69 P. 120 | Idaho | 1902
— This is an application for a writ of habeas corpus. The petitioner, in his petition, alleges that he is unlawfully restrained of his liberty by the sheriff of Nez Perces county, under a warrant of arrest which issued out of the probate court of said Nez Perces county in which the petitioner is charged with unlawfully practicing medicine without having first procured a license, an violation of the act of March 3, 1899, commonly known as “the Medical Bill." (See Sess. Laws 1899, p. 345.) The petition shows that the petitioner made an application to the district judge of the second judicial district for a writ of habeas corpus, and which application was, by said district judge, denied. This application is based upon the idea that the said act of March 3, 1899, was and is unconstitutional and void.
It is contended on behalf of the petitioner that inasmuch as the said act authorizes and empowers the governor of this state to name and appoint a state board of medical examiners, and to fill vacancies upon said board, without the assent and concurrence of the Senate, the same contravenes section 1 of article 2 of the constitution. That section is as follows: “The powers of the government of this state are divided into three distinct d:epartments: the legislative, executive, and judicial, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of these departments shall exercise any' powers properly belonging to either of the others,
It is argued, on behalf of the petitioner, that the said act of March 3, 1899, is unconstitutional because it is provided in the fifth section thereof that “persons who received a license under the now defunct medical law of 1897 will simply be required to transmit such license." It is also contended that the said act by its terms exempts railroad surgeons, while in the discharge of their official duties, who live in other states, from the operation of the act while performing the duties of surgeons or physicians temporarily in this state. This, it is argued, is class legislation, which makes the statute unconstitutional. It is also contended, on behalf of petitioner, that said act is unconstitutional because it takes away from old prac
“See. 5. All persons, except as hereinafter provided, who were legally engaged in the actual practice of medicine and surgery or either of them within the state, at the time of the passage of this act, under the provisions of the medical act of 1887, shall be licensed without examination to continue such practice under this act, by making application to the state medical examining board upon suitably prepared blanks to be furnished by said board, within six months from the taking effect of this act. The applicant shall be required to transmit with said application a certificate from the county recorder from the county in which he or she may reside, that said applicant is a bona fide resident of the state and has recorded his or her diploma under the provisions of the medical act of 1887, giving date of such record. Persons who received a license under the now defunct medical law of 1897 will simply be required to transmit such license. The fee for license under
“Sec. 6. After the passage of this act, every person, except as hereinafter provided, desiring to commence the practice of medicine and surgery, or either of them, within the state shall, immediately and prior to commencing the same, make a written application to the state medical examining board, upon suitably prepared blanks, to he furnished by the board, for a license so to do. The applicant shall transmit with said application his or her diploma together with an affidavit setting forth that said diploma is genuine and that the applicant is the rightful possessor and the identical person named therein, and that same was - obtained by pursuing the regular course of study or examination in said institution, and setting forth that he or she is a citizen of the United States, or has declared their intention of becoming such. If the said diploma has been issued by a reputable college of medicine in good standing, said applicant shall be eligible to examination. All applicants shall be examined in the applied branches of the theory and practice of medicine and surgery or either of them, as those branches are taught in the reputable chartered schools of the system of medicine to which the applicant belongs and which the applicant intends to practice, and such examination shall in all eases include anatomy, physiology, pathology, diagnosis, hygiene, chemistry, histology and toxicology. No applicant for license shall be allowed to practice medicine and surgery or either of them until such license shall have been granted. The board shall cause the examination to be scientific and practical and sufficiently thorough to test the applicant’s fitness to practice medicine and surgery or either of them and it’ the applicant correctly answer at least seventy-five per cent
Under the provisions of this act, construed as a whole, any person who was at the time of the passage of the act actually engaged in the practice of medicine or surgery, or either within the state, under the provisions of the medical act of 1887 (Rev. Stats., see. 1298 et seq.) shall be licensed without examination to continue such practice under this act by making an application to the board of medical examiners, and forwarding with his application certain evidence showing that he has filed and recorded his diploma, as required by the act of 1887, and that he is of good moral character.
We find nothing in this act which attempts to deprive anyone of a vested right. It is true that persons who are actually -engaged in the practice of medicine or surgery under the laws of 1887, and persons who had acquired a license from the board under the defunct act of 1897, are not required to undergo an examination before the board of examiners under the act in question; and it is also true that such persons are only re
It is argued on behalf of the petitioner, too, that no one, under the provisions of the act in question, can take the examination and acquire license who is not a graduate of a reputable college of medicine in good standing; and that the board is made the judge of what is a reputable school of medicine, and therefore vested with judicial power, in contravention of the provisions of our constitution. We think that the provisions complained of are reasonable and a proper exercise
We have carefully considered every objection to the statute raised on behalf of the petitioner, and all of the authorities cited by counsel for the petitioner, and, after a full consideration, we are fully convinced that none of the objections to the statute, so forcefully iurged by learned counsel for the petitioner, are well taken, unless it be the one relating to the question of applicants who are subjects of the Chinese Empire; but this objection, for reasons hereinbefore stated, it is unnecessary to discuss or decide.
For the reason’ that the petition does not state facts which would justify the discharge of the petitioner upon a return to the writ, if granted, and does not show a proper case for the writ demanded, the same should be, and is hereby, denied.