dicial power belonging exclusively to the courts upon an administrative body,27 or a prohibited grant of special or exclusive privileges;28 Dor are they prohibited special laws.29 And an exemption from the provisions of such a regulation, of persons practising at the time of its adoption, does not violate constitutional provisions as to equal privileges and immunities.30 A statute regulating the practice of medicine, surgery, and dentistry, which excepts from its provisions persons who have practised for a certain time, and also nonresidents of the state called into it for consultation, however, has been held to be unconstitutional, as discriminating between persons engaged in the same business, and against citizens of the state in favor of citizens of other states.31 And one which discriminates between

reference to persons practising at the date of its passage, as being er post facto in making an act punishable which was innocent when done.

"France v. State, 57 Ohio St. 1, 47 N. E. 1041; Re Inman (Idaho) 69 Pac. 120; Wilkins v. State, 113 Ind. 514, 16 N. E. 192; State v. Hathaway, 115 Mo. 36, 21 S. W. 1081; State Bd. of Health Roy, 22 R. I. 538, 48 Atl. 802; People v. Hasbrouck, 11 Utah, 293, 39 Pac. 918. "Williams v. People, 121 Ill. 84, 11 N. E. 881; Ferner v. State, 151 Ind. 247, 51 N. E. 360; State ex rel. Walker v. Green, 112 Ind. 462, 14 N. E. 352; State v. Bair, 112 Iowa, 466, 51 L. R. A. 776, 84 N. W. 532; Iowa Eclectic Med cal College Asso. v. Schrader, 87 Iowa, 439, 20 L. R. A. 355, 55 N. W. 24; Re Campbell, 197 Pa. 581, 47 Atl. 860; State v. Carey, 4 Wash. 424, 30 Pac.

729.

Allopathic Medical Examiners v. Foncler, 50 La. Ann. 1358, 24 So. 809; Ez parte Frazer, 54 Cal. 94; Wilkins v. #tate, 113 Ind. 516, 16 N. E. 192; Iowa Eclectic Medical College Asso. v. Achrader, 87 lowa, 659, 20 L. R. A. 355, 15 N. W. 24; Re Campbell, 197 Pa. 581, 47 Atl. 860.

And an act entitled "An Act Regting the Practice of Medicine," prowing for the imposition of a license on any itinerant vendor of any drug, nosfram, etc., intended for the treatment of disease or injury, and providing a naity for selling without paying the tax, is not in contravention of a nstitutional provision that no act uld embrace more than one subject -1 that should be expressed in the title People use of State Bd. of Health . Blue Mountain Joe, 129 III. 370, 21

N. E. 923. And see State v. Wilcox, 64
Kan. 789, 68 Pac. 634.

Nor is a statute regulating the prac tice of dentistry, and providing for a penalty for practising dentistry without a license, entitled "An Act to Regulate the Practice of Dentistry." State ex rel. Smith v. Dental Examiners, 31 Wash. 492, 72 Pac. 110; Morris v. State, 117 Ga. 1, 43 S. E. 368.

And a title, "An Act Regulating the Practice of Medicine, Surgery, and Obstetrics," properly covers a definition of the practice of medicine, and the designation of those who must obtain a license before engaging in such practice. Parks v. State, 159 Ind. 211, 59 L. R. A. 190, 64 N. E. 862.

State v. Creditor, 44 Kan. 565, 21 Am. St. Rep. 306, 24 Pac. 346; State v. Call, 121 N. C. 643, 28 S. E. 517; State v. Van Doran, 109 N. C. 864, 14 S. E. 32.

"State v. Hinman, 65 N. H. 103, 23 Am. St. Rep. 22, 18 Atl. 194; State v. Pennoyer, 65 N. H. 113, 5 L. R. A. 709, 18 Atl. 878. Contra, State v. Bohemier, 96 Me. 257, 52 Atl. 643.

But a statute giving a board of medical examiners power to license without examination persons who have passed an equally strict examination in another state does not unjustly discrim inate between persons holding certifi cates from the examining boards of other states, by subjecting one to an examination, and admitting another without it, the intent of the act being to admit no one to practise who has not passed such an examination as is required of the residents of the state. Ex parte Gerino (Cal.) 77 Pac. 166.

persons who have practised for the designated period immediately preceding its enactment, and others who have practised the required period, but at other times, is unconstitutional.32

436. Preference between schools.-The general power of the state to require that only persons skilled in the healing of diseases shall hold themselves out to the public as physicians or surgeons cannot be used to build up any particular school of medicine; it is designed to permit only those qualified by education and good moral character to engage in the profession.33 And a medical board cannot determine what school or system of medicine in its theories and practices is right; it can only determine whether the applicant possesses the statutory qualifications to practise in accordance with the recognized theories of a particular school or system.34 And a statute discriminating against practitioners of osteopathy, or of other similar schools of practice, by requiring a longer term of study as a condition of their obtaining certificates permitting them to prescribe drugs or perform surgery than is required of those contemplating the regular practice as a condition of their obtaining unlimited certificates for the practice of medicine and surgery, is, as to such discrimination, void, and compliance therewith cannot be exacted of those who practise osteopathy.35 Authority to refuse certificates to graduates of medical schools not in good standing, however, does not extend special privileges or immunities to other schools that are determined to be in good

Ex parte Spinney, 10 Nev. 323. And a statutory provision making it unlawful to practise denistry without a diploma, not applying to persons engaged in the continuous practice of dentistry in the state for three years or over at the time of or prior to the act, is unconstitutional as to a person practising at the time of its passage, though for a less period than three years, as depriving him of his property without due process of law. Com. v. Wasson (Pa.) 3 Crim. L. Mag. 726.

An act to regulate the practice or medicine is not unconstitutional on the ground that it makes no specific disposition of the fees collected from the applicants, where the power is conferred by necessary implication to devote the fees to the payment of necessary expenses. People v. Hasbrouck, 11 Utah, 291, 39 Pac. 918.

ity of a practitioner in a given case is to be passed upon as a matter of fact; but the law does not and cannot supply any positive rules for the interpretation of medical science. Corsi v. Maretzek, 4 E. D. Smith, 1.

And where, under a contract, a person is to select a physician, all he is required to do is to appoint a person who makes it his business to practise physic; and it is wholly immaterial to what school of medicine the person so selected belongs, or whether he belongs to any. Ibid.

"State v. Mylod, 20 R. I. 632, 41 L. R. A. 430, 40 Atl. 753.

Authority vested in a medical society to issue diplomas to physicians and surgeons refers to all who praetise and are recognized as practitioners, and cannot be limited to one school of practitioners in preference to another. Gee Wo v. State, 36 Neb. 241, 54 Raynor v. State, 62 Wis. 289, 22 N. W. N. W. 513.

The relative merits of the different schools of medicine may become a subjeet of inquiry, when the skill or abil

430.

State v. Gravett, 65 Ohio St. 289, 55 L. R. A. 791, 87 Am. St. Rep. 605, 62 N. E. 325.

standing. And constitutional provisions prohibiting preference be tween different schools of medicine with reference to license to practise medicine cannot be construed as intended to control legislation in the entirely different matter of prescribing the qualifications of members of boards of medical examiners.37 And a statute providing that the board of medical examiners must be graduates of medical schools recognized by a particular association is not affected by such provisions, though that association is composed entirely of adherents of one particular school,88 or though a different number of members is taken from the different schools.39 And it has been held that requiring a magnetic healer to procure a license before engaging in the healing art does not deprive him of his liberty or property without due process of law, or deny him the equal protection of the law; and that permitting the licensing of osteopathists, while excluding mental healing, is not an unlawful discrimination which will render the statute providing for it void.40

II. ADMISSION TO PRACTISE.

437. Methods of ascertaining fitness.-The methods of ascertaining fitness of persons desiring to practise medicine, surgery, or dentistry, are various. It is the right of the legislative department of the government to select the agency by which the fitness of applicants for permission to practise is to be ascertained. Among the prevailing methods are provisions for the creation of state and county medical

"Iowa Eclectic Medical College Asso. v. Schrader, 87 Iowa, 659, 20 L. R. A. 355, 55 N. W. 24.

"Dowdell v. McBride, 92 Tex. 239, 47 S. W. 524, Affirming 18 Tex. Civ. App. 645, 45 S. W. 397; Iowa Eclectic Med. ical College Asso. v. Schrader, 87 Iowa, 659, 20 L. R. A. 355, 55 N. W. 24.

A statute creating a board of medical examiners to be composed of physicians recommended for appointment from lists to be furnished by particular societies is not open to attack as discriminating in favor of particular schools of medicine, since no constitutional right is given to particular individuals entertaining peculiar theories of medicine to group themselves together, and call themselves a special school under a selected name, and insist that they be recognized and dealt with as such. Allopathic Medical Examiners v. Fowler, 50 La. Ann. 1358, 24 So. 809.

41

461, 25 S. W. 667; Ex parte Gerino (Cal.) 77 Pac. 166; Brown v. People, 11 Colo. 109, 17 Pac. 104.

"Ferner v. State, 151 Ind. 247, 51 N. E. 360; Ex parte Gerino (Cal.) 77 Pac. 166.

No right is given to violate the criminal laws of the state by practising medicine without a license, by the fact that a board of examiners as organized discriminates in favor of the regular practitioners, and against all other classes. Bragg v. State, 134 Ala. 165, 58 L. R. A. 925, 32 So. 767.

Parks v. State, 159 Ind. 211, 59 L. R. A. 190, 64 N. E. 862.

V.

"Allopathic Medical Examiners Fowler, 50 La. Ann. 1358, 24 So. 809; Overshiner v. State, 156 Ind. 187, 51 L. R. A. 748, 83 Am. St. Rep. 187, 59 N. E. 468; Wilkins v. State, 113 Ind. 514, 16 N. E. 192; State v. Fleischer, 41 Minn. 69, 42 N. W. 696; Kowenstrot v. State, 6 Ohio. S. & C. P. Dec. 467; Logan v.

44

societies to comprise the whole profession, leaving the question of membership and fitness within proper restrictions to the societies themselves;42 and provisions for the granting of licenses to graduates of, or holders of diplomas from, medical schools or colleges of satisfactory reputability with reference to their requirements, to be ascertained by a properly constituted board of examiners;43 and provisions for boards of medical examiners for the examination of applicants to ascertain their qualifications. And on this subject it is within the power of the legislature to confer authority on corporations or medical associations to select members of the board of examiners;45 and each school of medicine need not be represented in a state board by equal numbers.46 Though the method provided by the legislature for the appointment of members of the board is invalid, however, the other provisions of law with reference to the practice of medicine would remain unaffected.47

438. Powers of boards of examiners generally.-Where the legislature has prescribed the conditions precedent, upon the fulfilment of

State, 5 Tex. App. 306. And see Ex parte Gerino (Cal.) 77 Pac. 166.

A statute forbidding persons to practise medicine when not duly licensed by the state board of health is not void as prohibitive in its scope, but is regulative only. Little v. State, 60 Neb. 749, 51 L. R. A. 717, 84 N. W. 248.

But the offices of a board of medical censors, authorized and required to decide on the qualifications of applicants for license to practise medicine, appointed to hold during good behavior, are vacated by subsequent enactment of a constitutional provision declaring that no person shall be appointed or elected to office for life, or during good behavior, but the tenure of all offices shall be for a limited time. Bryant v. State, 1 How. (Miss.) 351.

established by the county commissioners, and having no board of medical examiners. The other system is by license or certificate of qualification from a board of examiners organized in accordance with the constitution of the medical association of the state and in affiliatiou with it. Brooks v. State, 88 Ala. 122, 6 So. 902.

Overshiner v. State, 156 Ind. 187, 51 L. R. A. 748, 83 Am. St. Rep. 187. 59 N. E. 468; Wilkins v. State, 113 Ind. 514. 16 N. E. 192; Scholle v. State, 90 Md. 729, 50 L. R. A. 411, 46 Atl. 326.

The appointment of medical boards by incorporated medical societies under statutory authority does not violate a constitutional provision for the nomination of officers by the governor, unless a different mode of appointment is prescribed by the law creating the office. Scholle v. State, 90 Md. 729, 50 L. R. A. 411, 46 Atl. 326.

But the legislature cannot delegate to a board of medical examiners the power of declaring by rules and regulations what shall constitute unprofessional conduct, and thus, by its own act, independent of the legislature, establish a crime, that not being within the police power, under which such provisions are enacted. Ex parte McNulty, 77 Cal. 164, 11 Am. St. Rep. 257, 19 Pac. 237.

Brown v. People, 11 Colo. 109, 17 Pac. 104.

"Ex parte Gerino (Cal.) 77 Pac. 166.

49

which one may begin and continue the practice of medicine, surgery, etc., and established a board of examiners for the purpose of ascertaining fitness, it is its province, as a general rule, in the first instance, to declare whether such conditions have been observed.48 And its determination is final, subject only to revision by the courts for errors and abuses.* But a board of examiners, or other board authorized to pass upon the qualifications of applicants for license to practise medicine, etc., can exercise such powers only as are conferred by statutory authority.50 And where discretion is vested in the board, it cannot be exercised arbitrarily for malevolent or selfish ends, and it cannot be delegated to an organization beyond the limits of the state. 52 Power to accept or reject applications for license to practise medicine, however, though involving the exercise of discretion, is not a judicial power within the meaning of a constitutional provision requiring constitutional powers to be conferred upon judicial officers only.58 And that a board of medical examiners is not properly organized is no protection against liability for practising medicine without a license, if it acted de facto; and its certificate of qualification is a protection from prosecution for violating the statutes; though a surrender of corporate franchises and privileges, and a consequent incapacity to act, may be inferred from an intentional omission to fill vacancies, and elect officers, and a determination to divide assets.5 55

439. Membership in medical societies.-The statutes of some of the states provide for the organization or incorporation of medical societies authorized to determine as to the qualifications and fitness of persons desiring to practise medicine, surgery, etc., and to admit to membership such persons as are found to be duly qualified, and

"State ex rel. State Medical Examiners v. District Court, 26 Mont. 121, 66 Pac. 754.

"Ibid; Williams v. Dental Examiners, 93 Tenn. 619, 27 S. W. 1019.

A grant of authority to a health department, requiring it to permit applicants to register as physicians on satisfactory proof that they are qualified according to law, imposes a duty and discretion upon the department which cannot be interfered with by the court unless abused. State ex rel. Baldwin v. Prendergast, 8 Ohio C. C. 401.

And where a board of medical examiners has refused to grant a license, the courts have no power, in the absence of statutory authority, to allow the applicant to practise medicine pending his

appeal from such refusal. State ex rel. State Medical Examiners v. District Court, 26 Mont. 121, 66 Pac. 754.

50 State ex rel. Johnston v. Lutz, 136 Mo. 633, 38 S. W. 323. And see State ex rel. Monnier v. Board of Pharmacy, 110 La. 99, 34 So. 159.

State Dental Examiners v. People, 20 Ill. App. 457; State v. Wilcox, 64 Kan. 789, 68 Pac. 634.

62Illinois Dental Examiners v. People, 123 Ill. 227, 13 N. E. 201.

5 Eastman v. State, 109 Ind. 278, 58 Am. Rep. 400, 10 N. E. 97.

A.

C.

"Bragg v. State, 134 Ala. 165, 58 L. R. 925, 32 So. 767.

United States v. Williams, 5 Cranch,

C. 62, Fed. Cas. No. 16,713.