France v. State

• Decision Date: 26 October 1897
• Citation: 57 Ohio St. 1,47 N.E. 1041
• Parties: FRANCE v. STATE.
• Court: Ohio Supreme Court

47 N.E. 1041

57 Ohio St. 1

FRANCE v. STATE.

Supreme Court of Ohio.

October 26, 1897

Error to court of common pleas, Sandusky county.

The plaintiff in error, Edson France, was indicted by the grant jury of Sandusky county for the offense of practicing medicine in that county without having obtained from the board of medical registration and examination the certificate required to entitle a person to practice medicine in this state. He was tried and convicted at the April term, 1897, of the court of common pleas, and sentenced to pay a fine and costs, to reverse which judgment he has, on leave granted him, filed his petition in error in this court. A statement of the questions raised, and of the facts necessary to their understanding, will appear in the opinion. Affirmed.

Statute regulating practice of medicine held not invalid. Act Feb. 27, 1896; 92 Ohio Laws, pp. 44-49.

Syllabus by the Court

1. The power conferred on the state board of medical registration and examination by the act ‘to regulate the practice of medicine in the state of Ohio’ (92 Laws, 44-49) is administrative in character, and not judicial, within the meaning of section 1 of article 4 of the constitution of the state.

2. The act is prospective in operation, and in no respect obnoxious to section 10 of article 1 of the federal constitution, which forbids the enactment of ex post facto laws and bills of attainder by the states.

3. It is competent for the state, under its power to provide for the welfare of its people, to establish needful regulations and impose reasonable conditions, calculated to insure proper qualifications, both with respect to learning and moral integrity, of persons desiring to engage in the practice of medicine in the state, and require compliance therewith by such persons before they shall be permitted to practice within the state. The regulations adopted by this statute are of that character, and do not infringe upon the privleges and immunities guarantied by section 2 of article 4 of the federal constitution to citizens in the several states, nor abridge those secured to citizens of the United States by the fourteenth article of amendment of that constitution.

Powell & Minahan and D. J. Ryan, for plaintiff in error.

J. K. Richards, John L. Lott, Asst. Atty. Gen and Geo. H. Withey, Pros. Atty., for the State.

WILLIAMS, J.

The prosecution is based upon the act ‘to regulate the practice of medicine in the state of Ohio,’ passed February 27, 1896 (92 Ohio Laws, 44-49). If the statute is constitutional, it is not claimed there is any error in the record for which the judgment below should be reversed. The contention is that the act, in some of its provisions, is repugnant to the constitution of this state, and in others to the constitution of the United States; and that the remaining provisions of the statute are so dependent, in their practical operation, upon those which are subject to these constitutional infirmities, that the whole act becomes invalid. The statute provides that ‘any person practicing medicine or surgery as defined in section 4403f in this state, without having first complied with the provisions of sections 4403c and 4403d, except as herein provided, shall be deemed guilty of a misdemeanor, and shall be fined not less than twenty dollars nor more than five hundred dollars or be imprisoned in the county jail not less than thirty days, nor more than one year, or both.’ Section 4403g. Section 4403f is as follows: ‘Any person shall be regarded as practicing medicine or surgery within the meaning of this act, who shall append the letters M. D. or M. B. to his name, or for a fee prescribe, direct or recommend for the use of any person, any drug or medicine or any other agency for the treatment, cure or relief of any wound, fracture or bodily injury, infirmity or disease provided, however, that nothing in this act shall be construed to prohibit service in case of emergency, or the domestic administration of family remedies; and this act shall not apply to any commissioned medical officer of the United States army, navy or marine hospital service in the discharge of his professional duties, nor to any legally qualified dentist when engaged exclusively in the practice of dentistry, nor to any physician or surgeon from another state or territory, who is a legal practitioner of medicine or surgery in the state or territory in which he resides, when in actual consultation with a legal practitioner of this state, nor to any physician or surgeon residing on the border of a neighboring state, and duly authorized under the laws thereof to practice medicine or surgery therein, whose practice extends into the limits of this state; providing that such practitioner shall not open an office or appoint a place to meet patients or receive calls, within the limits of this state.’ Section 4403c provides that ‘no person shall practice medicine, surgery, or midwifery, in any of its branches, in this state, without first complying with the requirements of this act. If a graduate in medicine or surgery, he shall, either personally, or by letter or proxy, present his diploma to the state board of medical registration and examination for verification. Accompanying such diploma the applicant shall file his affidavit, duly attested, stating that the applicant is the person named in the diploma and is the lawful possessor of the same, and giving his age and the time spent in the study of medicine. If the board shall find the diploma to be genuine, and from a legally chartered medical institution in good standing, as determined by the board, and the person named therein be the person holding and presenting the same, the board shall issue its certificate to that effect, signed by its president and secretary; which, when left with the probate judge for record as hereinafter required, shall be conclusive evidence that its owner is entitled to practice medicine or surgery in this state. If a legal practitioner of medicine under the laws of Ohio in force at the time of the passage of this act, but not a graduate of medicine or surgery, as above defined, he shall, either personally, or by letter or proxy, furnish the board an affidavit, duly attested, stating the period during which and the places at which he has been engaged in the practice of medicine or surgery. If the board is satisfied from the affidavit and other information received that the applicant was a legal practitioner of medicine in Ohio at the time of the passage of this act, it shall issue its certificate to that effect, which when left with the probate judge for record, shall be conclusive evidence that its owner is entitled to practice medicine or surgery in this state. If engaged in the practice of medicine in this state at the time of the passages of this act, but not a legal practitioner under the laws in force at such time, nor a graduate in medicine or surgery as above defined, he shall present himself before the board and submit to such examination as to his qualification for the practice of medicine or surgery as the board may require. If such applicant passes an examination satisfactory to the board, the board shall issue its certificate to that effect, which when left with the probate judge for record, shall entitle the owner to practice medicine or surgery in Ohio for a period of one year next ensuing from the date thereof. The board may refuse to grant a certificate to any person guilty of felony or gross immorality, or addicted to the liquor or drug habit to such a degree as to render him unfit to practice medicine or surgery; and may after notice and hearing, revoke a certificate for like cause. An appeal may be taken from the action of the board refusing to grant or revoking a certificate for such cause, to the governor and attorney-general, and the decision of which officers, either affirming or overruling the action of the state board shall be final.’ And section 4403d, contains the following provision: ‘The person receiving a certificate to practice medicine or surgery under section 4403c, shall, before entering upon the practice, leave his certificate with the probate judge of the county in which he resides, for record. The probate judge shall record the same in a book to be kept for that purpose, and endorse on the margin of the record and on the certificate the time he received the same for record, and make a proper index to all certificates by him recorded. The probate judge shall note in the margin of the record the revocation of a certificate, or any change in the location or death of the owner of a certificate. Upon application the probate judge shall make out a certified copy of any such certificate and the endorsements thereon, and such certified copy shall be prima facie evidence of all matters and facts therein contained. Between the first and thirty-first days of December in each year, the probate judge shall furnish the secretary of the state board, a list of all certificates recorded and in force, and also a list of all certificates which have been revoked or the owners of which have removed from the county or died during the preceding year. In case of a change of residence, the owner of a certificate shall have the same recorded anew by the probate judge of the county into which he removes.’ The other provisions of the statute are not important in the disposition of the questions in the case.

1. One objection made to the statute is that by those provisions of section 4403c which authorize the medical board, for the causes therein mentioned, to refuse or revoke certificates of qualification required of physicians before they are entitled to practice in this state, and provide for an appeal to the governor and attorney general, it assumes...