Montana Attorney General Opinion 16-151

Opinion No. 151. County Physician-County Health Officer-Osteopaths. HELD: An osteopath cannot serve as county physician. August 12, 1935. Mr. Raymond Shelden County Attorney Ekalaka, Montana You have asked us whether or not in our opinion an osteopath, as such, is qualified to hold the POSitiO.l of county physician. Section '1527, Revised Codes 1921, as amended by Chapter 55, Laws of 1927, provides: "The board (of county commissioners) must annually, at their December meeting, make a con- tract with some resident practicing physician to furnish medical atten- dance to the sick, poor, and infirm of the county, and to the inmates of the 150 OPINIONS OF THE ATTORNEY GENERAL county jail, and must also make pro- vision for the furnishing of medicine to the same; provided, however, that the board may let such contract for the furnishing of medical attendance to the physician appointed by such board as County Health Officer, and may fix a salary or other rate of com- pensation to be paid to such County Health Officer for the furnishing of such medical attendance, which sal- ary or other compensation sha.l be in addition to the salary of such phy- siClan as County Health Officel'." Section 2473, H.evised Codes 1921, provides: "There is hereby estab- lished in each county a board of health which is designated in this act as the 'County Board of Health', which shall consist of the board of county commissioners and one physi- cian legally authorized to practice medicine and surgery m this state, who must be appointed by the Loard of county commissioners. Said phy- sician when so appointed shall be ex- officio secretary of the county board of health and the county health of- ficer, and shall hold office at the pleasure of the Do::..rd." The practice of medicine and sur- gery is regulated by Sections 3116- 3124, Revised Codes 1921. Section 3116 provides that the governor shall appoint a board of examiners consist- ing of seven learned and skilled phy- sicians. Section 3118 provides that every person who wishes to practice medicine or surgery in this state shall submit to an examination before the board in the prescribed branches and secure a certificate therefrom. The certificate entitles the holder to prac- tice both medicine and surgery. Sec- tion 3122 declares what acts shall constitute the practice of medicine or surgery, and provides that any person who practices medicine or surgery without a certificate shall be guilty of a misdemeanor, and upon convic- tion shall be punished by a fine or im- prisonment or both. The practice of osteopathy is regu- lated by Sections 3125-3137, Revised Codes 1921. Section 3125 provides that the governor shall appoint a state board of osteopathic examiners consisting of three practicing osteo- paths. Section 3129 provides that any person who desires to practice osteo- pathy in this state shall submit to an examination before the board in the branches designated therein and ob- tain a license from the board. Sec- tion 3130 provides that such license "shall not authorize the holder there- of to prescribe or use drugs in the practice of osteopathy, or to perform major or operative surgery; and any person holding a license who shall prescribe or use drugs in the practice of osteopathy, or who shall perform major or operative surgery, shall be deemed guilty of a misdemeanor." Section 3136 defines the practice of osteopathy, and Section 3137 declares that the system of treating diseases of the human body, commonly known as osteopathy, is not the practice of medicine or surgery within the mean- ing of Sections 3116-3124, supra. In view of the plain language of Sections 3118 and 2473, it cannot be doubted that by the expression "resi- dent practicing physician," found in Section 4527 as amended, is meant a person who lives in Montana and practices medicine or surgery therein, or both, and who has received a certi- ficate from the board of medical ex- aminers authorizing him to practice medicine and surgery in the state. Surely Section 4527 does not con- template a contract with a physician who is practicing his profession con- trary to the law. Much less does it contemplate a contract with a person who is not a physician at all. It goes without saying that a county physi- cian, so-called, who is required under his contract "to furnish medical at- tendance to the sick, poor and in- firm of the county and the inmates of the county jail," must at times pre- scribe drugs for his patients, some- thing the osteopath is prohibited from doing. In the case of State v. Dodd, 51 Mont. 100, the Supreme Court con- sidered Sections 3116-3124 and Sec- tions 3125-3127 and concluded there- from that the practice of medicine and surgery does not include the prac- tice of osteopathy, and that the prac- tice of osteopathy does not include the practice of medicine and surgery, (State v. Wood, 53 Mont. 566; State v. Hopkins, 54 Mont. 52). The statutes of Idaho relating to the practice of medicine and surgery and the practice of osteopathy are not OPINIONS OF THE ATTORNEY GENERAL 151 unlike our statutes relating to these subjects. In the case of State v. Saw- yer, 214 Pac. 222, the Supreme Court of Idaho considered its statute deal- ing with the practice of medicine and surgery and its statute dealing with the practice of osteopathy and ruled that the holder of a license to prac- tice osteopathy is not authorized to practice medicine and surgery, or either of them. (Ex parte Rust, 183 Pac. 548; State v. McPheeters, 249 N. W. 349.) We are, therefore, in accord with the conclusion you reached in this matter and hold that an osteopath cannot serve as county physician.