The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1894-03-30
KELLOGG IN COURT AGAIN
An Information Charging Him With
Practising Medicine Without
Having a License
The Doctors Attorney, T. j. Walsh,
Files a Demurrer to the
Complaint
A FrooeedisE Uadsrstood to he sought In
Order Co Get the Matter iato the
Supreme Court.

An information has been hlsd against
Dr.. Edwin L. Kellogg By County Attorney
Nolan. charging him with practising med
isins without a license since his eertiheats
wac revoked by the district court IL Il
understood that this was OF the doetoT' Z
own seskinE. as he admitted having con
tinusd so prescribe for those patients he
had under his care At the time tho decision
OF the district coat was announced. T..
J. Walsh, the doctors counsel. filed de-
murfer 10 the information. and the matt %
was aTgusd yesterday before Judge Buck,
Who took 10 under ADJUSTMENT by agree
msnt Of counsel the doctor Will appear for
trial aud . jury will be sworn. The de-
Tense will object 10 the admission of Any
testimony and move that the jury be In
structed 30 asquiL II the judge holds tina,
way. the prosecution will end. II he
should decide against Kslloaa. ths jury will
be instructed 10 bring In . verdict OF
guilty. and she court will impose sentence.
I The penalty IL from 800 70 $500 fine. or
thirty 90 ninety days imprisonment In she
county jail or both nae and imprison-
mont
The grounds taken by the defense on the
demurrer yesterday were that the statute
prescribes that every person shall be re
eArded as practising medicine in the mean
ing Of the sot who appsnds the letters NJ.
ID. or nj. Il. 20 his or her name aud who for
fee rresoribes medicine. etc. Il was con
tended that this act does not make 10 q
criminal ofsnss TO prescribe medicines,
and that the only odenss is appending the
n. ID. or nj. b. TO the name. Second, 10 Is
held that the act nowhsre says that one
whose certificate has been revoked shall
not practice after revocation of license.
Therefore one so practicinR after that cam
not be said to be doing 80 contrary to the
proviIiOns OF the act. 10 10 held in the
third place that no rules or regulations
were ever established by the medical board
defining what should oonstitute unprofes-
siSnal conduct; aud that 10 punish ksl-
logg for en- act which the medical
board might afterwards determine to be
unprofesIional. would be exyost faotO and
therefore void; and that II he could be pun
ished at all he must be Apprised beforehand
bv some rule or regulation of the board
what they will consider unprofesaional COZ
duct. In the fourth place 10 WAS held that
the act giving the medical board power to
revoke certificates applies only 10 those
cases where certificates were issued upon
examination and that the board had no
power to revoke a certificate issued TO those
as kellogg's was. nor 10 those In the state
a. tue time the msliesi act was PASSED.
1t will be remembered that when the dis
triot court revoked kelloRg's license. the
doctor gave notice OF appeal SO the supreme
court ana asked for a stay of judgment
rendinR the appeal. The district court re-
fused TO grant the star. which would have
sc ed 10 enable Kellogg 20 ooutinue prsc-
ticing whilo his appeal was pending. he
supreme cOuft was asked to scc0pt a bond
to act So a stay Of judgment, bus refused.
In doing So however the supreme court
intimated that the proper way 20 get the
matter up would be when Kellogg should
be arrested for practloing without licsnss.
10 was this which led tho doctor to have the
matter taken into court in its present SHAPE
as II Judge Buck decides against him. be
can appeal TO this supreme court
A Transcripts on appeal In the case OF
Louis King versus tho Miles City Irfigating
and Ditch company was filed in the supreme
court yesterday. King owned 3l9 acres Of
land throHah which the company's ditch
passed. 10 was claimed that the water
overhowed Kings land by reason OF faulty
construction. and did 81. 800 worth of dam
age - the crops. jury gave King $500
damages. The court granted new tial
on She ground Of excessive damages and
insuffieieney of evidence 10 justify 10.
I ON the order granting = new trial the sp-
zeal 10 taken.