In re Ferdon

• Decision Date: 05 June 1899
• Citation: 35 Or. 171,57 P. 376
• Parties: In re FERDON.
• Court: Oregon Supreme Court

57 P. 376

35 Or. 171

In re FERDON.

Supreme Court of Oregon

June 5, 1899

Appeal from circuit court, Umatilla county; Stephen A. Lowell Judge.

J.M Ferdon was committed to the custody of William Blakley sheriff, on the charge of itinerantly vending medicine without a license, contrary to statute, and he applied for a writ of habeas corpus. From a judgment dismissing the writ and remanding petitioner, he appeals. Reversed.

J.H Raley, for appellant.

D.R.N. Blackburn, Atty. Gen., and H.J. Bean, Dist. Atty., for respondent.

BEAN J.

On September 13, 1898, the petitioner was held to answer, by a committing magistrate, for a violation of section 11 of the act of February 28, 1889, regulating the practice of medicine and surgery (Laws 1889, p. 144), as amended by the act of 1891 (Laws 1891, p. 153), and in default of bail was committed to the custody of the defendant, the sheriff of Umatilla county. He thereupon applied to the circuit court for his discharge under a writ of habeas corpus, on the ground that the section of the act under which he was committed is unconstitutional and void, or, if not, that it was repealed by the subsequent act of the legislature regulating the practice of medicine and surgery in the state (Laws 1895, p. 61). The writ having been dismissed, and the petitioner remanded to the custody of the defendant, he appeals.

The act of 1889 is entitled "An act to regulate the practice of medicine and surgery in the state of Oregon." It provides for the appointment of a board of examiners of three persons, from among the physicians of the state, and for the punishment of any person practicing medicine or surgery without a license from such board, unless he was practicing within the state at the time of the passage of the act. It prescribes in detail the qualifications necessary to entitle an applicant to a license, and the duties of the board of examiners, and declares who shall be regarded as practicing medicine, within the meaning of the act. Section 11, as amended in 1891, and under which the petitioner was arrested and committed, provides that "any itinerant vendor of any drug, nostrum, medicine, ointment or appliance of any kind intended for the treatment of disease or injury, who shall by writing or printing, or any other method, publicly profess to cure or treat diseases, injuries, deformities or ailments of any kind by any drug, nostrum, medicine or other application, shall pay to the secretary of state a license of one hundred dollars per month to be collected by said secretary of state or by his lawfully-authorized attorney. Any person who shall violate the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a...