History of Osteopathy
(and Twentieth-Century Medical Practice)

E. R. Booth, Ph.D, D.O.
1906

CHAPTER V

OSTEOPATHY AND THE COURTS.

Those love truth best who to themselves are true, And what they dare to dream of, dare to do. - LOWELL.

Courts are intended to interpret laws; not to make them. Three factors enter into the considerations of a court: (1) The law governing the ease; (2) court decisions in like cases; and, (3) the application of justice between man and man. In case there is no statute law that applies, the court is guided by prior decisions or wholly by equity.

The conditions in most of the states when Osteopathy became an issue were without precedent. The only laws that would apply were those governing medical practice or those intended to conserve the public health. As the former were passed at the instigation of the medical profession, they were very naturally so framed as to secure and advance the interests of those who belonged to that profession. Thus the practice of medicine became hedged about in most states so that it was thought that no one could enter that profession except by way of already established medical colleges. Formerly there was only one entrance to the profession of medicine; that was the "regular" way. Later the homeopaths, the eclectics, and the physio-medics in some states, secured a passage of their own, but only after a long and hard-fought battle.

There were also numberless court decisions which were invoked in all cases. These were so specific and so generally in favor of only the schools of medical practitioners named or implied in the laws that the profession came to believe that both law and precedent were unalterably in their interests. Indeed, it is true that no other class of persons is so well protected as doctors. In most states they may kill their patients by poisoning, bleeding, cutting, or almost any method, except hanging or shooting, without fear of punishment. Many of them naturally became arrogant, and the people began to take exceptions to their methods. This brought into the field the third element mentioned; that is, the rights of the people and the question of equity independent of all precedents.

But courts have no power to institute action. That can be done only by some one with a grievance, or in a friendly way to determine, for the satisfaction of all parties concerned, the legal status of a question at issue. The history of Osteopathy shows a great many actions in courts against it as a rival of old methods of healing. Most of the suits, at the instigation of the M. D.'s, have been brought by state boards entrusted with the enforcement of the medical laws. In some of these such an utter disregard for truth and equity was shown in the conduct of the opponents of Osteopathy as to carry the conviction to an unprejudiced mind that the proceedings partook more of the nature of persecutions than prosecutions. The case of the State Board of Health of Kentucky against Dr. Barry Nelson, of Louisville, is a good illustration of this method. On the other hand, occasionally, to prevent such suits or to obtain equitable dealing, osteopaths have brought suits against state boards. Dr. Nelson's mandamus suit, cited below, is a noteworthy example of this method of procedure.

In general, but little fault can be found justly against decisions in which Osteopathy has been interested. In practically all, the letter or the spirit, or both, of the law has been upheld. Public opinion has, in many cases, so forced the attention of judge or jury to the merits of Osteopathy that they were inclined to give prosecuted osteopaths the benefit of all doubts; and in other cases, tempered justice with mercy. The condition was clearly shown by the President of the Ohio State Board of Medical Examination and Registration in his report on "How the Medical Practice Act in Ohio can be most Efficiently Enforced," at the meeting of the State Medical Society in Cincinnati, in May, 1001. The speaker read extracts from reports of boards in most of the other states as to the difficulties they encountered in enforcing medical laws. Three facts were very patent from the reports read; namely, (1) the people do not want laws inimical to Osteopathy enforced; (2) the M. D.’s are afraid to try to enforce such laws; and, (3) the courts and juries are disposed to give the "irregulars" the benefit of all doubts. Kentucky reported that the courts were prejudiced in favor of Osteopathy. That "prejudice" of the courts seems to have permeated every influence in the state so that in 1904 scarcely a corporal's guard could be arrayed against Osteopathy.

No apology is offered for the greater space given below to court proceedings in Ohio and Kentucky. These were typical cases, known and read by all men, and do not differ materially from the contests in many other states.


OSTEOPATHY AND THE PRACTICE OF MEDICINE.

It will be seen by reading the opinions cited below of decisions in the several states that there is a difference of opinion as to what Osteopathy really is from a legal and historic point of view. Some have decided that it is the practice of medicine according to the law, others that it is not. As many of the laws were enacted be fore Osteopathy gained its present prominence, the law-makers evidently did not have it in mind in voting for the bills then presented; and as Osteopathy is different from all other methods of treating diseases, the courts have generally decided that it could not be subject to the same statutes. Hence the declaration that the practice of Osteopathy is not the practice of medicine. On the other hand, it has been urged that the laws were intended, even if not clearly so worded, to cover the entire healing art. Hence the claim that it is the practice of medicine. Both views are tenable.

Many Osteopaths, taking a scientific and historic view of the question have persistently contended that the practice of Osteopathy is the practice of medicine in its broadest and most correct sense. The following, presenting that view, is taken from a paper read by the present writer before the Ohio Osteopathic Society in 1901:

"Are osteopaths engaged in the practice of medicine? This question may be answered either affirmatively or negatively, depending upon the point of view from which the subject is considered. The most common source of error in the answer lies in the fact that the term medicine is used in two widely different senses and many do not distinguish between them. Its first and best established use is clearly indicated by the derivation of the word medicine, and the definitions of it as given in the best dictionaries. The word has been evolved by the following steps Medicine, from old French medecine, from Latin medicana, medicus (a physician), medeor (to heal). It, therefore, means literally the work of healing through the agency of a physician.

Note the following definitions by recognized authorities: 'The art of healing, the science of the preservation of health, and of treating disease for the purpose of cure.' - Standard Dictionary. 'The art of preventing, curing, or alleviating diseases and remedying, as far as possible, the results of violence and accident' - Century Dictionary. 'The science which relates to the prevention, cure, or alleviation of disease’ International Dictionary. 'The science and art of preserving health, and preventing and curing disease; the healing art, including also the science of obstetrics. In a more restricted sense of the word surgery is excluded.' - Gould's Dictionary of Medicine. 'The healing art; physic. A science the object of which is the cure of disease and the preservation of health. Occasionally it is used to comprehend all the branches of the healing art; at others to comprise one great division, in contradistinction to surgery and obstetrics.' Dunglison's Medical Dictionary. 'The science and art of preserving the health of the animal organism, of assisting it to recover, when injured or diseased, of promoting the comfort and prolonging the life of the sick or injured, and of superintending and aiding in the process of parturition; in a restricted sense the same science or art exclusive of surgery' - Foster's Encyclopedic Medical Dictionary.

"The above are all leading definitions of medicine as given by recognized literary and medical authorities. Of course the terra is often used in the sense of drugs, and is so given in the dictionaries, but it is not the generally accepted sense in which the word is used, and is not warranted either by the etymology or the most common use of the word, nor by the history of medicine.

"Let us also note the meaning of the word physician. It is derived from old French physicien, Latin physicvs, Greek physikos (scientific, natural), physis (nature), phyo (to produce). A physician is, therefore, one who produces natural results in the treatment of diseases in accordance with scientific principles. Here again we find that the authorities support our view. 'One who practices the art of healing disease and of preserving health; a prescriber of remedies for sickness and disease; specifically, a person licensed, by some competent authority, as a medical college, to treat diseases and prescribe remedies for them; a doctor; a medical man.' - Century. 'One versed in, or practicing, the art of medicine, or healing bodily diseases by administration of remedies' - Standard. 'A person skilled in physic or the art of healing; one duly authorized to prescribe remedies for, and treat, diseases; a doctor of medicine.' - International. 'One who professes, or practices medicine, or the healing art; a doctor.' - Worcester. 'Properly, one who has received his degree from an incorporated institution as a doctor of medicine or has been licensed to practice medicine; but often applied in the United States to any one who practices physic.' - Dunglison. 'One who practices medicine.' - Gould. 'A practitioner of medicine.' - Foster.

"All the above are accepted definitions and not one of them shows that the work of a physician is only or chiefly y the prescribing or administering of drugs.

"The word doctor is also worthy of consideration. It is derived from tae French doctem, Latin doctor (teacher), doceo (teach). Nothing in the derivation of the word gives us a clue as to the meaning now generally assigned to it. Its present significance is a result of a development through common usage. Note what the authorities say: 'A practitioner of medicine or surgery. (1). (United States) A person empowered by a regular technical school to practice medicine or surgery. (2.). In looser language, any person whose occupation is medical practice' - Standard. 'A person duly licensed to practice medicine; a physician; one whose occupation is to cure diseases: - Century. 'One duly licensed to practice medicine; a member of the medical profession; a physician.' - International. 'A physician, one whose business is to cure disease; one who practices medicine.' - Worcester. 'A physician licensed to practice medicine.' - Gould. 'Frequently applied to any one practicing medicine, although properly confined to him who has received his degree of Doctor of Medicine. "To doctor" is sometimes used, vulgarly, for "to treat with drugs." - Bunglison. 'In common parlance, a practitioner of medicine or surgery (especially in Great Britain, a physician as distinguished from a surgeon).' - Foster.

"As with the words medicine and physician, so with the word doctor; we do not find any justification in the restriction of the use of the word to one who administers drugs in the practice of medicine."


MINIMUM COURSE ESTABLISHED.

Not only has the medical fraternity through the state as plaintiff often made osteopaths the defendants, but osteopaths by the same use of the courts in the name of the state have made violators of law defendants. In 1898, the Attorney General of Missouri brought suit in the Kansas City Court of Appeals against the National School of Osteopathy at Kansas City, in which the "object of the proceeding was to take away the corporate franchise of the respondent, because of an alleged abuse thereof." The transaction giving rise to that litigation occurred in August, 1897. Dr. Wm. Smith, alias Dr. G. H. B. Stewart, was for the prosecution, and E. D. Barber, Helen E. Barber, and one McCormack were for the defense. Dr. Smith secured a diploma from the school, upon payment of $150 as a graduation fee, without attendance, which diploma certified that its holder had “completed the full course of study prescribed by the National School of Osteopathy?” The court, among other things, said:

"In order to protect the public from frauds and quacks it was in effect here provided that the diploma of one of these schools of Osteopathy should not be issued except to a person who had. devoted not less than twenty months to the study of said science, and that a diploma has been furnished the party bears evidence of that fact. The diploma is made a voucher to the holder's proficiency.

"'We think we give effect to the legislative intent by holding that a school of Osteopathy, chartered under the laws of this state, shall not issue a diploma, except in a case where the diplomat has, in the language of the act, been in personal attendance as a student in such school for at least four terms of not less than five months each before graduation:

"Under the view we take of the statute before quoted, the defendant, by issuing a diploma to Smith, alias Stewart, did an unlawful act, but that defendant's officers did this under a mistaken 'view of their duties, is made plain by the testimony in their behalf.

"The evidence on defendant's part was to the effect that its officers, in good faith, pursued that course in the matter of Smith's application. He was examined and found, not only to be a physician learned in all the branches of medicine and surgery, a graduate of two of the most noted colleges, but besides, was found thoroughly educated and equipped in that peculiar system, or science, called Osteopathy. If this testimony is to be given any weight at all, then the act of graduating Smith, alias Stewart, was done in good faith; and if so, then we think the harsh remedy of forfeiture ought not to be visited on the defendant. At all events, the case
made by the testimony is not of that clear and convincing character as to justify the revocation of the defendant's corporate franchise.

"The judgment, then, will be for the defendant. All concur."


EXPERT TESTIMONY.

Dr. Florence L. McCoy enjoys the distinction of being the first osteopath to give expert testimony in a court of justice. On July 9, 1901, Mrs. Mary J. Hyatt, of Toledo, Ohio, was injured while getting off a street car. Suit was brought against the Traction Company and the case was heard in May, 1902. Mrs. Hyatt had been a patient of Dr. McCoy, who was sent for after the injury; consequently she was called to testify in the case. The attorney for the Traction Company objected to her testimony on the ground that osteopaths were not of a school recognized by law. Judge Barber asked Dr. McCoy if she was a graduate of a school of Osteopathy, to which she replied in the affirmative. He then asked if osteopaths were recognized by law; to which she replied "Yes."' The attorney for the defendant said "I guess not." Dr. McCoy called attention to the fact that the legislature had passed a bill about three weeks before legalizing Osteopathy. The legal status of Osteopathy and the right of the witness to give expert testimony being established to the satisfaction of the court, Dr. McCoy was heard. The Toledo Times of May 14, 1902, said

"The point was raised as to whether an osteopath could give expert medical testimony, the same as a physician, and Judge Barber allowed Dr. McCoy, a lady osteopath, to give such testimony, thus placing osteopathic science on an equal basis with the other departments of medical science, as far as the courts are concerned."

In a suit against an osteopath for malpractice in Kirksville, Missouri, the home of Osteopathy, it was decided that a drug doctor was not competent to testify against an osteopath. This was the first case in which a court had ever passed upon this question. The Journal o f Osteopathy, November, 1902, said:

"In the case of Goldie Granger vs. Dr. C. E. Still, recently tried in this county, a suit for damages for alleged malpractice, the court instructed the jury to find for the defendant. The court sustained defendant's demurrer and gave a ruling on two points. First, plaintiff's evidence was not sufficient to establish malpractice; second, the physicians who testified as experts were not competent because they were from a different school of practice than the defendant. Medical doctors, according to this ruling, are no more competent to testify in regard to correct osteopathic treatment than a committee of Baptists are qualified to try a Methodist for heresy."

The case was appealed to the Supreme Court and its decision was rendered early in 1905. The court reversed the former decision on a technicality and ordered another trial; but it sustained the ruling of the circuit judge that one school of practice is incompetent to testify against another.

Early in 1904, Dr. Homer Woodruff, of El Paso, Texas, was called upon to give expert testimony in a damage suit against the C. & H. Railroad. He was the last witness for the plaintiff, Mr. Fritzpatrick, and stated than an injury existed between the eleventh and twelfth dorsal vertebrae, and testified as to its effects. That injury had been entirely overlooked by the other physicians. They insisted that Dr. Woodruff was mistaken, and demanded that the court appoint a committee of three competent surgeons to examine the plaintiff and determine whether the osteopath's diagnosis was correct. The committee concurred in Dr. Woodruff's diagnosis in every detail, which, of course, brought consternation to the defense and its expert witnesses.

Courts are not often called upon to decide suits brought against a person for being cured. Such a case occurred at Osceola, Clarke County, Iowa, in 1901, Mr. M. A. Fisher, a resident of that county was injured January 2, 1900, by being thrown from a defective county bridge. The fall completely paralyzed his lower limbs. He vas treated about eleven months by Drs. Dauthett and Parrish, and examined in consultation by Drs. Holland, Landis, and Lawrence, reputable physicians and surgeons, all of whom pronounced him incurable. His attorneys brought suit against the county for damages in the sum of $10,000. By agreement between the attorneys on both sides, three disinterested physicians and surgeons determined the extent of the injuries. The attorneys for the county proposed a compromise and agreed to settle by paying $3,000 damages, which was an admission that the plaintiff was entitled to judgment. About December 1, 1900, Mr. Fisher went to Des Moines, where he received osteopathic treatment. He was also treated at Kirksville about one month. Col. A. B. Shaw continues the story in the following words found in the Cosmopolitan Osteopath of January, 1902:

"Now comes a recital that is as remarkable in legal annals as the recovery has been in medical history. Early in March, 1901, after the first wonderful steps to recovery on the part of Mr. Fisher, the news was conveyed to Clarke County of his improved condition, and at the solicitation of the county attorney, Mr. Fisher was arrested and indicted by the grand jury of that county for having obtained the $3,000 of damages under false pretenses. This assault was not unmixed with politics, owing to the prominence of attorneys in the case and Senator Jamison, who had acted for Mr. Fisher, was joined by Representative M. L. Temple, who had originally acted for the county in volunteering to defend Mr. Fisher. The case recently came to trial.

"In the meantime, Drs. H. W. Forbes and R. W. Bowden, of the Still College, had made the most thorough tests as to the possible simulation of disease and injuries on the part of Mr. Fisher, and they were called to Osceola to give expert evidence in the case.

"After hearing the evidence of the prosecution, Judge Parrish, of the District Court, took the case from the jury and brought it to an abrupt termination, saying that the county was fortunate in having made the settlement it did with Mr. Fisher, and that the injuries which still remained with him were not fully compensated by the money received.

"All persons familiar with the case have been loud in the praise of the system of medical practice which is responsible for so great a restoration of Mr. Fisher toward the normal condition. It is doubtless the first indictment of a man that has ever been known in history, for having been cured by a new and not orthodox therapy, and it is hoped it will be the last."


MINNESOTA.

The osteopaths of Minnesota have been compelled to carry on their contest against a united opposition in the halls of justice as well as in the halls of legislation. One of the earliest and most sensational attempts to drive them from the state occurred at Red Wing, in November, 1893. Dr. Charles E. Still was practicing Osteopathy there during an epidemic of diphtheria. His first experience was in a poor Swede family where two children had died under medical treatment. Dr. Still was called by Mr. August Peterson to see two others who were stricken with the same disease, saved their lives by osteopathic treatment, and was promptly arrested for doing so by order of the State Board of Health. When the question of giving bond was raised, State Senator Peter Nelson said, "If you want it, Dr. Still can give bond for fifty thousand dollars with the governor of Minnesota on it," but the court did not think any bond necessary. When the case was called for trial the M. D. who had made the complaint was not present and the prosecuting attorney wanted to dismiss the ease. Dr. Still's attorney, Hon. F. M. Wilson, objected, saying he wanted to see if his client was the villain the prosecution represented him as being; but the case was dismissed at the cost of the city. The State Board of Health then appealed to the governor to order the prosecution; but, upon advice of the attorney general, he refused. During that winter Dr. Still treated about seventy cases of diphtheria with only two or three deaths.

Early in 1903, Dr. C. W. Young had to bear the brunt of persecution by the health department of St. Paul.

December 31, 1902, Dr. Young was called in by Thomas Poucher to treat his daughter, Ethel, who had been sick for a week with diphtheria. The regular physician, Dr. Metcalf, had been called in a few hours before and refused to have anything to do with the case, if he could not administer antitoxin, and the father refused to have this remedy used. He reported to the health department and the house was quarantined. Dr. Young treated Ethel up to the sixth of January, 1903, when she seemed to have made a very nice recovery. She subsequently had some trouble with her eyes, but it was never of a serious character. January 2, another child, Douglas, came down with the same disease. Dr. Young reported the case to the health department and continued to go to the house while still under quarantine. He treated the child for two weeks, when he made a fairly good recovery. His throat was swollen and weak for a time, and for several weeks after he was out of bed his legs were weak, January 22, Dr. Young began treatment of Helen Poucher. She was a weak and sickly child. At one time she had been in a hospital for twenty-two weeks. She had had three surgical operations. January 24, her tongue was black and at 5 P. M. a homeopathic physician came in at Dr. Young's request, with the consent of the father. January 25, at 8 P. M., the child choked to death while the nurse was attempting to force her to swallow a spoonful of medicine. Few physicians ever have more unpromising cases than this. January 26, there was a column article in the Evening Dispatch, wherein the Health Commissioner, Dr. Ohage, declared, "I find that the parents of this child neglected to secure proper treatment for it. They turned away a competent physician, because he sought to administer a treatment which is invariably successful in dispersing diphtheria germs." He was quoted as stating his purpose to arrest the responsible persons on charges of manslaughter, and that "A human life had been, in this day of enlightenment, and in the midst of civilization, sacrificed on the altar of superstition and ignorance."

January 28, Dr. Young was tried before a coroner's jury. The homeopathic physician signed the death certificate, but the Health Commissioner arbitrarily refused to accept this certificate. The coroner's jury found as follows: "We find the cause of the death of Helen Poucher was diphtheria. We find that C. W. Young had no right under the laws of Minnesota to treat the said Helen Poucher. We find that in endeavoring to treat her that he was criminally responsible. We recommend that the proper authorities investigate and take such action as they may think just and proper." In the Pioneer Press, January 29, the Health Commissioner is quoted as saying that he would ask for the arrest of Dr. Young for violating the quarantine laws, for practicing medicine without a license, 2nd for manslaughter.

The county attorney assured Dr. Ohage that no prosecution could be brought for manslaughter. Three prior prosecutions had been attempted against other osteopaths for practicing medicine without a license. The grand jury refused to indict, and the city attorney refused to prosecute. So he was accused of breaking quarantine under a statute admitting only "medical attendants and spiritual advisers" in quarantined homes. The judge, a personal friend of Dr. Ohage, found Dr. Young guilty and fined him $25, the maximum penalty. The Minnesota State Osteopathic Association employed the best legal talent procurable. They took a stay of proceedings and used the prosecution as a lever in submitting the matter to the legislature (See Chapter IV). After the passage of the law, they applied for a remittance of the fine. After conferring with Dr. Ohage, the judge reduced the fine to $10, which was paid by the State Association. Shortly after the coroner's verdict a morning paper contained a true account of the death of four children of diphtheria, one after the other, in Minneapolis, though antitoxin had been administered to all of them. Why the antitoxin "treatment which is invariably successful in dispersing diphtheria germs," according to Dr. Ohage, was not successful in these cases, is left to the reader to decide.


OHIO.

Several eases against Osteopathy in Ohio have been tried in the lower courts and two have run the gauntlet of the Supreme Court. All the decisions of the higher courts have been in favor of the osteopath. The following clear statement of the early legal battles in the state is from an article prepared by Drs. Gravett and Hulett, in May, 1900:

The struggle for osteopathic existence in Ohio began in the early part of 1897. A few osteopaths had established practices, and were winning enviable reputations - so much so in fact that the jealousies of the medical fraternity were aroused. Feeling the increasing effect of the competition of the osteopaths, they determined upon an attempt to run them out of the state under the medical practice act then in force. Dr. E. H. Eastman (osteopath), then of Akron, was selected as the victim for an example. He was accordingly brought before the mayor's court and there found guilty of practicing medicine without license from the State Medical Board of Registration and Examination. The definition of 'practice of medicine' under the old law was 'Any person shall be regarded as practicing medicine or surgery within the meaning of this act who shall append the letters M. D. or M. B. to his name, or for a fee prescribe, direct, or recommend for the use of any person, any drug, or medicine, or any other agency for the treatment of disease.'

"On the ground that he was not 'practicing medicine' or using any 'other agency,' as intended by the creators of the law, Dr. Eastman appealed to the Common Pleas Court, Judge J. A. Kohler presiding. The argument of the prosecution was that the defendant used an 'agency,' and was therefore amenable to the law. But Judge Kohler held that the words 'other agency' could apply only to things of 'like kind,' as mentioned in the statute - drug and medicine - and that Osteopathy did not come within the meaning and intent of that law. With this decision the matter for the time being was dropped.

"The next attempt on the part of State Medical Board was to charge the osteopath with practicing 'medicine,' since in the broad definition, 'medicine' includes treatment of, or remedy for, disease. This time, Dr. fit. J. Liffring (osteopath), of Toledo, bore the brunt of persecution. His case originated by grand jury indictment. To this charge defendant demurred on the ground of no cause of action, which demurrer was sustained by Judge Pugsley, of the Common Pleas Court for Lucas County. Not being satisfied, the prosecution appealed to the Supreme Court of the state, and here the findings of the lower court were sustained. This decision was reached in November, 1899, and by it the osteopath was allowed simply to exist in the state, having no legal status whatever, and being subject to no statutory restrictions."

An account of the passage of the iniquitous clause of the Love law appears in Chapter IV. The osteopaths, without exception, refused to take steps towards complying with that law; and when notified by the state board to appear for examination, treated the summons with silent contempt or respectfully said that they could not be parties to the violation of a higher law, namely, the constitution of the state, in its guarantee of liberty and the pursuit of happiness to citizens of the state. An excuse for a suit to test the law was soon found. This time, Dr. H. H. Gravett, of Piqua, was the defendant, and the State Board of Medical Examination and Registration was the plaintiff. Dr. Gravett came to the state in October, 1897, at the earnest solicitation of the late Col. A. L. Conger. He opened offices at Piqua and Greenville, living with his family the first ten months at the latter place; since then he has resided at Piqua, but continued to practice at Greenville for some time. One of Dr. Gravett's patients, a Mrs. Huddle, at Greenville, died; but the family and all who were familiar with the case, stood by him through his troubles. The Troy Daily Herald of October 22, 1.900, said:

"The Piqua Call publishes the gist of a letter from E. D. Huddle, of Greenville, in which he says that the item concerning the arrest of Dr. Gravett, did him an injustice, as well as the doctor.

He gives a complete history of the case of his wife, saying that after two physicians in that city had failed to benefit her, he employed Dr. Gravett ten days previous to her death, instead of three as stated. Dr. Huddle sincerely believes that had Dr. Gravett had the case a month before his wife would have been living. In conclusion he says: “It was not the people of Greenville that caused Dr. Gravett's arrest, but it is the work of the medical fraternity for their own selfish interest.”

Another indication that the motive of the Medical Board was jealousy and spite work, is the fact that instead of bringing suit against Dr. Gravett at his home, where he was best known and where most of his patients lived, it was brought in another county where the defendant could be subjected to greater inconvenience. Dr. Gravett gave bond in the sum of $300.

A demurrer to the indictment brought against Dr. Gravett was filed by his attorney, Hon. A. F. Broomhall. Judge Cole, of the Common Pleas Court of Darke County, sustained the demurrer, thus rendering a decision in favor of the defendant. The two main points in the decision were, first, that Osteopathy was not the practice of medicine under the law; and, second, that by the osteopathic amendment to the law an attempt was made to regulate Osteopathy while in reality it was prohibitive, and therefore unconstitutional.

By consent of both parties, the case was carried to the Supreme Court. December 3, 1901, the highest court in the state handed down its unanimous decision, prepared by Judge Shauck, which sustained the demurrer, thus scoring another complete victory for Osteopathy. The Columbus Citizen, December 3, 1901, gives the substance of the decision in the following language:

"The Supreme Court today, in the case of the State against Henry H. Gravett, error to the Circuit Court of Darke County, held that the Love medical law does not apply to those practicing Osteopathy.

"The decision, as interpreted by one of the members of the Supreme bench, is as follows

"1. Medical law includes Osteopathy in the practice regulated.

"2. One having an established practice may be required to conform to such standard of qualification as advanced knowledge may suggest.

"3. The act is void as to osteopathists because, while giving them a limited certificate which does not entitle them to prescribe drugs or perform surgery, it requires of them four years of preparatory study, which it does not require of regular practitioners whose certificate authorizes them to engage in the unlimited practice of medicine and surgery.

"Gravett was acquitted by the lower courts and the prosecuting attorney brought the case up. His exceptions were overruled."

Thus the second case that had been carried to the Supreme Court of Ohio ended in a complete victory for Osteopathy. Unfortunately the decision left the practice unregulated in the state, and that phase of the question had to be settled at the next meeting of the legislature.

In April, 1904, the medical profession was very much elated over a decision in Sandusky, Ohio, which virtually declared the osteopathic law of 1902 unconstitutional. The decision was reversed by the Supreme Court, February 28, 1905. The following dispatches make the case clear:

"Sandusky, Ohio, April 18, 1904. - In Common Pleas Court here, this afternoon, Judge Reed ruled that the Ohio State Medical Registration and Examination Law is unconstitutional because it limits the right to practice the healing art without the use of drugs or medicines to osteopaths, and by the rule of exclusion, Christian Scientists are prohibited from practicing such pursuits. The ruling was made in the case of Oliver W. Marble, of Sandusky, who was convicted some months ago and fined on a charge of practicing medicine without a license. Marble had treated a case of rheumatism according to Christian Science."

"Columbus, Ohio, February 28, 1905. - The Supreme Court today, in the case of the State vs. 0. W. Marble, Erie County, held in substance that the practice of Christian Science comes within the scope of the State medical law."


KENTUCKY.

The fight against Osteopathy in Kentucky was one of the most interesting and important. Early in 1890, Dr. W. Ammerman and his wife announced their intention of locating in Kentucky. Dr. J. N. McCormack, Secretary of the Kentucky State Board of Health, informed them that under no circumstances would they be permitted to practice without fully complying with the medical laws of the state. The secretary's letter was referred to Judge I. H. Goodnight, who was requested to inquire what would be considered "complying with the law." The reply was that if the applicants had proper diplomas and were qualified, they would be given certificates to practice massage. They agreed to take the examination provided the secretary would issue them a certificate to practice Osteopathy on passing a creditable examination. This he refused, only agreeing to present the matter to the state board for its action. More of the story is related by Dr. Ammerman in the quotation below. 1t shows clearly the recklessness and desperation of much of the opposition to Osteopathy.

"To this body [the State Board of Health] Secretary McCormack presented our diplomas with the statement that he had examined us and found us densely ignorant, and about everything else that malice and envy could invent. He also reported a visit he had made to the American School of Osteopathy at Kirksville, Missouri. He said that he had gone through it from tap to bottom and found an ignorant lot; that Dr. Still was stupid and ignorant; that there were no equipments for teaching, etc., etc. The report of this meeting was taken from the Courier-Journal's columns, and stands today unquestioned for correctness.

"The board authorized Dr. McCormack to have the commonwealth attorneys take action against us at once. To do this he appeared in Franklin before the grand jury, bringing various charges against us. The jury heard both sides of the controversy and not only refused to indict, but it took a personal appeal from Mr. Goodnight to prevent them from indicting Dr. McCormack for perjury. Beaten in every attempt, the board let their side rest, satisfying themselves with a continuous bushwhacking and abusive misrepresentations of us and all osteopaths, and those who patronized them."

In October, 1898, the State Medical Board sought to revoke the license of several drug doctors who openly espoused the cause of Osteopathy and engaged in its practice. G. N. Murphey, M. D., of Lexington, and P. W. Woodall, M. D., of Bowling Green, were among those threatened. Action was brought against Dr. Murphey by the state board, but Judge Seattle, in the Warren County Court, held that the board had no power to deprive the doctor of his medical diploma because he practiced Osteopathy in addition to medicine.

This decision was in confirmation of the generally conceded fact that an M. D. has a right to give almost any treatment he pleases without fear of conviction. It furthermore establishes the principle that the practice of Osteopathy is the practice of medicine in its broadest sense, in spite of the contention by the Kentucky State Board that it is not, as evidenced by the bringing of the suit against Dr. Murphey. It likewise establishes the fact that at least one learned and authoritative body of M. D.s, namely, the Kentucky State Medical Board, did claim, at that time, that Osteopathy is distinct from medical practice and foreign to massage, surgery, etc., with which the medical profession now claims to be familiar, and a knowledge of which so many of the profession now claim to possess and put into practice. Comparing this action of the Kentucky board with the more recent claims of the same class of people when trying to prevent the recognition of Osteopathy by state legislation, we are forced to the conclusion that the old schools can pick up and throw aside what are generally supposed to be fundamental principles almost as easily as the chameleon can change its color. Their one abiding principle in the contest so far has been similar to that of the famous Roman Statesman, Cato, who always closed his speeches with the declaration "Delenda est Carthargo" (Carthage must be destroyed). The motto of the M. D. 's has been Osteopathy must be destroyed.

After Harry Nelson, D. O., had been practicing Osteopathy in Louisville more than a year, he was notified, in September, 1898, by the State Board of Health that he must abandon his practice or the board would begin criminal prosecution. He exhibited his diploma from the American School of Osteopathy, demanded that it be recognized, and he be given an examination, and if found qualified that he be granted a certificate to practice Osteopathy. This being refused he brought mandamus proceedings against the board, (1) to enjoin it from molesting him in his business or profession and from prosecuting him criminally; and, (2) to compel the board to recognize and endorse the American School of Osteopathy of Kirksville, Missouri.

This was the famous case in which Judge Sterling B. Toney, of the Circuit Court, rendered his remarkable decision against Dr. Nelson, which was reversed later by the Court of Appeals, the Supreme Court of the state. Judge Toney's decision would make about forty pages of this book. It contained many remarkable statements. The following are selected to show the stand taken by the defendant, the State Board of Health, and the character of the testimony presented:

"The defendant further alleges that the said American School of Osteopathy at Kirksville, Missouri, and the system or method of healing which it proposes or attempts to teach, or does teach, is not scientific, not based upon scientific principles of medicine or surgery, or any other plan or method of healing the sick, or those suffering from any of the ills that flesh is heir to; but that on the contrary, the said doctrines, methods, and principles for treating sick and afflicted persons inculcated, taught, and practiced at the said 'American School of Osteopathy' at Kirksville, Missouri, are a complete system of charlatanism, empiricism, and quackery, calculated and designed to impose upon the credulous, superstitious, and ignorant, and fraught with danger to the health, limbs, and lives of the citizens.

"The defendant further avers, that to permit the plaintiff, unprepared, incompetent and unqualified as he is, or any of his associates in the said so-called school of Osteopathy similarly unqualified, incompetent, and unfitted to practice, or attempt to practice, medicine or surgery, or any of the arts of healing, in this state, would be to endanger and to sacrifice the health, limbs, and lives of the citizens of this commonwealth."

"Dr. J. M. Mathews testifies that he understands the theory and practice of Osteopathy, and that Osteopathy is not a system for curing diseases, and is to be feared for dangerous results which would naturally be caused thereby."

"Dr. J. M. Bodine testifies that it would be dangerous to the people of Kentucky to license osteopaths from said institution to practice medicine in this state. He says 'Osteopathy is the ne plus ultra of absurdity;' that the doctrines and practices of Osteopathy are utterly preposterous, and would be dangerous and positively hurtful in most diseases to invalids who should receive such treatment. He says that in most of the diseases which the school of Osteopathy claims to cure, manipulation would do no good on earth, but on the contrary would do harm, and in many cases likely kill its victims."

"Dr. J. N. McCormack testifies that the osteopathic treatment of diseases is positively and highly dangerous in most of the diseases which they profess to cure * * * and that in his [Dr. McCormack's] judgment to license Dr. Nelson would be dangerous to the health, limbs and lives of those citizens who might be treated by him in most instances."

"Dr. A. Morgan Vance testifies that the practice of Osteopathy is not only dangerous to the limbs and lives of the public, but, in many instances, is inhuman and barbarous."

"Dr. Wm. Cheatham testifies that Osteopathy applied as a treatment would be very dangerous and injurious to the eye, and that the treatment of diphtheria by Osteopathy would invariably kill the patient."

"Dr. Chester Mayor testifies that he has read up on Osteopathy and its treatment on diseases, and that the whole osteopathic theory is contrary to accepted medical and surgical science, and that it would be dangerous in its application as a treatment of a great number of diseases."

"Dr. William Bailey testifies that he understands Osteopathy; that he has read what is called its literature, and that Osteopathy, as taught and practiced by graduates of the American School of Osteopathy, unless administered under the supervision and direction of a person learned and skilled in medicine, would be of no benefit to a patient, but on the contrary, would do great harm."

All the above testimony goes to prove that the witnesses did not know what Osteopathy is and that it is not practiced by the drug doctors.

The following is the learned Judge's statement of the testimony of the plaintiff's witnesses:

"Plaintiff has introduced several witnesses, not experts, who have received from him this massage treatment called 'Osteopathy,' among them, the Hon. Frank Parsons, who was treated by him for waxen kernels in the throat. Mr. Parsons testified that the plaintiff manipulated the kernels in his throat with his thumbs and fingers around and about his face and neck, and did him much good. Also Mrs. Samantha Field was treated by the plaintiff for neuralgia, and she thinks Dr. Nelson has cured her. Mrs. Fannie McKay Perry was treated by plaintiff by manipulations for liver and stomach trouble and for tonsilitis, and she says he cured her. Mrs. Perry further testifies that the plaintiff cured her little daughter of malarial fever, and her aged mother of rheumatism, by manipulation. She says there was no medicine given and no surgery practiced by him. Mr. Price and Mr. Longest, witnesses for plaintiff, both of whom were suffering from nervous troubles, testify that they were treated by Dr. Nelson by manipulation and were greatly benefited. Mr. Price testifies that he had tried Christian Science and faith cure, and that the massage treatment of plaintiff did him more good than either of the other treatments."

The reader will see from the following, which appears in the conclusion of the decision, that the Judge becomes both sarcastic and eloquent:

"Gassner was a wander doctor, a kind of wild medicine man in Switzerland in the eighteenth century. He effected his cures alone and exclusively by manipulation. He was the original osteopath, and were he living could sue Dr. A. T. Still for infringing his patent, or pirating his trade mark.

"Like the Rosicrucians of the seventeenth century, osteopaths claim to possess a secret gift, or method of manipulation, which their witnesses testify, cannot be learned from books, by which, however, they claim they can heal the sick. Their professors, on the stand, refuse to divulge what their methods or modes of manipulatory treatment are. Sorcerers and witches used love philters, incantations, and magical talismans, for healing the sick, but refused to divulge what the ingredients were, or how the talisman acted.

"It is singular, indeed, that in an enlightened age like this such schools and disciples can find recognition by the laws of any state. Let the injunction be dissolved and the petition be dismissed."

The above is given to illustrate the extremes to which some people will go in trying to establish a false notion, bolster up a waning theory or practice, or besmirch the reputation of a rival. The reader who knows anything whatever about Osteopathy, will at once see that facts are ignored, arguments are of no avail, and justice is gibbeted. The decision proved to be a veritable boomerang, and many osteopaths have had their patients read it that they might see for themselves the extremes to which the opposition has gone. On the other hand, it has been used by the M. D.s for campaign literature, doubtless to advantage, where Osteopathy was little known.

But in Kentucky, as in Nebraska and other states, truth trampled under foot will rise again. I cannot be suppressed. The Nelson case was carried to the Court of Appeals, the Supreme. Court of the state. That court rendered its decision June 20, 1900, granting a perpetual injunction against the State Board of Health, restraining it from interfering with or prosecuting osteopaths for practicing their profession. The court, among many other excellent things, said:

"Appellant, Harry Nelson, a citizen of this state [Kentucky], fled his petition in equity in the court below in which he alleged that after he had taken a regular course of studies at the American School of Osteopathy at Kirksville, Missouri, for a term of years, he became a graduate thereof on September 15, 1897; that since that date he has been practicing this system of healing for his support, to the great comfort and relief of disease and sickness, having adopted it as his vocation in life; that Osteopathy is a perfect system, having the approval of skilled and scientific men and schools and colleges in which its doctrines are taught; that appellee was about to have him arrested for practicing Osteopathy, or prosecute him therefore.

"He prayed that appellee be enjoined from molesting him in his business or profession as an osteopath, or pursuing him criminally therefore.

"The proof shows that Osteopathy is a new method of treating diseases, which is said to have originated with Dr. A. T. Still, at Kirksville, Missouri, about the year 1871. At the time the proof was taken in this case there were in attendance at the school established by him, something over 500 scholars from twenty nine states of the Union and several from Canada. In connection with the school was an infirmary, at which from 300 to 500 patients were regularly treated. There were twelve or thirteen professors in the school. The buildings of the school are shown to be commodious and suitable for its purposes. The patients treated at the infirmary, as well as those treated by appellant, appear to have been satisfied with what they received, and many of them to have been materially benefited. There are four or five other colleges of Osteopathy, which, with the one at Kirksville, form an association, and in five states of the Union Osteopathy has been recognized by statute. The testimony of the witnesses, the character of the professors, and the evident sincerity of their statements, leave no doubt in our minds that the school at Kirksville is a reputable school of Osteopathy; but whether it is a reputable school of medicine within the meaning of our statute, or what are appellants' rights, if it is not, are very different questions, depending upon the proper construction of the act itself.

"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 control the personal conduct of the citizen without regard to his opinion, and this is a matter in which the public is in no wise 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 right of others.

"The effect of the act would be not to protect the people of this state from the unscientific practice of medicine, but to deny to the sick all ministrations not gratuitous, unless by registered physicians. Thus construed, the act would be for the protection rather of the doctors of the state than of the people, and in view of the general custom before and since this act of hiring nurses and others to care for the sick, we are of the opinion that such a construction would do violence to the actual intention of the legislature.

"Appellant may not prescribe or administer medicine or perform surgery, but so long as he confines himself to Osteopathy, without the use of medicine or surgical appliances, he violates no law and appellee should not molest him. On the return of the case the court below will enter judgment granting appellant a perpetual injunction restraining appellee from interfering with him or prosecuting him for the practice of Osteopathy as above indicated."

In May, 1902, nearly two years after the decision of the Kentucky Court of Appeals favorable to Osteopathy, the Western Druggist, Chicago, published part of Judge Toney's adverse decision, saying, "Following is the text of the decision rendered by a Missouri judge with respect to Osteopathy in that state." Mr. C. O. Goodpasture, Washington, D. C., began an investigation. After much correspondence he found the true source of the decision, but not from the Western Druggist, its last letter being as follows:

"Chicago, June 19, 1902.

"Mr. C. O. Goodpasture, Department of Agriculture, Washington, D. C.:

"DEAR SIR, - Our article regarding Missouri decision on Osteopathy was taken from either the National Druggist or Meyer Bros.' Druggist, both of St. Louis. We are unable to tell which one, as our files are not complete. We have no doubt you can get the desired information from the clerk of the Missouri Supreme Court.

"Very truly yours, G. P. ENGELHARD & Co."

The Western Druggist, unlike some journals devoted to the interests of drug medication, made amends by publishing the following in its August issue:

“It develops that this was not a Missouri decision, but one rendered by the Jefferson Circuit Court of Kentucky. This decision was reversed June 20th, by the Court of Appeals of Kentucky, thus leaving osteopaths free to practice in that state, a perpetual injunction having been issued against the State Board of Health.”

Dr. Henry Beates, of Philadelphia, made use of this same antiquated decision by Judge Toney to prove his proposition that "Osteopathy is all bosh" and "nonsense," as quoted by the Philadelphia North American in July, 1904; and Texas M. D.'s used it in their legislative contest as late as April, 1905.

In 1904, four years after the reversal of Judge Toney's decision, the Journal of the American Medical Association was publishing, advertising, and distributing that decision without a hint that it had been declared unworthy of credence by the highest court in the state.


NEW YORK.

The first student from the state of New York to begin the study of Osteopathy was Dr. Horton F. Underwood, who entered the American School of Osteopathy in November, 1894; while to Dr. Albert Fisher, Jr., is reserved the honor of being the first to open an office and begin active practice. He located at Little Falls, in May, 1896, and has been in the state ever since.

Opposition took active form when, in June, 1897, a patient of Dr. Fisher died. The coroner asked Dr. Fisher to make out a death certificate, which he did, adding "D. O." to his name, but the health officers held it up and ordered an autopsy, which was made by the leading M. D.’s. At the inquest were the district attorney and president of the medical society to secure evidence against Dr. Fisher to prosecute on the charge of practicing medicine without a license. Dr. Fisher had given the cause of death as cerebral hemorrhage, while the medical men had stoutly contended that it was due to other causes. The autopsy proved that Dr. Fisher was right and the case was dropped.

In September, 1902, Dr. W. C. Shipman, of Schenectady, was arrested for practicing medicine without a license, but the case was nolle prossed without being tried in the police court. His attorney thought that the movement was instituted in the hope that Dr. Shipman would leave town. It was found that immunity from prosecution comes from a decision handed down at the general term of the Supreme Court by Justice Daniels, of Buffalo, declaring in substance, that the statutory prohibition against practicing medicine without a license does not apply to persons who attempt to cure the sick without the use of drugs in any form.


LOUISIANA,

Dr. Anna M. Burke, Shreveport, La., was the first osteopath in the state. In May, 1898, she had a notice served on her by the local medical board of Monroe, La., to quit practicing or she would be arrested for violation of the state medical law. She paid no attention to it, and as the legislature was then in session, the M. D.'s tried to have a bill enacted to shut Osteopathy out of the state. It passed the upper and the lower house, but Governor Taylor vetoed it. Nothing more happened until a year later, when she and Dr. Johnston went to Shreveport. The medical men promptly had them arrested for practicing medicine without a license. When the case came up it was thrown out of court. Efforts have been made since to have a bill passed against Osteopathy, but without success.


PENNSYLVANIA.

Many attempts have been made to drive Osteopathy out of Pennsylvania. In April, 1900, J. A. Thompson, D. O., of Oil City, was indicted, arrested, placed on trial, and acquitted. He was charged with the unlawful practice of medicine and surgery. J. F. Davis, M. D., brought the action at the instance of the Venango Medical Society. The testimony showed that Dr. Thompson had treated successfully rheumatism, paralysis, neuralgia, and other diseases without the use of drugs. Dr. Jackson, an M. D., said, "I sent several patients to him for treatment because I was under the impression that he could effect a cure more rapidly than I. I consider him an educated anatomist." The Bradford Era contained the following:

"A Venango County jury has acquitted an osteopathist of the charge of practicing medicine contrary to the code. No medicine was used by the osteopathist [J. A. Thompson], and this fact was placed before the court by the defendant's attorney. After mature deliberation, Judge Criswell charged the jury in terms that left no doubt as to his meaning, that the act of 1893 could not be construed so as to have a bearing on the process of healing known as Osteopathy and the costs of prosecution were placed upon the county. The decision was important."

Dr. Gambetta Staff, of Meadville, won a suit in Marsh, 1992, brought by the Board of Health as a test case. The trial lasted three and a half days. The best legal talent in the county was utilized by the prosecution, but without success. The evidence showed that Dr. Staff had cured cases of typhoid fever, reduced dislocated hips, successfully treated cancers and appendicitis, and cured a number of cases where medical science had failed. Judge Thomas said that it was his opinion that Dr. Staff had not violated the law, and instructed the jury to find him not guilty. The following from the Meadville Republican, February 20, 1902, is clear:

"The prosecution was founded on an information made by James G. Foster, Secretary of the Meadville Board of Health.

"The question in the case hinged on the interpretation of the act of assembly of 1893, passed to regulate the practice of medicine and surgery in this commonwealth.

"The theory of the prosecution was that Dr. Staff had been practicing surgery and medicine without complying with the requirements of the law and without securing a state license to practice as a surgeon and a physician.

"The defense contended that Dr. Staff was practicing Osteopathy, a new science not practiced in the state of Pennsylvania at the time this law was passed, and therefore not contemplated by the law, and that since he had never used drugs or medicine or performed surgical operations with the use of surgical instruments or appliances, he had not been practicing either medicine or surgery.

"The case was in the nature of a test case, and attracted an unusual amount of interest in this city, and, in fact, all over the state."

It is always gratifying to know that there are M. D.'s who do not sanction the methods of those who would prevent progress and stifle competition. The following from a Meadville physician concerning the Staff ease, shows a spirit of fairness and justice that is indeed refreshing, after the display of so much venom by others:

"The personnel of the majority of the board, as at present constituted, and the code of medical ethics which they are supposed to represent, are suggestive, at least that this prosecution has been prompted by a spirit of selfishness, or petty jealousy.

"Because we do not believe his theory regarding disturbed vital action, nor approve his method of discarding internal medication, shall we say that he is a fraud? Let us rather demand proof, and when these are given seek to secure the benefits for medicine.

"If, by using the bones as pulleys and levers, he can relieve pressure on nerves, allowing a free flow of nerve force, and thereby equalize the general circulation, he is as certainly utilizing the forces of nature in the restoration of health and is as deserving of commendation as the practitioner who accomplishes the same results by internal medication.

"I fancy the people are not blind to the real animus which prompts such unwarranted attacks upon the rights of another. They are convinced by observations in the past, that the chief aim is not to protect the public against ignorant practitioners of the art of healing, but rather to put it into the power of a few to sit in judgment upon any, medical innovation, and to say who is and who is not a charlatan, and thus to exclude from competition all who refuse to subscribe to a certain dogma. Without freedom there can be no progress. It is highly probable, however, that the most healthful atmosphere for a truthful theory to grow in is one of criticism and persecution.

"What humanity wants, and what the whole medical profession should seek to give it, is the best obtainable system of treatment; the system that does the most good, with the least injury, whether it be with drugs or without them.

"The Supreme Courts of at least two states - Ohio and Kentucky - and the lower courts of this state, have already given favorable decisions legalizing the osteopathic method of treatment, and there is no law in any state which makes specific discrimination against it.

"The people possess an inalienable right to the use of the best methods of healing with which the progress of the age has made us acquainted; and to interfere with the right of every person to decide for himself what the best method is, is an act of tyranny."


NEBRASKA.

Charles Little, D. O., opened an office in Lincoln, in September, 1898. Soon after he was visited by the attorney of the Nebraska Medical League and notified that if he did not depart of his own accord he would be dealt with according to law and compelled to leave. Three weeks after the first visit by the league's attorney he was arrested on sixteen counts, which meant that if he was convicted on all the counts the minimum fine would be $800, or a maximum fine of $4,800. In the district court a jury convicted him on one count and cut out the other fifteen. The judge assessed the minimum fine of $50. Dr. Little appealed the case to the Supreme Court and it was decided against him in 1901. The decision seemed to be in accord with the law and precedent in Nebraska; but the three judges, knowing the defect of the law, later threw their personal influence in favor of the osteopathic bill. After the decision by the Supreme Court, Dr. Little was visited often by the attorney for the league who threatened him with arrest if he did not stop practicing. This did not deter him, so he was threatened with an injunction suit, which, however, was never brought. This is the first and only case, except in Alabama, ever decided against an osteopath by the highest state court, But the M. D.'s enjoyed the thoughts of their victory for only a brief period. (See Chapter IV.)

In November, 1899, Matthew E. Donahue, D. O., of Omaha, was tried on a charge of practicing medicine without a license, and was acquitted. The hearing was before Judge Baxter of the County Court. Dr. Donahue contended that the practice of Osteopathy was not the practice of medicine. Judge Baxter held that although the evidence showed that Dr. Donahue had violated section 17, still, as no penalty is fixed by the law for a violation of said section, the court was without the power to hold the defendant for trial in the District Court.


VIRGINIA.

Drs. E. H. Shackleford and G. E. Fout opened an office in Richmond in the latter part of 1900. Steps were soon taken by the State Board of Medical Examination to prosecute them under the medical law. Acting under the advice of their counsel they replied that they had made application for license and were advised that they did not come under the law regulating the practice of medicine and surgery in the state of Virginia, but that they were willing to stand an examination in Osteopathy, provided there were osteopaths who could properly examine them. No response was made to their letter, but the board at once indicted them on the charge of violating the law by not having obtained a certificate. The clause of the law upon which the prosecution depended, read as follows:

"Any person shall be regarded as practicing medicine or surgery within the meaning of this act who shall profess publicly to be a physician or surgeon and shall offer for practice as such, or who shall prescribe for the sick or for those needing medical or surgical aid, and shall charge and receive therefore money or other compensation, directly or indirectly!

The case was called April 24, but was postponed to the May term of court, when a trial was had. Ex-Governor C. T. O'Ferrall and James Mullen were the attorneys for the osteopaths. After several hours' argument by the attorneys for both sides, the court instructed the jury that the osteopaths did not come under the law unless they actually prescribed medicine or performed surgical operations, and a verdict was immediately Tendered in their favor.


IOWA.

The law passed in Iowa in 1898 (See Chapter IV) seemed to be fair, and would doubtless have proven satisfactory if the State Board of Medical Examination had obeyed its mandates and granted osteopaths certificates to practice. Instead the board ignored the law and made it necessary for the osteopaths to take legal steps to compel it to perform its clearly defined duties. The case was that of C. L. Parsons, D. O., vs. the State Board of Medical Examination in mandamus proceedings to compel the board to issue him a certificate. The district court decided the case February 8, 1902, Judge Holmes on the bench. The court found that the act of the board in refusing the certificate was arbitrary, and that therefore the writ should issue. This was a complete victory for Osteopathy. Dr. Parsons was the "victim," but the S. S. Still College at Des Moines, and the State Osteopathic Association co-operated with him in bringing the suit. While the board was in session on May 15, 1902, the decree of Judge Holmes directing that a certificate be issued to Dr. Parsons was served on the board by the sheriff. Still the board was disposed to resist the inevitable, but upon the advice of Attorney General Mullay it decided to issue the certificate. Dr. Parsons enjoys the distinction of being the first osteopath to be licensed in Iowa and the only one to receive a certificate under the law then in force. The new law had already been passed. (See Chapter IV.)


WISCONSIN.

September 26, 1900, Dr. S. A. L. Thompson, of Milwaukee, Wisconsin, was arrested, charged with violation of the State Medical laws providing that a physician must have a diploma from a recognized medical college axed a license from the State Board of Medical Examiners before being allowed to practice.

The complaint was sworn to by a member of the State Medical Board. It specified that Dr. Thompson "held himself out to the public as a physician and surgeon, and as a specialist in surgery (the last was dropped when the trial was reached) without having first obtained a license from the Wisconsin Board of Medical Examiners authorizing him to practice medicine and surgery in the state, and without having recorded such license with the county clerk." It further alleged that he "unlawfully assumed the title of Physician and Surgeon by means of the abbreviations of 'Dr.' and by use of the letters 'D. O.' and the use of the words 'Osteopathic Physician' printed upon the cards and circulars without having received a diploma from a regular incorporated medical society or college."

The trial was before a justice, and he decided against the defendant. He held that the practice of Osteopathy in the state was a violation of the statutes. He said that while Dr. Thompson unquestionably was a thorough student of the science and practiced within what he believed were the limitations placed upon this branch of medical science by the law, yet clearly, if the courts upheld their rights to continue practicing without registration or licensing, there was no check to hundreds of quacks setting themselves up as osteopaths who had absolutely no training or schooling in the science. The merits of the science did not enter into the trial.

In order to be able to appeal the case to the higher courts a fine of $54 was imposed which never was paid. After the present state law was passed the District Attorney entered a nolle and so the case was ended.

The medical doctors of New Jersey were persistent in their attempts to drive osteopaths from the state. Dr. J. C. Howell, of Vineland, was made the subject for arrest on several occasions. He claimed that the law respecting licensing physicians was passed previous to the discovery of Osteopathy, and consequently he had no means of obtaining a license. Concerning the first arrest, The Record, Philadelphia, contained the following:

"Vineland, N. J., May 4, 1903. - Dr. Joseph C. Howell, osteopath, was arrested here on complaint of Drs. Halsey, Foots, Winslow, Beck, Sawyer, Adams, Cunningham, and Wilson, eight of Vineland's prominent physicians, charged with practicing without a license. A number of citizens will be called upon to testify at Dr. Howell's trial, among them Myron J. Kimball, president of the First National Bank, and also Mrs. Kimball, whom Dr. Howell has treated; Mrs. Cora Prince. Howe, leader of the Presbyterian Church choir; Miss Hussey, a niece of Hetty Green, the wealthiest woman in the world; and Miss Gould, who are stopping here."

Dr. Howell was arrested again about May 15, 1903, but the grand jury, several months later, failed to indict. The New York Times contained the following relating to that action:

"Vineland, N. J., October 15, 1903. - Eight of the leading physicians of this place had Dr. Joseph C. Howell arrested on the charge of practicing Osteopathy without a license, but the grand jury refused to indict for the reason that the majority of the jurors thought a free American citizen should be allowed to call any doctor or physician he wished. There is no New Jersey law under which a license may be granted to an osteopath."

The Supreme Court rendered a decision January 15, 1904, favorable to Osteopathy in a case of more than usual interest. Dr. E. M. Herring, an osteopath of Asbury Park, was convicted about two years before, in the Monmouth County court, on a grand jury indictment charging that he unlawfully engaged in the practice of medicine and surgery without a license. The case was appealed to the Supreme Court and the decision of the county court was reversed. The court said:

“An osteopath physician whose treatment of his patient consists simply of the manipulation of the body does not violate the provisions of the act of May 22, 1894, which forbids the applying of drugs, medicines, or other agency or application by an unlicensed person. In forbidding an unlicensed person to apply any drug or medicine for remedial, purposes, the legislature plainly contemplated the use of something other than the natural facilities of the actor; some extraneous substance. A similar restriction must attach to the more general terms 'agency' and 'application,' and they must likewise be held to import only some extraneous substance.”

The case was then carried to the Court of Errors and Appeals which handed down its decision May 5, 1905. The Asbury Park Evening Press, May 8, gave the following clear statement of the decision:

"Osteopathy won a final victory in the Court of Errors and Appeals at Trenton on Friday, when the court rendered a decision affirming the decree of the Supreme Court that Dr. Ernest M. Herring, of Monmouth County, was not guilty of infringement of the law in practicing as an osteopathic physician.

"He was convicted and appealed to the Supreme Court. On an opinion written by Justice Dixon, that court ruled that judgment against Dr. Herring must be reversed. On this decision the prosecution took an appeal to the Court of Errors and Appeals. This court decided in favor of the doctor on the same ground as the Supreme Court."


NEW MEXICO.

Dr. C. H. Connor, a graduate physician of the "regular" school, as well as an osteopath, was compelled to force the territorial board of health to comply with the law. The board refused to issue a certificate to Dr. Connor, to all appearances, because he, an M. D., should dare to practice Osteopathy. He, therefore, brought mandamus proceedings against the board. After hearing the evidence presented by the board, Judge McMillan decided; early in 1902, that there could be no question but that the action of the board was an arbitrary abuse of its powers and without any authority. A writ was at once issued ordering the board to grant Dr. Connor a certificate.


ALABAMA.

Dr. E. E. Bragg was made the first victim of prosecution in Alabama. He was arrested because he did not hold a license from the State Medical Board, and convicted in one of the lower courts.

The law required an examination of all persons practicing medicine in the state; hence the vital question was, whether or not he was practicing medicine. An appeal was taken to the Supreme Court, where the judgment of the lower court was affirmed. The opinion was considered one of the ablest yet presented. It decided that the word "medicine" was used in the statute in its broadest and highest scientific sense, that is, "a healing agent." Thus the court, perhaps unconsciously, established the equality between Osteopathy and other schools of practice. The court said:

"Thus it is made entirely clear both by definitions and history that the word medicine has a technical meaning, is a technical art or science, and as a science the practitioners of it are not simply those who prescribe drugs or other medical substances as remedial agents, but that it is broad enough to include, and does include all persons who diagnose diseases and prescribe or apply any therapeutic agent for its cure."


NORTH CAROLINA.

Dr. McKnight, of Southern Pines, N. C., was arrested for practicing Osteopathy without a license and acquitted in 1902. The case was appealed to the Supreme Court and the lower court was sustained. Judge Clark used the following words in concluding his opinion, which is quite different as to the meaning of the word medicine, from the Alabama decision above

"All that the courts can declare is that the practice of Osteopathy is not the practice of medicine or surgery, and no license from the medical board of examination is required."


MISSISSIPPI.

There is no osteopathic law in Mississippi, but the Supreme Court has handed down a decision declaring that the practice of Osteopathy is not the practice of medicine, and that osteopaths are not required to secure a license from the State Medical Board. The following from the Clarion Ledger of March 3, 1903, contains the gist of the matter:

"An important decision rendered by the Supreme Court was in the case of Dr. Hayden vs. State, from the Circuit Court of Alcorn County. The appellant was convicted of practicing medicine without a license. He is an osteopath, and the evidence showed that he had treated and cured two persons of rheumatism, by manipulation of the bones, muscles, and ligaments. The prosecution claimed that the practice of Osteopathy is in violation of Chapter 68 of the laws of 1896, regulating the practice of medicine, but the Supreme Court holds otherwise, and thus the osteopaths have gained a decided victory, for they may continue to practice their profession in Mississippi without medical license. Associate Justice Terral read the opinion of the court, and predicted that at some future time the legislature will pass needed laws to regulate the practice of Osteopathy as medical practice is now regulated."


COLORADO.

When the first osteopaths entered the state they went to the State Board of Medical Examiners and explained what Osteopathy is and the method of its practice. They were told that if they did not give drugs or use the knife they would not be violating any law. All went well till August, 1901, when Dr. Elizabeth C. Bass, of Denver, brought suit before a justice of the peace for pay for professional services as an osteopath. On the authority of the Circuit Court's opinion in the Nelson case in Kentucky, the verdict was against her. The justice evidently was not apprized of the fact that that decision had been reversed. Dr. Bass appealed the case, and when it was called for trial the defendant moved for a non-suit. This was denied. The decision therefore was in Dr. Bass's favor. But the defendant had testified that Dr. Bass had prescribed drugs, which the doctor denied, and the court rendered judgment in favor of the defendant. Dr. L. B. Overfelt, of Boulder, won in a similar suit a short time after. The following is the gist of the decision in the Bass case as rendered by Judge B. B. Lindsey:

"I may say in conclusion that it fairly appears to the court that osteopaths have practiced their method of healing in this state for five or six years without hindrance or attempted restraint, and the Eleventh General Assembly went so far as to recognize and regulate its practice, as it regulated the practice of the various schools of medicine, in order to limit its ranks to those who have been qualified by graduation from its recognized institutions of learning. While this bill was vetoed by the governor, it was upon the assumption that the present law in no way interferes with Osteopathy. It is significant, however, that the practice has been specifically accorded recognition and regulation by the legislatures of a number of states within very recent years. It has also been recognized by the courts as perfectly legal and in no manner conflicting with statutes like the one here considered.

"These things, I think, tend to discredit the idea that there is any intention to legislate against it, and on the contrary confirm the idea that there is, or may be, sufficient that is good in the system to warrant its having, in the absence of any specific prohibitory law, a fair opportunity to be tested by time and experience, as has been accorded other schools and systems of the healing art, having for their support any respectable amount of reason or intelligence, which it has rather been the purpose of a broad and liberal-minded public to encourage, the result generally being that if there is anything of good or advantage in a new system it will survive to the interest and benefit of humanity; if not, it will like all error, perish as it deserves."

But the osteopaths of the state were given no respite. After the above decision, the board held a meeting and decided that the court was wrong and that the law was being violated. It agreed unanimously to commence action against all the osteopaths in the state at once. Accordingly, the eight osteopaths in different parts of the state were ordered arrested at one time. A compromise was effected in all but two cases, those of Drs. J. T. and E. C. Bass, who appeared for trial in October, 1901, before Judge Johnson. The indictment was quashed on the ground that no specific charge was made against them. This was the second victory for Osteopathy.

The osteopaths then sent a committee to the board, and asked what arrangements could be made by which they could practice without molestation. Dr. Van Meter, the secretary, told them they would have to take the medical examination the same as M. D.'s. As they did not administer drugs and did not profess to be learned in materia medica, they declined to take the examination. They were then told that they would be arrested as fast as any one could be found to swear out a warrant against them. In September, 1902, Dr. J. T. Bass was arrested charged with violating the law and specifically with using a stethoscope on a patient. Judge Carpenter decided that the practice of Osteopathy was not the practice of medicine as defined by the statutes, and Dr. Bass was again acquitted. This was the third decision in favor of Osteopathy inthe state.

Dr. Bass then went to Dr. Van Meter and asked if the board would let him alone. He was told that by a unanimous opinion it was the intention of the board to run all the osteopaths out of the state by continuing to arrest them as fast as they could find any one to swear against them. Thereupon Dr. Bass brought suit before Judge Mullins against the State Board of Medical Examiners for damages. The trial was by jury and lasted six days. Every point was contested and the question as to whether the practice of Osteopathy is or is not the practice of medicine was thoroughly discussed pro and non. The court held, with the others, that it is not, and the jury fixed the damages at $700. Thus ended the fourth victory for Osteopathy. The board took an appeal to the Court of Appeals, which had not handed down its decision in June, 1905.

The following comments on Dr. Bass's case appeared in Medical Talk, May, 1904, under the heading, "Victory for Osteopathy:"

"In the state of Colorado they have been having quite a fight over Osteopathy. The drug doctors of Denver were determined that Dr. Bass, an osteopath who is the proprietor of the Bass Infirmary of Osteopathy, should no longer be allowed to cure patients. To cure people without drugs was a misdemeanor for which the doctors could not stand.

"So the State Board of Medical Examiners of Colorado, headed by Dr. S. D. Van Meter, pitched into Dr. Bass. They had him arrested on this pretext and that pretext. They attacked him fore and aft, early and late, trying to harass him out of the whole business.

"But they were up against the wrong man this time. They soon discovered they had caught a Tartar. Dr. Bass was not to be squelched. He fought back and hit just as hard as they, and finally sued the doctors for damages, for malicious prosecution.

"This suit was tried before Judge Mullins, in the District Court, and Judge Mullins held with Judge Lindsey, Judge Johnson, and Judge Carpenter, that there had been no violation of the medical laws on the part of Dr. Bass, and that he had been maliciously prosecuted, and they were in favor of awarding damages. Consequently a verdict of damage was rendered by the jury, and these malicious doctors had seven hundred dollars to pay for their sport in trying to run Dr. Bass out of town. Dr. Bass is still there doing business at the old stand, and appears to be enjoying himself first rate.

"We want the medical boards of examination all over the United States to take note of this case, and incidentally take warning. This will be the final outcome of all such suits. The people of the United States are too sensible to tolerate such iniquitous proceedings.

"If the doctors want to use drugs, and can find people to swallow them, all right. They should be allowed to do so. If somebody knows a way of curing disease without using drugs, and can find patients to employ him, that is all right. He should be allowed to go on without molestation.

"Any doctor who would consent to such a prosecution is practically 'showing the white feather.' He finds that he cannot compete with the osteopaths, and so he wants to appeal to the law. If drugs are better than Osteopathy, why do not these doctors go to work and demonstrate it? The people will soon find out if drugs are the best. If Osteopathy is a fake, let the osteopaths practice it. That is the best way to demonstrate its fallacy. If the osteopaths should wish to prosecute the drug doctors we should protest. If the drug doctors want to prosecute the osteopaths we again protest. The one that first cries out for the law to come and help him is the one that has been fairly and squarely beaten.

"Little boys sometimes get to quarreling. Then they get mad, and begin to use their fists. The boy who gets the worst of it runs home and tells his mother, and tries to draw her into the fight to help him punish his antagonist.

"This is exactly what the drug doctors are doing. In a square contest they show themselves dissatisfied, so they run to the law to help them out. A foolish, sniveling set of fellows. They want an officer of the law to come and help them lick the osteopaths. They cannot do it alone. So they cry out for help. And in this case the law really did help them. Helped them exactly as they ought to be helped every time. Gave them a good spanking and sent them home.

“Good for Dr. Bass! He ought to receive the hearty thanks and congratulations of every osteopath and every lover of liberty in the United States.”


FLORIDA.

Osteopathy was introduced into Florida by the Drs. Patterson in the winter of 1897-8. Others practiced at the winter resorts, from time to time. Not until November, 1902, did it plant its banner permanently in Florida. At that time, Drs. J. W. Phelps and Elizabeth B. McElwain located in Jacksonville. Notwithstanding the fact that no law exists under which osteopaths could be licensed as drug doctors are, they were not molested till the latter part of 1903. Dr. C. E. Bennett, of Pensacola, was then repeatedly arrested and was vindicated early in 1904, in a suit charging him with practicing medicine unlawfully without having obtained a certificate of qualification. The judge decided that the charge was insufficient to base prosecution upon and Dr. Bennett was acquitted.


INDIANA.

Several cases have been tried in the courts of Indiana. That of Dr. E. C. Crow, of Elkhart, attracted much attention. He was arrested late in 1904 on the charge of practicing medicine without a license. The prosecution was based upon the case of a little girl treated by Dr. Crow for locked bowels. She was under Dr. Crow's care about thirty hours, all the pain during that time being in the left iliac and hypocondriac regions. Medical doctors were then called who pronounced the case appendicitis. They performed an operation at midnight and the child died at 3 A. M. Of course, they tried to throw the blame upon Dr. Crow. The following from the Journal of the American Osteopathic Association, February, 1905, is a correct statement of the case:

"The case was tried on January 2, 1905, before a judge who had formerly been a medical doctor, No effort was made to prove that Dr. Crow had ever administered or prescribed any drugs or medicine. The court instructed the jury that the giving of an osteopathic treatment constituted the practice of medicine. As the defendant did not deny practicing Osteopathy the jury had no discretion but to find him guilty. The medical judge excluded evidence that was offered to show that the defendant had applied to the State Board of Registration for an examination three years ago and was refused on the ground that he was not eligible because his alma mater was not up to the standard required by the peculiar laws of Indiana. The court also would not allow the defendant to show that in November, 1901, he had paid the registration fee of $10 and applied for a license to practice Osteopathy, and that though the $10 was retained the license was refused. The fine and costs amounted to $61.35. This has not been paid, as Dr. Crow, through his attorneys, has entered a motion for a new trial. If this is refused the case will be appealed."


IDAHO.

Dr. R. A. Vallier was arrested and brought to trial in Shoshone, Idaho. The judge decided the case in his favor. About a year later papers were sent for his arrest, but he managed to have them sent back without being served. He was threatened several times afterwards, but was not arrested.


UTAH.

The following, taken from the Deseret News, late in 1904, published at Salt Lake, is self-explanatory:

"The appeal in the case of the State of Utah, appellant, vs. Dr. A. P. Hibbs, has been dismissed by the Supreme Court on the ground that it has no jurisdiction of the case. The appeal was taken by the state in order to make a test case and settle the rights of osteopaths to practice in this state without having to pass the board of medical examiners. The osteopaths are highly elated over the Supreme Court refusing to take jurisdiction in the case and they now feel that they can practice here without being further molested by the law."


CANADA.

Our neighbors on the north have not escaped the wrath of the "regulars." Dr. W. J. E. Dillabaugh was arrested in Toronto for violating the law, brought to trial, and acquitted. Dr. H. C. Jaquith was also found to be a fit target for the shafts of persecution, because of the death of a young lady soon after a treatment. Saturday Night for November 9, 1901, published in Toronto, gives the following account of the case:

"The young woman had sought relief in vain from the regular physicians, and her case was probably hopeless, and if not benefited she would have died as a result of the swelling in her neck.

"The osteopath had received a training in a large and reputable college, and probably was as well equipped in his line as many licensed physicians, excepting in materia medica, which was not necessary in his business, as he used no drugs.

"It was a case where the patient had decided that she would try the manipulations of an osteopath as a last resort, and she was sufficiently mature in years and intelligence to make a choice for herself.

"The jury decided that in view of the evidence and the medical testimony submitted we attach no responsibility to any person or persons. We believe that the course of treatment pursued by the person in this case is unskillful and dangerous, and we are of opinion that strict laws should be enacted which would put an end to this dangerous practice and others of a kindred nature, which we have reason to believe are far too numerous in this city.

"This is the sort of verdict one might expect in a case where an unrecognized system of treatment was being tried before a coroner of the old school of medicine.

"It is not many years ago that a similar verdict would have been rendered had a homeopathist been tried before an allopathic coroner. Homeopathy is not now considered dangerous, because drugs are administered in such small doses that harm can not be feared if good may not be done.

"Almost invariably a jury brings in a verdict as directed by the coroner, who often writes out and pads the verdict to suit himself, and no doubt in this case both the coroner and the medical doctors who were witnesses took the view that the treatment was 'unskillful and dangerous,' and that 'strict laws should be enacted to put a stop to such business,' as they would like to put a stop to the sale of all patent medicines, and fine druggists who even dared to suggest the name of pills reputed to be good for constipation.

"I have always been in sympathy with laws which will suppress quackery of every kind, but in the interests of ordinary justice, dislike to see those who believe - even the regular physicians vaguely believe it - that massage and manipulation of muscles and nerves and limbs will do a great deal of good, hauled up before a regular physician who may think that his craft is in danger, to be branded as 'unskillful and dangerous.'

"It matters little that the osteopath was not in any manner held responsible for the death of the patient, when it is remembered that this case will go no further and that the verdict of the coroner's jury, accompanied by a wad of foolish advice, is going to the public as a finality. However, anything savoring of persecution excites sympathy, and no doubt the holding of this apparently unnecessary inquest will have the effect of advertising the class of practitioners it was intended to suppress."

The M. D. who conducted the autopsy testified that death might have happened to her at any time. But the Ontario Medical Council thought it had sufficient evidence to prosecute Dr. Jaquith for breach of the medical act. When the case was called Dr. Jaquith's testimony was taken, but the witnesses for the prosecution failed to appear. The case was postponed and eventually quashed. Since then the detective of the Ontario Medical Council has urged the passage of an act to exclude all but regular graduates from diagnosing and treating disease, stating that as the law stands he can do nothing. His scheme has not been adopted.