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Section 2583-d, Supplement to the Code, 1913, so far as germane, to the present controversy, provides a penalty for those who "shall practice osteopathy, surgery or obstetrics in the state without first having obtained and filed for record the certificate herein required."

We are not persuaded by anything thus far commented upon that this statute is unconstitutional for any reason; and on this point, the appellant is a house divided against itself. He contends that the statute is unconstitutional, and cites what has been commented upon, which does not sustain him, and, on the other hand, presents that which refutes him.

In Bragg v. State (Ala.), 32 So. 767, it is held that a statute providing that no person shall practice medicine in any of its branches or departments without a certificate of qualifications from an authorized board of medical examiners, and imposing a penalty for practicing medicine without such certificate, is not unconstitutional.

Little v. State (Nebr.), 84 N. W. 248, is that one who, without complying with the statute establishing a state board of health and prohibiting the practice "without a license" of medicine, surgery and obstetrics, practices medicine without a license, is liable to the penalty prescribed by the statute.

In State v. Heath, 125 Iowa 585, we hold that statutes which require practitioners to secure a certificate from the state board of medical examiners, and pass an examination in those matters pertaining to the school of medicine which the applicant proposes to practice, are reasonable and valid.

In State v. Corwin, 151 Iowa 420, the holding is that conditions imposed on the right to practice as a physician, and the like, do not constitute an unreasonable exercise of the legislative power; and in State v. Edmunds, 127 Iowa 333, 334, we hold that, though the license imposed on itinerant physicians by Code Sec. 2581 should be treated as a tax, that statute is not in conflict with a constitutional provision that VOL. 178 IA.-6

every law imposing a tax shall state its purpose, and the object to which it is to be applied.

In State v. McAninch, 172 Iowa 96, 100, Par. II, we overrule a demurrer presenting that the statutes here being proceeded under are repugnant to the Bill of Rights, the Constitution of the United States, and the Constitution of the state.

2. CONSTITUTIONAL LAW rules of construction: reluctance to invalidate law: noninterested

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But there is an attempt to present a point, which it may be conceded the foregoing have not dealt with. The argument is this: Practicing osteopathy is practicing medicine; Section 2579, Code, 1897, exempts from the penalties of the statute upon which the indictment rests, "students of medicine" who have stated qualifications (which defendant has), if they prescribe "under the supervision of preceptors, or give gratuitous services "in case of emergency.' It is said that, if defendant is denied this exemption, there is an arbitrary, and therefore void, discrimination between osteopaths, whom the law regards as practicing medicine, and others who are also practicing medicine.

party.

Axiomatic law refutes this contention. Courts avoid invalidating statutes unless the question whether they are valid arises for, and demands, decision. In the instant case, defendant insists throughout that the treatments given by him were not an application of the science of osteopathy, but were the application of a distinct system, which he calls "eyelet dilitation." The statute exempts neither students nor practitioners of "eyelet dilitation," and none but "students of medicine, surgery or obstetrics," and there is no claim that said dilitation is any one of these three. It will be time enough for us to pass on whether a statute unduly discriminates against practitioners of osteopathy when someone presents the point who does not deny that he practices osteopathy.

Again, while defendant may have given gratuitous treatments, it does not appear that they involved a "case of emer

gency." And if that be passed, it is still undisputed that he

3. PHYSICIANS

AND SURGEONS: certificate of authority: exemptions of students: scope.

gave many treatments in consideration of $2 per treatment. Finally, he was not a student at all, but a practitioner. If, for the sake of argument, he be treated as a student, the evi

dence shows clearly that he was not "a student scribing under the supervision of a preceptor."

pre

Dr. Baughman is a qualified and duly certified practitioner of osteopathy, living and practicing in Burlington. He had some relation to the treatments which defendant gave at Pulaski. Upon evidence showing that relation, defendant requested, and was denied, an instruction that, under the law, any person who is a student of medicine, surgery or obstetrics, which includes osteopathy, and who has had not less than two courses of lectures in a medical school of good standing, has the right to practice medicine or osteopathy under the supervision of a preceptor, and that, therefore, if it should be found that defendant practiced under the supervision and preceptorship of Dr. Baughman, he should be found not guilty. The evidence for which it is claimed that it bases the refused instruction is this:

Lantz took treatments; Allen took eleven; Gleason was treated; and Bussey and his son and Blough and Blough's father: for all of these, $2 a treatment was paid. Baughman and his wife were treated, and it does not appear that payment was made for this, and it may be assumed it was charity treatment. As said, Dr. Baughman, of Burlington, was prac ticing in Burlington while these treatments were being given in Pulaski. Dr. Baughman called at the home of his brother in Pulaski and treated the brother and the brother's wife. He went to Pulaski on June 24th. Defendant then asked him about the treatment of some of his patients. They had a conference as to the treatment of Dr. Baughman's brother and the brother's wife, and that of Allen, Bickle, Lamb, Blough, Lillie Blough, Gleason, Bussey and son. Lantz testified Dr. Baughman never examined him, and was never present when witness

received treatments from defendant. But Dr. Baughman says he had given defendant authority to treat "all these persons" under his supervision; that they talked about their troubles and what they needed, and the doctor told defendant he thought defendant could go on under the statute. The doctor returned to Pulaski on July 3d, and had a further conference with defendant on July 3d and 4th, and, in the meantime, defendant reported the progress of the cases. The doctor had talked with defendant several times before witness went to Pulaski; but when he did go to Pulaski, he and defendant conferred about these who were witnesses for the State and others, and the doctor examined some of the patients with defendant and made no charge to them for examination. Dr. Baughman concludes with the statement that defendant was treating under his direction and supervision, and that he approved of defendant's system because he knew him and knew of his efficiency as an osteopath.

Defendant says he wrote the state board, and he understood that, if he practiced in Iowa, he would have to practice under someone who had a permit; that Dr. Baughman had a permit, and defendant thought he had a right to come into the state if he acted in consultation with the doctor; that he first called the doctor by phone about treating these patients; that, under the supervision of Dr. Baughman, he treated those who testified for the State, but these had been the doctor's patients; that he treated none of the patients at Pulaski without consulting Dr. Baughman, and did so because defendant didn't want the responsibility. That he consulted with the doctor by letter, telephone or in person before he treated any patient; that, in treating Allen, it was done under the supervision and direction of Dr. Baughman; that letters from defendant induced the doctor to come to Pulaski on June 24th, and that, when he came, defendant went over the symptoms of his patients with him; that, while in Pulaski, he had communication with Dr. Baughman; that the doctor wished him to look after his brother's wife, his sister and some other

patients; that he first talked with the doctor over the phone before beginning treatments; that he was reluctant; that the doctor urged him as a matter of mercy to see the sister, Joe Blough, and some others; and that, when he consulted with Dr. Baughman, the latter said that the treatments defendant was giving met with the doctor's approval.

That this presents the relation of consultants on occasion and occasional advice and direction is true. But, as matter of law, the relation was not that of "a student prescribing under the supervision of a preceptor.' ." Hence, the offered instruction was rightly refused.

Under Instruction No. 8, the court withdrew the evidence concerning the relations between defendant and Dr. Baughman. The reasons for the withdrawal are stated. They are that the law regulating the practice of

4. TRIAL: instructions: objec

tions: failure to specifically except: effect.

tions and excep- osteopathy does not give authority to one not certified, to practice under the direction of another who is regularly licensed. Let it be conceded that this is not the correct reason. But defendant is in no position to avail himself of such error, if error there be. He took no exceptions, in the method provided by statute. He merely excepted to the giving of each and all of the instructions given, and, in the motion for new trial, repeated that exception without any claim that anything was overlooked with reference to exceptions, or any attempt to comply with the statute on exceptions.

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We fail to see the materiality of citing McCracken v. Webb, 36 Iowa 551, at 554, 555; Aultman v. Lee, 43 Iowa 404, 405; and Preston v. Dubuque & P. R. Co., 11 Iowa 15, at 17. The first does hold that the giving of an instruction which, though correct in one point of view, would, if viewed in another and more natural one, have a tendency to mislead, should not be approved. The second holds that a judgment will be reversed for the giving of an instruction which was