Ex parte Bohannon — 14 Cal. App. 321

Majority

p. 321

[Crim. No. 295.

First Appellate District.

October 5, 1910.]

Ex Parte J. L. BOHANNON, on Habeas Corpus.

Headnote

Habeas Corpus—Imprisonment eor Practice op Medicine Without Authority—Proviso in Act—“Treatment by Prayer.”—A defendant imprisoned under a conviction for unlawfully practicing medicine without authority, as provided in the “Act for the Regulation of the Practice of Medicine and Surgery,” etc., passed in 1907 (Stats. 1907, p. 252), is not entitled to be released on habeas corpus merely because of a proviso in the act “that nothing herein shall be held to apply to or to regulate any kind of treatment by prayer.”

Id.—Constitutional -Law—"Validity op Proviso—General Exception.—The proviso cannot invalidate or render unconstitutional the whole act, since the immunity granted thereby is general and allows every person, man, woman or child, such immunity, in the exercise of the right to pray for the sick and afflicted, which is the only way that disease can be treated by prayer. The proviso or exception was evidently put into the act to prevent any interference with the right of anyone to pray for the sick and afflicted, without regard to its effectiveness as a “treatment by prayer.”

PETITION for writ of habeas corpus.

Gibson & Woolner, H. A. Stout, and Burton J. Wyman, for Petitioner.

Petitioner desires to have a writ of habeas corpus to obtain Ms release from imprisonment under a judgment rendered in a court of competent jurisdiction, convicting Mm of unlawfully practicing medicine without having a license or a valid unrevoked certificate authorizing him to practice medicine, contrary to the provisions of the law in such case made and provided.

The act under which the petitioner was convicted is entitled “An Act for the regulation of the Practice of Medicine and Surgery, Osteopathy, or other system or means of treating the sick or afflicted in the State of California; for the appointment of a Board of Medical Examiners in the matter of said regulation.” (Stats. 1907, p. 252; General Laws, [1910, p. 609], Act 2163.) The act concludes with the following

p. 322

exception or proviso: “Provided that nothing herein shall be held to apply or to regulate any kind of treatment by prayer.”

It is claimed that the latter exemption makes the whole act unconstitutional and void, and that it gives to a certain class of persons, to wit, those who treat physical ills by prayer, privileges and immunities which “under like conditions are not granted to all citizens. ’ ’

We do not so construe the section. If prayer can be regarded as practicing medicine and as an immunity, the act allows every person—man, woman or child—such immunity, and the right to pray for the sick and afflicted, and that is the only way that disease can be treated by prayer. Whether such treatment avails anything or not is not for us to say; but the privilege of practicing such treatment or such supplication is granted and allowed to all. A prayer is only a reverent petition to some divinity or object of worship. It has been said, “More things are wrought by prayer than this world dreams of.” Those who believe in the teachings of holy writ attach great importance to the efficacy of prayer. Many examples of it are given in the New Testament. For instance, where Peter’s wife’s mother lay sick of a fever we are told that the Saviour “touched her hand and the fever left her, and she arose and ministered unto them.” The proviso or exception was evidently put into the act to prevent any interference with the right of anyone to pray for the sick and afflicted.

Writ denied.

Hall, J., and Kerrigan, J., concurred.