State v. Call

• Decision Date: 23 December 1897
• Court: North Carolina Supreme Court
• Parties: STATE v. CALL.

28 S.E. 517

121 N.C. 643

STATE

v.CALL.

Supreme Court of North Carolina.

Dec. 23, 1897.

Physicians—Regulation — Constitutional Law —Fourteenth Amendment —-Statutes— Repeal—Indictment.

1. Code, §§ 3122, 3132, as amended by Acts 18S5, cc. 117. 261, by Acts 1889, e. 181, §§ 4, 5, and by Acts 1891, c. 420, requiring the examination and certificates of competency of persons desiring to practice medicine, and exempting from its requirements physicians who were already practicing in the state when the statute was passed, is a valid exercise of the police power, and not in violation of Const, art. 1, § 7, forbidding exclusive privileges and emoluments to any set of men, nor of section 31, prohibiting monopolies and perpetuities.

2. Nor is such statute in violation of Const. U. S. Amend. 14, which prohibits any state from denying to any person the equal protection of the laws, since such provision does not restrict the powers of the state when the statute applies equally to all persons in the same class, and the state ordinarily is the judge of the classification.

3. Acts 1889, c. 181, § 5, making it a misdemeanor to practice medicine without first having registered, and obtained a certificate from the clerk of the superior court, as provided in that act, is not in conflict with, and hence does not impliedly repeal, Acts 1885, c. 117, § 2, making it a misdemeanor to practice medicine without first having obtained a license from the board of examiners as provided by law.

4. Upon an indictment under Acts 1885, c. 117, § 2, which makes it a misdemeanor for any person to practice medicine for fee or reward without a license, a special verdict, which does not find that defendant practiced "for fee or reward." will not justify a conviction.

5. Under Acts 1889, c. 181, § 5, making it a misdemeanor to practice medicine without first having registered, and obtained a certificate, an indictment which does not charge that defendant did not register, and obtain a certificate, as required, is defective.

6. Such indictment need not charge that defendant practiced "for fee or reward."

7. An indictment under Acts 1889, c. 181, § 5, making it a misdemeanor to practice medicine without first having registered, and obtained a certificate, need not charge that defendant does not belong to one of certain classes which are withdrawn from the operation of the statute by a proviso thereto.

Appeal from superior court, Wilkes county; Starbuck, Judge.

T. Call was convicted of unlawfully practicing medicine, and he appeals. Judgment arrested.

W. H. Bower, for appellant.

The Attorney General, for the State.

CLARK, J. The defendant Is indicted for practicing medicine in violation of Code, §§ 3122, 3132, as amended by Acts 1885, cc. 117, 261, by Acts 1889, c. 181, §§ 4, 5, and by Acts 1891, c. 420. His counsel earnestly contends that the law as it stands is contrary to article 1, § 7, of the state constitution, which forbids exclusive privileges and emoluments to any set of men, and to section 31 of the same article, which prohibits monopolies and perpetuities; and, further, that it is obnoxious to the fourteenth amendment to the constitution of the United States, which prohibits any state to' deny to any person the equal protection of the laws. That the statute is not in violation of the state constitution is thoroughly discussed and held in State v. Van Doran, 109 N. C. 864, 14 S. E. 32. It is not to be questioned that the lawmaking power of a state has the right to require an examination and certificate as to the competency of persons desiring to practice law or medicine (Eastman v. State, 109 Ind. 278, 10 N. E. 97; State v. Dent, 25 W. Va. 1, affirmed in 129 U. S. 114, 9 Sup. Ct. 231), or dentistry (Wilkin v. State, 113 Ind. 514, 16 N. E. 192; People v. Phippin, 70 Mich. 6, 37 N. W. 888); to teach, to be druggists, pilots, engineers, or exercise other callings, whether skilled trades or professions, affecting the public and which require skill and proficiency (Cooley, Torts, 289; Cooley, Const. Lim. [6th Ed.] 745, 746; Tied. Lim. § 87). To require this is an exercise of the police power for the protection of the public against incompetents and impostors, and is in no sense the creation of a monopoly or special privileges. The door stands open to all who possess the requisite age and good character, and can stand the examination which Is exacted of all applicants alike. The defendant, however, contends that the statute is unconstitutional on the additional ground that it exempts from Its requirements those physicians who were already practicing medicine and surgery in this state on March 7, 1885. The first statute, making it indictable to practice medicine and surgery without an examination by the state board of medical examiners, and a license therefrom, was enacted at the session of 1885, and was made prospective, so as to apply only to those who should begin the practice of medicine and surgery thereafter. This was not unreasonable. It was fair to assume that those already in the practice, many of whom had grown gray in the service of humanity and the alleviation of suffering, had already received that public approbation which was a sufficient guaranty of their competency, and should not be needlessly subjected to the humiliation of an examination by the side of beardless boys, who had not yet swung a scalpel, or prescribed a purgative, save under supervision; while those already in practice, who had proved incompetent, it might be assumed had been equally stamped with public disapproval at the cost to the public ofmuch bitter experience, —an expensive and dangerous process of distinguishing the two classes, to save the public from which, in future, was the object of the new regulation requiring examination and license by a board of competent examiners. When the act of 1889 was enacted, it recognized that the new legislation had been prospective by the act of 1885, and March 7, 1885. was made the dividing line, those practicing medicine and surgery before that date being left to the test of the public approval or disapproval acquired by them, and those beginning practice since that date, having presumably knowledge of that statute, were required to undergo the examination and obtain the license exacted by it. The statute, bearing alike upon all individuals of each class, is not a discrimination forbidden by the state constitution nor by the fourteenth amendment. Broadfoot v. City of Payetteville (at this term) 28 S. E. 515. It has been frequently adjudged by the supreme court of the United States that the fourteenth amendment does not restrict the powers of the state when the statute applies equally to all persons in the same class, and that ordinarily the state is the judge of the classification. Slaughterhouse Cases, 16 Wall. 36; Missouri v. Lewis, 101 U. S. 22; Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357; Hayes v. Missouri, ...