Butcher v. Maybury

• Decision Date: 19 September 1925
• Docket Number: No. 253.,253.
• Citation: 8 F.2d 155
• Court: U.S. District Court — Western District of Washington
• Parties: BUTCHER et al. v. MAYBURY, Director of Licenses.

8 F.2d 155 (1925)

BUTCHER et al. v. MAYBURY, Director of Licenses.

No. 253.

District Court, W. D. Washington, S. D.

September 19, 1925.

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Spencer Gray, E. E. Shields, and D. V. Halverstadt, all of Seattle, Wash., for plaintiffs.

John H. Dunbar, Atty. Gen., and E. W. Anderson, Asst. Atty. Gen., for defendant.

Before McCAMANT, Circuit Judge, and CUSHMAN and NETERER, District Judges.

McCAMANT, Circuit Judge (after stating the facts as above).

The statute sought to be restrained has been before the Supreme Court of Washington for construction. State ex rel. Fryberg v. Maybury (Wash.) 236 P. 566. It is there held that on the revocation of a full license, granted under substantially the conditions set forth in the bill in this case, it is the duty of the director of licenses to return the limited license surrendered when the full license was granted. The court holds that "the right to practice is a valuable property right," and that "this right was one that could only be taken away * * * by appropriate proceedings calling for its revocation, or by voluntary relinquishment." It is also held that a license granted under the act of 1919 is not a contract with the state.

There is no diversity of citizenship, and the jurisdiction of this court is based wholly on the federal question raised by the bill. It is charged that chapter 10 of the Session Laws of 1925 is in violation of the first section of the Fourteenth Amendment to the Constitution of the United States, in that it deprives plaintiffs of their property without due process of law and denies them the equal protection of the laws. It is also charged that the statute is in violation of section 10 of article 1 of the Constitution, forasmuch as it "is a bill of attainder and ex post facto law." These are the only federal questions presented.

The effect of the act of 1925, if it is free from constitutional objection, is to amend by implication the act of 1919 in its application to the second class of licentiates, of whom the plaintiff Goodrich is one. The new statute lays upon this class the requirement of a high school education or its equivalent and attendance for three entire sessions, of 36 weeks each, in a drugless school. The statute provides a new procedure for the revocation of licenses granted wholly or in part because of diplomas. It does not change the qualifications demanded by the act of 1919 of the first and third classes of applicants. The plaintiff Wehe received her original limited license on the strength of her continuous practice of her profession for 12 years and of the examination she passed. The new statute affects her only because of the full license granted her in part because of her postgraduate diploma from the American University of Sanipractic. The plaintiff Butcher is affected by the act of 1925 only because it changes the procedure for the revocation of licenses.

The right of a physician to practice his profession is a property right, of which he cannot be arbitrarily deprived. Dent v. West Virginia, 129 U. S. 114, 123, 124, 9 S. Ct. 231, 32 L. Ed. 623; Douglas v. Noble, 261 U. S. 165, 43 S. Ct. 303, 67 L. Ed. 590; Bogni v. Perotti, 224 Mass. 152, 112 N. E. 853, 855, L. R. A. 1916F, 831; Lawrence v. Board of Registration, 239 Mass. 424, 132 N. E. 174, 176; State v. Medical Board, 32 Minn. 324, 20 N. W. 238, 50 Am. Rep. 575, 576.

The right is a qualified one, and is held in subordination to the duty of the state under the police power to protect the public health. Hawker v. New York, 170 U. S. 189, 18 S. Ct. 573, 42 L. Ed. 1002, Lawrence v. Board of Registration, 239 Mass. 424, 132 N. E. 174, 176. The police power cannot be stipulated or bartered away. Gray v. Connecticut, 159 U. S. 74, 15 S. Ct. 985, 40 L. Ed. 80. In State v. Hovorka, 100 Minn. 249, 252, 110 N. W. 870, 871, 8 L. R. A. (N. S.) 1273, 1275 (10 Ann. Cas. 398) it is said:

"No person can acquire a vested right to continue, when once licensed, in a business, trade, or occupation which is subject to legislative control and regulation under the police power. The rights and liberty of the citizen are all held in subordination to that governmental prerogative, and to such reasonable regulations and restrictions as the Legislature may from time to time prescribe. * * * Regulations so prescribed and conformed to by the citizen may be subsequently changed or modified by the Legislature, whenever public interest require it, without subjecting its action to the charge of interfering with contract or vested rights. This is elementary."

In a note found on page 1273 of 8 L. R. A. (N. S.) the author says:

"The granting of a license in such cases is merely the means taken by the state, in the exercise of its police power, to regulate and restrict the engaging in certain professions and occupations for the public good, and confers no rights whatever, in the way of a contract with the state, upon the licensee. He takes the same subject to the right of the state, at any time that the public good demands, to make further restrictions and regulations thereto; and, if such restrictions and regulations are reasonable, they will be upheld, even though they may actually prohibit some people from further engaging in such occupations or professions under a license previously granted."

The authorities hold without dissent that it is competent for the Legislature to prescribe qualifications for those who are to practice medicine and thus to assure that they shall possess the requisite character and learning. Dent v. West Virginia, 129 U. S. 114, 122, 9 S. Ct. 231, 32 L. Ed. 623; Hawker v. New York, 170 U. S. 189, 18 S. Ct. 573, 42 L. Ed. 1002; State v. State Medical Board, 32 Minn. 324, 20 N. W. 238, 50 Am. Rep. 575, 577. The regulation of drugless healers is a proper exercise of the police power. Crane v. Johnson, 242 U. S. 339, 37 S. Ct. 176, 61 L. Ed. 348, Ann. Cas. 1917B, 796. The regulatory power of the state may be properly committed to an administrative board or officer. Douglas v. Noble, 261 U. S. 165, 170, 43 S. Ct. 303, 67 L. Ed. 590; State v. State Medical Board, 32 Minn. 324, 20 N. W. 238, 50 Am. Rep. 575, 577.

These regulatory statutes may be made operative on those engaged in practice prior to the enactment of the statutes. Dent v. West Virginia, 129 U. S. 114, 122, 9 S. Ct. 231, 32 L. Ed. 623; Collins v. Texas, 223 U. S. 288, 295, 32 S. Ct. 286, 56 L. Ed. 439; Lawrence v. Board of Registration, 239 Mass. 424, 132 N. E. 174, 176. The state may change the qualifications from time to time, making them more rigid. Dent v. West Virginia, 129 U. S. 114, 122, 9 S. Ct. 231, 32 L. Ed. 623; Gray v. Connecticut, 159 U. S. 74, 15 S. Ct. 985, 40 L. Ed. 80; State v. Hovorka, 100 Minn. 249, 110 N. W. 870, 8 L. R. A. (N. S.) 1273, 1275, 10 Ann. Cas. 398.

The Legislature may prescribe qualifications, both as to character and learning, which will require those in practice to give up their occupation. Dent v. West Virginia, 129 U. S. 114, 122, 9 S. Ct. 231, 32 L. Ed. 623; Hawker v. New York, 170 U. S. 189, 18 S. Ct. 573, 42 L. Ed. 1002. Legislation prescribing qualifications which a practitioner cannot meet because of conditions antedating the enactment of the legislation is valid. Such legislation does not constitute punishment; it is legitimate regulation. Hawker v. New York, 170 U. S. 189, 18 S. Ct. 573, 42 L. Ed. 1002; Meffert v. State Board of Medical Registration, 66 Kan. 710, 72 P. 247, 1 L. R. A. (N. S.) 811. The limitation on the above doctrines is the principle that the regulations must be reasonable and must bear some relation to the service to be rendered by the practitioner.

The changes in the qualifications of drugless healers, made by the act of 1925, were within the legislative discretion. It is not unreasonable to exact a high school education or its equivalent as a proper standard of general education. Neither is it an arbitrary exercise of legislative power to require a residence course of three sessions, consisting of 36 weeks each, in a school of approved standing.

The power of the state to require a license implies the power to revoke a license which has been improperly issued. Provision for the revocation of such licenses is made by the act of 1919, whose constitutionality is not under attack. The statute in question merely changes the procedure required for such purpose.

The act of 1925 provides for notice and hearing to a licentiate whose license is proposed to be revoked. He is entitled to the compulsory attendance of witnesses and to be represented by counsel. If the issue is determined against him, he has a right to review the action of the director of licenses in the superior court for Thurston county. This procedure abundantly meets the "due process" requirements of the Fourteenth Amendment. Reetz v. Michigan, 188 U. S. 505, 507, 23 S. Ct. 390, 47 L. Ed. 563.

The equal protection of the laws, guaranteed by the above amendment, is secured "if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government." Duncan v. Missouri, 152 U. S. 377, 382, 14 S. Ct. 570, 572 (38 L. Ed. 485). The statute in question operates alike on all who come within its purview. The presumption is that in its enforcement the director of licenses will act fairly and from a good motive. Douglas v. Noble, 261 U. S. 165, 170, 43 S. Ct. 303, 67 L. Ed. 590; Lehmann v. Board of Accountancy, 263 U. S. 394, 44 S. Ct. 128, 68 L. Ed. 354. The statute does not deny to plaintiffs the equal protection of the laws.

"A bill of attainder is a legislative act which inflicts punishment without a judicial trial." Cummings v. Missouri, 4 Wall. 277, 323, 18 L. Ed. 356. The statute in question inflicts no punishment. Meffert v. State Board of Medical Registration, 66 Kan. 710, 72 P. 247, 251, 1...