State v. Mosher

• Decision Date: 07 October 1889
• Citation: 43 N.W. 202,78 Iowa 321
• Parties: STATE v. MOSHER.
• Court: Iowa Supreme Court

78 Iowa 321

43 N.W. 202

STATE

v.MOSHER.

Supreme Court of Iowa.

Oct. 7, 1889.

Appeal from district court, Cherokee county; C. H. LEWIS, Judge.

The defendant was tried upon information before a justice of the peace, and convicted. On appeal to the district court there was another conviction, and judgment, from which he appeals to this court.C. C. & C. L. Nourse, for appellant.

John Y. Stone, Atty. Gen., for the State.

GRANGER, J.

The substance of the information on which the defendant stands convicted is as follows: “That the defendant, on or about the 23d day of June, 1887, at Pitcher township, in said county of Cherokee, did practice medicine and surgery without having obtained from the state board of medical examiners a certificate entitling him to practice as a physician or surgeon.” This proceeding has its foundation in chapter 104, Acts 21st Gen. Assem., being “An act to regulate the practice of medicine and surgery in the state of Iowa.” The act provides that any person practicing medicine or surgery in any of their departments within this state shall possess the qualifications therein prescribed. The act then provides three tests of a prima facie qualification: (1) A written examination by the board of medical examiners on a scale of 100, in which examination the applicant must attain such an average as the board may fix upon; or (2) that the applicant is a graduate in medicine; or (3) that he has been in continuous practice in this state for a period of not less than five years, three years of which shall have been in one locality. The facts as to the second and third tests are also to be determined by the board of examiners. In the second the applicant must present a diploma, and the board must be satisfied that the diploma is genuine, and that the applicant is the rightful owner thereof. In the third the applicant must present evidence to the board, in the form of affidavits, sufficient to satisfy it that he has practiced medicine or surgery for five years, as by law required. The act also provides that the board shall prepare three forms of certificates,--one for persons in possession of genuine diplomas, one for candidates examined by the board, and one for persons who have practiced five years, as provided in the act. It appearing conclusively on the trial in the district court that the defendant was engaged in the practice of medicine, as charged in the information, without a certificate from the board of medical examiners, the court instructed the jury to return a verdict of guilty.

The record in the case discloses that on the 3d day of August, 1886, the defendant applied to the board of medical examiners while in session at Sioux City, Iowa, for a certificate to practice medicine, and with it he filed his affidavit showing that he was 52 years of age; that he was a resident of Sioux City, and had practiced medicine and surgery there since October, 1875. To the application is attached the recommendation of H. N. Marvin, M. D., and E. E. Lewis, attorney, both as to his moral character and professional worth. The record further discloses that the defendant was to some extent examined by the board touching his qualifications for the practice. To such an examination the defendant then objected, claiming that under the law he was entitled to his certificate upon the evidence as to his former practice, and that under the law he was not required to submit to an examination. The record of the board of medical examiners, as it appears in evidence, shows that the certificate was refused for two reasons: First, because of insufficient evidence to show that the defendant had practiced for the time and as required by law; and, second, the examination furnished palpable evidence of his incompetency.

1. The argument of appellant deals largely with the constitutionality of the act under which the certificate was refused. The argument in this respect is based upon assumptions of fact and law, as follows: (1) That the real grounds for refusing the certificate by the board was a finding of incompetency. (2) That as a legal proposition, under the act in question, if it was a fact that the defendant had practiced the profession both as to time and place as specified in the act, he was, as a matter of right, entitled to the certificate.(3) Under such an application the board has no right to inquire as to the competency of the applicant before granting the certificate. These assumptions are not thus arranged or stated in terms in argument, but they are our understanding of the position of counsel. The affidavit as to the time and place of practice is undisputed, and appellant is disposed to treat it as a legally established fact. At the trial in the district court the defendant attempted to prove as defensive matter that his application for a certificate was based entirely on the facts as to his prior practice, and attempted to show the facts as to such practice, which the court refused, holding that the fact that he had practiced, and without the certificate, was conclusive against him. Appellant contends that if this holding of the district court is correct, then a law investing the board with such absolute power to deprive a person of his professional or property rights is unconstitutional on several grounds, and among them, that the deprivation is without due process of law. That the holding of the district court in this respect is correct, we entertain no doubt,--that is, we entertain no doubt that such is the intent of the act. The act plainly provides that the qualifications prescribed, when ascertained, shall be evidenced...