State v. Cooper

• Decision Date: 24 June 1905
• Citation: 81 P. 374,11 Idaho 219
• Parties: STATE v. COOPER
• Court: Idaho Supreme Court

81 P. 374

11 Idaho 219

STATE v. COOPER

Supreme Court of Idaho

June 24, 1905

POWER OF STATE BOARD OF MEDICAL EXAMINERS-PRACTITIONERS NOT GUILTY OF MISDEMEANOR WHEN.

1. Under the provisions of section 5 of what is known as the medical law of 1899 (Sess. Laws 1899, p. 346) the board of medical examiners are not empowered to call upon applicants for a license for their diplomas who were engaged in the practice of their profession under the law of 1887.

2. Where t is shown that an applicant for a license to practice medicine and surgery was a resident of the state engaged in the practice of his profession under the provisions of the law of 1887, and had complied with all the provisions of the law of 1899; held, that in case the board of medical examiners refused to issue his license it was not criminal in him to pursue his profession.

(Syllabus by the court.)

APPEAL from the District Court of Bingham County. Honorable James M Stevens, Judge.

Defendant was found guilty of practicing medicine and surgery without having a license under the provisions of the law of 1899. Judgment reversed.

Reversed and remanded.

Milton A. Brown and W. W. Adamson, for Appellant.

State medical boards are not courts, and have not judicial powers (Wilkins v. State, 113 Ind. 514, 16 N.E. 192; Kuntz v. Sumpton, 117 Ind. 1, 19 N.E. 474; State v. Hathaway, 115 Mo. 36, 21 S.W. 1081); but may be termed courts of quasi jurisdiction for certain purposes specially conferred by statute, and they are not permitted to act outside of the scope of such statutory provisions which are mandatory, and the statutory provisions under which a case comes must be followed. (State v. Pendergrast, 6 Ohio Cir. Dec. 807.)

J. J Guheen, Attorney General, and R. M. McCracken, for the State.

Power of medical board: In Barmore v. State Board of Examiners, 21 Or. 301, 28 P. 8, the court held that the board had a right to define the words "medical institutions in good standing" so as to include only those schools that require for graduation at least three regular sessions of six months each, extending over a period of three years, and to make a further rule that those examined must attain seventy-five per cent. In Re Inman, 8 Idaho 398, 69 P. 120, your honors have disposed of nearly every point raised by this appeal. The case is on all-fours with the case at bar, differing in no material particular, as we see it. Appellant contends that he ought to have been licensed by the state medical board at once on application, and points to section 5 of the medical act of 1899 (Sess. Laws 1899, p. 349). He is wrong. That section applies to "all persons who were legally engaged in the practice of medicine or surgery," not to those who were practicing under cover of a diploma granted by an institution found guilty of selling diplomas for $ 25 each, with no requirements as to study. (Independent M. College v People, 182 Ill. 275, 55 N.E. 345.) The rule is well settled that where a license is required, the absence thereof renders the person amenable to the penalty prescribed, and it is immaterial whether such person was under the law entitled to a license and could have compelled its issuance in an appropriate proceeding. (State v. Rumberg, 86 Minn. 399, 99 N.W. 1055, 58 L. R. A. 925; Harding v. People, 10 Colo. 387, 15 P. 727; Deitz v. Central City, 1 Colo. 323; State v. Jamison, 23 Mo. 330; State v. Myers, 63 Mo. 324.)

STOCKSLAGER, C. J. Ailshie, J., and Sullivan, J., concur.

OPINION

STOCKSLAGER, C. J.

Appellant was prosecuted in the probate court of Bingham county on a complaint sworn to by one E. E. Kelley, charging that "J. B. Cooper, of Blackfoot, county of Bingham, state of Idaho on or about the twenty-sixth day of March, 1904, in said county of Bingham and state of Idaho did willfully and unlawfully practice medicine without obtaining a license so to do, by then and there doctoring and prescribing medicine in and for the family of Adam Yancy, members of said family then and there being sick, which sickness the said J. B. Cooper did then and there profess to cure by prescribing medicine and drugs for said bodily ailment, then and there with intent to receive compensation therefor. All of which is contrary to the form of the statute." Defendant--appellant--was tried in the probate court without a jury, convicted, and a fine of fifty dollars was imposed. An appeal was taken to the district court from the judgment on both law and fact. The case was tried in the district court on an agreed statement of facts, a trial by jury having been waived by the defendant. The agreed statement of facts follows:

"1. That defendant was and is a duly licensed graduate of the Western University of Chicago, and the Independent Medical College of Chicago.

"2. That on or about the thirtieth day of July, 1897, defendant, J. B. Cooper, established an office and residence at Blackfoot, Bingham county, Idaho and has ever since continued to reside and practice medicine and surgery in said town, county and state.

"3. That before said defendant commenced the practice of medicine and surgery as aforesaid he duly filed his affidavit of identity, and filed and recorded his medical diploma with the county recorder of Bingham county, state of Idaho said diploma being the diploma aforesaid from the Independent Medical College of Chicago, which had a bona fide existence and was duly chartered under the laws of the state of Illinois at the time said diploma was granted to the defendant.

"4. That said J. B. Cooper was and is the rightful possessor of said diploma and is the identical person named therein.

"5. That at the time of the passage of the act commonly known as the 'medical act' of 1899, the defendant was legally engaged in the actual practice of medicine and surgery within the state of Idaho under the provisions of the medical act of 1887.

"6. That on or about the fifteenth day of May, 1899, and within six months after the medical act of 1899 went into effect, said J. B. Cooper made application for a license to practice medicine and surgery, to the state board of medical examiners upon suitably prepared blanks furnished by said board, and transmitted with said application a certificate from the county recorder of Bingham county; that said applicant, J. B. Cooper, is a bona fide resident of Bingham county, state of Idaho and had recorded his diploma under the provisions of the medical act of 1887, giving the date of such record, and defendant transmitted with said application the fee of five dollars, and all the proof of defendant's good moral character requested by said board.

"7. That thereafter, and on or about the twenty-fifth day of May, 1889, said J. B. Cooper received from the secretary of said board notice that his application properly executed and the fee of five dollars had been received by said board, and that said board wished to inspect his, the said J. B. Cooper's, medical diploma.

"8. That thereafter and on or about the fifth day of June, 1899, said J. B. Cooper sent his said medical diploma to the said medical board, and was thereafter informed by said board that they did not, and would not, recognize the Independent Medical College of Chicago as one having authority to issue a diploma to a doctor of medicine.

"9. That said state board of medical examiners thereafter, and ever since have, refused to issue this defendant a license to practice medicine and surgery, although requested so to do.

"10. That on or about the seventh day of June, 1901, this defendant requested said board to send him the necessary blanks and he would make another application to said board of medical examiners for a license to practice medicine and surgery, and thereupon he received the reply from the secretary of said board that said board considered it quite useless for him, the said J. B. Cooper, to apply again, in view of the recent decision of the supreme court of Illinois in revoking the charter of the Independent Medical College of Chicago, and that said board was perfecting plans for the rigorous prosecution of every person practicing without a license.

"11. That the said defendant, J. B. Cooper, is, and was at all times hereinafter mentioned, a citizen of the United States.

"12. That the said defendant, J. B. Cooper, was at the time of his arrest, practicing medicine and surgery without a license, and did on the twenty-sixth day of March, 1904, in said county of Bingham and state of Idaho prescribe medicine in and for the family of Adam Yancy with intent to receive compensation therefor."

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