173 Ind. 352 | Ind. | 1909
Lead Opinion
Appellant was convicted on an affidavit for practicing medicine without a license, in violation of §8410 Burns 1908, Acts 1897, p. 255, §9, which reads as follows: “Any person who shall practice medicine, surgery or obstetrics in this State without having a license duly issued as hereinbefore provided, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined,” etc.
Appellant’s motion to quash the affidavit was overruled, which ruling is properly questioned by the assignment of error.
It is charged in the affidavit that the appellant is a resident of Marion county, Indiana, and that on November 1, 1906, at said county and State, he did then and there engage in the practice of medicine, he not having then and there a license to practice medicine under the laws of the State of Indiana. This charge fully conforms to that provision of the statute which appears in these words: “In charging any person in an affidavit, information or indictment with a violation of this law by practicing medicine, surgery or obstetrics without a license, it shall be sufficient
Upon the overruling of appellant’s motion to quash, he filed a special plea in bar, in effect that on March 11, 1901, at the time of the passage of the act under which he was being prosecuted, he was, and for many years before had been, a bona -fide resident of Indiana, and the holder of a diploma duly granted and issued to him by the National School of Osteopathy, located in Chicago, Illinois; that on April 3, 1901, and after said act had become a law, he presented and delivered his said diploma to the State Board of Medical Registration and Examination, in accordance with the requirements of said act, and paid to said board the license fee required by said act, and there was thereupon issued to him by said board the following certificate:
“Office of State Board of
Medical Registration and Examination,
Indianapolis, April 3, 1901.
Received of Alausing B. Melville, $10 in payment of legal fee upon diploma for certificate.
W. P. Curryer, Secretary.”
That since the issuance thereof he has been acting under and in pursuance of said certificate; that he has complied with the law, and his diploma, which is in full force and effect, is still in the possession and custody of said board; that said board has ever since retained the license fee so paid by him as aforesaid, and has at no time canceled or withdrawn the authority given and granted by said certificate. Wherefore, he says that, having complied with all
In support of his plea in bar, appellant argues that the diploma held by him from a school of osteopathy, at the time the law went into effect, entitled him to a license to practice medicine, and having applied to said board for a certificate, exhibited and filed with the board his diploma, paid the legal fees, and done, as he avers, all that he was required by the law to do, and his license being wrongfully withheld, he had a right to practice medicine. In this contention he has fallen into error. He relies upon the proviso in the act of 1901 (Acts 1901, p. 475, §4, §8411 Burns 1908), which proviso was in effect repealed, or at least modified, by the act of 1905 (Acts 1905, p. 194, §8404 Burns 1908), which latter act provides: “That any osteopathist now practicing in and a resident of the State of Indiana and holding a diploma from a reputable college of osteopathy, as determined by the State Board of Medical Registration and Examination, shall be eligible to an examination on proper application to the said board, and should he pass this examination, that he shall be granted a certificate for a license forthwith to practice osteopathy in the State of Indiana. ’ ’
In the first place, it is not averred that the institution that granted to him the diploma was “a reputable college of osteopathy, as determined by the board,” nor that he had applied for, nor had requested of the board, an examination, nor that the board had refused him an examination, nor that he had successfully passed an examination. The mhre delivery of the diploma to the board, and the payment to it of $10 as a fee, upon which appellant counts, of themselves, amount to nothing. Calling the money paid a license fee does npt make it a license fee. The statute requires the payment of $10 to the board as an examination fee, to determine whether the candidate for license is a fit person to receive it. The payment of the $10 secures to the candi
Because the contrary is not alleged, we infer that appellant never had an examination by the state board, or if he had been so examined he failed to prove himself qualified to receive a certificate; or if he had, in fact, received a certificate, he never presented it to the county clerk and requested the issuance of a license upon it. If any of these assumed facts existed, appellant was not entitled to a license.
According to appellant’s plea, he had no qualification or right to a license to practice medicine, beyond that conferred by his diploma received from the Chicago School of Osteopathy. If we grant that the school that issued him the diploma was a reputable and an approved school of osteopathy, that would not strengthen the answer. His failure to affirm that he was practicing osteopathy only is equivalent to an admission that he was practicing medicine generally, and the very most he can claim the right to do was to practice osteopathy. The statute reads: “The board may grant limited certificates which shall authorizé the proper clerk to issue to the holder thereof a license to practice osteopathy only. * * * Such license shall not authorize the holder thereof to administer or prescribe or use on one other than himself any drugs or medicines, and any such administration, prescription or use of any drug or medicine by the person holding such limited license shall be practicing medicine without a license, and such person shall be punished, ’ ’ etc. §8411, supra. The plea in bar was utterly bad.
The prosecuting attorney’s demurrer to this answer was sustained. The answer is in the nature of a plea in abatement, and must be strictly construed. Lankford v. State (1895), 144 Ind. 428, 432; Musgrave v. State (1893), 133 Ind. 297. Such answers are not favored in law. They must allege everything necessary to their sufficiency. No presumptions of law or fact will be indulged in their favor. Ward v. State (1874), 48 Ind. 289, 291. It is not alleged in this plea that Mount was not a duly commissioned, qualified and acting notary public of the State of Indiana. If Mount was such a notary, his jurisdiction was “coextensive with the limits of the State.” §9533 Burns 1908, §5962 R. S. 1881. The contrary not appearing, it will be presumed that he was a qualified notary of the State, and authorized to administer oaths in any county of the State. There was no error in sustaining the demurrer to the plea.
"We are unable to believe that any provision of the state Constitution is impinged by the statute under consideration. Parks v. State, supra; State, ex rel., v. Webster (1898), 150 Ind. 607, 41 L. R. A. 212.
The court did not err in denying appellant the right to read in evidence, as a license to practice medicine, the receipt for money, set forth in his plea in bar. The receipt was not a license, and furnished him no excuse for the violation of a specific requirement of the law. Even
If a license was wrongfully withheld, his remedy was to proceed by appeal, or by some other appropriate action to obtain it. City of Montpelier v. Mills (1908), 171 Ind. 175; State v. Doerring (1906), 194 Mo. 398, 92 S. W. 489; State v. McCleary (1908), 130 Mo. App. 527, 109 S. W. 638.
The judgment is affirmed.
Rehearing
On Petition for Rehearing.
Appellant vigorously insists that, having become entitled to a license to practice osteopathy, by all possible compliance with the provisions of the statute of March 11,1901 (Acts 1901, p. 475, §§8405, 8406, 8409, 8411 Burns 1908), he is not subject to punishment under the provision of the amendatory act of 1905 (Acts 1905, p. 194) for doing that which was legalized under the act of 1901. The infirmity of appellant’s conclusion arises from an erroneous foundation.
Let us see. The act of 1901 provides that the State Board of Medical Registration and Examination shall, upon specified terms, and the payment of a fee of $10, issue a certificate which shall entitle the holder to a license to practice medicine, upon his presenting the same to the clerk of the county of his residence, and the payment of a fee of fifty cents.
It is further provided in section four of said act (Acts 1901, p. 475, §8411 Burns 1908), that “the said board may grant limited certificates which shall authorize the proper clerk to issue to the holder thereof a license to practice osteopathy only. * * * Provided, further, that any person now [March 11,1901] holding a diploma issued from any college of osteopathy in the United States and is a resident of the State of Indiana, shall be granted a certificate and license
Appellant avers in his special plea that he presented his diploma to the board, paid the required fee of $10, and there was thereupon issued to him the paper set out in the original opinion, which he denominates a “certificate,” but which is nothing more nor less than a receipt for the money paid. He leaves the court wholly in the dark as to why he did not receive a certificate from the board. Was it because the board had refused to issue it for any causes specified in §8405, supra? Or was it because he had carelessly and negligently failed to request it? It was incumbent upon appellant to make these things clear in his special plea. Besides, if he had obtained from the board a certificate, and had stopped there, he would still have been guilty of practicing osteopathy without a license.
It is the clerk alone that may issue the license; and it is the license, and not the certificate, that confers the right to practice. He makes no pretense of having presented a certifieate, or what he calls a certificate, to the clerk of his residence county and demanding a license.
It seems clear to us, for aught that appears in the answer, that when the amendatory act of 1905, supra, went into effect, appellant was practicing osteopathy without a legal right to do so, and fell within the operation of the amendatory act of 1905, as stated in the original opinion.
Petition overruled,