Allopathic State Board of Medical Examiners v. Fowler

• Decision Date: 16 May 1898
• Docket Number: 12,776
• Citation: 24 So. 809,50 La.Ann. 1358
• Court: Louisiana Supreme Court
• Parties: ALLOPATHIC STATE BOARD OF MEDICAL EXAMINERS v. AUGUSTUS C. FOWLER

24 So. 809

50 La.Ann. 1358

ALLOPATHIC STATE BOARD OF MEDICAL EXAMINERS v. AUGUSTUS C. FOWLER

No. 12,776

Supreme Court of Louisiana

May 16, 1898

Argued April 22, 1898

Rehearing Refused June 28, 1898.

ON APPEAL from the Twenty-first Judicial District Court for the Parish of Jefferson. Rost. J.

E. T Florance and Robt. J. Perkins, for Plaintiff, Appellee.

A. E Billings, Ambrose Smith and H. N. Gautier, for Defendant Appellant.

OPINION

NICHOLLS, C.J.

Plaintiffs applied to and obtained from the District Court for the parish of Jefferson an injunction forbidding and enjoining defendant from further practising medicine in any of its departments in this State until he shall have first obtained the certificate provided for under the provisions of Act No. 49 of the General Assembly of the State of Louisiana of 1894. They also prayed that Fowler be cited, and that after due proceedings there be judgment condemning him to pay plaintiffs the sum of one hundred dollars as a penalty, and in addition thereto the sum of fifty dollars as attorney's fees and costs of court and making said injunction perpetual and absolute.

These prayers were predicated upon allegations that Fowler, who resided in the parish of Jefferson, had been for over three months prior thereto practising medicine in the State without having first obtained the certificate required by Sec. 2 of Act No. 49 of 1894. That he had repeatedly prescribed and directed for the use of other persons drugs and medicines for the treatment, cure and relief of bodily injuries, infirmities and diseases.

That said acts were in violation of the laws of this State, particularly of said Act No. 49, and Sec. 14 of said act, as amended by Act No. 13 of 1896.

That under said law, said Fowler was liable to a penalty not to exceed one hundred dollars, and to the payment of attorney's fees not to exceed fifty dollars, for said violations.

Defendant moved to dissolve the injunction for causes declared to be apparent upon the face of the papers and record and want of authority and capacity in plaintiffs, and also upon the ground that the bond and surety furnished was not good and sufficient and such as the law required.

He also excepted to plaintiff's demand on the grounds:

1. That they were without authority or capacity to institute the suit.

2. (Under reservation.) That the allegations of the petition were too vague and indefinite for him to safely answer.

3. That the allegations of the petition disclosed no cause of action.

4. That Act No. 49 of 1894 is in violation of Arts. 1, 5, 7, XI, 29 et seq. of the Constitution, and is therefore null and void.

5. That Act No. 13 of 1896 is in violation of Arts. 1, 5, 7, XI, 29, 46 and 47 of the Constitution, and is therefore null and void.

The motion to dissolve and the exceptions filed were overruled.

Defendant answered, pleading first the general issue. Further answering, he denied that he had at any time violated the provisions of Act No. 49 of 1894 or the acts amendatory thereto. He specially denied that any of the provisions and prohibitions of the said laws and acts alleged were in any wise applicable to him. In the event that said acts be construed and held as a prohibition to the practice of medicine and surgery in any branch or school of medicine other than that of the allopathic or homeopathic, without a diploma from an allopathic or homeopathic institution, or without previous examination by the plaintiff's medical board of examiners, or in the event it should be held that the plaintiff's medical board of examiners are qualified and authorized to determine and pass upon the ability, competency and qualification of practitioners of such other branch or school of medicine, and especially of respondent, he averred that such construction and holding as regards practitioners of such other school of medicine, particularly as regards this respondent (holder of a diploma from a reputable institution of the Eclectic school of medicine), and as regards practitioners anterior to the said legislative enactments or laws, would, in fact, be holding and giving to said laws the unconstitutional effect of discriminating between persons engaged in the profession of medicine and surgery and would be depriving this respondent of his constitutional rights and privileges. Defendant further averred that such construction and holding as regards said laws would and does make the provisions and prohibitions thereof effectively applicable to him and thereby violates all rights, privileges and immunities guaranteed him and vested in him by the Constitution of this State and of the United States, specially as regards his privileges and immunities of citizenship and operates as and is an unjust and illegal discrimination between citizens of different States and of the same State -- is class legislation, and specially violative of the Bill of Rights of the State Constitution and of Sec. 2 and of Art. 4 of the Constitution of the United States as well as of the Fourteenth Amendment of the Constitution, and among other things in this, that it deprives respondent of his property and liberty without due process of law, and he alleged that said acts were ultra vires.

He averred that said Act No. 49 of 1894, and those amendatory thereof, should not and could not apply to him and could not be invoked by plaintiffs to prohibit and enjoin him from practising medicine and surgery in the State of Louisiana. That the depriving him of the rights, privileges and immunities inherent to his citizenship and the maintaining and perpetuation of the injunction which had issued, or the rendition of a judgment in favor of plaintiffs, would cause him great and irreparable injury to an amount hard to estimate, but surely in a sum far in excess of ten thousand dollars, and would be depriving him of his property and liberty without due process of law. He prayed that there be judgment in his favor and against plaintiffs, decreeing respondent entitled to practsie medicine and surgery in this State, and dissolving the injunction, and dismissing plaintiffs.

Defendant filed a supplemental answer in which he averred that he was expressly exempted from the provisions and penalties of Act No. 49. He further alleged that notwithstanding the provisions of that act he was entitled, under the constitution and laws of the United States, to a trial by jury, and for such trial he prayed on conforming to the requirements of law relative to such trials.

The prayer for a trial by jury was refused under the provisions of Acts No. 49 of 1894 and No. 13 of 1896.

To this ruling defendant reserved a bill of exceptions.

The District Court rendered judgment in favor of the plaintiffs, making the injunction perpetual and decreeing that defendant be enjoined from practising medicine in any of its departments until he should have received the certificate required by Sec. 2 of Act No. 49 of the acts of 1894. It further condemned defendant to pay a fine of one hundred dollars, and, in addition, fifty dollars for attorney's fees and costs. On February 5, 1898, defendants applied for and obtained a suspensive appeal from the judgments of the court overruling his exceptions, and from the final judgment in the case.

In the Supreme Court defendant assigned as error of law and cause of nullity of the judgment appealed from that Act No. 49 of 1894, known and designated throughout its parliamentary progress as Senate Bill No. 90, did not receive the readings on three different days in each house of the General Assembly, as required by the mandatory provisions of Art. 37 of the Constitution, but was passed by the Senate in disregard and violation thereof; all of which was shown by reference to the constitutional and official record and journals of the Senate. That Act No. 13 of 1898 was unconstitutional, for the reason that it only purports to amend and re-enact Secs. 14 and 19 of said Act No. 49 of 1894; that same is not self-operative or enforceable, but is entirely dependent upon the provisions of said Act No. 49 in its entirety for legal validity and effectiveness; that being based upon an outgrowth of and inseparable from said Act No. 49, which is null and void, said Act No. 13 is of and by itself without legal force or vigor.

OPINION.

Appellant attacked in this court the constitutionality of Act No. 49 of 1894 on the ground that in its passage Art. 37 of the Constitution was not complied with. He had attacked its constitutionality in the District Court, but upon other grounds. In State of Louisiana vs. Widow De St Romes, 26 An. 754, we held that the constitutionality of a law would not be considered where an issue to that effect has not been raised in the case below. The same rule applies to cases where special grounds of unconstitutionality are set up for the first time in this court, and particularly those where an examination of evidence would be needed for a decision of the question submitted. We have, however, examined the Journal of the Senate proceedings for the year 1884, and find that an act was introduced in the Senate on the sixth day of the session by Mr. Avery, having the same title as that which Act No. 49 of 1894 now bears. It was introduced as Senate Bill No. 23, read by its title, and placed upon the calendar for second reading. On the seventh day it was taken up under a suspension of the rules on its second reading, read by title, and referred to the Committee on Health, Quarantine, Drainage and Charitable Institutions. On the eighteenth day that committee, through its chairman, reported Senate Bill No. 23, by Mr. Avery favorably by substitute. On the nineteenth day, we find in the Journal, under the heading of Senate Bills on second reading reported on by...