Weeden v. Arnold

• Decision Date: 30 July 1897
• Citation: 5 Okla. 578,1897 OK 115,49 P. 915
• Parties: L. WEEDEN v. C. D. ARNOLD, J. B. ROLATER AND E. N. BARKER, Territorial Board of Health of the Territory of Oklahoma.
• Court: Oklahoma Supreme Court

1897 OK 115

49 P. 915

5 Okla. 578

L. WEEDEN v. C. D. ARNOLD, J. B. ROLATER AND E. N. BARKER,

Territorial Board of Health of the Territory of Oklahoma.

Supreme Court of Oklahoma

Decided: July 30, 1897

Original Proceeding in Mandamus.

Syllabus

¶0 1. PHYSICIAN--License to Practice. The superintendent of public health of the territory is the proper officer to issue a license to an applicant as a practicing physician, and it is not the duty of the board of public health to issue such license.

2. MANDAMUS-- Will not Issue. Mandamus will not issue to an officer to require the doing of a thing that has already been done, although the person in whose favor the act was performed may have been entitled to the performance of it upon other grounds than those upon which it was performed; and where it appears, under the indefinite allegations of an alternative writ, that a person claiming the right to be licensed as a practicing physician has already been granted this license by the officer whose duty it would be, in a proper case, to issue it, this is held as an additional reason for refusing the writ of mandamus to compel the issuance of such license.

L. G. Pitman, and Cutlip & Blakeney, for relator.

H. S. Cunningham, Attorney General, for respondents.

BIERER, J.:

¶1 The relator, L. Weeden, brings this proceeding in mandamus to compel C. D. Arnold, as president, J.B. Rolater, as secretary, and E. N. Barker, as treasurer, of the territorial board of health, to register him as a practicing physician, under and by virtue of his diploma as a graduate of the Wisconsin Eclectic Medical college, and by reason of a certificate which he alleges he holds from the territorial board of health, authorizing him to practice medicine and surgery in the Territory of Oklahoma.

¶2 Upon the presentation of plaintiff's petition two alternative writs of mandamus seem to have been allowed, one by Associate Justice Keaton on the thirteenth day of January, 1897, and the other by Chief Justice Dale on the twelfth day of February, 1897. The matters presented seem to be upon the latter writ, and that one only will be considered. It contains, however, all that is in the first writ.

¶3 The alternative writ contains all the matters set up in plaintiff's petition, and it alleges that defendants are, and were at all times therein stated, members, as above given, of the territorial board of health of the Territory of Oklahoma. That the Wisconsin Eclectic Medical college is a duly organized and incorporated medical college of the state of Wisconsin, and is located in the city of Milwaukee, that state. That on the eighth day of September, 1896, said Wisconsin Eclectic Medical college, after due examination as to proficiency and qualification to practice medicine and surgery, granted relator a diploma, showing and entitling relator to the practice of medicine and surgery. That on the first day of December, 1896, relator presented to said board of health, and to C. D. Arnold, as president of said board, the diploma of relator from said medical college, with satisfactory proofs, as by law required, that he was a person of good moral character and not an habitual drunkard, together with the fees required by the rules of said board, and requesting that he be given a license, certifying that he is a practicing physician and possesses the qualifications as such, and that this the said board failed to do. That thereafter, on the twenty-seventh day of December, 1896, on the requirement of said board of health, and C. D. Arnold, president thereof, he submitted himself to an examination before said board of health as to his proficiency and qualification to practice medicine and surgery within the Territory of Oklahoma, and that upon such examination he was found duly qualified and was granted a certificate declaring his proficiency in all respects required by law, and his good moral character, and authorizing him to practice medicine and surgery in the Territory of Oklahoma, and that this certificate was signed by Arnold, as president, Rolater, as secretary, and Barker, as treasurer, of said board. Upon this his prayer is that said board be required, by virtue of his said diploma, to license him as a practicing physician of this territory.

¶4 The attorney general has presented a motion to quash the alternative writ upon numerous grounds, all of the important ones of which go to the right of relator to maintain his action, on the face of the alternative writ. It is only necessary to consider two of these.

¶5 Section 352 of the Statutes of 1893, under which it is claimed by plaintiff, the relator, that he is entitled to the relief demanded, provides that no person shall be permitted to practice medicine in this territory, unless he be a graduate of a medical college, or unless, upon examination before a board composed of the superintendent of public health and two other physicians to be selected by the territorial board of public health, such person shall...