Vadney v. State Board of Medical Examiners
| Decision Date | 23 January 1911 |
| Parties | EMANUEL VADNEY, Plaintiff, v. STATE BOARD OF MEDICAL EXAMINERS, Defendant |
| Court | Idaho Supreme Court |
WRIT OF MANDATE-PHYSICIAN AND SURGEON-LICENSE TO PRACTICE-LAWS OF 1887-REQUIREMENTS OF LAWS OF 1899-MEDICAL BOARD-ANSWER-DENIALS ON INFORMATION AND BELIEF-INSUFFICIENCY OF-POWER OF BOARD.
(Syllabus by the court.)
1. Under the provisions of sec. 1298, Rev. Stats. 1887, no person was permitted to practice medicine or surgery in this territory (now state) who had not received a medical education and a diploma from some regularly chartered medical school having a bona fide existence at the time the diploma was granted, and when it appears from the complaint that the applicant for a license to practice medicine and surgery in the state was engaged in the practice of his profession under the provisions of the laws of 1887 and had complied with all of the provisions of sec. 5 of the act of 1899 (Sess. Laws p. 346), it was the duty of the State Board of Medical Examiners to issue to him a license to practice medicine and surgery in this state.
2. Under the provisions of sec. 9 of the medical law of 1899 there is no provision for an appeal from an order of the State Board of Medical Examiners refusing to grant a license to an applicant; but said section contains a provision whereby the proper court may review by certiorari certain proceedings of said board.
3. Held, under the provisions of said act that a plaintiff has no plain, speedy and adequate remedy at law by appeal.
4. A diploma from a regularly chartered medical school which had a bona fide existence at the time the diploma was granted, and a compliance with the provisions of said secs. 1298a and 1298b, Rev. Stats. 1887, was all of the proof that the statute required at that time of the applicant's having a medical education, and under the act of 1899, the medical board had no authority to require any other or further evidence of that fact.
5. A denial of matters which are of record and accessible to the defendant is insufficient and is no denial, and does not raise an issue.
6. The State Board of Medical Examiners, under the law of 1899, has no authority to refuse a license to an applicant who was engaged in the practice of medicine and surgery under the laws of 1887, on the ground that the college issuing the medical diploma under which he was practicing was not a "reputable college of medicine in good standing," as the law of 1887 provides that the diploma referred to must be from some "regularly chartered medical school" having a bona fide existence at the time when said diploma was granted.
7. Held, that the reason for refusing to grant the plaintiff's application was based on the ground that the Independent Medical College of Chicago was not a "reputable college of medicine in good standing," and not on the ground that said application was not in proper form.
8. Held, that the answer fails to raise any material issue of fact.
9. Held, that facts sufficient are alleged in the complaint to entitle the plaintiff to a license from the State Board of Medical Examiners to practice medicine and surgery in this state.
Original proceedings for a writ of mandate to compel the State Board of Medical Examiners to issue to plaintiff a license to practice medicine and surgery in this state. Motion to quash denied and peremptory writ directed to issue.
Peremptory writ of mandate issued.
Ben F. Tweedy and G. Orr McMinimy, for Plaintiff.
The medical board has no right or jurisdiction to examine the plaintiff as to his qualifications to practice medicine; it is none of its business. The 1899 medical law says he is qualified if he had a legal right to practice medicine under the 1887 law, and had complied with that law, and was practicing medicine under the 1887 law at the time the 1899 medical law went into force, and complied with the 1899 law within the time permitted to save and continue his rights which he had under the 1887 law. (State v. Cooper, 11 Idaho 219, 81 P. 374; Sherburne v. Board of Dental Examiners, 13 Idaho 105, 88 P. 762.)
Sec. 5 of the Laws of 1899, page 346, determines the proof of a "medical education" as required by law of 1887, and neither the court nor the Board of Medical Examiners can require any more or greater proof. (State v. Cooper, supra.)
D. C. McDougall, Attorney General, and O. M. Van Duyn and J. H. Peterson, Assistants, for Defendant, cite no authorities.
This is an original application to this court for a writ of mandate directed to the State Board of Medical Examiners requiring them to issue to the applicant a license to practice medicine and surgery in this state.
It appears from the petition of the plaintiff that he was and now is a duly licensed graduate of the Western University of Chicago and Independent Medical College of Chicago; that on the 4th of October, 1897, he established an office and residence in Morrow, Nez Perce county, and has ever since continued to practice medicine and surgery in said town and county; that before he began the practice of medicine and surgery, he duly filed his affidavit of identity and filed and recorded his said medical diploma with the county recorder of Ada county, Idaho; that said medical college 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 applicant; that he is the rightful possessor of said diploma and the identical person named therein; that at the time of the passage of the act commonly known as the "Medical Act of 1899" (Sess. Laws 1899, p. 345), plaintiff 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; that in the month of June, 1899, and within six months after the Medical Act of 1899 went into effect, applicant made application for a license to practice medicine and surgery to the State Board of Medical Examiners on the blanks furnished by said board, and transmitted with the said application a certificate from the county recorder of Nez Perce county that the plaintiff was a bona fide resident of that county and had recorded his diploma under the Medical Act of 1887, giving the date of such record, and that plaintiff transmitted with said application the fee of five dollars with the proof of plaintiff's good moral character requested by said board; that thereafter and on or about the day of , 1899, the plaintiff received notice from the secretary of said board that the application properly executed and the fee of five dollars had been received by said board, and that said board wished to inspect the plaintiff's medical diploma; that on the day of , 1899, the plaintiff sent his said diploma to said medical board and was thereafter informed by said board that they did not, and would not, recognize the said Independent College of Chicago as one having authority to issue a diploma to a doctor of medicine; that said board thereafter and ever since has refused to issue to the plaintiff a license to practice medicine and surgery, although requested so to do; that the plaintiff is entitled to a license to practice medicine and surgery in this state, and that he is the real party in interest in these proceedings; and prays for the issuance of a writ of mandate to compel said board to issue the necessary license.
Upon that application this court issued the alternative writ, and upon the return day the said board appeared by its attorney and moved to quash the alternative writ on the ground that the court has no jurisdiction to issue a writ of mandate in this matter, for the reason that the plaintiff has a plain, speedy and adequate remedy at law, and that the petition presents no facts entitling the plaintiff to the relief asked for or to any relief whatever. The matter came on for hearing on said motion.
The first contention made by counsel for the board is that under the laws of 1887, sec. 1298, no person was entitled to practice medicine in the state of Idaho who had not received a medical education and who had not received a diploma from a regularly chartered medical school, the said school to have a bona fide existence at the time the diploma was granted. Said section is as follows:
"No person shall practice medicine or surgery in this territory who has not received a medical education and a diploma from some regularly chartered medical school, said school to have a bona fide existence at the time when said diploma was granted."
We think it sufficiently appears from the petition that the plaintiff was lawfully engaged in the practice of medicine and surgery under the laws of 1887 when the Medical Act of 1899 was passed.
In the case of State v. Cooper, 11 Idaho 219, 81 P. 374, this court said:
"Where it 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; he...
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