State of West Virginia v. Dent.

• Decision Date: 01 November 1884
• Citation: State of West Virginia v. Dent., 25 W.Va. 1 (W. Va. 1884)
• Court: West Virginia Supreme Court
• Parties: State of West Virginia v. Dent.

25 W.Va. 1

State of West Virginia

v.Dent.

Supreme Court of Appeals of West Virginia.

Submitted June 17, 1884.

Decided Nov. 1, 1884.

March15, 1882,

Sections 9 and 15 of chapter 93 of the Acts of 1882, passed March 15, 1882, entitled "An Act amending and re-enacting chapter 150 of the Code of West Virginia concerning the public health'' is constitutional and valid.

Green, Judge, furnishes the following statement of the case:

At the November term, 1882, the grand jury of Preston county found an indictment in the circuit court of Preston against Frank M. Pent for practicing medicine in this State without having complied with the provisions of section 9, of chapter 93 of the Acts of 1882, in violation of section 15 of said act. The defendant moved to quash this indictment. The motion, as is stated in the brief of the counsel for the plaintiff in error, was based solely on the ground that these sections 9 and 15 of chapter 93 of the Acts of 1882 were unconstitutional. The court decided that they were constitutional and overruled the motion; and the defendant then pleaded not guilty.

On the trial of the case it was proven that the defendant was engaged in the practice of medicine in the town of Newburg, Preston county, West Virginia at the time charged in the indictment, and had been so engaged since the year 1876 continuously to the present time, and had during all said time enjoyed a lucrative practice, publicly professing to be a physician, prescribing for the sick, and appending to his name the letters M. D.; that he was not then and there a physician and surgeon called from another State to treat a particular case, or to perform a particular surgical operation, nor was he then and there a commissioned officer of the United States army and navy and hospital service; that he has no certificate as required by section 9, chapter 93, Acts of the Legislature of West Virginia, passed March 15, 1882, but has a diploma from the "American Medical Eclectic College, of Cincinnati, Ohio;" that he presented said diploma to the members of the board of health, who reside in this congressional district and asked for the certificate as required by law, but they, after retaining said diploma for some time, returned it to defendant with their refusal to grant him the certificate asked, because, as they claimed, said college did not come under the word reputable as defined by said board of health; that if the defendant had been or should be prevented from practicing medicine, it would be a great injury to him, as it would deprive him of his only means of supporting himself and family; that at the time of the passage of the Acts of 1882, he had not been practicing medicine ten years, but had only been practicing six as aforesaid, from the year 1876.

These being all the facts proven, the jury found the defendant guilty; and thereupon the defendant moved to ar- rest the judgment, which motion the court overruled and assessed the fine at $50.00 and rendered judgment on April 12th, 1882 in favor of the State against the defendant for this fine and costs. To the refusal of the court to arrest this judgment upon the above facts, certified to be all the facts proven, the defendant took a bill of exceptions, which on its face states, that this motion was based on the ground that "said act of the legislature passed March 15th 1882 styled an act 'concerning public health, ' was unconstitutional and therefore void, so far as it interfered with the vested rights of this defendant in relation to the practice of medicine."

To this judgment of the circuit court a writ of error was allowed by a judge of this Court.

M. H. Dent, for plaintiff in error.

Green, Judge:

The only question involved in this case is: Are sections 9 and 15 of chapter 93 of the Acts of 1882 constitutional? I have not examined critically the indictment to determine whether in form or in substance it was fatally defective, because the counsel for the plaintiff in error in his brief expressly waives, as he states he did in the circuit court, all objections to such defects in form or substance in the indictment, if any such exist, and bases his claim to have the judgment of the circuit court reviewed solely on the ground that the indictment was based on an unconstitutional and void act of the legislature and should for that reason have been quashed. Sections 9 and 15 of chapter 93 of the Acts of 1882 claimed thus to be unconstitutional are in these words:

"9. The following persons and no others shall hereafter be permitted to practice medicine in this State, viz:

"First: All persons who are graduates of a reputable medical college in the schools of medicine to which the person desiring to practice belongs. Every such person shall, if he has not already done so, and obtained the certificate hereinafter mentioned, present his diploma to the State board of health, or to the two members thereof in his congressional district, and if the same is found to be genuine and was issued by such medical college as is hereinafter mentioned, and the person presenting the same be the graduate named therein the said board or said two members thereof (as the ease may be) shall issue and deliver to him a certificate to that effect, and such diploma and certificate shall entitle the person named in such diploma to practice medicine in all its departments in this State.

"Second: All persons who have practiced medicine in this State continuously for the period of ten years prior to the eighth day of March, one thousand eight hundred and eighty-one. Every such person shall make and file with the two members of the State board of health in the congressional district in which he resides, or if he resides out of the State, in the district nearest his residence, an affidavit of the number of years he has continuously practiced in this State, and if the number of years therein stated be ten or more, the said board or said two members thereof, shall, unless they ascertain such affidavit to be false, give him a certificate to that fact, and authorizing him to practice medicine in all its departments in this State.

"Third: A person who is not such graduate and who has not so practiced in this State for a period of ten years, desiring to practice medicine in this State, shall, if he has not already done so, present himself for examination before the State board of health or before the said two members thereof in the congressional district in which he resides, or if he resides out of this State, to the said two members of the State board of health in the congressional district nearest his place of residence, who, together with a member of the local board of health who is a physician (if there is such member of the local board), of the county in which the examination is held, shall examine him as herein provided; and if, upon full examination, they find him qualified to practice medicine in all its departments, they, or a majority of them, shall grant him a certificate to that effect, and thereafter he shall have the right to practice medicine in this State to the same extent as if he had the diploma and certificate hereinbefore mentioned. The members of the State board of health in each congressional district shall, by publication in some newspaper printed in the county in which their meeting is to be held, or if no such paper is printed therein, in some newspaper of general circulation in such district, give at least twenty-one days notice of the time and place at which they will meet for the examination of applicants for permission to practice medicine, which notice shall be published at least once in each week for three successive weeks before the day of such meeting. But this section shall not apply to a physician or surgeon who is called from another State to treat a particular case or to perform a particular surgical operation in this State, and who does not otherwise practice in this State.

"15. If any person shall practice, or attenpt to practice, medicine, surgery, or obstetrics in this State, without having complied with the provisions of section 9 of this chapter, except as therein provided, he shall be guilty of a misdemeanor and lined for every such offense not less than fifty nor more than five hundred dollars, or imprisoned in the county jail not less than one month nor more than twelve months, or to be punished by both such fine and imprisonment, at the discretion of the court. And if any person shall file, or attempt to file, as his own, the diploma or certificate of another, or shall file, or attempt to tile, a false or forged affidavit of his identity, or shall wilfully swear falsely to any question which may be propounded to him on his examination, as herein provided for, or to any affidavit herein required to be made or tiled by him, he shall, upon conviction thereof, be confined in the penitentiary not less than one nor more than three years, or imprisoned in the county jail not less than six nor more than twelve months and fined not less than one hundred nor more than five hundred dollars, at the discretion of the court."

These sections, the counsel for the plaintiff in error insists, are unconstitutional, null and void. In an elaborate argument he claims, that they are inconsistent with Article X, and with section 1 of Article XIV of the Amendments to the constitution of the United States; and that they are also inconsistent with sections 1, 2, 4, 10 and 11 of our bill of rights, Article III of our constitution (Acts of 1872-3, p. 5). He claims, that the various provisions contained in the constitution of the United States and our constitution were intended to incorporate as fundamental principles in our gov- ernment certain general views of the objects, ends and purpose of all governments laid down by certain text-writers, the correctness of which I do not question. I will here quote a number of these general views, selecting those upon which the counsel of the plaintiff must place...