45

44

right would be denied. And the time and place of meeting of boards of medical examiners are to be fixed by the persons in whom the law has vested the authority; and one who desires a license must, at least, make reasonable inquiry, since he is given notice by a public law. But, although they should and do follow, to some extent, the methods of the courts, from their nature and the character of the duties required, a more flexible practice must of necessity be followed in some cases; and any evidence which tends to prove or disprove competency may be considered, though it is not the best evidence, and not evidence admissible in a proceeding before a judicial tribunal.46 The accused in a prosecution for the revocation must be given a fair opportunity to meet the charges and evidence against him.47 But such a proceeding is not one of the class of cases in which a jury trial is reserved by the Constitution.48 The expenses incident to the trial of a proceeding to have a medical license revoked are not recoverable at common law; and a right to recover them must be founded on the statute; and costs and disbursements cannot be allowed in the absence of statutory authority.49

450. Review of determination of board.-The power or discretion of medical examiners to reject applicants for licenses to practise medicine is not arbitrary, but must be based on the learning and qualifications of the applicant,50 and is subject to correction in case of abuse.51

"Wilkins v. State, 113 Ind. 514, 16 N. E. 192.

Traer v. State Medical Examiners, 106 Iowa, 559, 76 N. W. 853.

A medical board is composed of physicians, and not persons learned in the law; and pleadings in proceedings before it should not be too strictly construed; and too close observance of the science of pleading should not be required, though a complaint must set forth the facts which constitute an offense. State ex rel. Baldwin v. Kellogg, 14 Mont. 426, 36 Pac. 957.

"Traer v. State Medical Examiners, 106 Iowa, 559, 76 N. W. 853; State v. Schultz, 11 Mont. 429, 28 Pac. 643.

A proceeding for the purpose of revoking a license of a regularly admit

ted and practising physician for unprofessional and dishonorable conduct is quasi criminal in its nature, and the state is properly made a party thereto. State ex rel. Beckman v. Estes, 34 Or. 196, 51 Pac. 77, 52 Pac. 571, 55 Pac. 25.

And where the state has been made a party to such a proceeding for unprofessional and dishonorable conduct, service of notice of appeal therein on the state is sufficient; service of the notice on the relators or the board is not necessary to the jurisdiction of the court on appeal. Ibid.

State Bd. of Health v. Roy, 22 R. I. 538, 48 Atl. 802; Re Smith, 10 Wend. 449.

State ex rel. Beckman v. Estes, 34 Or. 206, 51 Pac. 77, 52 Pac. 571, 55 Pac. 25.

50 State v. Fleischer, 41 Minn. 69, 42 N. W. 696. And see Iowa Eclectic Medical College Asso. v. Schrader, 87 Iowa, 659, 20 L. R. A. 355, 55 N. W. 24; State ex rel. Hathaway v. State Bd. of Health, 103 Mo. 22, 15 S. W. 322; Gee Wo v. State, 36 Neb. 241, 54 N. W. 513. Allopathic Medical Examiners Fowler, 50 La. Ann. 1358, 24 So. 809. But the proceedings of a board of

51

V.

In case of the arbitrary refusal of a certificate by such a board, mandamus to compel them to act is a proper remedy.52 And the remedy is the same where the student has completed his medical course, and is arbitrarily refused an examination and degree;58 or in case of the abuse of the discretionary powers of a state board of dental examiners.54 So the same rules apply to the revocation of licenses of physicians for unprofessional or dishonorable conduct, a revocation not being authorized for anything short of conduct which would, in common judgment, be unprofessional or dishonorable.55 And when a board has found all the facts necessary to a judgment, so that the judgment is nothing but a conclusion of law upon the facts, the entering of the judgment is in its nature ministerial, and may be compelled by mandamus.56 But where the board has not absolutely refused to act, or acted on improper motives, but has acted in matters involving the exercise of its discretion, its action cannot be brought into review by mandamus.57 And a determination, after

medical examiners in refusing a license to practise to an applicant cannot be reviewed by the court after the board has been dissolved, where no proceeding was taken at the time to compel it by mandamus to act. Miller v. Medical Board, 33 Or. 5, 52 Pac. 763.

52 Harding v. People, 10 Colo. 387, 15 Pac. 727; People ex rel. Sheppard v. Illinois Dental Examiners, 110 Ill. 180; Illinois Dental Examiners v. People, 20 Ill. App. 457; Gage v. New Hampshire Eclectic Medical Soc. 63 N. H. 92, 52 Am. Rep. 492; State ex rel. Hathaway v. State Bd. of Health, 103 Mo. 22, 15 S. W. 322. And see State ex rel. Monnier v. Board of Pharmacy, 110 La. 99, 34 So. 159.

But allegations that a certain institution was a reputable college, and that sufficient evidence of that fact was at the command of the board of dental examiners to whom a diploma from that college was presented, and that the petitioner furnished evidence satisfactory to the board,-are not sufficient to show that the board found these facts, so as to make a petition for mandamus good on demurrer. Van Vleck v. Dental Examiners (Cal.) 44 L. R. A. 635, 48 Pac.

223.

53 People ex rel. Cecil v. Bellevue Hospital Medical College, 60 Hun, 107, 14 N. Y. Supp. 490. And see State Bd. of Pharmacy v. White, 84 Ky. 626, 2 S. W.

225.

Illinois Dental Examiners v. People,

123 Ill. 227, 13 N. E. 201; Ewbank v. Turner (N. C.) 46 S. E. 508.

People use of State Bd. of Health v. McCoy, 125 Ill. 289, 17 N. E. 786; State ex rel. Hathaway v. State Bd. of Health, 103 Mo. 22, 15 S. W. 322.

56Illinois Dental Examiners v. People, 20 Ill. App. 457.

57 State ex rel. Powell v. State Medical Examining Board, 32 Minn. 324, 50 Am. Rep. 575, 20 N. W. 238; Van Vleck v. Dental Examiners (Cal.) 44 L. R. A. 635, 48 Pac. 223; People ex rel. Sheppard v. Illinois Dental Examiners, 110 Ill. 180; Illinois Bd. of Health v. People, 102 Ill. App. 614; Smith v. Kentucky Dental Examiners, 24 Ky. L. Rep. 25, 67 S. W. 999; State ex rel. Kirchgessner v. Board of Health, 53 N. J. L. 594, 22 Atl. 226; Barmore v. State Medical Examiners, 21 Or. 301, 28 Pac. 8; Williams v. Dental Examiners, 93 Tenn. 619, 27 S. W. 1019; State ex rel. Coffey v. Chittenden, 112 Wis. 569, SS N. W. 587; Ex parte Lamert, 33 L. J. Q. B. N. S. 69, 4 Best. & S. 582, 9 L. T. N. S. 410, 12 Week. Rep. 201; Allbutt v. General Council of Medical Education, L. R. 23 Q. B. Div. 400, 58 L. J. Q. B. N. S. 606, 61 L. T. N. S. 585, 37 Week. Rep. 771, 54 J. P. 36.

Where a medical practitioner after due inquiry is adjudged by the general council of medical education to have been guilty of infamous conduct in a professional respect, and it has erased his name from the register, under a stat

full and fair examination, that a medical or dental college is not in good standing, so as to authorize the issue of medical certificates upon its diplomas, because its teachings are not up to the minimum requirements, is not reviewable by the courts.58 And where the statute provides a plain and adequate remedy by appeal to a court from a decision of a board of examiners, mandamus will not lie to compel them to act.59 And where a licensee was entitled to a license, the courts will not interfere to ascertain whether he was entitled to it in the way procured or in some other way.60 Neither can the action of a medical board with reference to the granting or annulling of a certificate be corrected by certiorari, when it did not act arbi

trarily or unreasonably.81 Nor can the decision of such a board, whether right or wrong, be annulled by injunction;62 and an information in the nature of a quo warranto cannot be brought against a licensee to annul his license.63 The validity and effect of an appeal from a determination of a board of medical examiners refusing a license is not affected by the fact that the board allowed the appeal to go by default.64

V. WHAT CONSTITUTES PRACTICE OF MEDICINE.

451. General rules and definitions.-The practice of medicine as ordinarily and popularly understood has relation to the art of preventing, curing, or alleviating disease or pain.65 One practising medicine practises the art of preventing, curing, or alleviating diseases, and remedying, so far as possible, the results of violence and accident;6 and any person who, under any pretense, operates or professes to heal or prescribe for, or otherwise treats, any physical or mental ailment of another, practises medicine. The practice of medicine consists in the application of the knowledge of medicine, of diseases, and of the laws of health. 68 It is not necessary to the practice of medicine. that it be confined to the giving of internal remedies.69 And it ap plies to surgery, as well as to the giving of medicine.70 And, in the

Traer v. State Medical Examiners, 106 Iowa, 559, 76 N. W. 833.

Lincoln Medical College v. Poynter, 60 Neb. 228, 82 N. W. 855.

State ex rel. Walker v. Green, 112 Ind. 462, 14 N. E. 352.

State ex rel. Riddell v. District Court, 27 Mont. 103, 69 Pac. 710.

State v. Mylod, 20 R. I. 632, 41 L. R. A. 428, 40 Atl. 753.

medicine nor gave any advice, his treatment consisting of merely sitting still and fixing his eyes on the patient, did not practise medicine contrary to a statute prohibiting such practice without a license, though he received payment therefor. Reg. v. Stewart, 17 Ont. Rep. 4.

To Stewart v. Raab, 55 Minn. 20, 56 N. W. 256; Little v. State, 60 Neb. 749, 51 And see

Stewart v. Raab, 55 Minn. 20, 56 N. L. R. A. 717, 84 N. W. 248. W. 256.

"State v. Buswell, 40 Neb. 158, 24 L. R. A. 68, 58 N. W. 728; State v. Paul, 56 Neb. 369, 76 N. W. 861; Richardson v. State, 47 Ark. 562, 2 S. W. 187; Matthei v. Wooley, 69 Ill. App. 654; Bibber v. Simpson, 59 Me. 181; An drews v. Styrap, 26 L. T. N. S. 704; Provincial Medical Board v. Bond, 22 N. S. 153.

"People use of State Bd. of Health v. Blue Mountain Joe, 129 II. 370, 21 N. E. 923; Adams County v. Cole, 9 Ind. App. 474, 36 N. E. 912; Antle v. State, 6 Tex. App. 202.

576.

Davidson v. Bohlman, 37 Mo. App.

But one attending sick persons, who neither prescribed nor administered any

Davies v. Makuna, 54 L. J. Ch. N. S. 1148, L. R. 29 Ch. Div. 596, 53 L. T. N. S. 314, 33 Week. Rep. 668, 50 J. P. 5.

Proof that the accused acted either as a physician or surgeon is sufficient to support a complaint charging him with illegally holding himself out as a physician and surgeon. Com. v. St. Pierre, 175 Mass. 48, 55 N. E. 482.

Where a person is licensed as a surgeon only, however, he may administer medicines in the cure of a surgical case, without being subject to penalties for practising as an apothecary without having obtained a certificate; but he has no right to do so in the case of internal diseases not requiring surgical treatment. Apothecaries Soc. v. Lotinga, 2 Moody & R. 495.

absence of express or implied statutory requirements, it is not necessary that the practice should have been for reward or compensation.71 Practising for reward or compensation, however, is expressly included in many of the statutory prohibitions.72 And under such provisions one who does not solicit patronage, and does not hold himself out as a physician, or pretend to be one, but simply advises or gives medicine to a sick neighbor or friend, making no charge and expecting no compensation, does not practise medicine.73 Nor is it a violation of regulations of the practice of medicine to prescribe for, or render other medical or surgical services to, another gratuitously in an emergency. But the emergency must be one in which the exigency is so pressing that some kind of action must be taken before a physician or surgeon can be procured; it is not enough that the sick person has been given up as incurable by regular physicians.75

452. Vending medicines or appliances.-A vendor of medicine or appliances who does not pretend to diagnose diseases and determine which of his remedies is proper in a particular case is not a practitioner of medicine within a statute prohibiting the practice of medicine without a license,76 though he indicates what particular medicine will cure a designated disease." But a person who claims to be a physician, and holds himself out to the world as such, and examines patients who ask for his professional services, diagnosing the disease and giving prescriptions, is a practitioner of medicine within such a

"State v. Welch, 129 N. C. 579, 40 S. E. 120.

Where the statute makes it unlawful to practise medicine or surgery without having registered a certificate of the state board of health, but imposes a penalty only where the practice of medicine or surgery was for reward or compensation, there can be no conviction in a criminal prosecution thereunder, unless the accused received a reward or compensation. State v. Pirlot, 20 R. I. 273, 38 Atl. 656.

"See State v. Pirlot, 20 R. I. 273, 38 Atl. 656; State v. Hale, 15 Mo. 606; State v. Paul, 56 Neb. 369, 76 N. W. 861; McCann v. State, 40 Tex. Crim. Rep. 111, 48 S. W. 512; State v. Wilcox, 64 Kan. 789, 68 Pac. 634.

statute, is good in substance, and will support a conviction though there was no allegation that the accused received or intended to receive compensation. Blalock v. State, 112 Ga. 338, 37 S. E. 361.

13 Nelson v. State, 97 Ala. 79, 12 So.

421.

"State v. Paul, 56 Neb. 369, 76 N. W. 861; Greenfield v. Gilman, 140 N. Y. 168, 35 N. E. 435.

"People v. Lee Wah, 71 Cal. 80, 11 Pac. 851.

The repeal of a law prohibiting the practice of medicine without a license does not give validity to a contract for medical services entered into during the existence of the repealed law. Mays v. Williams, 27 Ala. 267.

76 State v. Van Doran, 109 N. C. 864, 14 S. E. 32; People v. Lehr, 93 Ill. App. 505, Affirmed in 196 Ill. 361, 63 N. È. 725; Queen v. Coulson, 24 Ont. Rep. 248, 1 Can. Crim. Cas. 114.

And where by statutory definition the words "practise medicine" embrace the idea of exacting compensation, an indictment charging that the accused did unlawfully practise medicine, and expressly negativing his having any of the "Queen v. Coulson, 24 Ont. Rep. 246, qualifications essential to the lawful 1 Can. Crim. Cas. 114. practice of medicine, set forth in the