People v. Hasbrouck

• Decision Date: 16 March 1895
• Docket Number: 467
• Citation: 39 P. 918,11 Utah 291
• Court: Utah Supreme Court
• Parties: THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. RICHARD A. HASBROUCK, APPELLANT

39 P. 918

11 Utah 291

THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. RICHARD A. HASBROUCK, APPELLANT

No. 467

Supreme Court of Utah

March 16, 1895

Appeal from the District Court of the Third Judicial District. Hon H. W. Smith, Judge.

Richard A. Hasbrouck upon conviction before Harmel Pratt, U.S Commissioner, of practicing medicine without a license appealed to the district court, and from a judgment of conviction in the district court upon a trial de novo appeals.

Affirmed.

Mr. J. E. Cochran, Mr. LeGrande Young and Mr. J. H. Murphy, for appellant.

Appellant does not question the right of the legislature to pass such laws as will protect the physicians and the subjects of the territory from the quack and charlatan. There are plainly marked and well defined limits beyond which the legislature cannot go. One of those limits is that such laws must be uniform in their application, and in their requirements. They must be reasonable and impartial. They must not be arbitrary and capricious. They must not exclude one class or one of a class for the benefit of another. By this law, the estates of men acquired in professions, estates often the source of greatest revenue and of highest emolument of honor, estates recognized by law as such as well as in bank or railroad stock or corner lots, are escheated, forfeited, confiscated all done without the hearing of court, voice of jury or aid of any of the processes of court. No such power to work ruin exists in a legislature. Such power is not within the exercise of legislative will. It is simply vicious, arbitrary, absolute tyranny, unwarranted by law and without the sanction of American courts. Cooley Const. Lim. (5 ed.) p. 597; 12 Wall. U.S. 419-430. All taxation must be uniform and equal; the payment of a license fee is a tax. The magnitude of the unequal burden is not material, if any inequality is permissible it might be made so unequal as to amount to prohibition to some and absolute permission to others and is not the equality of the constitution.

Under section 2, the physicians must pay to the board $ 25 each; under section 4 $ 5 each, and under section 11, $ 25 each, with no provision of statute for its disbursement or application as fees, or appropriation for use in which the public have any interest. The act should read: "An act to create a medical savings bank, demanding deposits and prohibiting disbursements," or "An act creating a medical monarchy." They are powerless to appropriate the money for fees because the legislature does not so appropriate them. The legislature has provided for the pay of the medical board by appropriation of the fees derived under section 12. If inadequate, the legislature, not the courts, must grant relief. The members may serve for the compensation provided by statute or resign. By reason of the legislature restricting the fees of the board to those derived under section 12, and failing to appropriate those under sections 3, 4 and 11, to that purpose, they cannot be a license fee. They being appropriated to no public purpose they cannot be a tax. If neither license fee or tax, it must be robbery, plunder, unlawful confiscation. The legislature not having appropriated the fees to the board in payment of services, the court cannot so appropriate them. Cooley Const. Lim. (2 ed.) p. 242, 598-9, 602, 611; Dillon Mun. Cor. 291; Hare's Am. Const. Law, 278-281; 27 Ia. 28. The appointment of the medical board is absolutely void. The act was approved March 10, 1892. The appointment of members of the board was made by the governor, September 1, 1892, while section 1 provides that the governor shall fill all vacancies within one month after the time the vacancy shall occur. Nor were the appointments made with the advice and consent of the council. The governor had no right to appoint after 30 days, and the appointments not being concurred in by the council are absolutely void. Sutherland Stat. Con. §§ 361-3, 427, 454; Bishop Com. of Stat. § 93; Bishop Stat. Crimes, § 189. The complaint charges that appellant practiced medicine without license and that is the only charging clause. It only names the crime instead of alleging any acts that constitute it. For these reasons the complaint upon which this conviction is based is clearly insufficient. 1 Bishop Crim. Pro. §§ 505-8, 611; 18 Enc. of Law, 431; Benton v. State, 32 N.W. 222.

Mr. J. W. Judd, U. S. Attorney, for respondent.

MERRITT, C. J. BARTCH and KING, JJ., concur.

OPINION

MERRITT, C. J.:

The defendant in this case was convicted before Harmel Pratt, commissioner, of practicing medicine without a license, in violation of the provisions of the act of the territorial legislature entitled "An act to regulate the practice of medicine," approved March 10, 1892; and was fined $ 50. On the 29th of May, 1893, an appeal was taken to the Third District Court of Utah territory by the defendant. Thereafter, and on the 25th of January, 1894, the case was heard in the district court before the Honorable H. W. Smith, presiding. A jury was waived and the defendant was tried on the following agreed statement of facts: "That the defendant Richard A. Hasbrouck, upon the 30th day of April, 1893, and from and after said date, continually, to the 6th day of May, 1893, practiced medicine and surgery at Salt Lake City, in Salt Lake county, Utah territory, and has so practiced medicine and surgery in said city and county since prior to the 10th day of March, 1892. That said defendant had received from the Bennett College of Eclectic Medicine and Surgery, in the year 1882, a diploma as a physician and surgeon, and has practiced medicine and surgery ever since receiving the same. That after the passage and approval of the act of the governor and legislative assembly of the territory of Utah entitled 'An act to regulate the practice of medicine,' approved March 10, 1892, the governor of the territory of Utah appointed seven persons as a board of medical examiners of Utah territory, to execute the duties in said act prescribed, and issued commissions to each of said persons as a member of said board. That none of said appointments were made by or with the advice or consent of the council of said legislative assembly, and none of said commissions were issued until after the adjournment of said assembly in 1892, and the last on December 20, 1892. That the day of the approval of said act, March 10, 1892, was the last day of the session of said legislative assembly in the year 1892. That the said seven persons so commissioned as aforesaid met on the 24th day of December, 1892, and organized as the board of medical examiners of Utah territory, and elected one of their members, Allen Fowler, M. D., as president of said board, and Charles C. Schinnick as secretary and treasurer thereof. That said board held regular meetings at Salt Lake City, aforesaid, on the first Monday in January, 1893, and on the first Monday in March, 1893, and numerous other meetings at the same place between the first Monday in January, 1893, and the 30th day of April, 1893, for the purpose of receiving and considering applications for license or certificates entitling the holders thereof to practice medicine and surgery in Utah territory as provided and contemplated in said act, of which meetings the said defendant had notice. That said defendant has not at any time made application to said board for any license or certificate to entitle him to practice medicine or surgery, as provided and contemplated in said act, and so practiced medicine and surgery as aforesaid without any such license or certificate having been issued to him by said board." The defendant was adjudged guilty as charged, and sentenced to pay a fine in the sum of $ 50. From this judgment the defendant appealed to the supreme court.

Upon the question whether the complaint is sufficient in form the authorities are somewhat in conflict; but it is not necessary to pass upon that question, for it is stated by appellant's counsel that any objection to the form of the complaint was waived in the court below, and it was agreed between the prosecution and the defendant that the case should be tried upon the question of the validity of the statute upon which the complaint is founded, and of the validity of the appointment of the board of medical examiners by the governor. The agreed statement of facts, signed by the defendant, admits in so many words that upon the 30th day of April, 1893, and from and after said date, continuously to the 6th day of May, 1893, the time charged in the complaint, at Salt Lake City, in Salt Lake county, Utah territory,--the place charged in the complaint,--he practiced medicine and surgery without any license or certificate from the board of medical examiners. This was an admission of the ultimate fact to be proved by the prosecution, and dispensed with the necessity upon the part of the prosecution of producing evidence of the probative facts, from which the ultimate facts would be adduced, and dispensed also with any further consideration of the formal requisites of the complaint. "That the defendant, at the time and place named, practiced medicine without a license," if it could be held a conclusion, is the defendant's own conclusion, couched in the language of the statute, and set forth in the agreed statement of facts. Under these circumstances, an objection to the sufficiency of the complaint in form, raised for the first time on appeal, will not be considered.

The statute upon which this prosecution is founded is of the same general character as the statutes of a large number of states upon the same subject,--the regulation of the practice of medicine. The predominant characteristic and purpose of such statutes is to prevent the practice of medicine...