Gamble v. Board of Osteopathic Examiners

TRAYNOR, J.

— Petitioner has brought this proceeding in mandamus to compel the respondent board to issue a receipt for the payment for the calendar year 1943, of the annual tax and registration fee required by section 2496 of the Business and Professions Code.

Section 2493 of the Business and Professions Code, as amended in 1941 (Stats. 1941,. chap. 945) requires each person licensed by the osteopathic board to pay an annual tax and registration fee and to submit therewith satisfactory evidence that he has completed during the preceding year a minimum of 30 hours of professional educational work approved by the board. Petitioner is a graduate of an osteopathic school and holds a physician and surgeon certificate issued in 1934, which authorizes “the holder to use drugs or what are known as medical preparations in or upon human beings and to sever or penetrate the tissues of human beings and to use any and all other methods in the treatment of diseases, injuries, deformities, or other physical or mental conditions. ” (§ 2137, Business and Professions Code.) He tendered the annual fee for the calendar year 1943 as required by section 2496 of the Business and Professions Code but declined to submit evidence of the performance of 30 hours of professional educational work. He contends that since holders of physician and surgeon certificates issued by the Board of Medical Examiners are not required to do annual educational work for the renewal of their licenses, the requirement of such work of holders of physician and surgeon certificates issued by the Board of Osteopathic Examiners violates, in addition to article I, section 21 of the California Constitution, the Osteopathic Act, which cannot be amended by the Legislature because it was adopted by initiative without special provision for its amendment. (Cal.Const., art. IV.)

Between 1913 and 1922 all physicians and surgeons were licensed by the Board of Medical Examiners. Graduates of all schools recognized by the medical board, whether osteopathic, homeopathic, eclectic or allopathie, were entitled to take the physician and surgeon’s examination if they met the

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prescribed conditions. The Osteopathic Act created a Board of Osteopathic Examiners and gave it jurisdiction, formerly residing in the Board of Medical Examiners, over graduates of osteopathic schools. The act was intended to effect administrative changes only, and made no substantive changes in the standards of education and examination for the physician and surgeon certificate. When the Osteopathic Act was adopted the rights and duties attached to the physician and surgeon certificate did not vary according to the Mnd of school from which the holder graduated. Petitioner argues that since the Osteopathic Act made the Medical Practice Act applicable to graduates of osteopathic schools such rights and duties remain invariable. The Legislature, however, is not committed to a uniform policy in this regard. There is no provision in the Osteopathic Act limiting its power to change the standards for receiving or holding a physician and surgeon certificate. The argument submitted to the voters in support of the act set forth that it left the Legislature free to change the standards of education and examination. The act itself demonstrates the care with which its framers guarded that freedom and made the act exclusively administrative in character: “All persons who are graduates of osteopathic schools and who desire to apply for any form of certificate mentioned or provided for in the state medical practice act, approved June 2, 1913, and all acts amendatory thereof, shall make application therefor, to said board of osteopathic examiners and not to the board of medical examiners of the State of California. The board of osteopathic examiners in respect to graduates of osteopathic schools, applying for any form of certificate mentioned or provided for in the state medical practice act, approved June 2, 1913,