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District Court of Appeal, First District, Division 2, California.


Civ. 9545.

Decided: January 28, 1935

J. H. McKnight, of Oakland, Edward A. Stuart, of Los Angeles, for appellants. Thomas Morris, of Los Angeles, amicus curiæ. U. S. Webb, Atty. Gen., Leon French, Deputy Atty. Gen., and Frank v. Kington, of San Francisco, for respondent.

This is an appeal from a judgment enjoining appellants, all of whom are licensed chiropractors under section 7, Statutes of 1923, p. lxxxviii, Deering's Gen. Laws 1931, Act 4811 (the Chiropractic Act), from practicing or attempting to practice or advertising or holding themselves out as practicing certain designated modes of treating the sick and afflicted. It was claimed by the plaintiff that a license to practice under the Chiropractic Act did not authorize the use by the licentiate of any of the modes of treatment enumerated in the judgment, and that consequently the practice of such modes by appellants constituted a public nuisance which could be enjoined by the state. While claiming that their licenses did authorize the use of the enjoined modes of treatment, appellants also urged in the trial court and are urging on this appeal that in any event under the evidence produced in the trial court, there was no basis for the finding that the practices enjoined constituted a nuisance and consequently that the remedy by injunction was not available to the state. It is obvious that if appellants are correct in this contention the judgment appealed from must be reversed.

Whatever may be the rule in other jurisdictions, by express provision of our Civil Code, § 3369, as amended by St. 1933, p. 2482: “Neither specific nor preventive relief can be granted to enforce a penalty or forfeiture in any case, nor to enforce a penal law, except in a case of nuisance or unfair competition.” Unless the practice of the methods of treatment enjoined constitutes a nuisance it seems clear that injunction as a remedy is expressly forbidden by the quoted section.

It is the theory of respondent that the practice of medicine without a license is a menace to public health and hence a public nuisance. It is the general rule, however, that the violation of a penal statute does not constitute a nuisance unless the doing of the prohibited acts would constitute a nuisance in the absence of the statute. 46 C. J. p. 660. The question has been fully discussed and the above rule followed in two recent cases in our Supreme Court, Perrin v. Mountain View Mausoleum Ass'n, 206 Cal. 669, 275 P. 787, and Carter v. Chotiner, 210 Cal. 288, 291 P. 577, and in another case in the District Court of Appeal, People v. Seccombe, 103 Cal. App. 306, 284 P. 725.

In Carter v. Chotiner, supra, the Supreme Court said at page 291 of 210 Cal., 291 P. 577, 578: “It is elementary that violation of a penal ordinance does not of itself create a private nuisance per se. * * *”

In People v. Seccombe, supra, at page 311 of 103 Cal. App., 284 P. 725, 727, we read: “But as a nuisance may exist without a concomitant crime, so may criminality exist without the criminal act or course of conduct constituting a nuisance as defined by the laws of this state. It follows that, where the action is for abatement of a nuisance by injunction or otherwise, facts which bring the act or course of conduct within the definition of a nuisance must be pleaded, and it is not sufficient to allege merely that the defendant has committed and intends to commit additional criminal acts.”

The specific question of whether practicing a healing art without a license required by statute is a nuisance per se has not been before the appellate courts of this state, but in a majority of the jurisdictions of this country in which the question has been passed upon the courts have held that the practice of a healing art in violation of the terms of a statute is not per se a nuisance. State v. Johnson, 26 N. M. 20, 188 P. 1109; Dean v. State, 151 Ga. 371, 106 S. E. 792, 40 A. L. R. 1132; State v. Maltby, 108 Neb. 578, 188 N. W. 175; Redmond v. State, 152 Miss. 54, 118 So. 360; State v. Smith (Ariz.) 29 P.(2d) 718, 31 P.(2d) 102, 92 A. L. R. 173; People v. Universal Chiropractors' Ass'n, 302 Ill. 228, 134 N. E. 4.

The rule is thus laid down by the Supreme Court of Arizona in State v. Smith, supra, 29 P.(2d) 718, at page 721: “The practice of medicine and surgery is not per se a nuisance. A license does not add to one's qualifications. It only shows that the holder thereof has complied with the law. His skill and ability as a practitioner would be the same before as after he secured the license.”

The Supreme Court of Mississippi similarly said in Redmond v. State, supra, at page 367 of 118 So.: “A person might acquire the very greatest learning and skill in medicine, and might practice most usefully upon people in cases calling for that skill, and still not be a licensed physician. * * * Consequently, whether a man is examined by the board, or not, does not, of itself, furnish the requisite skill and knowledge. Therefore such practice of medicine is not a nuisance per se, and if a nuisance at all, would be made such by the manner in which it is pursued.”

So in Dean v. State, supra, page 793 of 106 S. E., the Supreme Court of Georgia said: “Will equity, at the instance of the state, enjoin a person from practicing the profession of medicine simply because such person has failed to take the prescribed examination and to obtain a license from the state board of medical examiners authorizing him so to do, in violation of the penal laws of the state? To state the question is to answer it. The chancellor did not find that the practice of plaintiff in error's profession worked hurt, inconvenience, or damage to any particular person or to the public or to any particular part of the public. If the plaintiff in error had obtained the license required of practitioners of medicine, the same acts and conduct complained of in the petition, so far as determined by the chancellor, would have been legal and would have worked no hurt, inconvenience, or damage. * * *”

It is plain from the foregoing quotations that the reasoning by which the courts have reached the conclusion that the practice of a healing art in violation of a statute is not a nuisance per se rests upon the broad basis that that which is not a nuisance per se, in the absence of a statute forbidding it, does not become a nuisance by virtue of the fact that it is forbidden by a statute. To put the matter more concretely unless it be found either that appellants are not competent to practice the modes of treatment enjoined or that the modes of treatment enjoined are in themselves harmful and injurious to the patients upon whom they are practiced, they would not constitute a nuisance in the absence of a statute forbidding them; and since the adoption of such a statute would neither render incompetent a practitioner who was otherwise competent, nor render injurious a method of treatment which was otherwise beneficial or innocuous, its mere adoption could not render that a nuisance which otherwise was not.

Respondent cites and relies upon Kentucky State Board v. Payne, 213 Ky. 382, 281 S. W. 188, and State v. Anderson, 6 Tenn. Civ. App. 1. These cases represent the minority view that the practice of a healing art in violation of a statute becomes per se a nuisance, and are in conflict with the majority view expressed in the cases from other jurisdictions hereinabove cited, and in principle likewise conflict with the California cases cited above. There are certain jurisdictions wherein the statute expressly authorizes the remedy by injunction against the unlawful practice of a healing art. Board of Medical Examiners v. Blair, 57 Utah, 516, 196 P. 221; State v. Fray, 214 Iowa, 53, 241 N. W. 663, 81 A. L. R. 286. Such cases are not in point upon the question of whether injunction may be availed of in the absence of a statute expressly authorizing its use.

The trial court did find in this case that the use of the enjoined methods of treatment by appellants is “dangerous and injurious to the health of the community or neighborhood or a considerable number of persons of said city and county and state so as to interfere with the comfortable enjoyment of health and life of the people thereof.” Appellant attacks this finding as unsupported by the evidence, and we have been pointed by respondent to no evidence in the transcript which would support this finding, nor have we found any such evidence, although in view of the importance of the case the entire typewritten transcript has been read. In justice to the trial court it should be said that we read the quoted finding as being based upon the proposition that the violation of the statute constituted a nuisance per se, a proposition that we have decided against on this appeal.

The pleadings contain allegations of incompetence and lack of skill of appellants in the use of the modes of treatment sought to be enjoined and danger to the public by reason thereof. Upon a new trial evidence addressed to these issues may be introduced, but the trial resulting in the judgment appealed from was apparently conducted by respondent on the theory that the competence and skill of appellants was immaterial, and no evidence was introduced upon that subject.

Respondent apparently relies strongly on In re Wood, 194 Cal. 49, 227 P. 908. An examination of that case shows that the injunction there involved was sustained not on the ground that the enjoined acts constituted a public nuisance because in violation of the Criminal Syndicalism Act (St. 1919, p. 281), but because they constituted a public nuisance in themselves without regard to that act. The court held that acts which in themselves constitute a public nuisance may be enjoined although they are forbidden by a penal statute. It did not hold that acts which are not in themselves a public nuisance, may be enjoined because they are in violation of a penal statute.

We conclude that as there was no evidence introduced which would support a finding that the practicing of the enjoined modes of treatment constituted a nuisance in fact, and as the practicing of such modes could not become a nuisance merely by virtue of their being forbidden by a penal statute, the case was not a proper one for injunction. Civ. Code, § 3369. That being so, we need not here attempt to construe section 7 of the Chiropractic Act, or to determine whether or not the trial court's findings as to the rights given a licentiate under that act are correct or supported by the evidence.

For the reasons given the judgment is reversed.

DOOLING, Justice pro tem.

We concur: NOURSE, P. J.; STURTEVANT, J.