KUTS-CHERAUX et al.
WILSON, Atty. Gen. et al
Rehearing Granted April 24, 1951. See 230 P.2d 512.
Morgan & Locklear, of Phoenix, for appellants.
Fred O. Wilson, Atty. Gen., and Richard C. Briney, Asst. Atty. Gen., for appellees.
Udall, Chief Justice. Stanford, Phelps, De Concini and La Prade, JJ., concur.
Udall, Chief Justice.
[71 Ariz. 462] The basic question here is the right of licensed naturopaths to prescribe and to use drugs for compensation in the practice of their healing art. A subsidiary question involves the constitutionality of section 67-1107, A.C.A.1939, prior to its amendment, Laws 1949, ch. 42, sec. 7, which sets forth the penal provisions for one practicing medicine without a license issued by the state board of medical examiners.
A statement of the background of the litigation will aid in understanding the problems presented. The state medical board was complaining to various law enforcement officers that the naturopaths were overstepping the bounds prescribed by Laws 1935, ch. 105, now appearing as ch. 67, art. 12, A.C.A.1939, which defines the practice of naturopathy. County attorneys of two counties had commenced or were threatening to commence criminal prosecutions against the naturopaths for allegedly practicing medicine without a license. Hence to determine their legal rights in the premises this suit for a declaratory judgment was brought. Plaintiffs, individually and as members of the naturopathic board of examiners of the State of Arizona, directed their suit against the attorney general, the county attorneys of Maricopa and Pima counties, and the state board of medical examiners as defendants. The parties will hereafter be designated as they were in the trial court.
There are no issues of fact raised in this case; only questions of law concerning the interpretation of the statutes defining naturopathy and medicine are involved. After an amended complaint and answer were filed, both plaintiffs and defendants moved for summary judgment. The trial court properly considered this was a case for summary judgment and after the matter had been thoroughly briefed and argued, it rendered judgment upholding the right of naturopathic physicians to make diagnoses and prognoses of human ills but denying them the right to [71 Ariz. 463] prescribe substances as medicine for compensation in the care and alleviation of human ills. From this latter holding plaintiffs have appealed.
In fairness it should be stated that counsel who now represent plaintiffs on appeal supplanted other counsel who represented them in the lower court. In the excellent briefs submitted to this court, counsel for plaintiffs have narrowed the issues, abandoned some theories previously advanced, and urged new ones. However, the pleadings upon which the case was tried, and upon which plaintiffs must stand in this court, were not amended.
We shall first consider the subsidiary question involving the penal statute, sec. 67-1107, supra. Briefly stated, plaintiffs contend that this statute, under which certain prosecutions were commenced, when taken literally, is violative of the due process clauses of the state and federal constitutions in that it does not validly define an offense under the law. The statute in question, in so far as material, reads: "Any person who practices, or attempts to practice medicine, surgery or osteopathy, without having a valid recorded license to so practice issued by the state board of medical examiners, upon conviction, shall be guilty of a felony. * * *" (Emphasis supplied.) The emphasized words "upon conviction" are those at which the objection is leveled. If we were bound to give a strict construction to this penal statute, then it might be argued that the information must necessarily allege a conviction in order to state an offense. This would create an obviously absurd impossibility, making the statute completely nugatory. Admittedly this section was inartfully drawn as the words "upon conviction" had no place therein. The legislature subsequently recognized this fact by revising the law and omitting them. See Laws 1949, ch. 42, secs. 7(b), p. 79, 67-1107 (b), Cum.Pocket Supp. A.C.A.1939.
The legislature, however, by enactment of section 43-102, A.C.A.1939, has provided the yardstick by which penal statutes in this state are to be construed. It reads in part as follows: "* * * The rule of the common law that penal statutes are to be strictly construed, has no application to this Code; its provisions are to be construed according to the fair import of their terms, with a view to effect its object and to promote justice. * * *" See State v. Ferraro,67 Ariz. 397, 198 P.2d 120; State v. Behringer,19 Ariz. 502, 172 P. 660, and McCall v. State,18 Ariz. 408, 161 P. 893, 898, Ann.Cas.1918A, 168, for some of our interpretations of this statute. In the latter case it was stated: ...