
    State ex rel. Pollard, Appellant, vs. Wisconsin State Board of Medical Examiners, Respondent.
    
      May 10
    
    September 25, 1920.
    
    
      Physicians and surgeons: Forms of license: Osteopaths: Preliminary educational requirements: Reputable colleges of osteopathy: Statutes: Legislative enactments: Approval by governor after unauthorised material change: Validity.
    
    1. Ch. 438, Laws 1915, provides for but two forms of license: one to practice medicine and surgery, the other to practice osteopathy and surgery. A license to practice surgery alone is not authorized.
    2. The preliminary education required by the statute (sec. 1435a) of applicants for a license to practice medicine and surgery is not required of applicants for a license to practice osteopathy and surgery, and the board of medical examiners may not refuse to examine an applicant for.a license to practice osteopathy and surgery because he has not had the preliminary education required of applicants for a license to practice medicine and surgery.
    3. If the substitution of the word “or” for the word “and” in a bill, as passed by the legislature when it was presented for the governor’s signature was a material change, the bill approved . by the governor was not the one passed hy the legislature and is a void enactment. If the word “or” be construed to mean the same as “and,” then there is no material change, and, in either event, the enactment worked no change in the law in that particular.
    4. To constitute colleges of osteopathy reputable within ch. 438, Laws 1915, as amended, it is not necessary that they require of their students a preliminary college course in addition to a high school education.
    Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.
    
      Reversed.
    
    Relator brought this action in the circuit court for Dane county praying that a peremptory writ of mandamus issue against the Wisconsin State Board of Medical Examiners commanding the said board to examine relator in the various branches of surgery which are usually taught Jn reputable colleges of osteopathy and surgery and which are usually the subject of the regular examinations in surgery of said board, and commanding said board, in the event that relator successfully passes the examination as aforesaid, to issue to him a license to practice surgery in the state of Wisconsin. By its return the medical board sought to justify its refusal to permit relator to take the examination in surgery on the ground that he failed to present to said board satisfactory and competent evidence of having completed a preliminary education-required by sec. 1435a, Stats., consisting of a two years’ college course in physics, chemistry, biology, and-either German or French, the equivalent of a two years’ premedical course at the University of Wisconsin, which, .it alleges, is the preliminary education required of all applicants for the examination in surgery.
    It is further alleged in the return that while the petitioner presented evidence that he was a graduate of and held a diploma from the Chicago College of Osteopathy, said, college 'of osteopathy is not a reputable college of osteopathy and surgery defined in sec. 1435a of the Statutes, in that said college of osteopathy at the time the relator matriculated as a student therein in 1913, and during the time he attended said college, and at the time of his graduation in June. 1917, and at this time, did not, and does not, maintain the standard of preliminary education required by the statutes to be demanded of all matriculants of colleges teaching or under- . taking-to teach the subject of surgery, and that said college did not, at the times referred to, require of it's students a preliminary education in addition to the equivalent of graduation from an accredited high school of the state of Wisconsin, the completion of a two years’ college course in physics, chemistry, biology, and either German or French, the equivalent of a two years’ premedical course at the University of Wisconsin.
    The circuit court found that at the time of applying’to the State Board of Medical Examiners for the privilege of taking the examination in surgery the relator did not present satisfactory and competent evidence of having completed a two years’ college course in physics, chemistry, biology, and either German or French, the equivalent of a two years’ premedical course at the University of Wisconsin, and entered judgment denying the petition for a writ of mandamus and dismissing the action with costs in favor of defendant and against the relator. From this judgment the relator appealed.
    For the appellant there was a brief by Glicksman, Gold & Corrigan of Milwaukee and R. T. Jackson of Mineral Point, and oral argument by Walter D. Corrigan.
    
    For the respondent there was a brief by the Attorney General, J. E. Messerschmidt, assistant attorney general,-attorneys, and A. C. Umbreit of Milwaukee, of counsel, and oral argument by Mr. Umbreit.
    
   The following opinion was filed June 1, 1920:

Owen, J.

It is undisputed that relator duly and properly made application to the Wisconsin State Board of Medical Examiners to take the examination for osteopathy and surgery at the regular meeting held June 24, 25, and’26, 1919; that the board permitted him to take the examination in osteopathy and thereafter issued to him a license to practice that art, but that it denied him the privilege of taking the examination in surgery because he did not present competent and satisfactory evidence of possessing the qualifications prescribed by sec. 1435a of the Statutes, in that he had not completed a preliminary education consisting of a two years* college course in physics, chemistry, biology, and either German or French, which the board avers to be a prerequisite qualification in order to enable relator to take an examination ift surgery. This involves a construction of sec. 1435a of the Statutes. That section was created by ch. 438, Laws 1915. Sub. 1 thereof, so far as material here, provides as follows:

“All persons, other than those now possessing a license or a certificate of registration to practice medicine, surgery, osteopathy, midwifery or nursing, desiring, undertaking or attempting in this state to practice medicine, surgery', osteopathy, midwifery or nursing, or any other form or system •of treating bodily or mental diseases, ailments, infirmities or • .injuries of human beings, after the passage and publication of this act, shall apply to said board at the time and place designated by the board, or at any regular meeting thereof, for a license or certificate of registration authorizing such practice, and shall present to such board at the time of so applying satisfactory evidence of having ’completed a preliminary education equivalent to graduation from an accredited high school of this state; and all persons so applying for a license to practice medicine and surgery after the first day of January, 1919, shall, in addition to such preliminary education equivalent to graduation from an accredited high school of this state, present satisfactory and competent evidence of having completed a t-wo -years’ college course in physics, chemistry, biology and either German or French, the equivalent of .a two. years’ premedical course at the University of Wisconsin.”

Right here it may be noted that ch. 438, Laws 1915, was amended by ch. 595; Laws 1915,-and the language -just quoted was embodied in the bill -culminating in- said ch. 595 and passed the legislature with such language therein; but in the bill sent to and approved by the governor there was a variation from the language of the bill as it passed the legislature. The bill sent to and approved by the governor provided that “and all persons so applying for a license to practice medicine or surgery after the first day of January, 1919,” etc., while the bill as it passed the legislature provided that “and all persons so applying.for a license to practice medicine and surgery after the first day of January, 1919,” etc. In other words, the conjunctive and between the words “medicine” and “surgery” as passed by the legislature was changed to or in the bill that was sent to and approved by the governor. The change of the conjunctive from and as it passed the legislature to or as it was approved by the governor was not the result of legislative action of which there is any record, and the only explanation for it is that the change was due to the blunder of a legislative clerk. In this situation, if the substitution of the word or for the word and be construed as a material change, then it is apparent that the bill approved by the governor was not the one passed by the legislature, and is a void enactment, for the reasons stated in State v. Wendler, 94 Wis. 369, 68 N. W. 759. If the word or be construed to mean the same as the word and for the purposes of the act, then of course there was no material change. But; in either event, the law must be construed to be as created by ,ch. 438, Laws 1915, which used the conjunctive and, and the phrase should read, “for a license to practice medicine and surgery after the first day of January, 1919,” etc. The law, therefore, is this:

“and all persons so applying for a license to practice medicine and surgery after the first day of January, 1919. shall, in addition to such preliminary education equivalent to graduation from an accredited high school of this state, present satisfactory and competent evidence of having completed a two years’ college course in physics, chemistry, biology and either German or French, the equivalent of a two years’ premedical course at the University of Wisconsin.”

The question is whether one who makes application for a license to practice osteopathy and surgery must present satisfactory and competent evidence of having completed this two years’ college course. Now the statute provides for but two forms of licenses, one to practice “medicine and surgery” and the other to practice “osteopathy and surgery.” No license is authorized for the practice of medicine alone or osteopathy alone, or for surgery alone, except by the following provision (sub. 2, sec. 1435a):

“Any person duly licensed to practice osteopathy in this state at any time prior to the first day of January, 1916, shall be licensed to practice surgery upon passing the regular examination of the board in surgery, and presenting evidence of having completed an adequate course in surgery at a reputable school or college of osteopathy and surgery requiring not less than twenty months’ actual attendance thereat.”

The reason for this provision is plain. Prior to the enactment of ch. 438, Laws 1915, persons could be licensed to, practice osteopathy alone, but there was no provision by which they could be licensed to practice osteopathy and surgery. By ch. 438, Laws 1915, provision was made for licensing persons to practice osteopathy and surgery. It was a legislative recognition of the fact that schools of osteopathy were properly equipping their graduates for the practice of surgery as well as osteopathy. This, however, left graduates of reputable schools of osteopathy who had theretofore been licensed under oi.tr law only for the- practice of osteopathy, possessing all the requirements imposed by law for the practice of surgery, without any license therefor. The provision just quoted manifestly was to enable those who had theretofore graduated from a reputable school of osteopathy and who had been licensed under our law to practice osteopathy only, to secure a license to practice surgery as well as osteopathy, thus placing them on an equality with those who should thereafter graduate from a reputable school of osteopathy. As before stated, ch. 438, Laws 191.5, provided for but two forms of licenses: one to practice “medicine and surgery,” the other to practice “osteopathy and surgery.” To secure either form of license a preliminary education is required, namely, an education “equivalent to graduation from an accredited high school of this' state.” This is a preliminary education which must be acquired by applicants for a license to practice either medicine and surgery or osteopathy and surgery; but of those applying for a license to practice medicine and surgery a further preliminary education is required by virtue of the following language, already quoted:

“and all persons so applying for a license to practice medicine and surgery after the first day of January, 1919, shall, in addition to such preliminary education equivalent to graduation from an accredited high school of this state, present satisfactory and competent evidence of having completed a two years’ college course in physics, chemistry, biology and either German or French, the equivalent of a two years’ premedical course at the University of Wisconsin.”

It seems to us too plain for argument that this additional preliminary education applies only to those who seek a license to practice “medicine and surgery’’ as distinguished from those desiring a license to practice “osteopathy and surgery.” In view of the fact that only two forms of licenses are provided for by the enactment, if it were intended to apply to- both forms of license, why limit it to those making application for one form of license, namely, to practice “mediciné and surgery”? It is true, no doubt, that those licensed to practice “osteopathy and surgery” should have qualifications in the subject of surgery equal to those licensed to practice “medicine and surgery.” But it does not follow that an education for the practice of osteopathy should be co-equal with the education required for the practice of medicine. The additional education required of those desiring a license to practice “medicine and surgery” was required, we take it, because in the legislative mind it was deemed a proper equipment for those undertaking the practice of medicine, while not an essential requirement for those proposing to practice either osteopathy or surgery. Our conclusion is- that the relator was not required to exhibit to the board satisfactory proof of his having completed the two years’ college course.

It is further claimed on the part of the board that the Chicago College of Osteopathy, from which relator graduated, is not a reputable college of osteopathy, because said college does not require of its students a standard of preliminary education equal to the college course aforesaid. This is material because said see. 1435a, as enacted by ch. 438, Laws 1915, provides (sub. 2) that

“Applicants desiring to obtain a license to practice medicine, surgery or osteopathy shall, in addition to the satisfactory evidence of having acquired the preliminary education herein designated, present a diploma from a reputable college or school of medicine and surgery or of osteopathy and surgery; ... if the applicant be an osteopath he shall submit to an examination in the various branches of osteopathy and surgery usually taught in reputable colleges of osteopathy. A college or school of medicine and surgery or of osteopathy and surgery maintaining the standard of preliminary education hereinbefore designated and requiring at least four courses of eight months each before'graduation shall be deemed reputable.”

We have already seen that the preliminary education required of one applying for a license to practice osteopathy and surgery i-s an “education equivalent to graduation from an accredited high school of this state.” The additional college course applies only to those desiring to practice medicine and surgery; consequently, in order to constitute colleges of osteopathy reputable under the terms of this law, it is not necessary that they require of their students- the college course in addition to the high school education.

It follows that the college of osteopathy from which relator graduated is in all respects a reputable college; that he presented to. the Wisconsin State Board of Medical Examiners satisfactory proof of his qualifications in full compliance with sec. 1435a, Stats., and that he was entitled to take the examination in the subject of surgery. The peremptory writ of mandamus should issue as prayed.

By the Court. — Judgment reversed, and cause remanded with instructions to issue the peremptory writ of mandamus as prayed for in relator’s petition.

' A motion for a rehearing was denied, with $25 costs, on September 25, 1920.  