In re Chung.

• Decision Date: 25 August 1897
• Parties: In re ROE CHUNG.
• Court: New Mexico Supreme Court

9 N.M. 130

49 P. 952

In re ROE CHUNG.

Supreme Court of the Territory of New Mexico.

Aug. 25, 1897.

Application of Rod Chung for a writ of prohibition to H. H. Ribble, justice of the peace. Denied.

A writ prohibiting the trial of a cause will not be issued where judgment has been regularly rendered, though it has not been formally entered.

Wycoff & Moore, for petitioner.

R. W. D. Bryan and S. Burkhart, for respondent.

COLLIER, J.

The application for a writ of prohibition was made in vacation to the Honorable H. B. Hamilton, one of the justices of this court, under section 2006 of the Compiled Laws of New Mexico, 1884, who, instead of granting the writ, and making it returnable to the next regular term of this court, ordered a rule to issue to respondent, H. H. Ribble, justice of the peace, for him to show cause at the beginning of this term, why such application should not be granted. This court decided to treat this application, as if it were made to the court in term time, and accordingly the matter is before us on the application and the answer.

Without setting out at large the averments in either, we will consider the following questions raised by the counsel for petitioner and respondent: (1) Assuming the act of the legislative assembly of New Mexico “to regulate the practice of medicine,” etc., approved February 27, 1895, to be a rightful subject of legislation, can the penalties prescribed be legally enforced? (2) Has a justice of the peace court jurisdiction in an action to recover the penalty for a first offense? (3) Does it appear that the causes the trial of which is sought to be prohibited relate to subsequent offenses?

While some attack is made upon this class of legislation as invalid, it is so well established that it is not only a rightful, but a most frequent, subject of legislation, that we have concluded, despite such attack, to assume this much, and content ourselves with an extract from the decision of Williams v. People, 121 Ill. 87, 11 N. E. 881, as follows: “It is the common exercise of a legislative power to prescribe regulations for securing the admission of qualified persons to professions and callings demanding special skill, and nowhere is this undoubtedly valid exercise of the police power of the state more wise and salutary, and more imperiously called for, than in the case of the practice of medicine. It concerns the preservation of the health and the lives of the people.” Our statute is very liberal in respect to the requirements for obtaining a certificate legally authorizing the holder to practice medicine in this territory, graduation and diploma not being necessary if examination satisfactory to the board of health be passed,-a provision more liberal, perhaps, than should be in a matter so vital to the interests of the public, to whom such a certificate accredits the holder. This seems quite a relaxation of the rule much more stringent in some other jurisdictions. It is objected by counsel for petitioner that there is a provision requiring the recovery of a penalty in an action of debt, which is converted into a fine in proceedings to enforce its collection. In other words, they say that a civil&953;where is this undoubtedly valid exercise of the police of the state more wise and salutary, and more imperiously called for than in the case of the practice of medicine. It concerns the preservation of the health and lives of the people.” Our statue is very liberal in respect to the requirement for obligation a certificate legally authorizing the holder to practice medicine in this territory, graduation and diploma boat being necessary if examination satisfactory to the board of health be passed,-a provision more liberal, perhaps, than should be in a matter so vital to the interests of the bublic, to whom such a certificate accredits the holder. This seems quite a relation of the rule much more stringent in some other jurisdictions. It is objected by counsel for petitioner that there is a provision requiring the recovery of a penalty in an action of debt, which is converted into a fine in proceedings to enforcer its collection. In other words they say that a civil action eventuates in a judgment in a criminal case. The reply to all this, or at least one of the replies, is that such a statute comes under the police power of the state, and it is frequently the case that imprisonment is embraced as a part of the judgment. The most familiar illustration of this occurs in the enforcement of fines imposed for a violation of municipal...