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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. Section 6913, Revised Laws 1910, further He was thereafter duly cited to answer the provides: complaint, and did answer the same, deny- "Any person who has been aggrieved by any ing specifically the acts complained of. act, rule or regulation of said board shall have Thereafter, at one of its regular quarterly the

his right of action to have such issue tried in

the district court of the county in which some meetings, the state board heard the com- member of the board shall reside.” plaint, and, after plaintiff in error had un

It will be seen that under no provision of successfully moved to dismiss the complaint,

the statute does the state of Oklahoma or demurred thereto, and moved to strike, pro

any official thereof have exclusive authority ceeded to take testimony upon the complaint.

to institute proceedings for the revocation of The state board found against plaintiff in

the license of a physician, nor is there any error, and ordered that his license as a physi

authority in the statute by which the state of cian be revoked. Thereupon plaintiff in error

Oklahoma can control such proceedings. The filed his petition in the district court of

proceeding may be instituted by any one, and Bryan county praying a writ of certiorari to

the state of Oklahoma or the Attorney Genissue to the state board of medical examiners

eral would be wholly without authority to to review their action upon the complaint

dismiss such proceeding or cause it to be aforesaid. The writ was issued, and there

discontinued. Therefore we are of the opinafter the cause came on before the district court of Bryan county, and a trial was had

ion that, while the state of Oklahoma,

through its Attorney General, might approto the court, without the intervention of a jury, upon the complaint filed with the state

priately institute such a proceeding, yet it

is not such a necessary party to the proceedboard of medical examiners and the answer of plaintiff in error thereto. The trial court

ings as to require it to be in court before the found against plaintiff in error, and quashed

matter could be proceeded with.

[2, 3] Is the provision of section 6905, Rethe writ of certiorari and affirmed the action

vised Laws 1910, above quoted void and of of the state board of medical examiners.

no effect? Upon this proposition counsel for [1] Plaintiff in error insists that this pro

plaintiff in error cite the case of Graeb v. ceeding should have been dismissed for the

State Board of Medical Examiners, 55 Colo. reason that the state of Oklahoma is a nec

523, 139 Pac. 1099, 47 L. R. A. (N. S.) 1063. essary party to a proceeding like this. We

The Colorado statute provides as a ground cannot agree with this contention of plain

for revoking the license of a physician tiff in error. The case of Gulley v. Terri

"* * * The obtaining of a fee on the reptory of Oklahoma, 19 Okl. 187, 91 Pac. 1037,

resentation that a manifestly incurable disdoes not sustain the contention of the plain

ease can be permanently cured." Section tiff in error, because that case was begun and

6068, Rev. St. 1908. Our own statute makes tried under the laws then in force in the terri

the ground for the revocation of license tory of Oklahoma providing that the district

"* * * the obtaining of any fee on the court shall upon the complaint of any member

assurance that an incurable disease can be of the territorial board of health have power

permanently cured." The two statutes are to cancel the license of any physician found

identical, except for the word "manifestly" guilty, etc. Under this statute the proceed

used in the Colorado statute. A majority ings to revoke the license of a physician were

of the Colorado Supreme Court in the case judicial, had to be commenced upon the com

cited held that the statute quoted was too plaint of a member of the territorial board

indefinite and uncertain to be valid. The of health, and were thus officially controlled,

court, in passing upon this question, uses and the court rightfully held the state to be a proper party in such a proceeding. The

the following language: case of State v. Estes, 34 Or. 196, 51 Pac.

"The position of the board is very clearly stat

ed in this respect in their brief in Hamilton v. 77, 52 Pac. 571, 55 Pac. 25, cited by plaintiff Board (Colo.) 148 Pac. 1145, to which brief we in error, also fails to sustain the contention are referred and asked to consider in connection of plaintiff in error. In that case it was

with this case. This is as follows: 'If the

question were in controversy in this case as to held that the state was a proper party in a whether the words "manifestly incurable disproceeding to revoke the license of a physi ease" is so indefinite as to be unenforceable, cian, and that, notice of appeal having been

al having been l we would welcome the issue, but we hesitate to served upon the state, it need not be served

burden this court with a vast number of author

ities on a point pot in issue. Suffice it to say upon the State Board.

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 Revised Laws 1910) provide the procedure

suffering from almost any disease. It is true

that consumption is not "a manifestly incurable for revoking the license of a physician. The

The disease" in itself. but an invalid suffering from proceeding to revoke the license may be com- consumption may have reached a stage in which menced by any one upon a sworn complaint; | the disease is "manifestly incurable." Under 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 o

ers to issue citation case of consumption and at the same time be similar representation as to another case of the charged with having undertaken to treat upsame disease which had manifestly gone beyond on assurance of effecting a permanent cure the curable stage. This argument is also ad- | vanced in this case, but not so clearly stated as were not considered by the witnesse

Waars stated were not considered by the witnesses for in the above quotation. This position is not the complainant to be incurable per se; in tenable. If the statute had intended a manifest- fact, it may be doubted if the medical proly incurable person, or a manifestly incurable diseased condition, it would doubtless bave so

fession recognizes any disease as incurable recited. But the language is a 'manifestly in- per se—that is, beyond the reach of medicurable disease.' Clearly the descriptive words cal skill at any stage in the progress of the 'manifestly' and 'incurable' apply to the disease, I disease. We think, however, that the majoriand not to the person or the condition of the person a ficted with the disease. This is like- y opinion of the Colorado court does not wise the charge in the complaint; for it al-rightly construe the statute, and we prefer leges 'that a manifestly incurable disease could to follow the dissenting opinion in that case, be cured * * * the disease known as consumption.' Counsel for the board have cited no

con as we think the dissenting opinion correctly authority justifying such construction of the interprets the statute in question, and that language used in the statute as that for which such interpretation is equally applicable to they contend, and we do not see how language so I our own statute. clear and explicit can be so tortured. If there is no disease known and understood to be mani

To sustain the contention of the plaintiff festly incurable, then the statute states no of. in error upon this proposition would be to fense in that particular, and the board was with- nullify that section of our statute, and to out jurisdiction in the premises."

hold that the Legislature, adopting it, did Mr. Justice Gabbert, writing the dissenting a vain and useless thing. The universal rule opinion for the minority of the court, uses of statutory construction is that, when the the following language:

intent of the Legislature can be determined "When is a disease manifestly incurable from the statute, it is the duty of the courts Clearly when it is evident it has reached the to follow and enforce such intent. In constage that it cannot be made to yield to medical

struing statutes consideration is always given treatment. That is what laymen, as well as the medical profession, understand 'from the ex- to the mischief to be corrected and the remepression a manifestly incurable disease.' The dy to be afforded. As we regard this section intent of the law is to be considered in its in- l of our statute, we think that it is not aimed terpretation, and, in ascertaining such intent, the evil against which it is directed must be con- lat.

at any unethical practices of physicians as sidered. It is common knowledge that one suf- interpreted by the medical fraternity, but fering from disease can easily and readily be was aimed to prevent acts on the part of imposed upon by those who, by reason of the

physicians which are universally regarded fact that they have obtained a license to practice medicine, are presumed to possess that degree of as.

e of as immoral and against good conscience, not skill in the treatment of disease which will en only by the medical profession, but by layable them to accomplish that which they rep men as well, and for which under the style resent they can. The object of the statute is to prevent what would be nothing less than ex

of obtaining money under false pretenses our tortion by members of the medical profession, Criminal Code nas provided the peu

| Criminal Code has provided the penalties of obtaining money from persons or the relatives the law. The gist of the offense of which it and friends of those suffering from disease by lis claimed plaintiff in error was guilty is promising a cure when it is apparent that the patient is beyond the reach of medical science.

duping the credulous and taking advantage Such being the object of the statute, the words of the afflicted by taking money from them employed to express it should not be given such with an assurance that they can be permaa 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 incurable according to the general state of it means, it is apparent that the Legislature in- knowledge of the medical profession at that tended to prevent the helpless ill being imposed time. The word "incurable" is defined: upon by the promises of a cure when it was evident their condition was such that it could not

| “Not curable; beyond the power or skill of be accomplished.”

medicine." 22' Cyc. 74. “Not susceptible of

cure; applied to both patients and disease." This case is the only one cited by counsel, Dunglison's Medical Dictionary. and the only one which we have been able to Section 2914, Revised Laws 1910, profind, which passes directly upon the point | vides: raised by plaintiff in error. The majority "Words used in any statute are to be underopinion undoubtedly sustains the contention stood in their ordinary sense, except when a of plaintiff in error. While the Colorado contrary intention plainly appears." statute uses the words "manifestly incurable" Section 4642, Revised Laws 1910, provides: instead of the word "incurable" as in our «« * * . But the rule of the common law, statute, we do not regard this as affecting the that statutes in derogation thereof, shall be

| strictly construed, shall not be applicable to any applicability of the majority opinion of the

* * statute of Oklahoma; but all such stat. Colorado court, since the court there holds utes shall be liberally construed to promote their that the words “manifestly" and "incurable" object.” 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 acing that section, did not intend to do a use-, sufficient, since it advises him of the particuless thing, but intended the statute to be en- lar diseases the treatment of which he is forced in accordance with an interpretation charged with having undertaken, especially based upon the ordinary understanding of the as plaintiff in error did not seek to have words used, both by laymen and physicians. these charges made more definite and certain. In that view of the case we are clearly of [5] The plaintiff in error complains of the the opinion that the words "incurable dis- admission in evidence by the trial court of an ease" in the section of the statute in question advertisement which is admitted to have been apply to the state of the disease which a published by plaintiff in error. Plaintiff in patient may have at the time the treatment error says that he was not charged with makof it is undertaken by the physician, and sing grossly improbable statements, calculated that, if a physician undertakes to treat a to mislead the public, in advertising his busipatient who is suffering from a disease which ness. While this is true, we do not think the has in its progress reached an incurable state court erred in the admission of this advertiseaccording to the then general state of knowl- ment, since it tended in some degree to throw edge of the medical profession, and accepts light upon a question properly before the a fee from the patient upon the assurance court; i. e., whether or not plaintiff in error that he can effect a permanent cure of such gave assurances of effecting permanent cures disease, he would be guilty of unprofession of incurable diseases. al conduct as defined in that section of our [6] Plaintiff further complains that the statute.

trial court in its findings in this cause found [4] Plaintiff in error complains of irregu- plaintiff in error guilty of a charge upon larity and error in the proceedings before the which the trial court, upon the objection of state board of medical examiners and in the plaintiff in error, had excluded all evidence. trial before the district court. He particu. The record seems to bear out the contention larly complains of the sufficiency of the com- of plaintiff in error in this particular. While plaint filed before the state board. It is this is error, yet, as we have concluded that practically held unanimously by all the courts the judgment of the trial court was right, the that such boards, in proceedings similar to fact that he may have included in his findings the one at bar, do not act judicially, and are a conclusion which was not supported by the not judicial bodies, but that their action is evidence, since he did make findings that are merely administrative. It is also held that supported by the evidence and which sustain it is within the police power of the state to the judgment, we will not disturb the judggrant powers such as are sought to be exer- ment of the court therefor. cised in this case to such boards as a part of [7] Plaintiff in error further contends that the administrative arm of the government, the findings of the court are not supported and to provide for summary proceedings to by sufficient evidence. We have examined be taken by such boards in cases similar to the record upon the propositions complained the one at bar. It is also held that it is not of by plaintiff in error, and we find sufficient necessary in a trial under such a complaint evidence to sustain the findings of the court that the proceedings shall be conducted with as to the incurable nature of the diseases unthat degree of exactness which is required dertaken to be treated by plaintiff in error, as in trials before ordinary tribunals of justice, to his assurances of effecting a permanent and that a complaint filed before a state cure, and as to his accepting a fee therefor. board of health for the purpose of revoking It is urged by plaintiff in error that the writthe license of a physician is sufficient if it ten guaranty which was introduced in eviinforms the accused not only of the nature dence, and which is as follows: of the wrong charged, but of the particu

"Absolute Guarantee. lar instances of its alleged perpetration.

" Okl.,

1914, Munk v. Frink, 81 Neb. 631, 116 N. W. 525,

“I, R. W. Freeman, M. D., party of the first 17 L. R. A. (N. S.) 439; Meffert v. Packer, 66 part, do hereby agree to refund all moneys paid Kan. 710, 72 Pac, 247, 1 L. R. A. (N. S.) 811, to me by H. S. Hawkins, party of the second affirmed, 195 U. S. 625, 25 Sup. Ct. 790, 49 L.

5 Sun C+ 790 49 L' part, should he fail to receive a complete cure by my treatment.

R. W. Freeman. Ed. 350; State Medical Board v. McCrary,

"I, H. S. Hawkins, party of the second part, 95 Ark. 511, 130 S. W. 544, 30 L. R, A. (N. S.) do hereby agree to follow the directions given 783, Ann. Cas. 1912A, 631; State Board of by R. W. Freeman, M. D., party of the first Health v. Roy, 22 R. I. 538, 48 Atl. 802; State

48. At $02. Stote part, through a period of time sufficient as

deemed by him to effect a complete cure. Should v. Chapman, 34 Minn, 387, 26 N. W. 123; I fail to follow the directions as given by him, State v. Feller, 34 Minn, 391, 26 N. W. 125. then I agree that this agreement becomes null In view of the fact that the controversy is

H. S. Hawkins." narrowed down to the one charge that plain- -is not a guaranty of a cure, but only a tiff in error accepted a fee for the treatment guaranty to refund the fee in the event the of an incurable disease with the assurance treatment prove unsuccessful. We consider that he could effect a permanent cure, we are this contract to be a mere subterfuge, and of the opinion that the paragraph of the com- have no doubt that it was drawn for the very plaint which charges plaintiff in error with purpose of protecting plaintiff in error in a died on July

nd void

tee.

contract shows that it holds out to the pa-, ed, was set apart by the government of the Unit. tient an assurance of a permanent cure. | ed States as his distributive share of the comAnd, aside from this contract, the record con- ' dians. *131 That at the time of his death he

munal property of said Seminole Tribe of Intains evidence of assurances made by plain was lawfully married to one Annie Cox, DOW tiff in error of effecting a permanent cure to Annie Wadsworth, one of the plaintiffs herein, his patients orally. This evidence was per

and as issue of said marriage he was survived by

| his two daughters, Maggie Cox, who is now fectly competent, since this action is not bas. plaintiff Maggie Beamore, and Nancy Cox, who ed upon the contract above quoted, and oral is now the plaintiff Nancy Alexander; that his evidence tending to prove or disprove the said wife and two daughters, the plaintiffs herematter at issue was admissible.

in, are members of the Creek Tribe of Indians,

and duly enrolled opposite Creek Indian roll We conclude that there is no prejudicial Nos. 7505, 7556, and 7557, respectively; that or reversible error in the record, and that the no conveyance has ever been made by said plainjudgment of the court below was right, and

tiffs to any one. (4) It is further stipulated

that the only Seminole relative surviving Louis should be affirmed.

Cox was one Lucy Wildcat, whose name ap

pears upon the approved Seminole roll opposite PER CURIAM. Adopted in whole.

roll No. 400, and under whom the defendants claim title by virtue of divers conveyances.'

The court found the issues against the WADSWORTH et al. v. CRUMP et al.

plaintiff and for the defendant, and that (No. 5667.)

under the Seminole Agreement (31 Stat. L. (Supreme Court of Oklahoma. Oct. 19, 1915.)

250), relative to descent and distribution of Rehearing Denied Jan, 25, 1916.)

said nation in force at the demise of the

said Louis Cox, deceased, whose allotment is (Syllabus by the Court.)

in controversy in this case, no one but citINDIANS 18 — ALLOTMENT — DESCENT AND izens of the Seminole Nation could inherit a DISTRIBUTION.

Seminole citizen's allotment from the allotLouis Cox, a Seminole citizen, died on July 4, 1901, before selecting his allotment. His surviving widow was a Creek, and she and their The only question here presented is whethtwo children were duly enrolled as Creek citi- er or not the plaintiffs in error, who are the zens. Held, under the act of Congress, known

legal widow and the only two surviving chilas the Supplemental Seminole Treaty, passed and approved June 2, 1900, c. 610 (31 U. S.

s dren of the decedent, Louis Cox, a duly enStat. L. 250), the allotment in the Seminole rolled citizen of the Seminole Nation, his Nation set apart by the government as the dis- said widow being a duly enrolled Creek cit. tributive share of the said Louis Cox did not lizen and their said two children being also descend to his said widow or children, for the reason that under the terms of the act above

enrolled as Creek citizens, the said Louis referred to his allotment could descend to his Cox having died before his allotment was heirs only who were Seminole citizens.

made, can inherit the land allotted to the [Ed. Note.-For other cases, see Indians, said Louis Cox out of the lands of the SemCent. Dig. § 49; Dec. Dig. 18.]

inole Nation. The decision in the case rests Commissioners' Opinion. Division No. 4. upon the construction of an act of Congress Error from District Court. Seminole County: known as the Supplemental Seminole Treaty, Tom D. McKeown, Judge.

passed and approved the 2d day of June, Action by Annie Wadsworth and others 1900 (31 U. S. Stat. L 250), in reference to against George C. Crump and others. Judg

the enrollment of members of the Seminole ment for defendants, and plaintiffs bring er Tribe of Indians and the descent and disror. Affirmed.

tribution of their property under certain con

ditions, which, omitting the introductory and J. S. Severson, of Broken Arrow, for plain

concluding parts, consists of two sections as tiffs in error. Davis & Patterson, of We

follows: woka, for defendants in error.

"First. That the Commission to the Five Cip.

ilized Tribes, in making the rolls of Seminole MATHEWS, O. This action was institut Citizens, pursuant to the act of Congress aped by plaintiffs in the district court of Sem

proved June twenty-eighth, eighteen hundred

and ninety-eight, shall place on said rolls the inole county and submitted to the court upon names of all children born to Seminole citizens the following agreed statement of facts: up to and including the thirty-first day of De

cember, eighteen hundred ninety-nine, and the "Agreed Statement of Facts.

names of all Seminole citizens then living; and “The plaintiffs appearing by their attorney, J. the rolls so made, when approved by the SecreS. Severson, and the defendants appearing by tary of the Interior, as provided in said act of their attorney, B. F. Davis, waive a jury in said Congress, shall constitute the final rolls of Semicause, and agree that the court may determine nole citizens upon which the allotment of lands the issues thereof on the following agreed state- and distribution of money and other property bement of facts, to wit: (1) That the land in longing to the Seminole Indians shall be made, controversy was set apart by the government and to no other persons. of the United States as the distributive share! "Second. If any member of the Seminole of Louis Cox, who appears on the final rolls of Tribe of Indians shall die after the thirty-first the Seminole Tribe of Indians as a member of day of December, eighteen hundred and ninetysaid tribe, opposite roll No. 1721. (2) That the nine, the lands, money, and other property to said Louis Cox died intestate on July 4th, 1901, which he would be entitled if living shall de before selecting his allotment, and before / scena

is allotment. and before I scend to his heirs who are Seminole citizens. the said allotment, being the land above describ-, according to the laws of descent and distribu

an

tion of the state of Arkansas, and be allotted, under consideration says that such property and distributed to them accordingly; provided "shall descend to his heirs who are Seminole that in all cases where such property would descend to the parents under said laws the same

citizens." Who are Seminole citizens as shall first go to the mother instead of the father, here designated? Section 1 of the act set and then to the brothers and sisters, and their out above provides for the enrollment of the heirs, instead of the father."

Seminole citizens and says that in making Defendants contend that these two sections

out this roll the names of all of the citizens have already received a settled construction

living on the 31st day of December, 1899, and by this court in the cases of Bruner et al. v.

all the children born to Seminole citizens up Sanders et al., 26 Okl. 673, 110 Pac. 730, and to that date, shall constitute the final rolls Heliker-Jarvis Seminole Co. v. Lincoln et al., I of Seminole citizens. In section 21 of the 33 Okl. 425, 126 Pac. 723, while the plain

Original Curtis Act (Act Cong. June 28, 1898, tiffs contend that the question as to whether

c. 517, 30 Stat. 502), which provided for the or not the children of a Creek woman, they

enrollment of the citizens of the Five Civilbeing also Creek allottees, are prohibited

ized Tribes, which included the Seminole Nafrom inheriting the allotted lands of their tion, there is a provision which reads as father, he being a Seminole citizen, was not follows: decided in the above two cases. In the case

"The rolls so made, when approved by the of Bruner v. Sanders, supra, the facts were Secretary of the Interior, shall be final, and on all fours with the case at bar, with the the persons whose names are found thereon,

with their descendants thereafter born to them, one exception that the allottee received his

with such persons as may intermarry according allotment before his death, while in the case to tribal laws. shall alo

to tribal laws, shall alone constitute the several at bar the allottee died before the allotment | tribes which they represent.” was made. The court in that case laid down from the reading of these two sections the law of this case. It might perhaps be last above set out it plainly appears that said that the law laid down in that case was neither the widow of decedent.

neither the widow of decedent, Louis Cox, dictum as far as it covers the point involv- nor their two children, can be denominated ed in the case at bar, which is perhaps true; “Seminole citizens." The widow undoubtedbut, even though it be dictum, an examina- ly is not so included because she is of the tion of the statute construed leads us to con

Creek blood and a citizen of that tribe, and clude that it is a correct statement of the the two children are excluded because they law. In that case, the court had under con

were born before December 31, 1899, and sideration the construction of the statute were not enrolled as Seminole citizens, and now under consideration here, and used the

thus do not come within the provisions de. following language:

fining Seminole citizens. “The trial court took the view of this statute It does not follow, if the children had been that it is not a general statute of descent and

born after December 31, 1899, that even then distribution, but a special statute, applicable only to the property of enrolled members of the they could have inherited the allotment in Seminole Tribe of Indians who die subsequent controversy. The defendants have presented to the 31st day of December, 1899, whose prop

the additional proposition here that, accorderty, if lands, had not been allotted to the Indian, or, if other property, had not been dis

ing to the custom of the Seminole Nation, tributed to him at the time of his death. In the blood of the mother determined the tribe this construction of the statute by the trial to which her offspring belonged, and the fact court we concur."

that the children, plaintiffs here, were not From the syllabus of that case we take

enrolled as Seminole citizens was not due to this excerpt:

any neglect of the parents of the said chil. “Section 2 of the Act of Congress approved

dren or of the Commission to have said chilJune 2, 1900, entitled 'An act to ratify an agreement between the Commission to the Five Civ.

dren enrolled on the Seminole roll, but the ilized Tribes and the Seminole Tribe of Indians' law and the custom of the Seminole Tribe (Act June 2, 1900, c. 610, 31 Stat. 250), con- were that the children were of the blood of trols the descent of land to which a duly enrolled member of the Seminole Tribe of Indians who

the mother and members of that tribe to died after the 31st day of December, 1899. be which the mother belonged. While we do fore receiving his allotment, is entitled."

not find it necessary to pass upon this propoThis court, in the case of Bruner v. San- sition, and will leave it, as far as this opinders, supra, having correctly decided, we ion is concerned, an open question, yet we think, that the act of Congress, approved will say that as far as our investigation has June 2, 1900 (chapter 610, 31 Stat. 250), ap- lead us, we are of the opinion that this last plies to the facts presented in the case at proposition is a correct statement of the law bar, the question next for determination is so far as it applies to facts as presented in whether or not this statute excluded the the case at bar. children of a Seminole citizen by a Creek | The judgment should be affirmed. woman, who were also enrolled as Creeks, from Inheriting his allotted lands. The act PER CURIAM. Adopted in whole.

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