaning of the word agency must be limited by that of the associated words “drug” and “medicine.” The cases in which the meanings of words have been thus limited are so numerous that the labor of collecting them appropriately belongs to the compilers of digests. Certainly, this maxim should not be so applied as to defeat the object of legislation. It should always serve the rule that the object of construction is to ascertain intention. In substance the view presented in support of the exception is that the legislature intended to prohibit the administration of any agency and the recommendation of any mode of treating diseases or’ patients, except by the holders of certificates from, the board. That purpose would have been unmistakably expressed in fewer words than are employed, in this act. With the assumed meaning of the word! “agency,” it would have been precisely expressed' by this act if the words “drug” and medicine” had been omitted. The maxim invoked is applicable to the case because it serves the universal rule that,: in seeking the meaning of an act, all of its words-must be .considered. It requires the conclusion that the agency intended by the legislature is to be of the general character of a drug or medicine, and to be applied or administered, as are drugs or medicines, with a view to producing effects by virtue of its own potency.

The same conclusion will follow a more general,, and less technical, view of the subject. The objection which its opponents urge against osteopathy is. that it recognizes a fragment of truth and assumes, that it is the universe of truth; and that, by rejecting remedial agencies generally believed to be effective if rightly prescribed, it withholds from those* who resort to it available means of relief and cure. It is not charged that it is otherwise hurtful, nor-that its administrations are attended with danger. The obvious purpose of the act under consideration is to secure to those who believe in the efficacy of medicines the ministrations of educated men, thus-preventing fraud and imposition; and to protect society from the evils which result from the administration of potent drugs by the ignorant and unskillful. The purpose of the act is accurately indicated by its title to be “to regulate the practice of medicine.”

No provision of the act indicates an intention on the part of the legislature that those who do not propose to practice medicine shall graduate from a college of medicine, or otherwise become learned in its use. Without such knowledge no, one is entitled to a certificate from the Board of Examination. The result of the view urged in support of the exception is that, by this act, the general assembly has attempted to determine a question of science and to control the personal conduct of the citizen without regard to his opinions, and this in a matter in which the public is in nowise concerned. Such legislation would be an astonishing denial of the commonly .accepted views touching the right to personal opinion and conduct which does not invade the rights of •others. From the operation of constitutional provisions designed to establish and perpetuate freedom of thought and action in matters pertaining to religion, it results that in things which are of the first concern we are imperatively denied the guidance of legislative wisdom, and our immortal part is exposed to the enduring pain which is believed to follow the acceptance of religious error.

In the absence of a statute clearly indicating it, the General Assembly will not be presumed to have intended the consequences involved in this contention.

Exception overruled.  