The State ex rel. Burroughs v. Webster

• Decision Date: 07 June 1898
• Docket Number: 18,598
• Citation: 50 N.E. 750,150 Ind. 607
• Parties: The State, ex rel. Burroughs, v. Webster et al
• Court: Indiana Supreme Court

50 N.E. 750

150 Ind. 607

The State, ex rel. Burroughs, v. Webster et al

No. 18,598

Supreme Court of Indiana

June 7, 1898

From the Marion Superior Court.

Affirmed.

Byron K. Elliott, William F. Elliott, James W. Noel and Frank J Lahr, for appellant.

William A. Ketcham, Attorney-General, and Merrill Moores, for appellees.

OPINION

Howard, J.

This was an action brought by the relator, in the name of the State, for a writ of mandate, to require the appellees, who constitute the State Board of Medical Registration and Examination, to issue to him a certificate entitling him to a license to practice medicine, under the provisions of an act of the General Assembly regulating the practice of medicine and for other purposes, approved March 8, 1897. Acts 1897, p. 255; section 5352a, Horner's R. S. 1897, and following sections. On the issue of an alternative writ, as prayed for, the appellees made return, and to this return the relator filed his demurrer. A supplemental return was also made to the alternative writ, to which exceptions were filed. A demurrer was also filed to the return as a whole, including the supplemental return. Both demurrers were overruled, as were also the exceptions to the supplemental return. Judgment was then entered, that the relator take nothing by his action.

In his complaint the relator recites that he has been practicing medicine in Indiana continuously since September 19, 1896, under a license regularly issued on that day by the clerk of the Marion Circuit Court, according to the law regulating the practice of medicine in force prior to the act of 1897. Acts 1885, p. 197, section 7318, et seq., Burns' R. S. 1894. In his complaint he also sets out his application and affidavit for a certificate to practice medicine under the new law, showing that he was a graduate, in 1893, of the American Eclectic Medical College of Cincinnati, and in 1897 of the American Medical College of Indianapolis. He also exhibits an affidavit filed with the board to the effect that he has not been guilty of felony or gross immorality, and is not addicted to the liquor or drug habit, and that his general reputation for moral character is good. He also recites a tender to the board of a dollar as a license fee, as provided in the act, and says that he has repeatedly demanded a certificate, and that the board has refused to issue him one, and he prays an alternative writ of mandate, requiring the defendants to issue him a certificate entitling him to a license to practice medicine.

The appellees, in their return, set up, in brief, that they have been delayed in acting upon relator's application, by reason of the great amount of work required for the satisfactory discharge of their duties; that they have been notified verbally that charges would be filed against the relator, and for that reason have postponed action upon his case, which is still pending.

In the supplement to the original return, filed a day or two thereafter, it is averred that on October 19, 1897, written charges were filed with the board in the matter of the application of John A. Burroughs for a certificate entitling him to be licensed to practice medicine, charging that the licenses received by him on September 19, 1896, and March 26, 1897, were obtained by misrepresentation as to the character of the colleges upon whose diplomas the licenses were granted, and that he has been and is guilty of gross immorality in seeking and obtaining medical practice by false and fraudulent representations as to his ability to effect cures, and by falsely and fraudulently guaranteeing cures, and that he is also guilty of gross immorality in circulating indecent and obscene literature through the mails and through the community; and the return further shows that, upon the filing of duly verified charges, as shown, the board set a date for the hearing and determination of the charges, and immediately served a copy of the charges upon the relator, with written notice upon him of the time and place of the hearing.

The provisions of the act of 1897 which affect the questions raised in this case are found in sections 1, 2, and 5. Section 1 provides: "That it shall hereafter be unlawful for any person to practice medicine, surgery or obstetrics in this State without first obtaining a license so to do, as hereinafter provided." In section 2 it is provided that any person desiring to begin the practice of medicine, surgery or obstetrics shall procure from the State board a certificate that he is entitled to a license. In order to procure such certificate the applicant shall submit to the board his diploma, with his affidavit setting forth the time and under what circumstances it was received and that he is the person to whom it was issued. His identity as the person to whom the diploma was issued is to be further corroborated by the affidavit of two freeholders. Provision is also made for the examination of any applicant whose diploma is from a college not recognized by the board as maintaining a sufficiently high standard of medical education. Further provision is made in this section for the giving of certificates to persons already engaged in the practice of medicine under former laws. Upon the receipt of the certificates from the board and the presentation of the same to the county clerk, the applicant will be entitled to receive from the clerk the required license. In section 5, amongst other things, it is provided that the board shall fix a schedule of the minimum requirements which must be complied with by applicants for examination for license, and must also establish rules for the recognition of medical colleges, so as to keep the requirements up to the average standard of medical education in other states. In fixing such rules it is expressly provided that the board shall not "discriminate for or against any school or system of medicine." Provision is also made for refusing certificates in certain cases, and also for revoking licenses when granted.

The relator was in the practice of medicine at the time the law of 1897 took effect, under licenses procured under the act of 1885, supra. Those licenses he filed with the board, as required by section 2 of the act of 1897; and he claims the right to a certificate under the following provisions of said section: "All persons practicing medicine, surgery and obstetrics in the State of Indiana when this law goes into effect, and desiring to continue the same, shall, within ninety days thereafter, obtain a certificate that they are entitled to do so by presenting to the State Board of Medical Registration and Examination the license possessed by them at the time of the passage of this law, together with an affidavit that they are the legal possessors of the same, and the persons mentioned therein, and such applicant shall pay to the board the sum of one dollar ($ 1.00) at the time of making such application. The board shall thereupon issue to such applicant a certificate, which, when presented to the county clerk of the proper county, shall entitle the holder to a license to practice medicine, surgery and obstetrics in the State of Indiana." If the foregoing provisions were all that were contained in the act in relation to persons already in the practice of medicine at the date of the approval of the law, there is no doubt that the relator would have been entitled to the writ of mandate asked for. The act would then mean that anyone already practicing medicine by virtue of a license issued under the old law, would be entitled to a certificate and license, to be issued under the new law. The simple fact that a license had been given under the old law would be the only evidence needed to entitle him to a license under the new law. And this is what the relator contends for. But there are provisions in section 5 of the act which materially modify the foregoing provisions of section 2, as follows: "The State Board of Medical Registration and Examination shall have the right to review the evidence upon which a license has been obtained, and if it shall be found that a license has been obtained by fraud or misrepresentation, the board may revoke such license. The board may refuse to grant a certificate to any person guilty of felony or gross immorality, or addicted to the liquor or drug habit to such a degree as to render him unfit to practice medicine or surgery, and may, after notice and hearing, revoke a certificate for like cause. An appeal may be taken from the action of the board." These words certainly authorize the board to do something more than merely inspect the old license before they issue the certificate for a new one. Under those sweeping provisions, the old license is merely prima facie evidence of a right to the new one. The board, in effect, is given authority to inquire whether the former license was rightfully obtained; and, even then, if the applicant is an unfit person to practice medicine, by reason of criminal conduct or immoral character or habits, the board may refuse a certificate. Moreover, after the giving of the certificate, provided no license has been issued upon it, the board may, after notice and hearing, revoke the same. To protect the applicant from any injustice on the part of the board, in so refusing or revoking a certificate, the act provides for an appeal. The tribunal of appeal, though not named in this section, is the circuit or superior court of the proper county, the county of the applicant's residence, as shown in section 2 of the act.

It thus appears, when all the sections of the act, particularly sections 2 and 5, are read together, as they must be, that the relator's licenses issued to him under the act of 1885, did not necessarily entitle him to a certificate from the...