#### STATE ex rel. STATE BOARD OF MEDICAL EXAMINERS, Relator, *v.*DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT, DEPARTMENT NO. 2, Defendant.

(No. 1,738.)

(Submitted November 25, 1901.

Decided December 2, 1901.)

*Courts*— Jurisdiction — *Physicians and Burgeons*— Right *to Practice Medicine*— *Bxamination*— *Refusal of Medical Board to Grant Certificate*— Right *to' Practice Pending Appeal.*

"Whether acting under its general constitutional powers or as exercising a special and limited jurisdiction derived exclusively from the statute (Political Code, See. 603), the district court has no power to allow an applicant to practice medicine pending his appeal from a refusal of the state board of medical examiners to grant him a certificate.

Application for a writ of *certiorari*by the state, on relation of the State Board of Medical Examiners, against the Eirst 'Judicial District Court, Department No. 2, in and for Lewis and Clarke County, to annul an order allowing a petitioner to practice medicine pending an appeal.

Order annulled.

*Mr. James*Donovan, *Attorney General,*for Relator.

*Mr. R. 8. Btochton,*for Defendant.

*122ME. CHIEF JUSTICE BEANTLY

delivered tbe opinion of tbei court.

Application for writ of *certiorari.*Tbe board of medical examiners of tbe state of Montana was organized under tbe provisions of Article XVI, Part III, Title I, Chapter III (Secs. 600-608) of tbe Political Code. It bas power to grant certificates of proficiency to persons wbo desire to begin tbe practice of medicine or surgery in any of tbeir branches in this state; and to this end it is its duty, among othér things, to bold meetings at tho city of Helena on tbe first Tuesday of April and October each year, and at such other times at tbe same or any other places tbe board may choose, for tbe purpose of ascertaining tbe proficiency of all applicants for such certificates. Any person is deemed to be proficient wbo is possessed of a diploma from a medical school legally organized and in good standing, whose teachers are all graduates of a legally organized medical school, provided be is able to pass an examination upon tbe subjects enumerated in the statute and on such other’s as tbe board may think necessary; and provided, also, be can present evidence that be bas attended four courses-of lectures of at least six months each. Tbe board is empowered to refuse a certificate to any applicant wbo, in its opinion, does not show himself proficient, or wbo, upon an investigation after charges preferred, is found to have been guilty of unprofessional, dishonorable or immoral conduct. On tbe ground last mentioned, and after a similar investigation, tbe board may also revoke a certificate already granted. In all cases of a refusal or revocation of a certificate, tbe person aggrieved thereby may appeal from tbe decision of tbe board to tbe district court of the county in which tbe decision is made, and tbe court may affirm or reverse tbe action of tbe board, according to tbe facts as they are made to appear. Tbe possession of a license or certificate is made a prerequisite to engaging or continuing in tbe practice of medicine or surgery by any person, except a midwife of skill and experience; a commissioned surgeon of the *123United States army or navy while in the discharge of duty, or a physician or surgeon from another state or territory while in actual consultation. If, during the time intervening between the.sittings of the board, a person desires to begin practice, he may do so after obtaining a certificate from the secretary of the board, who has power to issue the same, upon presentation to him of a diploma meeting the requirements stated above. This certificate is good until the next regular meeting of the board. A violation or disregard of these provisions of the statute is denounced as a misdemeanor, and subjects the offender to the penalty of a fine or imprisonment, or both, at the discretion of the court having cognizance of the offense.

On October 1, 1901, one J. N Grinstead presented his diploma to the said board, then in regular session at Helena, and asked that he might be permitted to submit to the required examination. He was allowed to begin the examination, but during the course of it, as was alleged by the secretary of the board, he was detected in the use of certain notes and memo-randa to aid him in answering the questions propounded, and thus to obtain an undue advantage over the board and the other candidates then being examined. He was thereupon denied the privilege of continuing the examination. A charge: was preferred to the board by its secretary, accusing him of “unprofessional, dishonorable and immoral conduct,” the specification being that he had been detected in the use of said notes and memoranda for the purpose stated. After written notice, and an examination by the board into the facts, he was found guilty and refused a certificate. He immediately appealed to the district court of Lewis and Clarke county, and thereupon applied to that court for an order permitting him to engage in the practice of his profession until a hearing could be had upon the merits. The judge required him to submit to an examination in open court as to his qualifications, and thei*eupon made the following order: “Upon reading and filing the petition of J. U. Grinstead, praying that he be authorized, during the pen-dency of the appeal taken by him in the above-entitled pro*124•ceeding, to practice medicine and surgery in the state of Montana, and after having duly considered the same, I do hereby authorize and empower the said J. F. Grinstead, petitioner, to practice medicine and surgery in the state of Montana pending the said appeal.” It is sought by this proceeding to have this order annulled on the ground that it was made in excess of jurisdiction.

The only question presented is whether the district court having jurisdiction of the appeal has also- the power to make the order complained of, and thus *to*grant to the appellant, pending a hearing, immunity from punishment for doing that which the statute denounces as a misdemeanor.

Section 603 of the Political Code, after providing generally that an appeal may be taken' from the decision of the board refusing or revoking a certificate and regulating the procedure to be observed upon a trial of the merits, closes with the following provision: “In case of an appeal from a decision revoking a certificate the appellant may be permitted, in the discretion of the court, to practice during the pendency of the appeal.” It is silent as to the power of the court in cases in which the board refuses a certificate.

Counsel for the defendant, as we understand him, assumes the position that the district court is a court of general jurisdiction; that the right to practice medicine and surgery is a n'atural right; and that the court having jurisdiction of the appeal, also has the inherent power, in the absence of an express prohibition to the contrary, to permit the appellant to exercise this natural right until it is determined by a trial upon the merits that he does not possess the requisite qualifications. The attorney general argues that the jurisdiction conferred by the statute over these appeals is special and limited, and that the district court, in the exercise of it, has no other powers than those expressly given. It follows, therefore, he says, that, as the statute nowhere in express terms authorizes the court to grant permission to practice pending the appeal in this class of eases, the order in question was without jurisdiction and void.

*125It may be stated, as a general proposition, that every person has a natural right to pursue any lawful business or profession. This general statement is subject, however, to the limitation that the person asserting such a right must, before attempting-to exercise it, comply with all reasonable police regulations made by the state touching the qualifications declared necessary for the particular calling. In the absence of such regulations, the right is absolute, and may be exercised at pleasure; but where they exist compliance with them is a condition precedent, and until this condition is fulfilled the right- is in abeyance, and may not be exercised a-t all.

The power to ascertain, in the first instance, whether this condition precedent has been fulfilled, and to- declare that the-right may be exercised, is therefore, in a qualified sense, a power to create and grant the right. Under the constitution district courts have jurisdiction extending to all classes of cases-therein enumerated, and to all special actions and proceedings not otherwise provided for, as well as to appeals from justices’ and other inferior courts in such cases as are provided for by law and consistent with the constitution. Yet they have no power to create a right where none exists, or to’ permit the exercise of existing ones contrary to law. Their powers are confined to the ascertainment of existing rights, and the enforcement of them when so ascertained. It is the exclusive province of the legislature to- declare the law regulating the rights of citizens. So long as it does not violate any provision of the constitution, its will is absolute. It is the province of courts, to enforce the law, and they have no power to disregard it, or-to suspend its operation, except in the cases and upon the conditions expressly declared. In this case no question is made as to the power of the legislature to create the board of medical examiners, and to define its powers; nor is any complaint made that any of the prescribed regulations are unreasonable. Such legislation has always been upheld as a wise exercise of the police powers of the state, and necessary to the protection of' the public. This is particularly true of a calling or profession *126wbicb requires technical knowledge and skill. Without such knowledge and skill in the practitioner, there is dang'er that damage will result to those who employ him. Therefore one may be prohibited from pursuing such a calling or profession until he has been examined by the lawfully constituted authorities, and declared sufficiently qualified to engage in it with safety to the public.

The legislature, in the exercise of its legitimate power, has prescribed the conditions precedent upon the fulfillment of which one may begin and continue the practice of medicine and surgery, and has prohibited it in all other cases. It has also established the board of examiners, whose province it is, in the first instance, to declare whether these conditions have been observed, and made the determination of the board final, subject only to revision by the courts for errors and abuses'. The courts, therefore, have no power to suspend the operation of the will of the legislature thus declared, and usurp' the authority lodged in the board. To do this would be equivalent to an exercise of the exclusive functions of the legislature and of the hoard. This the courts may not do, even though a violation of the statute was not denounced as a misdemeanor. As it is, the prohibition directed to the individual citizen is as much a limit to the power of the court as if it had been expressly provided that the court should not grant permission to pursue the practice pending the appeal in this class of cases.

Dor obvious reasons the legislature deemed it proper, in a case where a certificate has been revoked, to authorize the courts, in their discretion, to grant the appellant permission to practice pending his appeal. In his case the conditions precedent have all been fulfilled. His right has accrued. He has, perhaps, by his energy and application, built up a profitable practice. It is the means of support for himself and family. This should not be taken away without good cause. It is therefore but just that he be permitted to exercise his right until it is finally adjudged that he has forfeited it; especially so, if it is made to appear *prima facia*that the forfeiture has been de-*127dared upon doubtful evidence, or from bad motives on tbe part of tbe board. In case of an applicant for a certificate in tbe first instance no sncb reason exists. No right bas been established. No practice depends upon bis’ attention. He will suffer no immediate material injury if tbe certificate be withheld for a reasonable time until be can demonstrate that tbe action of tbe board in denying it was arbitrary or erroneous. Tbe burden is upon him to establish bis right. In tbe other case tbe burden rests upon tbe state represented by tbe medical board.

Tbe statute recognizes this clear distinction between tbe two classes of cases, and tbe intention of tbe legislature in this regard is manifested by tbe explicit provision touching tbe former and its silence touching tbe latter. Tbe principle contained in tbe maxim, *“Expressio unius est exclusio alterms”*clearly applies, and the order was clearly unauthorized, whether tbe district court be regarded as acting under its general constitutional powers or as exercising a special and limited jurisdiction derived exclusively from tbe statute. It was not within its power to insert in tbe statute what was omitted therefrom by manifest-intention, and thus to grant a right expressly prohibited.

Counsel for defendant suggested during tbe argument that, though tbe order be held to be in excess of jurisdiction, it should not be annulled in this proceeding, because it is manifest that it will not result in injustice or wrong to any one. In support of this suggestion be cited *Meads*v. *Belt Copper Mimes*(Mich.), 84 N. W. 615. Conceding that we might, in our discretion, refuse to issue tbe writ in tbe first instance in a case where it is -apparent that no injustice would be done, or dismiss tbe proceeding on this ground after tbe writ bas issued and tbe record of tbe district court bas been certified up, tbe case cited is not in point. Tbe relator herein, as such, would suffer no injustice if tbe order were permitted to stand. Tbe people, however, have a right to have tbe law administered according to its manifest spirit and purpose. To disregard this right would be to permit a public wrong, and to- set aside tbe will of tbe people as expressed through tbe legislature.

*128A judgment may therefore be entered annulling the order at.tbe cost of defendant.

*Order annulled.*