City of Fairfield v. Shallen-Berger

• Decision Date: 21 October 1907
• Citation: 113 N.W. 459,135 Iowa 615
• Parties: CITY OF FAIRFIELD v. SHALLEN-BERGER.
• Court: Iowa Supreme Court

135 Iowa 615

113 N.W. 459

CITY OF FAIRFIELD

v.SHALLEN-BERGER.

Supreme Court of Iowa.

Oct. 21, 1907.

Appeal from District Court, Jefferson County; M. A. Roberts, Judge.

The defendant was accused of violating section 16 of ordinance 59 of the city of Fairfield. He was found guilty before a justice of the peace, and appealed to the district court, where he was tried on an agreed statement of facts and acquitted. The section of the ordinance under consideration, so far as the same is material here, is as follows: “Persons engaging for pay or reward in any of the following occupations, professions or trades, in this city, shall pay a license herein designated, traveling physicians fifty ($50) dollars per year.” The controlling facts agreed upon were that the defendant was an itinerant physician residing in Chicago; that upon the date charged in the information he was practicing his profession in the city of Fairfield without having obtained a license so to do from said city; that at said time he held a certificate issued to him by the state board of medical examiners of the state of Iowa, authorizing him to practice medicine and surgery in the state of Iowa, and showing that he had passed the examination required by law. It was also agreed that, in addition to the foregoing certificate, the defendant held a certificate or license issued to him by the state board of medical examiners of the state under section 2581 of the Code, authorizing him to practice in the state as an itinerant physician, and that he had paid to the Treasurer of the State the sum of $250 as required by law for such itinerant license. Both of the state licenses were in full force on the date named in the information. The city of Fairfield appeals. Reversed.E. F. Simmons, for appellant.

Leggett & McKemey, for appellee.

SHERWIN, J.

The trial court held that the city of Fairfield had no power to require an itinerant physician to pay a license, the effect of which was to “limit or curtail the authority granted him by the state board of medical examiners by a license duly and properly issued by said board.” The correctness of this conclusion of the trial court is the ultimate question for our determination in this case. Code, § 700, provides that cities and towns shall have power “to regulate, license and tax * * * itinerant docors, itinerant physicians and surgeons”; and it was under the express power given by said section that the ordinance in question was passed by the city of Fairfield. The defendant relies upon the following propositions for an affirmance of the judgment: First, that the state license issued to him constituted a contract with the state authorizing him to practice his profession anywhere within the state; second, that the ordinance in question is unconstitutional and void so far as it requires the payment of a license of $50 by a traveling physician because it contravenes Code, § 2581, and because it discriminates in favor of resident physicians and against nonresident physicians; third, because the ordinance is unconstitutional, being in violation of section 1 of the fourteenth amendment to the Constitution of the United States, which provides that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, * * * nor deny to any person the equal protection of the laws”; fourth, the ordinance is invalid under article 1, § 6, of the Constitution of Iowa, which requires that all laws of a general nature shall have uniform operation; fifth, because said ordinance is unjust and unreasonable, and beyond the authority granted by the statute. Code, § 2581, provides that the state board of medical examiners may issue to itinerant physicians a license to practice within the state, and the defendant contends that a license so issued is authority for an itinerant practice in any city or town of the state without an additional license, while the appellant takes the position that section 2581 was not intended to, and does not, abridge the power of cities and towns conferred by section 700 of the Code. In other words, that it does not expressly or by implication repeal section 700; that section 2581 does not expressly repeal or limit the power given by section 700 is conceded by the defendant, and, so far as this breach of the case is concerned, the only question remaining for consideration is whether section 2581 repeals or limits the power of section 700 by implication or by any...