Brown v. People
| Citation | 11 Colo. 109,17 P. 104 |
| Parties | BROWN v. PEOPLE. |
| Decision Date | 17 February 1888 |
| Court | Colorado Supreme Court |
Error to county court, Arapahoe county.
Wells, Smith & Macon and Knapp & Benton, for plaintiff in error.
Theodore H. Thomas, Atty. Gen., for defendants in error.
The plaintiff in error was found guilty and fined $50 on an information preferred against him for practicing medicine within the state, without having received from the state board of medical examiners a certificate authorizing him to practice. The questions presented by the record and discussed by counsel are, in the main, identical with the questions raised and decided in the case of Harding v. People, 10 Colo. ----, 15 P. 727. In so far as this is the case, we shall not notice the assignments. This leaves us for consideration two objections, going to the constitutionality of the statute under which the plaintiff in error was convicted.
1. There is nothing in the constitution which requires that each school of medicine named in the act should be represented by equal numbers on the state board of medical examiners. The framers of the constitution did not attempt the establishment of a government that should be administered absolutely free from prejudice. In this respect the restraint of an official oath is the chief safeguard prescribed.
2. A point is made that section 2 of the act we are considering is unconstitutional, in that it provides for the appointment of the state board of medical examiners by the governor, whereas, under the provisions of section 6, art. 4, Const., it is contended the governor should nominate, and by and with the consent of the senate appoint. In People v. Osborne, 7 Colo. 605, 4 P. 1074, this constitutional provision is construed not to apply to offices created by statute to be filled as therein otherwise provided. Independently of this, the office being de jure, one appointed to it is de facto an officer, notwithstanding the mode of appointment may be unconstitutional. Ex parte Strang, 21 Ohio St. 610. As was said in the case of Harding v. People, supra, 'it is enough that the board was de facto the state board of medical examiners, acting under the provisions of the statute, and that its certificate would have protected defendant from prosecution under the statute.' The judgment of the court below must be affirmed.
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