In re Inman

• Decision Date: 28 May 1902
• Citation: 69 P. 120,8 Idaho 398
• Parties: IN RE L. F. INMAN
• Court: Idaho Supreme Court

69 P. 120

8 Idaho 398

IN RE L. F. INMAN

Supreme Court of Idaho

May 28, 1902

CONSTITUTIONAL LAW-STATUTE-APPOINTIVE OFFICE.-A legislative enactment providing for a state board of medical examiners, and authorizing the governor to appoint such board, without the concurrence of the Senate, does not contravene section 1 of article 2, nor section 6 of article 4 of the constitution of Idaho.

SAME-JUDICIAL POWER.-The act of March 3, 1899, commonly known as "the medical bill," is constitutional, and does not vest judicial power in the state board of medical examiners.

SAME-POLICE POWER.-Said act of March 3, 1899, does not violate the rule against special or class legislation, nor the rule of "equality before the law," and does not grant special immunities to special classes, but its enactment is a valid exercise of the proper police power of the state.

(Syllabus by Quarles, C. J.)

ORIGINAL proceeding for writ of habeas corpus.

I. N Smith, for Petitioner.

The law is void in its creation of the offices as it provides for the appointment of a member thereof by the governor alone. (Const., art. 2, sec. 1, art. 4, sec. 6; Clayton v Territory of Utah, 132 U.S. 632, 10 S.Ct. 190, 33 L. ed 455.) The provision at the latter part of section 1 of the medical laws of 1899 is in conflict with the constitution. The expression "otherwise provided for," as found in section 6, article 4, of the constitution, is clearly meant to provide for "otherwise provided in the constitution." (Const., art. 1, secs. 10, 12; art. 5, secs. 11, 15, 18, 19, 24, 27.) What officers the governor can appoint are specifically named in the constitution. (See Const., art. 10, sec. 5; art. 13, sec. 1.) At section 5 of the medical law it is provided as follows: "Persons who received a license under the now defunct law of 1897 will simply be required to transmit such license." The law at this place gives to the license, issued by virtue of the law which was declared void, as never having passed the legislature as required, and hence never had any existence whatever. (Brown v. Collister, 5 Idaho 589, 51 P. 417.) It will be conceded that "police power" is a legislative power; that when not violative of constitutional requirements, such power, when exercised, is final. But even police power is subject to the constitution. All departments of the government must of necessity be governed by the constitution, and subject to its mandates. This law exempts railway surgeons from both its criminal and civil provisions; it therefore exempts this class. (State v. Hinman, 65 N.H. 103, 23 Am. St. Rep. 22, 18 A. 194; Cooley's Constitutional Limitations, 391; Union Sewer Pipe Co. v. Connally, 99 F. 354; Yick Woo v. Hopkins, 118 U.S. 356, 8 S.Ct. 1064; Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231.) This law is likewise violative of Idaho constitution at section 8, article 7, because it exempts railway surgeons from the tax imposed upon other surgeons. The law is also unequal within the decision of State v. Pennoyer, 65 N.H. 113, 18 A. 878. A statute providing for a proceeding affecting one's property rights must itself provide for notice to him, and failing to do so, is unconstitutional and void. (Kuntz v. Sumption, 117 Ind. 1, 19 N.E. 474; Dietz v. Neenah, 91 Wis. 422, 64 N.W. 299, 65 N.W. 500; People v. Hasbrouck, 11 Utah 291, 39 P. 918.) The fact that the medical law of Idaho permits the refusal of a license for conduct of a criminal nature, and does not require that the crime be such a one as involves moral turpitude, and does not require a previous conviction by any court, and does not establish what evidence shall be sufficient to determine the question before the board, does vest a large judicial power in the board to determine a criminal act, and thereupon to deprive an applicant of his property right. That the right to follow any of the common occupations of life is an inalienable right. ( Butchers' Union etc. Co. v. Crescent City etc., 111 U.S. 746, 4 S.Ct. 652; Powell v. Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 1257; Van Slyke v. Board of Dental Examiners, 115 Cal. 644, 48 P. 225.) Also violative of section 20, article 5, of the constitution of Idaho. (McCray v. Baker, 3 Wyo. 192, 18 P. 749: Schillinger v. United States, 155 U.S. 163, 15 S.Ct. 85, 39 L. ed. 108.) Wherein the statute authorizes the state medical board to refuse a license for acts of a criminal nature does not limit such act to one which necessarily affects the professional standing of the applicant, or arrives from the discharge of his duties, it therein is an ex post facto law within the ruling of the supreme court of the United States. (Cummings v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333.)

Attorney General Frank Martin, for the State.

The office we are now considering is one of legislative creation, and by the legislature can be modified, controlled or abolished, and within this general power is embraced the right to change the mode of appointment to the office. We have only to add, that as the legislature has the power to withdraw the authority of appointment from the governor, the mode pointed out by the act of 1854, by which inspectors under that act are to be designated and qualified, was a constitutional exercise of legislative power, and we need not say whether the inspectors under the act of 1854 are technically officers in point of law or not." ( Davis v. State, 7 Md. 151, 61 Am. Dec. 331.) We invite and call especial attention to the decision of the supreme court of Utah in the case of People v. Hasbrouck, 11 Utah 291, 39 P. 918, which passes on nearly all the questions raised in this application. ( Craig v. Board of Medical Examiners, 12, Mont., 203, 29 P. 532; State v. Creditor, 44 Kan. 565; 21 Am. St. Rep. 306, 24 P. 346; Harding v. People 10 Colo. 387, 15 P. 727; State v. Carey 4 Wash. 424, 30 P. 729; State v. Vanderlius, 42 Minn. 129, 43 N.W. 789, 6 L. R. A. 119; Hewitt v. Charier 16 Pick. 356; Hadderich v. State, 101 Ind. 564, 51 Am. Rep. 768, 1 N.E. 47.) Taking up the question that it vests judicial power in the board, we submit the following: State ex rel Chapman v. State Board Medical Examiners etc., 34 Minn. 387, 26 N.W. 123. In this case the supreme court held that the power to refuse certificates to individuals guilty of unprofessional or dishonorable conduct, and the power to revoke certificates for like cause, was constitutional, and that the power to revoke such certificates was not an exercise of judicial power. (Ex parte McNulty, 77 Cal. 164, 11 Am. St. Rep. 257, 19 P. 237; People v. Hasbrouck, 11 Utah 291, 39 P. 921; Barmore v. Dickson, 21 Or. 301, 28 P. 8; Van Slyke v. Board of Dental Examiners, 115 Cal. 644, 48 P. 222.)

QUARLES, C. J. Sullivan and Stockslager, JJ., concur.

OPINION

QUARLES, C. J.

This is an application for a writ of habeas corpus. The petitioner, in his petition, alleges that he is unlawfully restrained of his liberty by the sheriff of Nez Perces county, under a warrant of arrest which issued out of the probate court of said Nez Perces county in which the petitioner is charged with unlawfully practicing medicine without having first procured a license, in violation of the act of March 3, 1899, commonly known as "the Medical Bill." (See Sess. Laws 1899, p. 345.) The petition shows that the petitioner made an application to the district judge of the second judicial district for a writ of habeas corpus, and which application was, by said district judge, denied. This application is based upon the idea that the said act of March 3, 1899, was and is unconstitutional and void.

It is contended on behalf of the petitioner that inasmuch as the said act authorizes and empowers the governor of this state to name and appoint a state board of medical examiners, and to fill vacancies upon said board, without the assent and concurrence of the Senate, the same contravenes section 1 of article 2 of the constitution. That section is as follows "The powers of the government of this state are divided into three distinct departments: the legislative, executive, and judicial, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted." Section 6 of article 4 of the constitution is as follows: "The governor shall nominate and by and with the consent of the Senate, appoint all officers whose offices are established by this constitution, or which may be created by law, and whose appointment or election is not otherwise provided for. If during the recess of the Senate, a vacancy occurs in any state or district office, the governor shall appoint some fit person to discharge the duties thereof until the next meeting of the Senate, when he shall nominate some person to fill such office. If the office of a justice of the supreme or district court, Secretary of State, state auditor, state treasurer, attorney general, or superintendent of public instruction, shall be vacated by death, resignation or otherwise, it shall be the duty of the governor to fill the same by appointment, and the appointee shall hold his office until his successor shall be elected and qualified in such manner as may be provided by law." The act in question does not contravene either of said provisions of the constitution. Section 6, article 4, supra, points out the manner of filling offices whose appointment or election is not otherwise provided for by law. But in the act in question the legislature has provided, as it has power to do under the constitution, for the appointment by the governor. The manner provided in said medical bill for the appointment of the board does not deprive the legislature...