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mons shall issue to the accused as in ordinary civil cases. The accused may appear and plead to said charge and issues may be formed thereon as in civil cases and tried by the judge of said court. The prosecuting attorney of the circuit shall appear in such causes and represent the board. The only finding and judgment shall be guilty or not guilty as to each charge. The judgment shall be certified to the board by the clerk of the court, if the finding is not guilty as to each charge; and the board must then make an order setting aside its order of revocation, and forward to the clerk of the court a certified copy thereof, which shall be entered on the margin of the record of said liIf judgment of guilty is awarded on any charge, the costs shall be recovered from the accused and a fee of $10 taxed in favor of the prosecuting attorney (ib.), and the order of revocation shall remain in effect. During the pendency of the appeal the accused is not entitled to practise by virtue of his license.

cense.

Where the appeal is from a refusal to grant a certificate, it is heard on the application and a certified copy of the order of refusal, without any other issues; is tried by the judge of the court, who, upon his finding, enters judgment that the license shall or shall not be issued, as the facts may require; and on such order the clerk issues the proper license, showing the authority on which it is issued, and reports the same to the State board. The prosecuting attorney represents the board on the appeal, and, if the court refuses the license, judgment is entered against the applicant for costs, including $10 to the prosecuting attorney. Appeals may be prosecuted to the Supreme Court by the board or the applicant or holder of license, as in other civil cases (ib.). [The section further regulates the practice on such appeal, in details unnecessary here.]

QUALIFICATION.-It is unlawful to practise medicine, surgery, or obstetrics without a license (Acts 1897, c. 169, s. 1).'

1 In an action for malpractice, it is not error to omit to instruct the jury that a physician must have a license to practise. Aspy v. Botkins, 160 Ind., 170.

This law does not violate the privileges or immunities of citizens of the United States. Parks . State, 159 Ind., 211.

The State has the right, in exercise of the police power, to pass a reasonable law to regulate the practice of medicine. Parks v. State, 159 Ind., 211; State v. Webster, 150 Ind., 607, 41 L. R. A., 212; Dent . W. Va., 129 U. S., 114.

The legislature is the appropriate tribunal to determine the degree of

Any person desiring to begin the practice of medicine, surgery, or obstetrics shall procure' from the State board of medical registration and examination a certificate that he is entitled to a license, and shall submit to said board his diploma, with an affidavit setting forth the time and number of terms, duration of

learning that those who gain a livelihood by seeking to relieve the bodily ailments of others should possess. Parks . State, 159 Ind., 211.

The statute contains no arbitrary or unreasonable deprivation of right. Parks . State, 159 Ind., 211.

It is not for the courts to say whether the law is a wise one; it is a question for the legislature whether men should be as free to choose a minister to the body as to the soul, or whether such laws repress independent investigation and retard the progress of medical knowledge, or that many valuable medical discoveries were made in spite of the prejudice of men learned in the old and time-tested lore of their day, or whether such laws are out of harmony with free institutions; so long as the act is not clearly in violation of any provision of the constitution it cannot be held invalid. State v. Webster, 150 Ind., 607.

For a collation of the decisions in the United States on the constitutionality and validity of medical and other similar statutes for licensing the practice of professions, see State v. Webster, 150 Ind., at p. 617.

The General Assembly, under the police power of the State, can require a license as a preliminary to the practice of medicine, surgery, or obstetrics. State . Green, 112 Ind., 462.

The question whether the act is wise, or reasonable, or unreasonable, is a legislative one. Eastman v. State, 109 Ind., 278; see also Mayfield v. Nale, 26 Ind. App., 240.

The statute (so held of Act of 1885) does not deny to any person, of any age, sex, race, color, or residence, the right or privilege, if such it be, to obtain a license, if possessed of the requisite statutory qualifications. State . Green, 112 Ind., 462.

The right to practise, secured by a license, is not a franchise; a franchise is incapable of existing without

a grant from the sovereign authority; the right to practise a profession is not a franchise. State v. Green, 112 Ind., 462.

One who practises without a license cannot recover for his services. Orr v. Meek, 111 Ind., 40.

The statute is an exercise of the police power. Eastman v. State, 109 Ind., 278.

It is the intention of the statute to keep out all who do not possess learning and skill sufficient to enable them properly to discharge the duties of members of the professions; courts have no right to create exceptions which will defeat that intention. Eastman v. State, 109 Ind., 278.

In filing a claim against an estate for medical services, it is not necessary to allege that claimant was a regularly licensed physician at the time the services were rendered. Cooper v. Griffin, 13 Ind. App., 212.

The practice of medicine, surgery, and obstetrics is not absolutely forbidden by the act (1885); it operates, not against the profession, but those who undertake to practise it. Cooper. Griffin, 13 Ind. App., 212.

The decisions as to the burden of proof, in other States, are not harmonious. Cooper v. Griffin, 13 Ind. App., 212.

Under the Indiana statute (1885) a physician attempting to recover from a decedent's estate for services must prove that he had taken out a license. Cooper . Griffin, 13 Ind. App., 212.

A complaint by a physician to recover for services rendered is insufficient if it fails to allege a license to practise. Bedford Bell Reg. Co. v. McDonald, 12 Ind. App., 620.

A licensed physician is not compelled to render medical assistance, and is not liable in damages for a refusal resulting in death. Hurley . Eddingfield, 156 Ind., 416.

2 See note 3, p. 245.

each term, applicant was required to be in attendance at said school in order to complete said course of study, and that affiant is the person to whom such diploma was issued, accompanied by the affidavit of two freeholders resident in the same county in which the applicant resides, stating that the applicant is the person named in the accompanying diploma and application for a certificate.

All diplomas shall be returned by the board to the owner; for failure, the secretary shall be liable on his bond for damages in sum of $25. If a diploma is presented from a medical college not recognized as maintaining a sufficiently high grade or standard of medical education as defined and fixed in the records of the board, the applicant may be examined as to his qualifications to practise medicine, surgery, and obstetrics in such manner as the board shall provide. If he pass satisfactorily to the board he shall receive a certificate, the same as if he had presented a satisfactory diploma and other evidences of qualifications for the practice of medicine; if he fail he may submit to another examination within twelve months. A person failing to pass examination may appeal to the circuit or superior court of the proper county, requiring the board to show cause why he should not be permitted to practise medicine, surgery, or obstetrics, on giving bond to secure costs (ib., s. 2, as amended, Act 1899, c. 145).

LICENSE.'-On receipt of the certificate the applicant shall receive, on its presentation to the clerk of the county in which he resided, from said clerk, a license to practise medicine,' surgery, and obstetrics in the State (ib.).*

In case of change of residence from one county to another, the holder of a license shall obtain a new license in the county where he proposes to reside, by filing with the county clerk the license obtained by him in the county in which he last resided (ib.).'

1 The law was framed, not to bestow favors, but to protect citizens. Eastman v. State, 109 Ind., 278.

The act (of 1885) does not confer on a county clerk judicial powers. Eastman v. State, 109 Ind., 278.

It is a presumption that the clerk properly discharges his duty. Curryer v. Oliver, 27 Ind. App., 424. 3 See note 1, p. 249.

4 See note 1, p. 248.

(Under the Act of 1885) a physician must take out a license in each county in which he practises; it may be that this does not apply in case of an emergency demanding prompt action, or a professional visit for consultation, or a call because of some special skill or ability in a particular branch; but where a physician regu

The county clerk on presentation of such certificate shall issue a license in the form prescribed,' and shall enter of record the name, age, place, and birth of the applicant, his address and the school or system of medicine to which applicant belongs; and the person registering shall subscribe to and verify by oath before such clerk an affidavit concerning such facts (Act 1897, c. 169, s. 3).

FORMER PRACTITIONERS.-The law made provision for the license of former practitioners who had not complied with the former law, on application on or before July 11th, 1899 (ib., s. 2, as amended, c. 145, laws 1899)."

FORMER MIDWIVES.—The act made provision for a certificate and licensing of former practitioners of midwifery, on application on or before July 11th, 1899 (ib., s. 6, as amended, Act 1899, c. 145, s. 4).

MIDWIVES.-Persons desiring to enter into the practice of midwifery shall present to the State board of medical registration and examination their diplomas duly attested and procured from an obstetrical school of such standing as shall be recognized and determined by the board. Such applicant shall pay to the board $5 at the time of making the application, or shall submit to an examination in midwifery as the board shall require, and

larly practises his profession as in ordinary cases, he must obtain a license in the county where he so practises. Orr v. Meek, 111 Ind., 40.

Exceptions cannot be created by the courts where the words of the statute are free from ambiguity and its purpose plain. Eastman v. State, 109 Ind., 278: Mayfield v. Nale, 26 Ind. App., 240.

A licensed practitioner removing to another county to reside must obtain a license in the county to which he removes, before he can there lawfully practise or recover compensation for professional services rendered there. Mayfield . Nale, 26 Ind. App., 240.

The form of license prescribed by the statute is an essential and controlling part of the statute. Mayfield . Nale, 26 Ind. App., 240.

* Under sections 2 and 5 the former license is only prima facie evidence of the right to a new one. State v. Webster, 150 Ind., 607.

The Act of March 8th, 1897, denying to practitioners the right to continue practice without compliance with the statute was constitutional, as within the police power. State v. Webster, 150 Ind., 607. See note 3, p. 246.

An old license under the former law remained in force only until the board acted on an application for a new license; if the new license was granted, it took the place of the old; if refused, the applicant has no right to practise medicine unless on appeal the board is required to issue a license. State v. Webster, 150 Ind., 607.

In declaring that in its opinion physicians and surgeons who had practised within the State for a specified period were as well qualified to continue to practise it as a recent graduate to commence, the legislature violated no constitutional principle. State v. Green, 112 Ind., 462.

pay a fee of $10. Such evidence of qualification being satisfactory to the board, it shall issue a certificate entitling the holder to a license from the clerk of the county in which the applicant resides, which license shall entitle the holder to practise midwifery in the State. The license shall conform to all requirements of registration imposed on physicians' licenses under section 2, and shall be subject to revocation for the same cause as provided in section 5 in case of license to physicians (ib., s. 6, as amended Act 1899, c. 145, s. 4).

OFFENCE.-Making wilfully false affidavit under section 3, is perjury (Act 1897, c. 169, s. 3). See Penalty, infra.

PENALTY.—Practising medicine, surgery, or obstetrics without a license duly issued as provided in the act is a misdemeanor, punishable with a fine of from $25 to $200 (ib., s. 9).1

In case of judgment of guilty under section 5, the board may revoke the license, the costs shall be recovered from the accused, and a fee of $10 taxed in favor of the prosecuting attorney (ib., s. 5, as amended 1899, c. 145, s. 2).

3

EXEMPTIONS.'-Nothing in the act shall be construed to discriminate against any school or system of medicine, or to prohibit gratuitous services in cases of emergency, or the administration of family remedies. It shall not apply to any commissioned officer of the United States army, navy, or marine hospital service in the discharge of his official duties, nor to any physician or surgeon who is legally qualified to practise in the State or Territory in which he resides when in actual consultation with a legal practitioner of this State, nor to any physician or surgeon residing on the border of a neighboring State and duly authorized to practise under the laws thereof, whose practice extends into the limits of this State, provided such practitioner shall not open an office or appoint a place to meet patients or receive calls within the limits of this State. This act shall

In a prosecution under the act the burden of proof is on the defendant to show that he was duly licensed. Benham v. State, 116 Ind., 112. See Cooper v. Griffin, p. 249, note.

2 See note 5, p. 250; and Eastman v. State, p. 249, note.

A physician called from an adjoining State in consultation with an attending physician to amputate a leg, in a case of emergency, is enti

tled to recover for that service without a license in the State of Indiana; such an exception being one which the courts, from considerations of humanity, are empowered to incorporate in the construction of statutes; but he could not recover for attendance subsequently to dress the amputated limb, no such emergency exist ing in the latter case. Board of Commissioners v. Cole, 9 Ind., 474.

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