
    State of Iowa v. F. M. Miller, Appellant.
    1 Constitutional law: board of medical examiners: statutes. The statutes relating to the creation and appointment of a board of medical examiners and conferring upon the board power and discretion are not unconstitutional because of the possibility that its power may be improperly exercised; nor are they unconstitutional because discriminating against any class of citizens; and the court will not presume that the board will exceed its power or act unlawfully for the purpose of holding the statute unconstitutional.
    2 Same: illegal practice of medicine: indictment. An indictment charging the violation of a statute substantially in the language of the statute is sufficient.
    3 Evidence: objections: instructions. A party claiming to have been deprived of some substantial right because of the admission of testimony subsequently stricken, should have made that fact known at the time the evidence was stricken; and failing to do so is in no position to complain of an instruction rightfully given directing the jury not to consider the same.
    4 Criminal law: instructions: refusal. Where the court charged that defendant could not be convicted of the illegal practice of medicine unless every material allegation was established by the evidence beyond a reasonable doubt, a further instruction that defendant must be proven guilty beyond a reasonable doubt was not necessary.
    
      Appeal from Marshall District Court. — Hon. J. M. Parker, Judge.
    Tuesday, January 11, 1910.
    Rehearing Denied, Wednesday, March 16, 1910.
    The defendant was convicted of the crime of practicing medicine without a license, and appeals.
    
    Affirmed.
    
      Boardman & Lawrence, E. H. Crocker, and P. W. Tourtellot, for appellant.
    
      H. W. Byers, Attorney-General, and Charles W. Lyon, .Assistant Attorney-General, for the State.
   Sherwin, J.

The indictment charged that the " defendant “did wrongfully and unlawfully • publicly profess to be a physician and assume the duties of a physician, and then and there wrongfully, falsely, and unlawfully did publicly profess to cure and heal diseases, nervous disorders, displacements, injuries, and ailments by means of a certain system and treatment known as Chiropractic” without, etc. The defendant advertised as follows : “Dr. F. M. Miller, Chiropractor, . . . Marshalltown, Iowa, Read carefully the contents of this Booklet. It will interest you. The Cure of Disease. - Cure of disease follows Chiropractic adjustment because Chiropractic removes the cause. Chiropractic is a Distinct and Complete Drugless and Knifeless System and has Nothing in Common with Osteopathy, Massage, Swedish Movement or any other system. Chiropractic is successful in all forms' of disease. This means your Disease. If your case is numbered among those supposed impossibilities, do not despair. Try Chiropractic and get well. . . . Chiropractic is a common sense treatment. It will bear investigation. It is based on a correct knowledge of ’the nervous tissues. It adjusts all displacements and allows the innate builder to reconstruct the broken down tissues.” We have given only a part of the advertised merits of chiropractic, and have omitted most of the capitals used in describing them. The evidence showed that the defendant treated patients for a consideration, and that he professed to cure and heal diverse diseases by the use of his system. He gave no medicine, nor did he prescribe medicine. His system consisted of certain mechanical appliances which were used in connection with hand manipulations and an electric vibrator.

The appellant says that the statute under which the prosecution was brought is unconstitutional. (a) The subject-matter of the act is not embraced in the title, and is contrary to section 29 of article 3 of the Constitution of the state, (b) The statute violates section 6 of article 1 of the Bill of Bights. (c) Code, section 2582, as amended by chapter 89, Acts 28th General Assembly, and chapter 102, Acts 30th General Assembly, is contrary to section 6 of article 1 of the Bill of Bights, (d) Said chapters make an unwarranted delegation of authority to the state board of health. *

All of these constitutional questions except the last have already been decided by us adversely to the appellant’s contention and we have no present occasion to again discuss them.

The original act, which is now embodied in the Code as title 12, chapter 17, was chapter 104, Acts 21st General Assembly, and its title there was “An act to regulate the practice of medicine and surgery in the state of Iowa,” In the Code it is entitled “Of the practice of medicine.” This was held sufficient in State v. Edmunds, 127 Iowa, 333. That the statute is not unconstitutional because of discrimination, or because it grants' to one class of citizens rights which all may not enjoy, is held in State v. Edmunds, supra, State v. Bair, 112 Iowa, 466, and State v. Heath, 125 Iowa, 585. The chapter under consideration provides that the board of medical examiners shall consist of the physicians of the state board of health, and names the subjects that shall be covered by the examination. The physicians of the state board of health are appointed by the Governor. Section 2582 of the Code and Supplement provides that all persons desiring to practice medicine in this state must submit to an examination, and also present diplomas from some medical school of recognized standing. It is said that the power thus given to the board of examiners may be so exercised as to exceed proper police protection, and because of such possibility the statute is unconstitutional. A statute is not unconstitutional because it provides a board for certain purposes and gives such board discretion. Such a statute does not discriminate against any class of citizens. See cases supra, and Iowa Med. Col. Assn. v. Schrader, 87 Iowa, 659. Nor does it confer upon the board of examiners arbitrary power, or enable them to discriminate in favor of any particular school of medicine. While the board acts within its reasonable discretion, it will be protected, but, when it geeks to go beyond that aud to act illegally, the court will interfere. Association v. Schrader, supra. A medical board of examiners may prescribe reasonable rules and regulations for the conduct of its work. State v. Chittenden, 127 Wis. 468 (107 N. W. 500); Schrader case supra; Illinois State Bd. v. People, 123 Ill. 227 (13 N. E. 201); State v. Medical College, 60 Ohio St. 122 (54 N. E. 86); Barmore v. Board, 21 Or. 301 (28 Pac. 8). The statute itself fumishes.no warrant for an unjust discrimination, and the courts will not presume for the purpose of holding it unconstitutional that the board will exceed its power, or do any unlawful act.

The indictment is assailed on the ground that it charges no crime. It charges a violation of the act in substantially the language of statute, and that is sufficient. State v. Wilhite, 132 Iowa, 226; State v. Blair, 92 Iowa, 28.

The court received testimony that the treatment given by the defendant was beneficial to some of his patients, but the jury was afterwards instructed to disregard such evidence. The appellant complains of the instruction because it was given without notice to him. The instruction was right; and, if the defendant was deprived ’ of some substantial right on account of the admission of the testimony after-wards ruled out, he should have made the fact known before the case was fin-ally submitted to the jury, and this he did not do.

It is most earnestly urged that the evidence wholly fails to show that any offense was committed by the defendant. But with this contention we can not agree. The facts in this case bring it clearly within the construction given the statute in State v. Edmunds, supra, State v. Bair, supra, and State v. Heath, 125 Iowa, 585. The cases from other jurisdictions cited by the appellant are, of course, not controlling. In fact, most of them are based on statutes unlike our own.

The court was asked to charge that the defendant must be presumed to be innocent until he was proven guilty beyond all reasonable doubt. The request was not given. But the court did instruct fully that no . . tit it t conviction could be had unless every material allegation was established by the evidence beyond a reasonable doubt. We think that was sufficient. The other requests made by the appellant were either properly refused or sufficiently embodied in those given.

There is no substantial error in the record and the judgment will therefore be -affirmed.  