Brown v. Collister

• Citation: 5 Idaho 589,51 P. 417
• Parties: BROWN v. COLLISTER
• Decision Date: 13 December 1897
• Court: United States State Supreme Court of Idaho

51 P. 417

5 Idaho 589

BROWN v. COLLISTER

Supreme Court of Idaho

December 13, 1897

MANDAMUS-BOARD OF MEDICAL EXAMINERS-ACT CREATING VOID.-Plaintiff applied for writ of mandate to compel the defendants, as the state board of medical examiners, to grant him a license to practice medicine. It appeared affirmatively from the journals of the legislature that the act creating said board was not read section by section, in the Senate, on final passage, as required, by the constitution. Held, that the act creating said board is void; that the said board has no authority to grant license, and that the plaintiff is not entitled to the writ demanded.

(Syllabus by the court.)

Original proceeding in Supreme Court.

James W. Reid, for Plaintiff, files no brief.

R. E McFarland, Attorney General, and S. L. McFarland, for Defendant.

Plaintiff by his petition, asks this court to grant him a writ of mandate requiring the state board of medical examiners of this state, appointed under the provisions of an act entitled "An act to regulate the practice of medicine and surgery, and the itinerant vending of drugs, nostrums ointments, appliances, or other remedies within the state of Idaho; and providing penalties for the violation of this act," approved March 12, 1897, to issue a license permitting him to practice medicine and surgery in this state. He alleges in his petition that the act above-mentioned and under which he seeks a remedy "is contrary to the constitution of the United States, and beyond the power of the legislature to enact, and is null and void in so far as it pertains to practicing physicians holding license under the laws existing in the state of Idaho prior thereto"; "that it seeks to take away from the citizens of Idaho their property without due process of law; that it attempts to take away a license to practice medicine duly granted by the state of Idaho and contravenes the vested rights of affiant." It is a well settled principle of law that if a person seeks the benefit of an act, he must accept its conditions and will not be heard to say that it is unconstitutional. (Illinois Bldg. etc. Assn. v. Walker, 42 S.W. 191.) If the law is unconstitutional, plaintiff is not entitled to the writ for the reason; that he is not affected by the act in any manner; he can receive no injury therefrom, nor is he entitled to any benefits thereunder. Plaintiff is not entitled to the writ for the reason that he has a plain, speedy and adequate legal remedy. (Laws 1897, p. 105, sec. 11; State ex rel. Narcross v. Board of Medical Examiners, 10 Mont. 162, 25 P. 440.) Plaintiff sues as a private person and thus seeks to enforce a private right by attacking the constitutionality of an act of the legislature. Such is not the office of mandamus, nor will it lie in such cases (Wright v. Kelly, 4 Idaho 624, 43 P. 565; People v. Supervisors, 20 Cal. 591; Smith v. Titcomb, 31 Me. 272.) Plaintiff had no rights which are sought to be abridged; if the law is held to be retroactive in character, it is nevertheless constitutional and is within the power of the legislature to enact. (Harzell v. Warren, 11 Ohio C. C. 269; State v. St. Louis Co. Court, 34 Mo. 346; State v. County Court, 128 Mo. 427, 30 S.W. 103, 31 S.W. 23; State v. Dickerman, 16 Mont. 278, 40 P. 698; Ex parte Pollard, 40 Ala. 92; Oriental Bank v. Freese, 18 Me. 109, 36 Am. Dec. 101; Satterlee v. Mattewson, 2 Pet. 152.) The constitutionality of the act in question is sustained by the following authorities: People v. Hasbrouck, 11 Utah 291, 39 P. 918; Harding v. People, 10 Colo. 387, 15 P. 727; Gee Wo v. State, 36 Neb. 241, 54 N.W. 513; State v. Carey, 4 Wash. 424, 30 P. 729; Fox v. Territory, 2 Wash. Ter. 297, 5 P. 603; State v. State Med. Exam. Board, 32 Minn. 324, 50 Am. Rep. 575, 20 N.W. 238; State v. Vandersluis, 42 Minn. 129, 43 N.W. 789; Wert v. Clutter, 37 Ohio St. 347; State v. Randolph, 23 Or. 74, 37 Am. St. Rep. 655, 31 P. 201.

QUARLES, J. Sullivan, C. J., and Huston, J., concur.

OPINION

QUARLES, J.

The defendants compose the state board of medical examiners appointed under the act of March 12, 1897. The plaintiff commenced this action to compel the said defendants, by mandamus, to show cause why plaintiff should not be permitted and licensed to practice medicine. It appears from the petition and supplemental petition that the plaintiff became a citizen of Nez Perces county, Idaho on the second day of October, 1896, and did then present to the auditor and recorder of said county two original diplomas theretofore issued to him by regularly charted medical schools (one from the British School and Eclectic Medicine of London, England, and the other from the American Health College of Cincinnati); that he then filed with said recorder copies of said diplomas, as required by sections 1298 and 1298e, inclusive, of the Revised Statutes, and paid said recorder one dollar and twenty-five cents, the fee therefor; that said diplomas certified his graduation as a doctor of medicine, etc., and that he filed with said recorder his affidavit showing that he was the identical person named in said diplomas; that he thereupon entered upon the practice of medicine in Nez Perces county; that under the provisions of said act of March 12, 1897, he applied to the defendants for a license to continue the practice of medicine, presented his said diplomas, and tendered the fee for said license, five dollars and twenty-five cents; that his said application was refused, and the said defendants, as said state board of medical examiners, notified plaintiff that his said application was refused upon the following grounds: "Neither of the colleges from which you submit diplomas are recognized by this board as of a character to satisfy the...