was lying to where the car was finally brought to a stop. Davis swears that it was from 40 to 50 yards from where plaintiff was found on the ground to where the car was brought to a full stop. Now, if we add this distance to 30 yards the distance Martin was dragged before he was jerked loose from the car, it would make 70 or 80 yards from the time he was thrown from the car until the car came to a full stop. The testimony of Colt, who testified that he had formerly been a conductor on defendant company's cars, and was familiar with the running of cars, was that from 20 to 25 yards from the time the motorman got the signal would be sufficient distance to stop the car if running at the ordinary rate of speed. Then he was asked this question on cross-examination by counsel for plaintiff in error: "Suppose you are not slowing up, suppose you are running on schedule, like that University line, for which the time is 12 miles an hour." Answer: "Well, I think a man could stop a car in 25 yards." Now, if this testimony is reliable, and the motorman could stop a car running at the rate of 12 miles an hour in the distance of 25 yards from the time he got the signal, then we think it is some evidence which the jury had a right to consider as to the rate of speed that this car was traveling, when it was not stopped in less than 60 to 80 yards after the man was thrown from the car, because the testimony of the conductor is that he saw him when he jumped or was thrown from the car, or, as plaintiff said, "jerked from the car," and the presumption is that he would stop the car as soon as possible. It seems to us this was a circumtance that would warrant the jury in finding that the car at the time of the accident was being operated at an unusual and dangerous rate of speed.

Now, as to the fourth special finding, that there was more swaying or jarring of the car at the time the plaintiff was injured than was incident to operating the car in the usual or ordinary manner, while there is possibly no satisfactory and direct testimony as to this proposition, we think that the jury had a right, from their common knowledge and experience as men, to find that, where a car was run at a high and dangerous rate of speed around a curve, there would be more swaying and jarring of the car than would occur if the car was operated in the usual and ordinary manner, and with usual and ordinary care.

it might be presumed there was a certain inconsistency between the general verdict of the jury and certain special findings. They do this by limiting and fixing the place of the accident at a few feet south of the usual stopping place of the car, and insist that, because the evidence does not show the injury occurred at the exact and precise point of stopping, it is inconsistent with the instructions of the court on this proposition. We think the court's instructions clearly and correctly define the law governing this class of cases, and the testimony of the plaintiff, if believed by the jury, would establish a case of negligence against the company, as his testimony was that he took his position on the platform, after the signal had been given to stop, and while they were approaching the stopping place, with the thought in his mind that they would stop at the usual place of stopping after they had been signaled to stop, and after he had notified the conductor that he wanted to get off, but that they run by the usual stopping place at a full speed, and that it was in consequence of the speed of the car going around the curve at or near the stopping place and the jarring of the car that threw him from the car; that he grabbed at the railing to save himself, and was dragged some distance by the car, and thus sustained his injury. This, it is true, is disputed by the conductor, who testifies that, in place of being thrown from the car, he voluntarily jumped from the car after he had been warned not to do so. This statement of the conductor is expressly denied by the plaintiff, and it was clearly a question of fact, which was the sole province of the jury to determine. They have determined that fact in favor of the plaintiff. The instructions of the court clearly and distinctly informed the jury that, before the plaintiff could recover, the jury must believe, from all the circumstances and all the evidence showing his station on the car, that he was using reasonable care and caution to avoid injury. They were expressly instructed that if the jury believed, from the evidence showing his situation on the car, that he was negligent, and that the negligence contributed to his injury, he could not recover. They were also expressly instructed that, if a recovery was had against the company, it must be upon evidence showing the negligence of the company. On the whole, we think the instructions of the court were fully as liberal to the defendant as the law would warrant or the defendant had a right to expect.

Having examined the entire record, and finding no error therein, the judgment of the district court is affirmed, at the costs of the plaintiff in error. All the Justices concurring, excepting BURWELL, J., who, having tried the case below, took no part in this decision, and PANCOAST, J., absent.

A license to practice medicine procured through the presentation of a pretended diploma from a fraudulent medical college, without an examination, will be revoked and canceled in a proper proceeding in the district court. 4. JURY-RIGHT TO JURY TRIAL.

An action to cancel a license upon the ground that it was fraudulently obtained is an equitable proceeding, and the licensee is not entitled to a jury trial as a matter of right. (Syllabus by the Court.)

Error from District Court, Logan County; before Justice Jno. H. Burford.

Action by the territory against Calvin D. Gulley. Judgment for the territory, and plaintiff brings error. Affirmed.

This was an action brought in the district court of Logan county by the territory of Oklahoma against Calvin D. Gulley, plaintiff in error, and defendant in the court below, to cancel a license to practice medicine issued on February 11, 1902, by the then superintendent of public health to the plaintiff in error, upon the ground that the license was procured by fraud and deception. The material averments in the petition are as follows:

That on the 8th day of February, 1902, the defendant, Calvin D. Gulley, being desirous of obtaining a license from the superintendent of public health, for the purpose of enabling him, under the provisions of law in force at that time, to engage in the practice of medicine and for the purpose of obtaining a license from the superintendent of public health, executed a certain application in writing, which was duly verified, and which, among other things, stated as follows: "I, Calvin D. Gulley, now of Guthrie, county of Logan, Oklahoma territory, being first duly sworn, state on my oath that I graduated from the Independent and Metropolitan Medical College located in the city of Chicago, state of Illinois, in 1896, and that I am the identical Calvin D. Gulley to whom a diploma of graduation was issued by the aforesaid college of medicine on the fourth day of November, 1896, which diploma I now have in my possession." That thereupon said application was duly presented to the superintendent of public health, and that the said superintendent of public health, acting upon and relying upon the statements and representations contained therein, issued and lelivered to the applicant on the 11th day of

February, 1902, a license to practice medicine and surgery in said territory, and registered the said applicant, as required by the laws then in force in said territory. That under the laws of the territory of Oklahoma in force and effect at the time of making and presenting said application and affidavit by the defendant, it was provided that no person should be permitted to practice medicine, in any of its departments, in this territory, unless he were a graduate of a medical college, or unless, upon examination before a board composed of the superintendent of public health and two other physicians to be selected by the territorial board of health, such person should be found proficient in the practice of medicine. And it was further provided that: "Any person possessing the qualifications mentioned in this section shall, upon presentation of his diploma, or proof thereof by affidavit, if the same is lost or destroyed, and upon the affidavit of two reputable citizens from the county where he resides that such applicant possesses the qualifications of a physician, as prescribed herein, to the superintendent of public health, together with a fee of two dollars, received from such superintendent of public health, a license, certifying the applicant to be a practicing physician, and having the qualifications for such," etc.

The petition further alleges that there was no medical school in the city of Chicago, state of Illinois, on or about the 4th day of November, 1906, known as the "Independent and Metropolitan Medical College." That there was a pretended institution located in said city at that time known as and pretending to operate under the name of the "Independent Medical College," but that said institution was not, in fact, a medical college, and was not engaged in the business of conducting an institution of learning where personal attendance of students is required and where the study of medicine and surgery is taught by a faculty of instructors composed of qualified physicians and surgeons or teachers learned in the art of medicine and surgery. But, on the contrary, said institution was merely a "diploma mill," doing business under the cloak of its corporate name, and engaged in advertising and selling diplomas and conferring degrees as a means of profit, and as an assistance to individuals to enable them to engage in the practice of medicine, regardless of the question of their competency. That the said pretended medical college had no prescribed fixed time during which applicants for degrees or diplomas should pursue the study of medicine, or that required the students to take any fixed or certain course of study, or for any length of time. and that said institution was wholly conducted for pecuniary profit, and that it conferred degrees and issued diplomas for parties without regard to the qualification or

fitness of the applicant to practice medicine. That diplomas and degrees could be purchased from said pretended medical college by any person who was willing to pay the price asked by the officials of said concern, and that learning and knowledge in the science of medicine and surgery was not made a prerequisite to the issuing of diplomas and conferring of degrees by the said pretended institution. That the said pretended medical college known as the "Independent Medical College of Chicago, Ill.," was organized and chartered on or about the 20th day of October, 1896, and that the pretended diploma issued to the said defendant was dated, according to his statement, on November 4, 1896, being about two weeks after the incorporation of the said pretended medical college. That the defendant never attended said pretended medical college, and did not take any course of study at such institution, that none was required of him, and that he did not personally attend such college, and that said pretended college did not have any regular sessions, and that the statements made and contained in the application and affidavit of the defendant, to the effect that the Independent Medical College and the Independent and Metropolitan Medical Colleges were located in the city of Chicago, and were medical colleges, were false and untrue, and that the statements contained in said application and affidavit that he had attended the regular sessions of said college were false and untrue. That the said defendant made said statements knowing them to be false and untrue, and for the express purpose of deceiving the superintendent of the territorial board of health, and with the fraudulent intent and purpose of causing the territorial superintendent of health to rely upon and believe said statements, and in reliance thereupon, and believing the same, to issue to the said defendant a license to practice medicine and surgery in the territory of Oklahoma. That said statements were material and were the basis and foundation of the official action of the superintendent of the territorial board of health in issuing said license, and that the said superintendent of the territorial board of health did rely upon said statements and representations so made in said application and affidavit aforesaid, and in reliance thereupon, and believing the same, by reason of the representations of the defendant, did, pursuant thereto, issue him a license and permit, as provided by the laws of the territory of Oklahoma. to practice medicine and surgery therein. That upon the issuance of said license the defendant proceeded to, locate in said territory and to engage in the practice of medicine and surgery, and is now engaged in the practice of medicine and surgery, and holds himself out to the public as a physician and surgeon, and advertises himself as a medical doctor, and solicits business as a physician in the treatment of the

sick and infirm, and represents that he is qualified and authorized to pursue said profession and business. That by reason of the premises above stated the said defendant practiced a fraud and deceit upon the superintendent of the territorial board of health, and upon the territory of Oklahoma, knowingly, intentionally, and purposely, for the purpose of procuring a license to enable him to practice medicine and surgery in Oklahoma, when in truth and in fact he was not entitled to such license, and could not have procured the same except for the false and fraudulent statements made by him in his application and affidavit. Wherefore the plaintiff prays that the license issued to the defendant on February 11, 1902, be revoked, canceled, annulled, and held for naught, etc.

To this petition the defendant interposed a demurrer on the ground that the court had no jurisdiction of the subject-matter of the action, that several causes of action were improperly joined, and that the petition failed to state facts sufficient to constitute a cause of action. This demurrer was overruled and exception noted. Thereupon the defendant filed an answer, which admits that on the Sth day of February, 1902, he filed his application as required by the statutes of Oklahoma, and that a license was issued to him upon said application and affidavit, and without the taking of an examination; that he denies all other material allegations contained in said petition, and specifically denies that there was any fraud, deception, or misrepresentation in the procuring of said license. The plaintiff replied to all the new matters set up in the answer and upon the. issues joined the cause was tried to the court, without a jury, and the court found the issues in favor of the plaintiff and against the defendant, and entered judgment revoking, canceling, and annulling the license issued to the defendant on the 11th day of February, 1902, to which finding, ruling, and judgment of the court the defendant duly excepted, and brings the case here for review.

Calvin D. Gulley, in pro. per. Cotteral & Hornor, for plaintiff in error. W. O. Cromwell, Atty. Gen., Don C. Smith, Asst. Atty. Gen., and P. C. Simons, for the Territory.

HAINER, J. (after stating the facts as above). It is contended by the plaintiff in error that the territory of Oklahoma is not the proper party to institute this action, and that the court had no jurisdiction of the subject-matter of the action. There is no merit to these contentions. The latter part of section 14 of chapter 8 of the statutes of Oklahoma of 1893 (section 352), in force at that time, contains the following provision: "The district court shall, upon the complaint of any member of the territorial board of health or the county board of health where he resides have power to cancel any license that may be issued to any person to practice medi

cine where such license was fraudulently obtained, or where the person to whom such license was issued has been guilty of violating any provisions of this act." It will thus be seen that the statute clearly confers upon the district court the power to cancel a license issued to any person to practice medicine, where such license was fraudulently obtained. Hence the court clearly had jurisdiction of the subject-matter of the action.

But it is contended that the action should be instituted by the territorial board of health, or some member thereof. We do not think the statute is susceptible of such a construction. It provides that. upon complaint of a member of the territorial board of health, the action may be instituted in the district court for the cancellation of the license. This does not mean that the action shall be instituted in the name of the territorial board of health, or any member thereof. The record discloses that the action was instituted upon the complaint of the territorial board of health, and upon the direction of the Governor of the territory, and we think that this fully satisfies the requirements of the statute. Manifestly, the territory of Oklahoma is not only a necessary party, but it is the proper party to institute such an action.

It is also contended that the evidence is insufficient to sustain the finding and judg ment of the court below. In our opinion the evidence fully sustains the allegations of fraud and deception in the procurement of the license, and we think that no other reasonable or just conclusion could have been reached by the trial court. The record discloses a flagrant case of fraud, deception, and misrepresentation in the procurement of the license. And this is not all. The applicant knew, at the time he made his application and verified the same, under oath, that he was not a graduate of a reputable medical college, within the meaning of this statute. He knew that the pretended diploma which he held from the college was a mere sham and fraud, well calculated to mislead and deceive the territorial board of health. He knew that the obtaining of the diploma was a mere pretense and fraud, and he knew that the Supreme Court of the state of Illinois. had, long prior to his application for license to practice in this territory, forfeited the charter of this pretended medical college, and declared "that the corporation is a mere diploma mill, designed wholly for issuing diplomas to practice medicine, for a consideration, to persons wholly unqualified for such practice."

In the case of Independent Medical College v. People ex rel. Akin, Attorney General, 182 III. 274, 55 N. E. 345, the right of this medical college to transact business in the state of Illinois was directly involved. and this is the college from whence the plaintiff in error represented that he was a graduate. The action was "a proceeding by informa

tion in the nature of a quo warranto, brought in the circuit court of Cook county, February term, 1898, by the people, on the relation of the Attorney General, against the Independent Medical College, a corporation of Chicago, to forfeit its franchise or charter. The corporation was chartered in 1896, having as its object the establishment of an institution of learning,' and 'for the purpose of promoting mental and physical culture,' and for teaching branches taught in medical colleges generally, with power to grant diplomas and confer degrees. The information charged that the corporation was conducted for pecuniary profit; that it conferred degrees and issued diplomas for a price, without regard to the qualifications or fitness of the applicant to practice medicine; that in some cases no examination whatever was required, and degrees were conferred upon persons wholly unfit and incompetent; that in one case, specifically alleged, a diploma or license to practice medicine and surgery was granted for the price of $25; the applicant never having been a student of medicine or surgery. It was further charged that the corporation was a diploma mill, designed wholly for issuing diplomas to practice medicine, for a consideration, to persons wholly unqualified for such practice. The respondent filed a plea to the information, denying its general allegations, and averring that it had not resorted to wrongful or unlawful methods in conferring degrees as a means of profit to its incorporators, and that it has not issued diplomas to persons wholly incompetent to practice medicine. To this plea the Attorney General filed a replication, averring that the defendant has usurped and misused, and does now usurp and misuse, its liberties, privileges, and franchises,' and tendering issue. Issue being joined, the cause was heard by the court, without a jury, upon the pleadings and evidence taken. The court found the defendant guilty as charged, and rendered judgment that the Independent Medical College be ousted and excluded from the exercise of all its corporate privileges and franchises under its articles of incorporation." From the judgment an appeal was prosecuted to the Supreme Court of the state of Illinois, and in affirming the judgment, the court said: "Without an extended analysis or weighing of the testimony introduced upon the trial as it appears in this record, we have no hesitancy in saying that it fully justified the finding and judgment of the court below. In fact, it is sufficient to establish the guilt of the defendant, as charged in the information, beyond a reasonable doubt, and would have justified, not only the forfeiture of the charter, but the infliction of a fine upon the parties guilty of the abuses."

In Illinois Health University v. People, 166 Ill. 171, 46 N. E. 740. the Supreme Court of Illinois, in discussing this question, said: "It is not consistent with the public policy

of a state which enacts stringent laws for the preservation of the public health, and for the protection of its people from quacks and ignorant pretenders to a knowledge of the science of medicine and surgery, to authorize or permit a pretended health university to turn any one, whether known or unknown, qualified or unqualified, into a doctor of medi cine, armed with a diploma and degree as one qualified to heal the sick, who may answer its prescribed list of questions and pay its prescribed fee. The charter of a corporation is the full measure of its power, and, if any doubt arises out of the language employed in such charter, such doubt must be resolved in favor of the state. Mills v. St. Clair Co., 2 Gilman (Ill.) 197; St. Louis J. & C. R. Co. v. Trustees, etc., of the Institution for the Blind, 43 Ill. 303; Northwestern Fertilizing Co. v. Village of Hyde Park, 70 Ill. 634; St. Clair Co. Turnpike Co. v. People, 82 III. 174; Minturn v. Larue, 23 How. (U. S.) 435, 16 L. Ed. 574. It stands admitted by the demurrer that there was a willful misuser and abuse of the power conferred on this corporation, and a prostitution and perversion of its corporate powers to objects and purposes for which no certificate of incorporation could be properly issued, and which would be against the policy of our laws. It was a clear abuse of the liberal privileges conferred by our incorporation laws for appellant to make use of them for the purposes set forth in the information. And for such abuse and misuser its charter may and should be revoked. Edgar Collegiate Institute v. People, 142 Ill. 363, 32 N. E. 494.”

In Dent v. West Virginia, 129 U. S. 122, 9 Sup. Ct. 233, 32 L. Ed. 623, the Supreme Court of the United States, in passing upon the right and power of a state to exact from parties, before they can practice medicine, a degree of skill and learning in that profession upon which the community employing their services may confidently rely, and, to ascertain whether they have such qualifications, to require them, to obtain a certificate or license from a board or other authority competent to judge in that respect, said: "Few professions require more careful preparation by one who seeks to enter it than that of medicine. It has to deal with all those subtle and mysterious influences upon which health and life depend, and requires not only a knowledge of the properties of vegetable and mineral substances, but of the human body in all its complicated parts, and their relation to each other, as well as their influence upon the mind. The physician must be able to detect readily the presence of disease, and prescribe appropriate remedies for its removal. Every one may have occasion to consult him, but comparatively few can judge of the qualifications of learning and skill which he possesses. Reliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he possesses the

requisite qualifications. Due consideration, therefore, for the protection of society, may well induce the state to exclude from practice those who have not such a license, or who are found upon examination not to be fully qualified."

It is argued by plaintiff in error that the court erred in admitting in evidence the records of the Illinois courts showing the actions brought by the state of Illinois to revoke and cancel the charters of the Illinois Health Institute, and the Independent Medical College, its successor, and the record of the conviction of Armstrong, the head of these institutions, for the fraudulent use of the mails in operating the same. Clearly, this evidence was competent and material, for the purpose of showing that these pretended colleges were fraudulent institutions, and that the pretended diploma was procured from a fraudulent institution.

But one question remains; Did the court err in refusing the defendant a jury trial? This question must be answered in the negative. This is not one of the actions in which the party is entitled to a jury trial as a matter of right. Trial by jury is guaranteed only in those classes of cases where that right existed at common law. The case at bar falls under the well-recognized rules of equity jurisprudence to cancel a license on the ground of fraud, and hence the defendant was not entitled to a jury trial as a matter of right. McCardell v. McNay, 17 Kan. 433; Kimball v. Connor, 3 Kan. 414.

After a careful examination and consideration of the entire record, and of each of the errors assigned and which have been argued, we are clearly of the opinion that no error was committed by the trial court which would justify a reversal of this cause. It follows that the territory was a proper party to institute this action, upon the complaint of the territorial board of health, and by direction of the Governor; that the court had jurisdiction of the subject-matter of the action; and that the evidence fully establishes the allegations of the petition that the license was procured by fraud and deception.

Believing the judgment of the trial court to be right and just, and in consonance with reason and sound morals, the judgment is affirmed.

BURFORD, C. J., who tried the cause in the court below, not sitting. All the other Justices concurring, except IRWIN, J., absent.

(19 Okl. 502)

STARK BROS. v. GLASER et al. (Supreme Court of Oklahoma. Sept. 20, 1907.) 1. JUDGMENT-MOTION TO VACATE-TIME OF

DECISION.

Under the statutes of this territory, the district court has power to vacate or modify its own judgments or orders at or after the term at which said judgment or order was made. Where the allegations to vacate a judgment are