
    The State of Ohio v. Gravett.
    
      Osteopathy, the system of kneading and ruhhing — Is comprehended within practice of medicine — Section 4-iOSf, Rev. Stat. —Qualifications for practice may he required — Legislative enactment discriminating against osteopathists is as to such discrimination void, when — Constitutional law.
    
    1. “The system of rubbing and kneading the body, commonly known as osteopathy,” is comprehended within the practice of medicine defined by section 4403f, of the Revised Statutes, as amended by the act of April 14, 1900.
    2. One who has an established practice in the healing of diseases may be required to conform to such reasonable standard respecting qualification therefor as the general assembly may prescribe, having in view the public health and welfare.
    3. A legislative enactment which discriminates against osteopath- . ists by requiring them to hold diplomas from a college which requires four years of study, as a condition to their obtaining limited certificates which will not permit them to prescribe drugs or perform surgery, while not requiring such time of study from those contemplating the regular practice as a condition to their obtaining unlimited certificates for the practce of medicine and surgery, is as to such discrimination, void, and compliance therewith cannot be exacted of those who practice osteopathy.
    (Decided December 3, 1901.)
    Exception to the decision of the Court of Common Pleas of Darke county.
    Gravett was indicted at the October term, 1900, of . the common pleas court, the charge being:
    "The jurors of the grand jury of the county of Darke and the state of Ohio, then and there duly impaneled, sworn and charged to inquire of and present all offenses whatever committed within the limits of said county, on their oaths, in the name and by the authority of the state of Ohio, do find and present: That Henry H. Gravett, late of said county, on the 11th day of September in the year of onr Lord, one thousand and nine hundred, at the county of Darke aforesaid, did knowingly, wilfully and unlawfully practice medicine in the state of Ohio and county aforesaid 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, and amended April 14, 1900, in this that at the time and place aforesaid, he, the said Henry H. Gravett, did, for a fee, to-wit, the sum of five ($5.00) dollars prescribe and recommend for the use of one Martha Huddle, a certain application, operation and treatment, 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 to the jurors aforesaid, he, the said Henry H. Gravett, at the time aforesaid, not having obtained or received from the state board of medical registration and examination of the state of Ohio a certificate entitling him, the said Henry H. Gravett, to practice medicine, or surgery within the state of Ohio, as required by the act aforesaid, he, the said Henry H. Gravett, at the time aforesaid not being entitled, under the act aforesaid, or laws of the state of Ohio, to practice medicine or surgery within the state of Ohio, contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Ohio.”
    A demurrer to this indictment was sustained to which the present exception is prosecuted.
    
      J. M. Sheets, Attorney General; J. E. Todd, Assistant Attorney General; A. L. Clark, Prosecuting Attorney; B. El Westfall and Smith W. Bennett, and H. J. Booth, of counsel, for plaintiff.
    In our view, it is proper to trace the course of legislation in Ohio upon this subject, from the days of the free, untrammelled practice of empiricism, when the charlatan and quack, equalled, before the law, the skilled physician and surgeon, to the present day, when the profession is again assuming to be, in fact, as well as in name, a learned profession. In so doing, we have the best of authority; for a proper construction cannot be given to an act unless, we know the history of the development leading up to the act. Story on Constitution, sections 402-405. The earliest law relative to medicine, of which there is any record, was passed by the Maryland assembly in 1638. This was merely to regulate charges of physicians.
    The earliest attempt to regulate the practice of medicine in the American colonies, of which there remains any record, is the law of Massachusetts, passed in 1649.
    This act forbade any one except those “skillful in the art to be employed at any time about the bodies of men, women, or children for preservation of life or health, as chirurgions, midwives, physicians,” etc., etc. This law was substantially adopted in New York in the duke of York’s grant of 1665, and later followed in the other colonies.
    This being the first legislation upon this subject, from that day to this it has never been seriously questioned, but that the power is given to the legislative bodies to regulate the practice of medicine.
    Antecedent to the legislation here in question, we had the following enactments in Ohio.
    The first statute law regulating the practice of medicine was passed January 14, 1811, 9 O. L.,19, 23. The act was entitled: “An act regulating the practice of physio and surgery”
    
    The second act upon the subject was passed February 8, 1812, 10 O. L., 58,65, and repealed the act oí January. 14, 1811.
    The act of February 8,1812, was repealed by an act of January 14,1813,11 O. L., 28, 33.
    The act of January 14, 1813, was repealed by “An act regulating the practice of physio and surgery ” passed January 28, 1817, 15 O. L., 195, 201.
    The act passed January 28, 1817, was amended by the act of January 30,1818,16 O. L., 105,106.
    The act of January 28, 1817, as amended January 30, 1818, was repealed by an act passed January 15, 1821, 19 O. L., 28, 35.
    The act of February 15, 1821, was repealed by the act of February 26,1824, 3 Chase’s Stat. 1966.
    This act was continued with minor amendments until February 25, 1833, 3 Chase’s Stat. 1942, and was then repealed. After its repeal, no law was enacted until May 5, 1868.
    This act was entitled “An act to protect the citizens of Ohio from empiricism and elevate the standing of the medical profession.” 65 O. L., 146. It took effect October 1, 1868.
    Under the work of the commission, the first section of this act was carried into the Revised Statutes of 1880, as section 4403, but, “two full courses of instruction” were defined by the additional words “of at least twelve weeks each.” That portion of the second section which took away from the person violating the act, the right to recover compensation for services rendered, was incorporated in section 4403.
    The balance of section one of the act of May 5,1868, prescribing the penalty by way of fine and imprisonment, was carried into the Revised Statutes of 1880. as section 6992, being preceded by the qualification in section 1 of the act of May 5, 1868, omitting, however, evidently through inadvertence, the provisions for continuous practice for ten years.
    The second section of May 5, 1868, which had been inserted in the Revised Statutes under section number 6992, was amended by the act of April 18, 1881, 78 O. L., 183, so as to insert the proviso as to continuous practice for ten years.
    Section 4403 of the Revised Statutes of 1880, defined the qualifications as to graduation thus :
    “No person who has not attended two full courses of instruction, of at least twelve weeks each, and grad' uated at a school of medicine either in the United States or a foreign country,” etc.
    By the act of May 2, 1885, 82 O. L., 218, the words quoted were stricken out and the following inserted:
    “No person who is not a graduate of a reputable school of medicine, either in the United States or a foreign country,” etc.
    At the same .time a retaliatory provision was inserted. As thus amended section 4403 remained in force until February 27, 1896.
    The act of February 27, 1896, 92 O. L., 44-48, repealed original sections 4403 and 6992 of the Revised Statutes. It provided for a state board of medical registration and examination of seven members. It established requirements for practice of medicine, surgery and midwifery, and required each applicant for a certificate to apply to such board. It compelled each practitioner to apply and exempted no one.
    It provided when the board might refuse to grant a certificate, and when it might revoke the same. Provided for a record with the probate judge of the county in which the applicant resides. A person practicing midwifery at the passage of this act, was to apply to the probate judge for a certificate, making affidavit to the time and place he had practiced, and as to qualification. The probate judge was to issue a certificate, upon payment of fee. All persons desiring to practice midwifery after the passage of the act were required to pass examination such'-as the board might require. But such certificate, so granted, gave the person no right to operate, etc.
    The act defined the practice of medicine and surgery, provided penalties for all violations, and how the act should be enforced.
    The act of April 14,1900, 94 O. L., 198-201, repealed Secs. 4403-c and 4403-f of the act of February 27, 1896. The amendments to Sec. 4403-c consisted in prescribing certain essentials of applicants for examination before admitting them to the examination, viz., either a diploma from a reputable college, normal school, high school or seminary, issued after four years of study; a teacher’s permanent or life certificate; a medical student’s certificate; a certificate of examination for admission to the freshman class of a reputable literary or scientific college; a certificate of having passed an examination directed by the state medical board; and certain other requirements.
    The act also named the studies in which the applicant was to be examined. It named certain persons, or classes to whom the act is not to apply; but as this is the act which is assailed in this action as unconstitutional, we will quote from it more at length in other portions of this brief.
    We thus see in the foregoing legislation a gradual evolution from the period when no qualification was demanded of the practitioner, to the present, when qualifications are prescribed and examination demanded of each person entering the profession. The effect of the legislation so far as requiring certain qualifications, might be summarized as follows;
    First. The legislation in force from January 14, 1811, to February 25, 1833, left the entire subject of the practice of physic and surgery to medical societies, incorporated under special acts; the requisites varying from three full years’ study and an examination in anatomy, surgery, materia medica, chemistry and theory and practice of medicine to that prescribed by the medical convention of Ohio, upon whom no qualification was placed, save that the period of study should not be less than two years nor more than four years.
    Second. From February 25, 1833, to October 1, 3868, no legislation was in force.
    Third. From October 1, 1868, to February 27, 1896, a certificate of qualification from a state or county medical society entitled the holder to practice medicine and surgery in Ohio.
    Fourth-. From October 1,1868, to January 1,1880, graduation at some school of medicine, either of the United States or some foreign country, after attending two full courses of instruction, entitled the graduate to practice in Ohio.
    Fifth. From January 1, 1880, to May 2, 1885, graduation at a school of medicine, either in the United States or a foreign country, after attending two full courses of instruction, of at least twelve weeks each, entitled the graduate to practice in Ohio.
    Sixth. From May 2, 1885, to February 27, 1896,. graduation at a reputable school of medicine, either in the United States or a foreign country, entitled the graduate to practice in Ohio; but this was subject to the retaliatory proviso that foreign graduates should be subject to the same restrictions in Ohio that were imposed by their state or country upon Ohio graduates desiring to practice there.
    Seventh. During the entire period, from October 1,1868, to February 27,1896, the continuous practice of medicine for a period of ten years qualified a person to practice in Ohio.
    In answering the claim of the unconstitutionality of this act, we need only examine it in the particulars wherein it differs from the act of February 27, 1896, 92 O. L., 44, 49. That act was subjected to the same criticisms as the one under consideration, in the case of France v. State, 57 Ohio St., 1, and the same was sustained as a valid exercise of legislative power by the entire coqrt.
    The question is narrowed here to the proposition, that, as the old act (92 O. L., 44) was constitutional, the addition of the new matter in the new act, (94 O. L., 198) has not violated any provision of the constitution.
    If the new matter in the last act, contrary to our view of the case, should be held to render the act unconstitutional, it would not make the act wholly void. Exchange Bank v. Hines, 3 Ohio St., 1; Treasurer v. Bank, 47 Ohio St., 503.
    We have cited the various acts heretofore regulating the practice of medicine, not only to show the gradual development toward a higher professional and educational standard, but also to show thereby, that the phrase “the practice of medicine,” is broad enough to include the practice of osteopathy.
    The contention is repeatedly made by the defendant, that the practice of medicine does not include osteopathy; that the exponents of that pathy do not use drugs or medecine, and hence cannot be charged with the practice of medicine. Their entire contention seems to be a jugglery with the word medicine; therefore, an examination into its use may be considered in point.
    In each of the seven acts, covering the period between January 14, 1811, to‘May 5, 1868, the purpose was preserved as expressed in the first act, viz., that of “regulating the practice of physic*and surgery.”
    
    The European practitioners preserved the distinction between physicians, surgeons and midwives, making three separate professions, the one not including the other. This was partially observed in America during the early years of the colonies, especially in the larger towns and among medical practitioners of foreign education. But the exigencies of the new surroundings soon put an end to the distinction between physicians and surgeons, and the same persons began, and have ever since engaged in the indiscriminate practice of both professions. Baas History of Medicine, 585.
    The practice of midwifery remained in the hands of women during the first half of the eighteenth century, whose qualifications consisted of a more or less extensive personal experience. Physicians were only called in difficult cases. The earliest regular obstetrician of the colonies was Dr. John Moultrie of Charleston, who came to this, country in 1733 and died in 1773. Baas History of Medicine, 808.
    The profession of medicine recognizing surgery and midwifery as a department of medicine, is osteopathy referable to any of these topical divisions?
    
      Little v. Nebraska, decided by the Supreme Court of Nebraska, November 21, 1900, 84 N. W. Rep., 248.
    
      Osteopathy is, as yet, unknown to the world as a definite branch of science. State v. Liffring, 61 Ohio St., 39.
    We contend, that the use for which osteopathy is employed, is in the treatment of disease, and if it is embraced within any of the four words used in section 4403 of the Revised Statutes, “appliance, application, operation or treatment,” then any person prescribing, using or recommending it for “the cure or relief of any wound, fracture or bodily injury, infirmity or disease,” is certainly engaged in the practice of medicine as defined by the act.
    This court did not deny to the law making power the right to define what should constitute the practice of medicine, but held that the use of the words, “or other agency” after the words “drug or medicine,”, limited the “agency” to such as are of the general character of a drug or medicine, and to be applied or administered as are drugs or medicines, upon the principle of noscitur a sociis. The legislature having that decision before it, passed the act in question, and sought to enlarge, or more accurately define, what should constitute the practice of medicine; hence, the employment of the words, not found in the earlier act, of “appliance, application, operation or treatment.”
    Do those words comprehend rubbing or kneading the body? Is “rubbing and kneading the body for the treatment, cure or relief of a certain bodily infirmity or disease, either an “application, operation or treatment?” In our minds they are certainly included.
    But the question, we think has been settled in the case of Eastman v. The People, 71 Ill. App., 236.
    What is called a discrimination against osteopaths, by defendant’s counsel, is, in fact, no discrimination at all. Exception is made in the act, that it shall not apply to any osteopath who holds a diploma from a legally chartered and regularly conducted school oí osteopathy in good standing as such, wherein the course of instruction requires at least (4) four terms of (5) five months each in (4) four separate years.
    • Defendant says that this provision is not a regulation, but amounts to a prohibition, because no such college, with such a course, exists anywhere. If this be true, it becomes a question whether the law must be framed to fit the schools, or the schools to comply with the law. The statute only requires osteopaths to be examined in the four subjects, anatomy, physiology, chemistry and physical diagnosis. If the above objection should be considered seriously, why could it not be urged, if such be the fact, that, because the schools of osteopathy do not require their, graduates tb study anatomy, therefore the curriculum being different from that provided by the act, the requirement amounts to a prohibition. The requirement of four terms of five months each in four separate years, is not a discrimination in fact against defendant, but is in his favor, because the regulation adopted by the state board of medical registration and examination, in fixing a standard for other medical colleges, says:
    “It shall require attendance upon 80 per cent, of each of four graded courses of instructions of not less than twenty-six weeks each, excluding holidays, in four separate years.”
    
    In compliance, with the requirements of the board, all schools have arranged their terms and curriculum accordingly; and why any special exception should be made in the case of osteopaths, cannot be comprehended.
    
      It is also urged as an argument against the law, that, as the curriculum requires less of an osteopath than of other practitioners, it renders the law unconstitutional, being class legislation and in violation oí the fourteenth amendment to the United States constitution. The applicant, who is an osteopath, must be examined in four studies; other applicants, in at least nine. Sections 4403-c and 4403-f. This is justified when it is observed that an osteopath does not administer drugs nor perform major or operative surgery. The studies are only such as the practice of osteopathy requires the practitioner to be familiar with. Boards of education are authorized to establish curricula for various schools, and to require of the teachers thorough qualifications in the branches they teach. They need not be familiar with Calculus in order to teach the A. B. C. Likewise, the osteopath, in order to minister to disease by rubbing and kneading the human body, need not be familiar with surgery, materia medica, etc. The distinction is founded in the best of reasons. It is but carrying out the distinction made by that school of medicine itself.
    
      Addison F. Broomhall and Anderson & Boimnan, for defendant.
    Coming now to the indictment in this case, we find that the defendant is not charged with practicing osteopathy; but is indicted for knowingly, wilfully and unlawfully practicing medicine by prescribing and recommending for a fee the use of a certain application, operation and treatment, to-wit: “A system of rubbing and kneading the body, commonly known as osteopathy, without having obtained or received from the state board of medical registration and examination, a certificate entitling him to practice medicine or surgery within the state of Ohio as required by the act of 1896 and the amendments thereto.”
    The court will note that the statute does not attempt to define osteopathy, but the indictment does, calling it a system of rubbing and kneading the body; and the inference immediately follows that rubbing and kneading the body is the practice of medicine and that the defendant is indicted for that offense. The indictment would be complete if the word “osteopathy” did not appear, because a rubbing and kneading of the body would be the use of an application, operation or treatment for the cure of a bodily infirmity or disease.
    This brings us to the first question raised by the record, namely: Is the rubbing and kneading of the body; for a fee, the practice of medicine within the meaning of the medical law of Ohio?
    The authority of the legislature to regulate learned professions can not be doubted. It is an exercise of the police power and therefore a legislative act; but when the general assembly not only attempts to regulate the practice of a science, but assumes to say what that science is, enumerates specific acts, and declares them to be the practice of that science, it exceeds its authority and enters the domain of the courts. It is an attempt to fix a conclusive rule of evidence which has been repeatedly held as beyond the power of the general assembly. The effect of such legislation would be to deprive persons, charged with offense, of a judicial investigation and judgment as to their guilt. In this case it would be only necessary for the state to prove that the defendant had rubbed and kneaded the body of a human being for a fee, in order to convict him of a violation of law. The jury would not be left the discretion to say whether or not he had in fact been practicing medicine; and the introduction of evidence by Mm tending to show what the practice of medicine is, and that the rubbing and kneading of the body was not within the sphere of that science, would be of no avail.
    The use of certain words and titles in connection with the name of a person are made prima facie evidence of the practice of medicine by the person using them, but the treatment of disease, for a fee, by any method whatever is made conclusive proof of the practice of medicine. This is the determination of a judicial question by the legislative branch, and therefore unconstitutional and void.
    Counsel for the state cite the case of Eastman v. People, 71, Ills., 111, App., 236, and Little v. State of Nebraska, as conclusive of this question. We have not seen the Illinois statute; the Nebraska statute, however, is similar to ours, but an examination of the cases referred to will show that the point here contended for was not in the minds of the courts when those cases were decided. Both courts held the “Practice of Medicine” synonymous with “Healing Art;” and having made that assumption, there was but one conclusion open to them. The real contention is upon the right of the courts to make such an assumption, or of the legislature to make it for them. It is said by Shauck, C. J., in Ohio v. Liffring: “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.” The decisions of Nebraska and Illinois courts are not sufficient authority to sustain the legislature of Ohio in its attempt to declare “Black,” “White,” and that no citizen shall be permitted to prove that it is not infallible. 2 Tiedeman’s State and Federal Control of Persons and Property, p. 871; Cooley Const. Limitations, p. 452; Railway Co. v. Payne, 34 Am. Rep., 55; State v. Beach, 147 Indiana, 74; Linz v. Charlton, 23 Wis., 474.
    This statute is a bold usurpation of judicial power. A law is as clearly unconstitutional when it is beyond and without legislative authority, as when it falls within some of the express limitations enumerated in the constitution. Railway Co. v. Commissioners, 1 Ohio St., 77.
    A discrimination has been made in section 4403f in favor of the osteopaths, namely: That they may practice medicine by passing an examination in four subjects only, which entitles them to treat disease on different terms and conditions from any other persons in the state.
    This may have been intended by the framers of the statute, and possibly by the legislature, as a favor to the osteopaths; but whatever the intention may have been, it renders the law unconstitutional; because it denies to others what it grants to osteopaths; it is therefore class legislation and in violation of the constitution of the state and of the fourteenth amendment to the constitution of the United States. The regular physician, the trained nurse, the attendant in the bath house, are not equal with the osteopaths before the law; they, too, rub and knead the body for a fee, but if they do so without a medical diploma, they are violaters of the law and liable to prosecution. State v. Gardner, 58 Ohio St., 599.
    But all the discriminations are not in favor of the osteopaths. Section 4403f confers a special privilege on certain medical students, and the same section makes a discrimination in favor of foreign medical practitioners coming into the state, but these privileges are not allowed foreign osteopaths, nor osteopathic students.
    It is apparent that the law was originally designed to regulate the practice of medicine only; but after it was framed and launched in the legislature, an attempt was made to include a treatment which, even the practitioners and professors of medicine did not regard as a branch of medicine; and which they still speak of with disrespect. How can osteopathy be fairly considered a branch of medicine while the disciples of medicine are calling it a fad of a fraud.
    How can a law stand which provides that osteopaths may practice medicine, on more favorable terms than medical doctors; at the same time providing that they shall not practice medicine on the equal terms with medical practitioners. Barbier v. Connolly, 113 U. S., 27; Soon Hing v. Crowley, 113 U. S., 703, 709; Railway v. Beckwith, 129 U. S., 26.
    At the time of the passage of this act, there was a number of osteopaths practicing in Ohio. The defendant was one of them; he had built up a large and lucrative practice. His right to practice osteopathy, his interest in a practice already established, are recognized by the laws of Ohio as property. An established practice is a thing which can be bought and sold. Will it seriously be contended that the legislature can thus arbitrarily deprive a citizen of his livelihood, and of his property in his professional practice? The fourteenth amendment to the constitution of the United States provides: “That no state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
    The bill of rights of our own state, article 1, section 1, provides: “All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and seeking and obtaining happiness and safety.”
    If osteopaths are practicing medicine, they are physicians representing a recognized school of practice, and under section 4403 of the Revised Statutes, they are entitled to representation upon the board of med ical examiners.
    Osteopaths were ignored in the organization of the present medical board. This fact does not appear upon the face of the indictment, but the court may take judicial notice of the formation of the public bodies of the state, and may say whether or not the Ohio medical board of examiners is organized according to law. If the court should go so far as to decide that the rubbing and kneading of the body, for a fee, is the practice of medicine, before the osteopaths can be required to appear for examination, there must be a board of examiners upon which all schools of practice have their representatives.
    Allopaths have never been permitted to examine homeopaths; and no allopath would submit to an examination by homeopathists, but both of these traditional enemies desire the privilege of examining osteopaths, and assert their right, under the Ohio medical law, to do so.
    If medical practitioners can be examined only by medical men, osteopaths have the right to be examined only by osteopaths. If they are practicing medicine, they are entitled to representation on the Ohio medical board. If they are denied these privileges, they no longer enjoy equal protection of the laws.
    If the board is illegally organized, it has no authority to examine anybody. If the law discriminates against the osteopaths, it is unconstitutional and void. 1 Tiedeman’s State and Federal Control of Person and Property, page 249.
   Shauck, J.

It is said that the decision of the court below is justified by The State of Ohio v. Liffring, 61 Ohio St., 39, the act charged in the indictment not being an offense within the terms of the statute. The practice which was there charged as unlawful is the same as that charged in the present indictment. By the statute then in force one was regarded as practicing medicine who should “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.” The view then urged by the attorney-general was that the system of rubbing or kneading the body, known as osteopathy, is an “agency” within the meaning of the statute; but the interpretation of the statute seemed to invoke the maxim noseitur a sociis as an aid in determining the meaning of the word, and our conclusion was that it meant something of like character with a drug or medicine to be administered with a view to producing effects by virtue of its own potency; and that it, therefore, did not include osteopathy.

But since our decision in that case, by the act of April 14, 1900, the section (4403Í) has been amended and a more comprehensive definition given of the practice regulated, so that one is now regarded as practicing medicine within the meaning of the act “who shall prescribe, or who shall recommend for a fee for like use, any drug or medicine, appliance, application, operation or treatment, of whatever nature, for the cure or relief of any wound, fracture, or bodily injury, infirmity or disease.” The amended act further contains a proviso to prevent its application “to any osteopath who holds a diploma from a legally chartered and regularly conducted school of osteopathy, in good standing as such, wherein the course of instruction requires at least four terms of five months each in four separate years, providing that such osteopath shall pass an examination satisfactory to the state board of medical registration and examination on the following subjects: anatomy, physiology, chemistry, and physical diagnosis. Provided that such osteopath shall not be granted the privilege of administering drugs nor of performing major or operative surgery.”

It seems quite clear that in its present form the statute affords no proper occasion for the application of the maxim of interpretation by which we were aided in State v. Liffring, supra. Careful comparison of the two acts with respect to their definitions of the practice regulated shows that while in the former the legislature intended to prohibit the administration of drugs by persons not informed as to their effect or potency, by the latter it has attempted a comprehensive regulation of the practice of the healing art; so far, at least, as to require the preparatory education of those who, for compensation, practice it according to any of its theories. The comprehensive language of the statute and the purpose which it clearly indicates require the conclusion that osteopathy is within the practice now regulated.

In support of the decision of the court of common pleas it is further contended that if the act includes the practice of osteopathy it is to that extent void on constitutional grounds. From this point of view it is urged that the defendant has an established practice as an osteopathist, and that the statute is void because it contains no provision saving his vested right therein. This objection is founded on the inhibition of the fourteenth amendment to the constitution of the United States: “Nor shall any state deprive any person of life, liberty, or property without due process of law;, nor deny to any person within its jurisdiction the equal protection of the laws;” and the provision of our own bill of rights which gives inviolability to the rights of “enjoying and defending life and liberty, acquiring, possessing and protecting property, and seeking to obtain happiness and safety.” In urging this objection it is correctly assumed that there is a property interest in a vocation or means of livelihood, but the distinction between the right to establish a practice, and the right to pursue a practice already established seems to be inadmissible. By what process of reasoning could it be maintained that the right to enjoy property should be esteemed more sacred than the right to make contracts by which property might be acquired? The provision quoted from the bill of rights includes the right to acquire, and the right to possess within the same protection. Our constitutions are founded upon individualism and they make prominent the theory that to the individual should be granted all the rights consistent with public safety; and our development is chiefly attributable to the firm establishment and maintenance of those rights by an authorized resort to the courts for their protection against all hostile legislation which is not required by considerations of the public health or .safety. In the absence of such considerations those rights are alike immutable; in' their presence they must alike yield. In this connection counsel for the defendant call our attention to The State of Ohio v. Gardner, 58 Ohio St., 599, a case which should not be referred to without approval. But it is there held that “where the pursuit concerns in a direct manner the public health and welfare, and is of such a character as to require a special course of study or training, or experience, to qualify one to pursue such occupation with safety to the public interests, it is within the competency of the genéral assembly to enact reasonable regulations to protect the public against evils which may result from incapacity and ignorance.”

In the enactment of legislation of this character the general assembly may take account of the advance of learning, and provide for the public health and safety by such reasonable and proper measures as increased knowledge may suggest; and, to make such legislation effective, one having an established practice, and one contemplating practicing, may be required to conform to the same standard of qualification. This conclusion seems to be justified by the considerations involved, as it is by the authority, of The State v. Gardner, supra, and Dent v. West Virginia, 129 U. S., 114.

It is further urged against the validity of the statute in its application to osteopathists that to their admission to practice it prescribes conditions with which compliance is impossible, and that it is therefore an attempt, by indirect means, to prohibit practice according to their theories. In this connection our attention is called to the provision of section 4403c, which, as to those contemplating practicing in other schools, requires that the applicant for a certificate “shall be examined in materia medica and therapeutics, and the principles and practice of medicine of the school of medicine in which he desires to practice by a member or members of the board representing such school;” and to the fact that there is no member of the board representing the school of osteopathy. It could not be maintained, and we do not understand counsel to contend, that the board of medical examination must be so numerous a body that it may have a member of every existing or possible school. The insistence is that however few or numerous the members of the board may be, the act must contain practicable provisions for ascertaining the attainments of all who apply for certificates, they being in other respects qualified. Such provisions it is insisted are not contained either in that section or in the proviso of section 4403f, which relates especially to osteopathists, for it is there provided that an applicant shall hold “a diploma from a legally chartered and regularly conducted school of osteopathy in good standing as such, wherein the course of instruction requires at least four terms of five months each in four separate years,” and it is said that there is no school of osteopathy whose requirements exceed two years.

The question before us arises on demurrer to the indictment, and the record does not inform us of the fact that there is no school of osteopathy whose diploma would admit its holder to an examination. However well known it may be to those who have sought information concerning it, we are perhaps without such information as would justify us in regarding it as a fact to be considered in the case.

But a sufficient foundation for this criticism of the act appears in its provisions discriminating against those who propose to practice in the school to which the defendant belongs. The proviso quoted contains a list of subjects upon which those desiring to practice are to be examined. Having in view the theories of the osteopathists as they are commonly understood, it seems clear that no adverse criticism could be made upon the discretion exercised in the requirement of these subjects for examination. They are much less numerous and extensive than those prescribed for applicants who contemplate a regular practice, and an appropriate limitation is placed upon the effect of certificates following such limited examination. But one who desires to practice in the regular school is admitted to a more extensive examination without any requirements as to duration of study in the college whose diploma he holds, and without any requirement in that regard, except that it shall be a “legally chartered medical institution in the United States in good standing at the time of issuing such diploma, as defined by the board.” Why the exaction of four years of study should be made of those only who are to take a shorter examination, and receive a certificate of limited effect, we need not inquire. It is quite obvious that this additional requirement could not have been made of those contemplating the practice of osteopathy because of the number and character of the subjects upon which they are to be examined, nor of the effect of their certificates, nor because of any consideration affecting the public health or safety which does not involve a scientific conclusion adverse to the efficacy of osteopathy. A conclusion of that character cannot be drawn by a body to which legislative power alone is given, and for whose members there is no prescribed qualification of education, knowledge or intelligence. Authority to discriminate against osteopathy would imply authority to discriminate against any other school of medicine. It seems clear from the reasons involved, and from the discussion of the subject, and the points decided in The State v. Gardner, supra, that this discrimination against those who occupy the position of the defendant is unwarrantable, and that compliance with it can not be required.

The question lastly considered would dispose of the exception, but the other questions are in the record, and they have been ably discussed by counsel. It seemed proper to pass upon them to the end that the general assembly may not meet any unnecessary difficulty in the exercise of its ample power to protect the public health and welfare by providing that only the learned may pursue a learned profession whose activities so closely affect them.

Exception overruled.

Minshall, C. J., Williams, Bürkbt, Spbab, and Davis, JJ., concur.  