general in its scope to warrant legislation of the Legislature. The authorities upon this regulating the banking business and provi-point are collected in the second volume of sions for the enforcement thereof. The rule in this state with reference to the title of an act was stated in City of Pond Creek v. Haskell, 21 Okl. 711, 97 Pac. 338, as follows: State, 62 N. J. Law, 503, 41 Atl. 942; State v. Morgan, 2 S. D. 32, 48 N. W. 314; Insurance Co. v. Raymond, 70 Mich. 485, 38 N. the Digest of United States Supreme Court Reports, published by the Lawyers' Co-operative Publishing Company, under the title "Corporations" (section 761). Such corporations must act through agents, and the pen"Under this clause of the Constitution, the ti- alties of a restrictive statute affecting them tle of a bill may be very general, and need not may fairly be visited upon their agents. specify every clause in the statute, it being suffi- Such provision is incidental to the general cient if they are all referable and cognate to the subject expressed; and, when the subject is object of the regulation of the business of expressed in general terms, everything which is insurance, and, if this power be denied, the necessary to make a complete enactment in re-regulation becomes ineffectual. Hickman v. gard to it, or which results as a complement of the thought contained in the general expression, is included in and authorized by it." See, also, In re County Com'rs, 7th Jud. Dist., 22 Okl. 435, 98 Pac. 557; State v. Hooker, 22 Okl. 712, 98 Pac. 964; Holcomb v. C., R. I. & P. R. Co. 27 Okl. 667, 112 Pac. 1023; Coyle v. Smith et al., 28 Okl. 121, 113 Pac. 944; Binion, Sheriff, v. Okl. Gas & Elec. Co., 28 Okl. 356, 114 Pac. 1096; Jefferson v. Toomer, 28 Okl. 658, 115 Pac. 793; Rea, County Clerk, v. State, 29 Okl. 708, 119 Pac. 235; Leatherock v. Lawter, 147 Pac. 324 (not yet officially reported); Ex parte Ambler (Cr. App.) 148 Pac. 1061 (not yet officially reported). The fact that penalties are imposed for violation of the provisions of the act does not render these sections void as being without the title; for it would be a natural complement to the act regulating the business of insurance to include any just and proper provisions for enforcing the duties imposed upon the persons and companies affected, and to prescribe penalties for the violation thereof. Plumb v. Christie, 103 Ga. 700, 30 S. E. 759, 42 L. R. A. 181; State v. Matthews, supra; State v. Bernheim, 19 Mont. 512, 49 Pac. 441; Gothard v. People, 32 Colo. 11, 74 Pac. 890; Hartford Fire Ins. Co. v. Raymond, Ins. Com'r, 70 Mich. 485, 38 N. W. 474. And it is also permissible to make the provisions of said act applicable to the agents of the companies affected, and requiring obedience upon their part to said law, and prescribing punishment for a violation thereof. It cannot be said that such provisions interfere with the right of contract or deprive the agents affected of property without due process of law. Corporations organized under the laws of other states to engage in and carry on the business of insurance cannot carry on said business in this state without permission from the state, express or implied, nor have they any right to take risks or transact such business in this state without first having complied with the laws of the state. It has been repeatedly held that corporations of one state have no right to exercise their franchises in another state without the consent of the state and upon such terms as may be imposed by the state in which their business is carried on, not inconsistent with the federal Constitution; such conditions being within the discretion W. 474. It was not necessary that the provision authorizing appeal should be expressed in the title; such provision being incidental to and a necessary requisite to the regulation intended, preserving to the companies and individuals affected the right to a review in the courts of any order, rule, or regulation that might be prescribed by the insurance board. Ex parte Ambler (Cr. App.) 148 Pac. 1061. The general scope and purpose of the act being to regulate the business of insurance, and the various provisions being cognate to the subject, and properly connected therewith and necessary to an effectual regulation, such as is intended by said act, we think the title thereof was sufficient to embrace within its general scope the various provisions challenged. Section 19 is assailed upon the theory that it is class legislation and an unjust discrimination between classes of companies therein enumerated. This question was involved in the case of German Alliance Ins. Co. v. Lewis, supra, where complainant attacked the statute of Kansas as discriminating against complainant because it excluded from its provisions Farmers' Mutual Insurance Companies organized and doing business under the laws of that state, and insuring only farm property. In holding adversely to this contention, the court said: of Kansas for the organization of co-operative "There are special provisions in the statutes companies, and, if the statute under review discriminates between them, the German Alliance Company cannot avail itself of the discrimination. A citation of cases is not necessary, nor for the general principle that a discrimination is valid if not arbitrary, and arbitrary in the legislative sense that is, outside of that wide discretion which a Legislature may exercise. A legislative classification may rest on narrow distinctions. Legislation is addressed to evils as they may appear, and even degrees of evil may determine its exercise. Ozan Lumber Co. v. Ct. 768, 50 L. Ed. 1176. There are certainly Union County Nat. Bank, 202 U. S. 623, 26 Sup. differences between stock companies, such as complainant is, and the mutual companies described in the bill, and a recognition of the diftutional power of the Legislature. Orient Ins. ferences we cannot say is outside of the constiCo. v. Daggs, 172 U. S. 557, 19 Sup. Ct. 281, 43 L. Ed. 552." A similar classification was upheld in Citizens' Insurance Co. v. Clay et al., supra, where the Kentucky state insurance rate law excepted from its operation purely mutual or profit-sharing companies, or co-operative companies not operating for profit, and church insurance companies. The objection that the section mentioned is class legislation cannot be sustained. INSURANCE CO. OF NORTH AMERICA (Supreme Court of Oklahoma. Nov. 9, 1915. (Syllabus by the Court.) MANDAMUS 87-INSURANCE AGENTS-DUTY TO ISSUE LICENSES-MANDAMUS. Subdivision C of section 10, which provides a penalty for any insurance company, foreign or domestic, requiring any person as a condition precedent to his appointment as agent or retaining an agency for said com-recting him to issue such license. pany to refuse or surrender the agency of any domestic insurance company, is assailed as being in contravention of section 2, art. 2, of the Constitution, which provides: Under the provisions of chapter 174, Sess. Laws 1915, p. 340, the duty of issuing licenses to insurance agents is imposed upon the state insurance board, and mandamus will not be awarded against the insurance commissioner di "All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry." And a portion of section 12 is also assailed as being an infringement of the rights of an insurance agent, granted to him by said section of the Constitution. Upon this question it is sufficient to say that plaintiff is not in position to raise these objections to the sections challenged, and therefore we will not consider same for this reason. Rea v. State, 29 Okl. 708, 110 Pac. 235; Robertson et al. v. Board of Commissioners, 14 Okl. 407, 79 Pac. 97; Stine v. Lewis, Sheriff, et al., 33 Okl. 616, 127 Pac. 396. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §8 189-194; Dec. Dig. 87.] Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. Mandamus by the Insurance Company of North America, a corporation, and others against A. L. Welch, Insurance Commissioner of the State of Oklahoma. Judgment for defendant, and plaintiffs bring error. firmed. Af Burwell, Crockett & Johnson, of Oklahoma City, for plaintiffs in error. S. P. Freeling, Atty. Gen., and J. H. Miley and Smith C. Matson, Asst. Attys. Gen., for defendant in error. HARDY, J. This is an action by the plaintiff Insurance Company of North America [9] Complaint is also made of the action and certain of its agents for the purpose of of the insurance board in refusing to ap compelling A. L. Welch, insurance commisprove the form of policy submitted by plain- sioner of the state of Oklahoma, to issue to tiff because same appears to be a joint pol- such agents licenses authorizing them to repicy issued by it and another company, and resent the plaintiff company and issue polihas indorsed on the filing back thereof in cies on its behalf. The petition alleged that large letters the words "PHILADELPHIA the plaintiff had been licensed to do busiUNDERWRITERS' DEPARTMENT," and ness in the state of Oklahoma for the year immediately following and in connection 1915, and had in all matters and things comtherewith, but in small letters, the words plied with the laws of the state and with "Of Both Companies." It does not appear the insurance department thereof, and that from the pleadings or evidence that plaintiff certain persons named in its petition and in has used or will use such form of policy an exhibit attached thereto had been appointwithout the approval of the board, and there ed by it as its agents in this state for the fore there is no cause for interference until year 1915, which list of agents had been a case shall be presented where actual re-filed with the insurance department of the lief may be granted. Plaintiff is not entitled state and with the defendant as insurance to the relief demanded, for the additional commissioner; that the necessary fees had reason that, the act conferring authority up-been tendered, setting forth compliance with on the insurance board to act in the prem- all of the provisions of the law in reference ises being valid, and provision being made to the appointment and licensing of agents therein for an appeal to this court, the plain- on behalf of plaintiff and its agents; that it tiff is not entitled to resort to a court of had requested the defendant, as insurance equity for injunctive relief, but must pursue commissioner, to issue said licenses, which the remedy provided by the statute, which he had refused to do. in this case appears to us to be plain, speedy, and adequate. Ellis v. Akers et al., 32 Okl. 96, 121 Pac. 258; Harris et al. v. Smiley, 36 Okl. 89, 128 Pac. 276. For the foregoing reasons, the order of the trial court denying the temporary injunction is affirmed. All the Justices con cur. Upon filing the petition an alternative writ of mandamus was issued and served upon the defendant, who within due time filed his answer and return, justifying himself under the provisions of House Bill No. 70, contending that, under said law, the authority and power to issue licenses to agents of insurance companies was vested in the state insurance board, and that defendant had no authority physician acts in an administrative, and not a judicial, capacity, and the same strictness in under said law to do so. pleadings and practice is not required before At the trial it was admitted that defend-it as before a judicial tribunal. It is sufficient ant, Welch, had refused to issue the licenses if the accused is informed by the complaint of to the agents named, and at the close of the the wrong charged against him and the particutrial judgment was rendered for the defend- lar instances of its perpetration charged, and has an opportunity to defend against proof of ant. Motion for new trial filed and overruled, such charges, and the proceedings are free from and exceptions saved, and plaintiffs bring er- prejudice, fraud, or oppression. The determination of this case is controlled by the decision in Insurance Co. of North America et al. v. Welch, Insurance Commissioner, et al. (No. 7581) 154 Pac. 48, this day decided. ror. [Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. § 15; Dec. Dig. 11.] 5. PHYSICIANS AND SURGEONS 11-PROCEEDINGS TO REVOKE LICENSE-EVIDENCEADVERTISEMENT. By the provisions of chapter 174, Sess. An advertisement published by a physician Laws 1915, p. 340, the power and duty to li- held properly admitted in evidence against him cense insurance agents is conferred upon the upon a charge of obtaining a fee on the assurance that an incurable disease can be perstate insurance board; and, having deter-manently cured by him, as tending to prove mined this act to be a valid exercise of legis- the assurance of permanent cure, where such lative authority, it follows that the defendant assurance is denied by the physician. as insurance commissioner is without authority to issue the licenses demanded by plaintiffs, and no duty is imposed upon him to do so, as said licenses should be issued by the state insurance board. [Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. § 15; Dec. Dig. 11.] 6. APPEAL AND ERROR_1071 HARMLESS ERROR-FINDINGS OF FACT-EVIDENCE. It is error for the court to make a finding of fact upon a matter upon which all evidence was excluded, but, where the other findings of the court are supported by the evidence, and are sufficient to sustain the judgment of the court, such error is not so prejudicial as to warrant a reversal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. 1071.] 7. PHYSICIANS AND SURGEONS 11-REVOCATION OF LICENSE-SUFFICIENCY OF EVIDENCE-CERTIORARI. Evidence considered, and held to sustain the judgment of the court. [Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. § 15; Dec. Dig. 11.] The state is not a necessary party to a proceeding before the state board of medical examiners to revoke the license of a physician. [Ed. Note. For other cases, see Physicians Commissioners' Opinion, Division No. 1. and Surgeons, Cent. Dig. § 15; Dec. Dig. Error from District Court, Bryan County; 11.] 2. PHYSICIANS AND SURGEONS 10"UNPROFESSIONAL CONDUCT"-"INCURABLE DIS EASE." * Jesse M. Hatchett, Judge. Writ Certiorari by R. W. Freeman against the State Board of Medical Examiners. quashed, and plaintiff brings error. Affirmed. In the second clause of section 6905, Rev. Laws 1910, defining "unprofessional conduct" of a physician as the obtaining of Hatchett & Ferguson, of Durant, for plainany fee on the assurance that an incurable dis- tiff in error. S. P. Freeling, Atty. Gen., and ease can be permanently cured," the words "incurable disease" mean any disease which has C. W. King, Asst. Atty. Gen., for defendant reached an incurable stage in the patient af- in error. flicted therewith, according to the then general state of knowledge of the medical profession. [Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. § 14; Dec. Dig. 10. For other definitions, see Words and Phrases, First and Second Series, Unprofessional.] 3. PHYSICIANS AND SURGEONS 10-UNPROFESSIONAL CONDUCT-VALIDITY OF STATUTE. The second clause of section 6905, Rev. Laws 1910, is valid, and defines an offense against professional conduct on the part of physicians. RUMMONS, C. The questions involved in this appeal raised in the brief of plaintiff in error necessary to be considered consist of four propositions: First. Is the state a necSecond. essary party to this proceeding? Is the clause in section 6905, Revised Laws 1910, defining "unprofessional" conduct of a The obtainphysician as follows: "Second. ing of any fee on the assurance that an incurable disease can be permanently cured"void and of no effect? Third. Whether or not the proceedings before the state board of medical examiners and the district court were regular and free from prejudicial error? Fourth. Was the evidence sufficient to supThe state board of medical examiners in a proceeding before it to revoke the license of a port the judgment of the trial court? For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. § 14; Dec. Dig. 10.] 4. PHYSICIANS AND SURGEONS 11-PROCEEDINGS TO REVOKE LICENSE-COMPLAINT. Section 6913, Revised Laws 1910, further provides: The plaintiff in error, a duly licensed phy-, 20 days after the filing of the complaint, and sician, was informed against before the state to proceed thereafter to try and determine board of medical examiners upon a charge the issues raised. of being guilty of unprofessional conduct. He was thereafter duly cited to answer the complaint, and did answer the same, denying specifically the acts complained of. Thereafter, at one of its regular quarterly meetings, the state board heard the complaint, and, after plaintiff in error had unsuccessfully moved to dismiss the complaint, demurred thereto, and moved to strike, proceeded to take testimony upon the complaint. The state board found against plaintiff in error, and ordered that his license as a physician be revoked. Thereupon plaintiff in error filed his petition in the district court of Bryan county praying a writ of certiorari to issue to the state board of medical examiners to review their action upon the complaint aforesaid. The writ was issued, and thereafter the cause came on before the district court of Bryan county, and a trial was had to the court, without the intervention of a jury, upon the complaint filed with the state board of medical examiners and the answer of plaintiff in error thereto. The trial court found against plaintiff in error, and quashed the writ of certiorari and affirmed the action of the state board of medical examiners. [1] Plaintiff in error insists that this proceeding should have been dismissed for the reason that the state of Oklahoma is a necessary party to a proceeding like this. We cannot agree with this contention of plaintiff in error. The case of Gulley v. Territory of Oklahoma, 19 Okl. 187, 91 Pac. 1037, does not sustain the contention of the plaintiff in error, because that case was begun and tried under the laws then in force in the territory of Oklahoma providing that the district court shall upon the complaint of any member of the territorial board of health have power to cancel the license of any physician found guilty, etc. Under this statute the proceedings to revoke the license of a physician were judicial, had to be commenced upon the complaint of a member of the territorial board of health, and were thus officially controlled, and the court rightfully held the state to be a proper party in such a proceeding. The case of State v. Estes, 34 Or. 196, 51 Pac. 77, 52 Pac. 571, 55 Pac. 25, cited by plaintiff in error, also fails to sustain the contention of plaintiff in error. In that case it was held that the state was a proper party in a proceeding to revoke the license of a physician, and that, notice of appeal having been served upon the state, it need not be served upon the State Board. "Any person who has been aggrieved by any act, rule or regulation of said board shall have the district court of the county in which some his right of action to have such issue tried in member of the board shall reside." It will be seen that under no provision of the statute does the state of Oklahoma or to institute proceedings for the revocation of any official thereof have exclusive authority the license of a physician, nor is there any Oklahoma can control such proceedings. The authority in the statute by which the state of proceeding may be instituted by any one, and the state of Oklahoma or the Attorney Gendismiss such proceeding or cause it to be eral would be wholly without authority to discontinued. Therefore we are of the opinion that, while the state of Oklahoma, through its Attorney General, might approis not such a necessary party to the proceedpriately institute such a proceeding, yet it ings as to require it to be in court before the matter could be proceeded with. vised Laws 1910, above quoted void and of [2, 3] Is the provision of section 6905, Replaintiff in error cite the case of Graeb v. no effect? Upon this proposition counsel for State Board of Medical Examiners, 55 Colo. 523, 139 Pac. 1099, 47 L. R. A. (N. S.) 1063. for revoking the license of a physician The Colorado statute provides as a ground The obtaining of a fee on the rep 66 * * resentation that a manifestly incurable dis- The "The position of the board is very clearly stated in this respect in their brief in Hamilton v. Board (Colo.) 148 Pac. 1145, to which brief we are referred and asked to consider in connection This is as follows: 'If the with this case. question were in controversy in this case as to whether the words "manifestly incurable disease" is so indefinite as to be unenforceable, we would welcome the issue, but we hesitate to burden this court with a vast number of authorities on a point not in issue. Suffice it to say that the words last quoted do not refer to any Our statutes (sections 6901, 6903 and 6904, diseases per se, but to a condition of the patient It is true Revised Laws 1910) provide the procedure suffering from almost any disease. for revoking the license of a physician. The disease" in itself, but an invalid suffering from that consumption is not "a manifestly incurable proceeding to revoke the license may be com- consumption may have reached a stage in which Under menced by any one upon a sworn complaint; the disease is "manifestly incurable." and thereupon it is the duty of the state our statute, a physician might lawfully take money for representing that he could cure one board of medical examiners to issue citation case of consumption and at the same time be similar representation as to another case of the same disease which had manifestly gone beyond the curable stage.' This argument is also advanced in this case, but not so clearly stated as in the above quotation. This position is not tenable. If the statute had intended a manifestly incurable person, or a manifestly incurable diseased condition, it would doubtless have so recited. But the language is a 'manifestly incurable disease.' Clearly the descriptive words 'manifestly' and 'incurable' apply to the disease, and not to the person or the condition of the person afflicted with the disease. This is likewise the charge in the complaint; for it alleges 'that a manifestly incurable disease could be cured * * the disease known as consumption.' Counsel for the board have cited no authority justifying such construction of the language used in the statute as that for which they contend, and we do not see how language so clear and explicit can be so tortured. If there is no disease known and understood to be manifestly incurable, then the statute states no offense in that particular, and the board was without jurisdiction in the premises." Mr. Justice Gabbert, writing the dissenting opinion for the minority of the court, uses the following language: charged with having undertaken to treat upon assurance of effecting a permanent cure were not considered by the witnesses for the complainant to be incurable per se; in fact, it may be doubted if the medical profession recognizes any disease as incurable per se-that is, beyond the reach of medical skill at any stage in the progress of the disease. We think, however, that the majority opinion of the Colorado court does not rightly construe the statute, and we prefer to follow the dissenting opinion in that case, as we think the dissenting opinion correctly interprets the statute in question, and that such interpretation is equally applicable to our own statute. To sustain the contention of the plaintiff in error upon this proposition would be to nullify that section of our statute, and to hold that the Legislature, adopting it, did a vain and useless thing. The universal rule of statutory construction is that, when the intent of the Legislature can be determined from the statute, it is the duty of the courts to follow and enforce such intent. In construing statutes consideration is always given to the mischief to be corrected and the remedy to be afforded. As we regard this section of our statute, we think that it is not aimed at any unethical practices of physicians as interpreted by the medical fraternity, but was aimed to prevent acts on the part of physicians which are universally regarded as immoral and against good conscience, not only by the medical profession, but by laymen as well, and for which under the style of obtaining money under false pretenses our Criminal Code has provided the penalties of the law. The gist of the offense of which it is claimed plaintiff in error was guilty is duping the credulous and taking advantage of the afflicted by taking money from them with an assurance that they can be perma "When is a disease manifestly incurable? Clearly when it is evident it has reached the stage that it cannot be made to yield to medical treatment. That is what laymen, as well as the medical profession, understand from the expression 'a manifestly incurable disease.' The intent of the law is to be considered in its interpretation, and, in ascertaining such intent, the evil against which it is directed must be considered. It is common knowledge that one suffering from disease can easily and readily be imposed upon by those who, by reason of the fact that they have obtained a license to practice medicine, are presumed to possess that degree of skill in the treatment of disease which will enable them to accomplish that which they represent they can. The object of the statute is to prevent what would be nothing less than extortion by members of the medical profession, obtaining money from persons or the relatives and friends of those suffering from disease by promising a cure when it is apparent that the patient is beyond the reach of medical science. Such being the object of the statute, the words employed to express it should not be given such a narrow construction as will result in destroying its beneficent purpose, when from such lan-nently cured when, in fact, their condition is guage, and the general understanding of what it means, it is apparent that the Legislature intended to prevent the helpless ill being imposed upon by the promises of a cure when it was evident their condition was such that it could not be accomplished." incurable according to the general state of knowledge of the medical profession at that time. The word "incurable" is defined: "Not curable; beyond the power or skill of medicine." 22 Cyc. 74. "Not susceptible of cure; applied to both patients and disease." Dunglison's Medical Dictionary. Section 2914, Revised Laws 1910, provides: "Words used in any statute are to be understood in their ordinary sense, except when a contrary intention plainly appears." Section 4642, Revised Laws 1910, provides: This case is the only one cited by counsel, and the only one which we have been able to find, which passes directly upon the point raised by plaintiff in error. The majority opinion undoubtedly sustains the contention of plaintiff in error. While the Colorado statute uses the words "manifestly incurable" instead of the word "incurable" as in our statute, we do not regard this as affecting the applicability of the majority opinion of the Colorado court, since the court there holds that the words "manifestly" and "incurable" must be taken as applicable to the disease Under these definitions and under the rules per se, and not to the condition of the patient of construction laid down as above in our suffering with the disease at the time his statutes we must conclude that the word "intreatment is undertaken by the physician. curable," in the section of the statute in quesThe record in the case at bar discloses that tion, is to be interpreted in its ordinary acthe diseases which the plaintiff in error isceptation, and that the Legislature, in adopt that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any statute of Oklahoma; but all such statutes shall be liberally construed to promote their object." |