Barton v. Schmershall

• Citation: 21 Idaho 562,122 P. 385
• Parties: CLARK A. BARTON, Plaintiff, v. J. F. SCHMERSHALL et al., Constituting the STATE BOARD OF MEDICAL EXAMINERS OF THE STATE OF IDAHO, Defendants
• Decision Date: 29 March 1912
• Court: Idaho Supreme Court

122 P. 385

21 Idaho 562

CLARK A. BARTON, Plaintiff, v. J. F. SCHMERSHALL et al., Constituting the STATE BOARD OF MEDICAL EXAMINERS OF THE STATE OF IDAHO, Defendants

Supreme Court of Idaho

March 29, 1912

PHYSICIANS - LICENSE TO PRACTICE WITHIN THE STATE - POWER OF BOARD OF EXAMINERS.

(Syllabus by the court.)

1. Under the provisions of an act approved March 3, 1899, Laws of 1899, p. 192, entitled "An act to regulate the practice of medicine and surgery within the state of Idaho,.... " discretionary power is conferred upon the board of examiners to determine the questions of fact presented by an application for license, and the board may either grant or refuse a license according to the judgment of the board.

2. The legislature of this state has the power to regulate the practice of medicine and surgery within the state, and in doing so the legislature may require applicants to practice medicine and surgery to pass an examination under the supervision of an examining board, and such board may be given power to determine the qualifications of the applicant to receive a license, and the action of such board may be reviewed only in the manner and for the purpose provided by the statute.

3. In determining the qualification of an applicant for license to practice medicine, without examination, as provided by sec 1342, Rev. Codes, as amended by Laws of 1909, p. 192, the state board of examiners is required to determine the following questions of fact: First, that the applicant has been licensed to practice medicine by a similar board of another state; that is, whether the applicant has been licensed and whether it was by a board similar to the examining board of this state; second, that the applicant holds a certificate of registration showing that an examination has been made by a proper board of any state in which an average grade of not less than eighty per cent was awarded to the holder thereof; third, that the applicant was the legal possessor of a diploma from a medical college in good standing in any such state, which said diploma may be accepted in lieu of an examination as evidence of qualification; fourth, that the scope of the examination was not less than prescribed in this state.

4. In determining the questions of fact presented to the state board upon application for a license to practice medicine and surgery within the state without examination, the board is not in any way limited to any particular character or kind of proof, but is possessed with power to determine such questions by such evidence as will satisfy the minds of the members of the board, as to whether the applicant for license is qualified as required by law and the rules of the board.

5. The statute regulating the practice of medicine and surgery within the state of Idaho is intended for the common good of the people of the state and is clearly within the police power of the state. The determination of the questions of fact required to be established by the applicant for license may be reviewed in the manner prescribed by the statute, and if the applicant has been deprived of any legal right it may be corrected by the courts of the state, but the court will not interfere with or disturb the discretionary power conferred upon the state board.

An original action for writ of mandate. Writ denied.

Motion to quash the writ sustained. Costs awarded to the defendants.

Richards & Haga, for Petitioner.

"Statutes will be construed with a view to ascertain the intent of the law-making power and to give force and meaning to the language used." (Idaho Mut. etc. Ins. Co. v Myer, 10 Idaho 294, 77 P. 628; State v. Knowles, 90 Md 646, 45 A. 877, 49 L. R. A. 697.)

"If the board should fail to act when it is their duty to act the courts are open to enforce action." (Raaf v. State Board, 11 Idaho 718, 84 P. 33; Speer v. Stephenson, 16 Idaho 720, 102 P. 365; Vadney v. State Board, 19 Idaho 209, 112 P. 1046.)

D. C. McDougall, Attorney General, Sullivan & Sullivan, J. H. Peterson, and O. M. Van Duyn, for Defendants.

"The word 'may,' according to its ordinary construction, is permissive, and should receive that interpretation unless such construction would be obviously repugnant to the intention of the legislature, or would lead to some other inconvenience or absurdity." (5 Words and Phrases, p. 4421.)

STEWART, C. J. SULLIVAN, J., Concurring in the Conclusion, AILSHIE, J., Concurring.

OPINION

STEWART, C. J.

This is an original application for a writ of mandate. The petition alleges that the defendants constitute the state board of medical examiners of the state of Idaho, and that on the 4th day of October, 1911, the plaintiff made application to the defendant board for a license to practice medicine within the state of Idaho; that such application was made under the provisions of sec. 1342 of the Rev. Codes, as amended by Sess. Laws, 1909, p. 192, and that with plaintiff's application for admission he also transmitted his diploma from the Bennett Medicine College at Chicago, Illinois, a medical college in good standing in the state of Illinois, that said diploma shows that at the time of such examination the applicant was the holder of said diploma; that the applicant also furnished with said diploma a certificate showing that an examination of the applicant had been made by the proper board, to wit, the Eclectic Medical Board of Examiners of the state of Arkansas, on the 9th and 12th days inclusive of May, 1911, in which examination an average grade of 85.5 per cent was awarded to the applicant; that accompanying such application was the license of the applicant to practice medicine, duly issued to the applicant under such examination by the Eclectic board of the state of Arkansas; that the applicant in transmitting said diploma accompanied the same by his affidavit setting forth that such diploma was genuine, and that the applicant was the possessor of said diploma, and the person named therein, and that the same was procured by the applicant after pursuing the regular course of study and examination in said institution, and that he was a citizen of the United States; that he supported his said allegation with proof of his good moral character, and accompanied the application with $ 25 in lawful money of the United States; that such application was rejected by the defendants acting as the state board of medical examiners of the state of Idaho; that the extent and scope of the examination taken by the applicant before the Eclectic State Medical Board of Examiners of the state of Arkansas on the 9th and 12th days of May, 1911, was of the same scope and covered the same subjects included in the examination required of physicians applying for a license to practice medicine within the state of Idaho, under the provisions of sec. 1342, Rev. Codes of Idaho, as amended by the 10th session of the legislature of the state of Idaho, Sess. Laws 1909, p. 192; that he is entitled to a license under said application and that he has no plain, speedy and adequate remedy in the ordinary course of law.

To this complaint a motion to quash was made by the defendants upon the ground that the application does not state facts sufficient to constitute a cause of action, nor entitle the petitioner to the relief asked for, nor any relief whatever.

The question arising upon the petition and motion involves the construction of sec. 1342 of the Rev. Codes, as amended by the legislature, Laws of 1909, p. 192. This section is as follows:

"Said board shall have the authority to prescribe and establish all needful rules, regulations and by-laws not inconsistent with the laws of this state or the United States to carry into effect the provisions of this chapter, and said board may, either with or without examination grant a license to any physician licensed to practice by a similar board of any other state and who holds a certificate of registration showing that an examination has been made by the proper board of any state in which an average grade of not less than eighty per cent was awarded to the holder thereof, the said applicant and holder of such certificate having been at the time of said examination the legal possessor of a diploma from a medical college in good standing in any such state which said diploma may be accepted in lieu of an examination as evidence of qualification. In case the scope of said examination was less than that prescribed by this state, the applicant may be required to submit to an examination in such subjects as have not been covered."

The foregoing section of the Rev. Codes, before the amendment was made in 1909, was a part of an act approved March 3, 1899 entitled "An act to regulate the practice of medicine and surgery within the state of Idaho and providing penalties for the violations of this act, and the repeal of all other acts in relation thereto." By the provisions of sec. 6 of this act (Rev. Codes, sec. 1346) it is provided: "After the passage of this act, every person, except as hereinafter provided, desiring to commence the practice of medicine and surgery, or either of them, within the state shall, immediately and prior to commencing the same, make a written application to the state medical examination board, upon suitably prepared blanks, to be furnished by the board, for a license so to do. The applicant shall transmit with said application his or her diploma together with an affidavit setting forth that said diploma is genuine and that the applicant is the rightful possessor thereof and the identical person named therein, and that the same was obtained by pursuing the regular course of study or examination in said institution, and setting forth that he or she is a citizen of the United States, or has declared their...