No. 14631 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsBRUCE R. BLINZLER, 

Defendant and Appellant. 

Appeal from: District Court of the Eleventh Judicial ~istrict, 

Honorable James M. Salansky, Judge presiding. 

i 

Counsel of Record: 

For Appellant: 

James D. Moore, Kalispell, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Ted 0. Lympus, County Attorney, Kalispell, Montana 

Submitted on briefs: August 2, 1979 

Filed: SE[ " 1973 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Appellant was convicted on two counts of practicing 

chiropractic without a license in violation of section 37- 

12-301, MCA, following a jury trial in the District Court of 

the Eleventh Judicial District, the Honorable James M. 

Salansky presiding. He was sentenced to pay a fine of $200 

on each count, and he appeals from that judgment. 

Appellant is a naturopathic physician practicing in 

association with Kenneth L. Piller in Kalispell, Montana, 

having come there from the State of Pennsylvania where he 

had practiced as a naturopathic and chiropractic physician 

for a period of some ten years. In 1977 Dr. Blinzler became 

interested in moving to Montana and submitted an application 

for a Montana chiropractic license. Before coming to the 

state he contacted Dr. Ronald R. Hoye, president of the 

National Association of Naturopathic Physicians and Stanley 

Crowe, a Boise attorney representing the national association, to inquire into the legal requirements to practice in 

the State of Montana. He was informed that Montana had no 

requirement for the licensing relating to the practice of 

naturopathy. After conferring with Dr. Hoye and Mr. Crowe 

in Idaho, appellant and Dr. Piller moved to Kalispell where 

they opened up a naturopathic clinic. Dr. Hoye advised him 

that upon coming to Kalispell he should contact Dr. ~erlin 

Anderson, a Kalispell naturopathic physician who had practiced in the area some 20 years. 

On December 20, 1977, informations were filed against 

appellant, Bruce Blinzler, and his associate charging them 

with practicing medicine without a license and practicing 

chiropractic without a license, both ~istrict Court misde- 
meanors. Appellant herein was charged with two counts of 

chiropractic and one count of medicine. He entered pleas of 

not guilty to these charges. Subsequently, the information 

was amended on April 4, 1978, when three counts were added 

against appellant. Again, on July 21, 1978, the information 

was amended and appellant ended up being charged with a 

total of seven counts of either practicing medicine or 

practicing chiropractic without a license. To all of these 

charges, appellant entered a plea of not guilty. 

Trial by jury followed. Prior to going to the jury, 

one count of practicing chiropractic without a license was 

dismissed. Appellant was acquitted of the four counts of 

practicing medicine and was found guilty on two counts of 

practicing chiropractic. From the verdict and judgment, 

appellant appeals. 

The issues presented for our consideration are: 

1. Whether the statutes under which appellant was 

prosecuted violate the due process clause and equal protection clause of the United States Constitution and the Montana 

Constitution? 

2. In the event the statutes are constitutional, was 

the evidence sufficient to support the convictions? 

3. Do the double jeopardy provisions of the United 

States and Montana Constitutions bar the convictions? 

The first issue before this Court is the question of 

whether the charges are specific enough to satisfy due 

process. We first note that the constitutional validity of 

the definition of "medicine" as set forth in section 37-3- 

I 

102r(a), MCA, is not before the Court in this case. Much of 

appellant's brief concerns the practice of medicine and the 

statutes controlling the same; however, in this case, appel- 
lant was not convicted of unlawfully practicing medicine 

under the statute in question. On those charges the jury 

returned a verdict of acquittal, and there can be no prejudice shown in this case in the operation of section 37-3- 

i 

1027a), MCA. Appellant, therefore, lacks standing to challenge its constitutionality. 

As this Court noted in State ex rel. Hauswirth v. 

Beadle, et al. (1931), 90 Mont. 24, 27, 300 P. 197, this 

Court will not consider moot points. There, the Court 

noted : 

"The question presented is moot. (See State 

ex rel. Rankin v. Martin, 65 Mont. 323, 211 P. 

210; Honstain v. Board of County Commissioners, 

52 Mont. 391, 158 P. 476; Chesapeake Western 

Railway v. Jardine, 56 App.D.C. 33, 8 F.2d 794.) 

This Court will not pass on moot questions. 

(State ex rel. OIGrady v. District Court, 58 

Mont. 695, 198 P. 1117; State ex rel. Rankin v. 

Martin, supra; State v. Knilans, 69 Mont. 8, 

220 P. 91; State ex rel. St. George v. Justice 

Court, 84 Mont. 173, 274 P. 495.)" 

Therefore, the constitutionality of section 37-3- 

102(a), MCA, was rendered a moot question by the jury's 

verdict of acquittal on the counts charged under that section. Appellant was convicted only of the unlawful practicing of chiropractic, and therefore only the constitutionality of that statute is properly before the Court, 

viz. , section 37-12-101 (2) , MCA, defining the practice of 

chiropractic. 

We are faced, therefore, with the question of whether 

section 37-12-101(2), MCA, is sufficiently specific and 

detailed to satisfy the requirements of due process. Subsection (2) of this statute reads: 

"'Chiropractic' is a system of specific adjustment or manipulation of the articulations and 

tissues of the body, particularly of the spinal 

column, for correction of nerve interference 

and includes the use of recognized diagnostic 

and treatment methods as taught in chiropractic 

colleges but does not include surgery or the 

prescription or use of drugs." 
To summarize the argument of appellant, he contends 

that the statute defining the practice of chiropractic 

contains an indefinite term--"specific adjustment or manipulation"--which is susceptible to differing interpretation 

by experts in the field of chiropractic. He further argues 

that the public cannot be expected to provide the content 

for this term when experts are unable to agree as to its 

meaning, and that the statute is therefore unconstitutionally 

vague. 

Noting the definition of chiropractic, appellant argues 

that nowhere are the terms "specific adjustment" or "articulations and tissues" defined. Therefore, he says, the 

statute has an incomprehensible standard to the members of 

the public and places a heavy burden upon a defendant. With 

regard to the heavy burden placed on a defendant, appellant 

argues that the statute provides no ascertainable standard 

of conduct against which he might reasonably have measured 

his conduct as a naturopath, noting: 

". . . There must be ascertainable standards of 

guilt. Men of common intelligence cannot be 

required to guess at the meaning of the enactment. The vagueness may be from uncertainty in 

regard to persons within the scope of the act, 

Lanzetta v. New Jersey, 306 U.S. 451, or in regard to the applicable tests to ascertain guilt." 

Winters v. New York (1948), 333 U.S. 507, 515- 

516, 68 S.Ct. 665, 92 L.Ed. 840. 

In Winters the Supreme Court went on to note: 

"'Where the statute uses words of no determinative meaning, or the language is so general and 

indefinite as to embrace not only acts commonly 

recognized as reprehensible, but also others 

which it is unreasonable to presume were intended 

to be made criminal, it will be declared void 

for uncertainty.'" 333 U.S. at 516, quoting 

State v. Diamond (1921), 27 N.M. 477, 485, 202 

P. 988, 991. 

Appellant argues that, based on Winters, when a statute 

is so vague as to make criminal an innocent act the convic- 
; .. 1 

tion cannot be sustained. H. &i. Clack Co. v. Public Service 

Commission (1933), 94 Mont. 488, 22 P.2d 1056. At trial, 

witnesses Bekkedahl, Vernon, Gorder, and Strunk testified as 

to the nature and the extent of appellant's treatment of 

their respective conditions. In addition, the State produced the expert testimony of Dr. Loren Weis and Dr. Walter 

Kaye, both licensed chiropractors in the State of Montana, 

who identified the movements practiced on Vernon and Gorder 

as specific adjustments. Dr. Weis in addition described the 

relationship between specific chiropractic adjustments and 

nerve interference. 

The evidence introduced by appellant conflicted with 

the State's evidence on the issue of specificity. Dr. Hoye, 

a naturopath, testified that manipulations done by a naturopath in his practice differ from chiropractic adjustments in 

that naturopathic manipulations lack specificity. Appellant 

testified that the manipulations done on Vernon and Gorder 

were general rather than specific. On the basis of the 

conflicting evidence presented to the jury, the jury found 

appellant guilty of practicing chiropractic without a license. 

The United States Supreme Court in Connally v. General 

Construction Company (1926), 269 U.S. 385, 391-92, 46 S.Ct. 

126, 70 L.Ed. 322, noted: 

"The question whether given legislative enactments have been thus wanting in certainty has 

frequently been before this court. In some of 

the cases the statutes involved were upheld; in 

others, declared invalid. The precise point of 

differentiation in some instances is not easy of 

statement. But it will be enough for the present 

purposes to say generally that the decisions of 

the court upholding the statute as sufficiently 

certain, rested upon the conclusion that they 

employed words or phrases having a technical or 

other special meaning, well enough known to enable those within their reach to correctly apply 

them, Hygrade Provision Co. v. Sherman, 266 U.S. 

497, 502; Omaechevarria v. Idaho, 246 U.S. 343, 
348, or a well-settled common law meaning, notwithstanding an element of degree in the definition as to which estimates might differ, Nash v. 

United States, 299 U.S. 373, 376; International 

Harvester Co. v. Kentucky, supra, at 223, or, as 

broadly stated by Mr. Chief Justice White in 

United States v. Cohen Grocery Co., 255 U.S. 81, 

92, 'that, for reasons found to result either from 

the text of the statutes involved or the subjects 

with which they dealt, a standard of some sort was 

afforded.' . . ." 

We find that this case falls within the first class 

identified in Connally, supra. The term "specific adjustment or manipulation" is a scientific term having a readily 

ascertainable definition within the chiropractic community, 

and appellant herein, as a chiropractor licensed in two 

states, cannot assert a lack of notice of the meaning of the 

terms. 

Viewing the statute in question, in light of the conduct of which appellant was convicted, most certainly 

appellant was given adequate notice of the kind of conduct 

that the statute proscribes. Although no particular mental 

state is identified in section 37-12-301, MCA, the Montana 

Criminal Code clearly requires that the practice of chiropractic be done knowingly or purposely to constitute an 

offense. Section 45-2-103(1), MCA. The trial court instructed the jury in the term similar to the Idaho statute 

relied upon in Omaechevarria v. Idaho (1918), 246 U.S. 343, 

.3 

38 S.Ct. 322, 62 L.Ed. 763, that the act and intent must 

both be proved beyond a reasonable doubt to satisfy a conviction. Here, the testimony of two State's witnesses, Dr. 

Weis and Dr. Kaye, gave a definition of the term "specific 

adjustment" upon which the jury could make a proper decision 

of what "specific adjustment" was, which was "when a person 

is presented with a localized condition involving one or two 

or three vertebrae and intentionally brings about a movement 
of these vertebrae to relieve that condition, he or she has 

performed a specific adjustment." 

The key to the query here is whether the statute in 

question provides a standard with meaningful differentiation 

between culpable and innocent conduct. Under section 37-12- 

301, MCA, such a standard exists: there can be no statutory 

violation unless the adjustment in question is shown to be 

specific and intentional. It is manifest in this case that 

"specificity" provides a meaningful standard. In fact, a 

lack of specificity resulted in the dismissal of one count 

in this case. 

The United States Supreme Court in Roth v. united 

States (19571, 354 U.S. 476, 491-92, 77 S.Ct. 1304, 1 L.Ed.2d 

1498, where they quoted from United States v. Petrillo 

(1947), 332 U.S. 1, 7-8, 67 S.Ct. 1538, 91 L.Ed. 1877, had 

this to say: 

". . . lack of precision is not itself offensive to the requirements of due process. ' ... [Tlhe Constitution does not require impossible 

standards'; all that is required is that the 

language 'conveys sufficiently definite warning 

as to the prescribed conduct when measured by 

the common understanding and practices. . .' . . .'That there may be marginal cases in which 

it is difficult to determine the side of the 

line on which the particular fact situation 

falls is no sufficient reason to hold the language too ambiguous to define a criminal offense . . . f 11 

Here appellant was a chiropractor by profession and 

training. Since he was unlicensed in Montana, and during 

the time the offense was committed had an application in to 

be licensed in Montana as a chiropractor, the law placed the 

responsibility on him to assure that his practice of naturopathy be performed with no chiropractic movements. The fact 

that the law required appellant to make a choice, and extracted a penalty when his judgment proved incorrect, does 
not invalidate the statute. As noted in the United States 

Supreme Court case of Hygrade Provision Co. v. Sherman 

(1925), 266 U.S. 497, 502, 45 S.Ct. 141, 69 L.Ed. 402: "If 

exceptional cases may sometimes arise where opinions might 

differ, that is no more than is likely to occur, and does 

occur, in respect to many criminal statutes either upheld 

against attack or never assailed as indefinite." Here, 

appellant chose to perform a manipulation which the jury 

found to be specific and therefore prohibited to all except 

licensed chiropractors. 

The next issue raised is whether the record reflects 

substantial evidence to support the jury's verdict. Appellant argues that there is no evidence establishing that the 

treatment of Vernon and Gorder involved specific adjustment 

or that the treatments were for the purpose of relieving 

nerve interference. A review of the record discloses that 

this contention is without merit. 

A brief review of the facts show that Vernon testified 

that she went to appellant's office complaining of a "rib 

out." She stated that appellant told her he could put it in 

place. According to her testimony, appellant then placed 

his knee on the place indicated by her and pulled her arms 

back, causing pain. 

Gorder testified to a treatment of his lower back. He 

testified that he told appellant he had lower back problems. 

He was placed lying on his stomach, and appellant told him 

one of his vertebrae was lower than the other in the lower 

back. Appellant then pushed down on his back and it sounded 

like "bones moving." 

While appellant argues that there is no expert testimony 

to establish that these were specific adjustments, Dr. weis 
testified that placing a knee and pulling back on the shoulders 

was "pretty specific." "When you have your knee in one 

particular spot, like against a rib, or where the rib joins 

the vertebra, you have a particular spot." 

This Court has often stated that a jury verdict based 

on substantial evidence will be sustained on appeal. See, 

State v. Pankow (1959), 134 Mont. 519, 522, 333 P.2d 1017. 

Substantial evidence was presented here from which the jury 

could conclude that the treatment of Vernon and Gorder 

involved specific adjustments for relief of nerve interference. Therefore, the jury verdict and judgment will not 

be disturbed. 

Appellant next alleges that he was subjected to double 

jeopardy by the charges of the State. He argues that the 

failure of the State to elect between Counts I and 11, which 

charged practice of chiropractic on Bekkedahl, Julia Vernon, 

and Lee Gorder, and Counts IV through VI, charging the 

practice of medicine on the same patients for the same 

conduct, subjected him to double jeopardy. He argues that 

under the recent case of State ex rel. McKenzie v. District 

Court (1974), 165 Mont. 54, 525 P.2d 1211, this Court adopted 

a so-called "same transaction" test and abandoned the traditional "same facts" rule. Since the counts clearly arose 

from the same transaction, it is argued that the failure by 

the State to elect between practicing medicine and practicing 

chiropratic subjected appellant to double jeopardy. We find 

no merit to this argument. 

The Fifth Amendment of the United States constitution 

provides that no person "shall be subject for the same 

offense to be twice put in jeopardy of life or limb." his 

prohibition is applicable to state actions under the "due 
process" clause of the Fourteenth Amendment of the United 

*.- ' 

States Constitution. North Carolina v. Pkrce (1969), 395 

U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. It protects offenders from multiple punishment for the same offense. Ex 

Parte Lange (1873), 85 U.S. (18 Wall) 163, 21 L.Ed. 872, and 

Kohlfus-2v. Warden (1962), 149 Conn. 692, 183 A.2d 626. 

Montana's constitutional provision is substantially similar 

providing that "no person shall be again put in jeopardy for 

the same offense . . .I' 1972 Ilont. Const., Art. 11, S25. 

In a recent case, State v. Davis (1978), Mont. 

, 577 P.2d 375, 377, 35 St.Rep. 381, this Court considered 

the issue raised here and held: 

"This Court has consistently quoted with approval 

the following holding from the Massachusetts case 

of Morey v. Commonwealth (1871), 108 Mass. 433, 

434: 

I' 1 . . . A single act may be an offense against 

two statutes; and if each statute requires proof 

of an additional fact which the other does not, 

an acquittal or conviction under either statute 

does not exempt the defendant from prosecution 

and punishment under the other.' 

"State v. Marchindo (1923), 65 Mont. 431, 446, 

211 P. 1093; State v. Lagerquist (1968), 152 

Mont. 21, 30, 445 P.2d 910; State v. McDonald 

(1971), 158 Mont. 307, 310, 491 P.2d 711. See 

also Blockburger v. United States (1932), 284 

U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306; Gore v. 

United States (1958), 357 U.S. 386, 78 S.Ct. 

1280, 2 L ed 2d 1405." 

Here, the statutes set forth separate and distinct 

criminal offenses that are designed for the protection of 

completely different offenses. Therefore, appellant suffered no violation of his rights under either the United 

States Constitution or the 1972 Montana Constitution. 

The protection against double jeopardy is also statutory in Montana. Section 46-11-502, MCA, provides: 

"When the same transaction may establish the commission of more than one offense, a person charged 

with such conduct may be prosecuted for each such 

offense. He may not, however, be convicted of 

more than one offense if: 

" (1) one offense is included in the other; " 
Under this statute appellant suffered no violation 

unless he was convicted of two offenses, one of which is 

included in the other. The mere charging of included offenses involves no violation of appellant's rights, nor are 

his rights infringed upon if the State fails to elect or 

charge in the alternative as long as a defendant is not 

convicted of both offenses. Here, appellant was convicted 

of two counts of practicing chiropractic without a license 

involving the treatment of two different patients on different occasions. These convictions are not subject to, nor 

do they violate, the double jeopardy provision. 

We note in closing that appellant argues that the State 

no longer follows "the same facts" rule but has now adopted 

the so-called "same transaction" test. We find this argument erroneous. In the recent case of State v. Perry (1979), . . 

- Mont. , 590 P.2d 1199, 36 St.Rep. 291, this Court 

applied Montana's statutory same facts rule, section 46-11- 

501(2)(a), MCA. Perry involved an issue similar to the one 

raised in State ex rel. McKenzie v. District Court, supra, 

which is fully consistent with the holding in Perry. We 

noted in McKenzie: "The joinder provisions of section 95- 

1504, R.C.M. 1947 [now section 46-11-404, MCA], are highly 

flexible. Part (a) therefore permits an information to 

charge two or more different offenses, connected together in 

their commission. . ." McKenzie, 165 Mont. at 62. 

Appellant argues that the offenses arising from the 

same transaction generally must be prosecuted together to 

avoid double jeopardy. However, where, as here, the State 

prosecutes "the same transaction" offenses together, double 

jeopardy is implicated under section 46-11-502, MCA, only if 

a defendant is convicted of two offenses, one of which is 
included in the other. Here, appellant suffered no such 

dual convictions, and his double jeopardy claim is therefore 

without merit. 

Finding no prejudicial error, the convictions are 

affirmed. 

We concur: 

2L-Q J. %ad4 

Chief Justice 

%&,&/ Justices