Scholle v. State

• Decision Date: 21 March 1900
• Citation: 46 A. 326,90 Md. 729
• Parties: SCHOLLE v. STATE.
• Court: Maryland Court of Appeals

46 A. 326

90 Md. 729

SCHOLLE v. STATE.

Court of Appeals of Maryland

March 21, 1900

Appeal from criminal court of Baltimore city; George M. Sharp Judge.

"To be officially reported."

Ferdinand Scholle was convicted of unlawfully practicing medicine and surgery, and he appeals. Affirmed.

Argued before MCSHERRY, C.J., and FOWLER, BRISCOE, PAGE, PEARCE BOYD, SCHMUCKER, and JONES, JJ.

Charles M. Harley, for appellant. Atty. Gen. Gaither, Henry Duffy Taylor & Keach, and A. H. Taylor, for the State.

PAGE J.

The appellant was indicted for unlawfully practicing medicine and surgery in the state of Maryland without being registered as a physician or surgeon in the registry of physicians and surgeons. The question presented by the appeal is the validity of Acts 1892, c. 296, Acts 1894, c. 217, and Acts 1896, c. 194, all of which are incorporated in Mr. Poe's Supplement to the Code as article 43, §§ 39-63, subtit. "Practitioners of Medicine." These statutes are the final result of a series of successive enactments which have created a well-defined system for the regulation of the practice of medicine in the state. Inasmuch as extended reference was made to them in the case of Manger v. Board (decided at the present term) 45 A. 891, we need refer here to only so much of the system now in force as is required for a proper consideration of the questions involved in this appeal. The acts provide for two boards of examiners,--one to be appointed by the Medical and Chirurgical Faculty of the State of Maryland; the other by the Maryland State Homeopathic Medical Society. Each of these boards is empowered to grant licenses to practice medicine in the state, and no one is allowed so to practice unless he has first obtained such license. The forty-ninth section of the article contains an exception to this general rule by the provision that the subtitle shall not apply "to commissioned surgeons of the United States army, navy or marine hospital service, to physicians or surgeons in actual consultation from other states, or to persons temporarily practicing under the supervision of an actual medical preceptor." It is contended on the part of the appellant that these exemptions from the burden of obtaining a license to practice is an unjust and unreasonable discrimination between persons engaging in the medical business or profession, and that its effect is to render the whole act invalid, as being in contravention of the fourteenth amendment of the constitution of the United States. It is not questioned, as, indeed, it could not be, that the state under the police power has authority to pass such reasonable laws for the protection of the health, morals, and safety of the public as its legislature, in the exercise of its discretion may deem necessary and proper. But the contention is that the provisions of the section by which the exemptions from licensing are declared are not just and reasonable, and bear no proper relation to the objects sought to be accomplished; and the argument is that, while a certain class of physicians are not required to register, it is an infringement of the principle of equality to require registration of others who do not belong to the favored class. This objection, therefore, amounts to no more than to affirm that the classification made by the statutes is purely arbitrary; for all the authorities agree that if a classification be just and reasonable, and bear a proper relation to the subject-matter of the act, no objection to its validity can be raised. The fourteenth amendment was not intended to restrain the legislature from such reasonable provisions as are necessary for the protection of the public health, and in doing this conditions may exist that make it most essential to impose upon some persons greater burdens than upon others not similarly situated. "The great purpose of the amendment is to exclude everything that is arbitrary and capricious in legislation affecting the rights of the citizen." Dent v. West Virginia, 129 U.S. 114-128, 9 S.Ct. 231, 32 L.Ed. 623; State v. Broadbelt, 89 Md. 579, 43 A. 771; State v. Knowles (decided Feb. 15, 1900) 45 A. 877; Singer v. State, 72 Md. 464, 19 A. 1044, 8 L. R. A. 551; Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923; Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220.

Here the purpose of the acts in question was the protection of the public from the consequences of ignorance and incapacity in the practice of medicine and surgery. As a means of effecting this, they exact from the persons proposing to engage in the business a certain degree of skill and learning, to be evidenced by a certificate upon which the public may rely. If the conditions surrounding all persons who desired to practice were alike, there could be differences made as to the terms upon which a certificate could be obtained. But if there are differences as to conditions and situations, by which it becomes reasonable that greater precautions are required in some cases than in others, classes may be formed by which certificates can be granted to some without examination, and by which others may be exempted altogether from the burden of being registered. But these classes must be created upon considerations only that are promotive of the public interests, and if they are so created they do not constitute an unlawful discrimination, and do not impair the "equal right which all can claim in the enforcement of the laws." The case of State v. Pennoyer (N. H.) 18 A. 878, 5 L. R. A. 709, relied upon by the appellant to sustain his contention, is nowise in conflict with what has just been said. In that case the act was pronounced invalid because the exemption from the burden of obtaining a license was made to depend, "not on integrity, education, and medical skill, but upon a continuous dwelling in one place for a certain time." Such a discrimination was undoubtedly arbitrary, and founded upon no reason having relation to the subject.

It had no regard to competency, or to any material difference of situation, and, if maintainable, no reason could be assigned why "a monopoly of the business might not be given" to favored physicians. But that cannot be said of the provisions of the section and the law now being considered. Those to whom the provisions of the acts do not apply are (1) commissioned surgeons of the United States army and navy and marine hospital; (2) physicians and surgeons in actual consultation from other states; and (3) persons temporarily practicing under the supervision of an actual medical preceptor. The reasons for these exemptions from the operation of the act are...