Indiana State Bd. of Medical Registration and Examination v. Suelean

• Decision Date: 08 December 1941
• Docket Number: 27513.
• Citation: 37 N.E.2d 935,219 Ind. 321
• Parties: INDIANA STATE BOARD OF MEDICAL REGISTRATION AND EXAMINATION et al. v. SUELEAN.
• Court: Indiana Supreme Court

37 N.E.2d 935

219 Ind. 321

INDIANA STATE BOARD OF MEDICAL REGISTRATION AND EXAMINATION et al. v. SUELEAN.

No. 27513.

Supreme Court of Indiana

December 8, 1941

Appeal from Superior Court, Marion County; Joseph T Markey, judge.

George N. Beamer, Atty. Gen. (Thomas Longfellow, of Fort Wayne, of counsel), and Walter O. Lewis, Deputy Atty. Gen., for appellant.

Earl C. Townsend, Jr., of Indianapolis, (amicus curiae).

Faust Faust & Faust, of Indianapolis, for appellee.

ROLL Judge.

This is an appeal from a final judgment of the Marion Superior Court which judgment reversed the finding and order of the Appellant Board in refusing to grant to appellee a license without examination, to practice podiatry. The sole question presented by this appeal is whether, under the facts presented, appellee is entitled to a license to practice the profession of podiatry without an examination, under the provisions of Ch. 8, Acts 1925, §§ 63-1401 to 63-1409 Burns' Ind.St.Ann.1933, Secs. 13309 to 13317 Baldwin's Ind.Statute 1934. Section 1 of this act defines the terms podiatry and podiatrist. Section 2 makes it unlawful for any person to practice podiatry without first obtaining from the State Board of Medical Registration and Examination, a license authorizing such person to practice podiatry in this state. Section 3 of said act provides for the appointment of the podiatry examiners and for the examination of applicants. It further prescribes the qualifications of applicants for examination.

The controversy herein grows out of the proviso provision of said section 3 of the acts which proviso reads as follows: 'Provided, further, That all podiatrists, actively engaged in the practice of podiatry one (1) or more years prior to the taking effect of this act, and was (who were) practicing in Indiana on December 1st, 1922, whether graduates of any accredited school of podiatry or not, shall upon furnishing proof thereof to said board, and upon payment of a fee of twenty-five dollars ($25.00) be entitled to a license without examination; and applications for such licenses shall be filed not later than the first day of January, 1924.'

The facts in the case are, in most part, indisputed. Appellee admitted that his application for a license to practice podiatry without an examination was filed with the appellant board on June 27, 1939, and the indisputed evidence so shows. The Board of Medical Registration and Examination refused the application on the ground that, under the provisions of said act, they had no authority to issue a license to practice podiatry without an examination, upon an application filed in 1939.

Appellee seeks to avoid this contention by showing the particular facts in this case. The evidence shows that in September 1925, he went to the office of appellant board for the purpose of obtaining information to secure a license to practice podiatry without an examination. That he talked to Mary Lucy Campbell, clerk of Board of Medical Registration and Examination. She testified that her duties as clerk of said board were that of stenographer, and to answer questions and give information to the public as they came in. That she received her instructions from Dr. William T. Good, executive secretary of the board. That appellee came to the office in 1925, to inquire what he should do to secure a license to practice podiatry without examination. Said clerk told him that the form of application blanks had not been arranged by the medical board and that she had none to offer him. She testified that she had been instructed by the secretary of the board to tell applicants when they made inquiry, that they should proceed with their practice until such time as they might be interfered with or questioned, and that was the information she gave appellee.

Appellee left the office and made no attempt to secure a license until 1935, at which time some practicing podiatrist told him he could not practice until he obtained a license. He then filed his first application which was denied. He afterwards filed his second application in 1939.

It is the contention of appellee that the act here in question is null and void, because it was impossible to comply with the provisions thereof, in that the act required all applications to practice podiatry without examination to be filed on or before January 1, 1924, and the act was not passed until 1925, and did not take effect until April 25, 1925.

In the briefs filed by an amicus curiae, it is asserted that the act here in question was introduced in the legislature of 1923, and was vetoed by the governor after the session was adjourned. That it was again introduced in the 1925 session of the general assembly and passed over the governor's veto. If these facts be true, it would account for the dates contained in the proviso provision in section 3 of said act. There is, however, no evidence in the record concerning the history of this act.

In support of his contention, appellee cites Brown v State, 1909, 137 Wis. 543, 119 N.W. 338, and Meade v. Lamarche, 1912, 150 A.D. 42, 134 N.Y.S. 479, 481, but these cases do not support appellee's pro...