Brooks v. State

• Decision Date: 16 December 1889
• Citation: 6 So. 902,88 Ala. 122
• Parties: BROOKS v. STATE.
• Court: Alabama Supreme Court

6 So. 902

88 Ala. 122

BROOKS v. STATE.

Supreme Court of Alabama

December 16, 1889

Appeal from circuit court, Russell county; J. M. CARMICHAEL, Judge.

The defendant in this case, Dr. S.W. Brooks, having obtained a diploma from a regular medical college in Georgia, came into Russell county, Ala., in April, 1889, and there began the practice of medicine, having had his diploma recorded in the office of the probate judge. At that time there was a county medical society in Russel county, in affiliation with the state medical association; and Dr. Brooks not having gone before its board of censors for examination, license, or certificate of qualification, the indictment in this case was found against him for practicing medicine in violation of section 4078 of the Code. The court charged by jury that if they believed the evidence they must find the defendant guilty; to which charge the defendant excepted.

Geo. P. Harrison, for appellant.

W L. Martin, Atty. Gen., for the State.

STONE C.J.

There can be few questions, if any, more clearly within the police powers of the government than the conservation of the public health. On this power rests all the doctrine of quarantine of pest-houses, of compulsory vaccination, of sanitary sewerage, of many forms of public nuisance, and many other acts of precaution, not necessary to be enumerated; and a learned and qualified membership of the medical profession is one of the confessed agencies in protecting the public against the dangers of charlatanism. To prescribe rules and tests for the ascertainment of the qualifications of applicants for authority to practice medicine as a livelihood is clearly within the scope of legislative power. Cooley, Const. Lim. (5th Ed.) 722; Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231; McDonald v. State, 81 Ala. 279, 2 South. Rep. 829; Railroad Co. v. State, 83 Ala. 71, 3 South. Rep. 702; Railroad Co. v. Baldwin, 85 Ala. 619, 5 South. Rep. 311. Tiedeman (Limitations of Police Power, section 87) doubts this doctrine, but we cannot agree with him. We do not place the state's right and power in the premises on the ground of benefit or privilege conferred on the physician. It stands on the higher plane of protection to the public against the consequence of ignorance and quackery. Nor do we think there is anything in the objection that, by the terms of the law, its provisions take effect in any given county only when there is a medical society organized in such county, in affiliation with the medical association of the state, as declared by the act approved February 9, 1877, (Sess. Acts, 80,) Code 1886, §§ 1301 et seq. We are not able to perceive any difference in the principle between the statute under discussion and the stock laws and local option statutes, so frequently brought before us for determination. Dunn v. Commissioners, 85 Ala. 144, 4 South. Rep. 661.

We find nothing in the civil aspects of the statute which offends the state constitution. The violation of the statute we have in hand is, however, not an offense which the law characterizes as malum in se. It is only malum prohibitum, or a wrong only because the law prohibits it. Such violation of law is not, without more, an indictable offense. Says Mr. Cooley, (Const. Lim., 5th Ed., 745:) "Whether the prohibited act or omission shall be made a criminal offense, punishable under the general laws, or subject to punishment under municipal by-laws, or, on the other hand, the party be deprived of all remedy for any right, which, but for the regulation, he might have had against other persons, are questions which the legislature must decide." So, however much the legislature may enjoin certain duties, or interdict certain omissions of duty, unless the duty commanded or act prohibited would amount to an indictable offense, independent of the statute, no indictment can be maintained, unless the statute expressly authorizes it.

Section 4078 of the Code of 1886 is the statute under which it is claimed the defendant was rightly convicted. It stands in the place of section 4243 of the Code of 1876, but is materially different from it. It declares that any person practicing medicine or surgery, except in one of four named categories, "must on conviction be fined not more than one hundred dollars." There is no other statutory provision bearing expressly on this aspect of the case. The enumerated categories which the statute excludes from its operation are: First, that the physician or surgeon has first obtained a license; or, second, that he has obtained a diploma; or, third, that he has obtained a certificate of qualification; or, fourth, that he is a regular graduate of a medical college of this state, having had his diploma legally recorded. It was proved that before defendant entered upon the practice of medicine in Russel county there was organized in said county a county medical society, in affiliation with the medical association of Alabama, as provided by section 1301 of the Code of 1886, and that said county medical society had kept up its organization. The state proved a prima facie case against the defendant, and rested. The defendant then read in evidence a diploma from a regular medical college in the state of Georgia, and proved that he had had said diploma recorded in the office of the judge of probate of Russell county before he entered upon the practice of medicine. The defendant was convicted; the court instructing the jury to find him guilty, if they believed the evidence.

By an examination of the Code of 1886, beginning with section 1296 it will be seen that under our statutes there...