State v. Call

Citation28 S.E. 517, 121 N.C. 643
Case DateDecember 23, 1897
CourtUnited States State Supreme Court of North Carolina

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and obtained a certificate, need not charge that defendant does not belong to one of certain classes which are withdrawn from the operation of the statute by a proviso thereto.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...

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43 practice notes
  • Capital Associated Indus., Inc. v. Stein, 1:15cv83
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • September 19, 2017
    ...two other professions against challenges that those regulatory schemes violated the Monopoly Clause. In the first, State v. Call , 121 N.C. 643, 28 S.E. 517 (1897), the North Carolina Supreme Court held that the state's regulation of the medical profession, as applied to an individual who w......
  • State v. Harris, No. 146.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 2, 1940
    ...for License, 143 N.C. 1, 55 S.E. 635, 10 L.R.A., N.S., 288, 10 Ann. Cas. 187; State v. VanDoran, 109 N.C. 864, 14 S.E. 32; State v. Call, 121 N.C. 643, 28 S.E. 517; State v. Hicks, 143 N.C. 689, 57 S.E. 441; State v. Siler, 169 N.C. 314, 84 S.E. 1015; Lambert v. Yellowley, 272 U.S. 581, 47 ......
  • State v. Ballance, No. 436.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 4, 1949
    ...as a condition precedent to the right to follow such profession or calling. State v. Van Doran, 109 N.C. 864, 14 S.E. 32; State v. Call, 121 N.C. 643, 28 S.E. 517; State v. McKnight, 131 N.C. 717, 42 S.E. 580, 59 L.R.A. 187; In re Applicants for License, 143 N.C. 1, 55 S.E. 635, 10 L.R.A..N......
  • Capital Associated Indus., Inc. v. Stein, No. 17-2218
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 19, 2019
    ...N.C. 88, 60 S.E. 920, 923 (1908) (riverboat pilots); State v. Hicks , 143 N.C. 689, 57 S.E. 441, 442–43 (1907) (dentists); State v. Call , 121 N.C. 643, 28 S.E. 517, 517 (1897)...
  • Request a trial to view additional results
43 cases
  • Capital Associated Indus., Inc. v. Stein, 1:15cv83
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • September 19, 2017
    ...two other professions against challenges that those regulatory schemes violated the Monopoly Clause. In the first, State v. Call , 121 N.C. 643, 28 S.E. 517 (1897), the North Carolina Supreme Court held that the state's regulation of the medical profession, as applied to an individual who w......
  • State v. Harris, No. 146.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 2, 1940
    ...for License, 143 N.C. 1, 55 S.E. 635, 10 L.R.A., N.S., 288, 10 Ann. Cas. 187; State v. VanDoran, 109 N.C. 864, 14 S.E. 32; State v. Call, 121 N.C. 643, 28 S.E. 517; State v. Hicks, 143 N.C. 689, 57 S.E. 441; State v. Siler, 169 N.C. 314, 84 S.E. 1015; Lambert v. Yellowley, 272 U.S. 581, 47 ......
  • State v. Ballance, No. 436.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 4, 1949
    ...as a condition precedent to the right to follow such profession or calling. State v. Van Doran, 109 N.C. 864, 14 S.E. 32; State v. Call, 121 N.C. 643, 28 S.E. 517; State v. McKnight, 131 N.C. 717, 42 S.E. 580, 59 L.R.A. 187; In re Applicants for License, 143 N.C. 1, 55 S.E. 635, 10 L.R.A..N......
  • Capital Associated Indus., Inc. v. Stein, No. 17-2218
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 19, 2019
    ...N.C. 88, 60 S.E. 920, 923 (1908) (riverboat pilots); State v. Hicks , 143 N.C. 689, 57 S.E. 441, 442–43 (1907) (dentists); State v. Call , 121 N.C. 643, 28 S.E. 517, 517 (1897)...
  • Request a trial to view additional results

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