State v. Carey

• Citation: 4 Wash. 424,30 P. 729
• Parties: STATE v. CAREY.
• Decision Date: 23 June 1892
• Court: Washington Supreme Court

30 P. 729

4 Wash. 424

STATE v. CAREY.

Supreme Court of Washington

June 23, 1892

Appeal from superior court, Spokane county; JAMES Z. MOORE, Judge.

George W. Carey was convicted of practicing medicine without a license, and appeals. Reversed.

Hoyt J., dissenting.

Jones & Voorhees, for appellant.

S G. Allen, Pros. Atty., Wm. C. Jones, Atty Gen., and Turner, Graves & McKinstry, for the State.

DUNBAR J.

Respondent moves to strike from the record the document purporting to be a statement of facts, because the said statement is not certified as required by law. The certificate of the trial judge is that the statement contains all the testimony on which the cause was tried below, and that certain papers attached to the statement of facts are true and correct copies of the papers writing used on the trial of said cause in said superior court. The law requires that the certificate of the judge must show that the statement contains all the material facts in the cause or proceeding. See section 1423 Hill's Code. This certificate evidently falls short of the requirement of the law. There may be other material facts in the case besides the testimony, one of which might be the ruling of the court on testimony that was excluded, besides many others which might be enumerated. The motion to strike must be sustained.

This leaves the case to be tried here on the sufficiency of the complaint, a motion having been made in arrest of judgment, on the ground (1) of the unconstitutionality of the law under which the defendant was prosecuted; and (2) that the facts stated in the complaint do not constitute a crime or misdemeanor, in that the offense sought to be charged is not sufficiently described, and that said complaint is too vague, indefinite, and uncertain.

It is urged in support of this position that the law under which this prosecution is urged is obnoxious to section 12 of article 1 of the constitution of the state of Washington, which is as follows: "Sec. 12. No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations." The contention of the appellant is that the law under consideration is unequal, within the purview of the constitutional provision, because (1) the governor alone furnishes the test of the qualifications of the nine physicians comprising the returning board by the arbitrary exercise of the appointing power; (2) that the nine physicians comprising the board are not subject to an examination or to the payment of the examination fee of $10 required of applicants for examination, and that consequently privileges and immunities are by this law accorded to a certain portion of that class engaged in practicing medicine and surgery in the state of Washington which are not on the same terms equally accorded to all citizens belonging to such class. We think the law in question afford no substantial basis for these objections. From the very necessities of the case, the test of the qualifications of the examining board in the first instance must arbitrarily rest somewhere. This is true of every examining board in every department of the government, and to deny the right of the legally appointed tribunal to thus arbitrarily exercise this discretion is practically to deny the right of the state to enact and enforce the law. In this instance the legislature has invested the governor with this power of selection. There might possibly be something in the second proposition of appellant, if it were conceded that his premises were correct; but we are unable to find anything in the act which warrants the conclusion that the members of the examining board are exempt from any of the burdens which are imposed upon other physicians who desire to practice medicine and surgery in the state. The fact that a person who practices medicine in the state is a member of the board will not release him from the necessity of obtaining the license and paying the fee required. A majority of the board may grant the license, and it can as consistently be granted to a member of the board as to any one else.

It is also contended by the appellant that the law is in violation of section 2 of article 4 of the constitution of the United States, which provides that "citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states," and of section 1 of the fourteenth amendment of the constitution of the United States, which provides that "no state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." The right of the legislature to enact a law of the character of the one in question is founded upon the "police power" of the state, and the scope of this power has been the subject of much controversy, and the term has been variously defined by courts and text-writers. It is defined by the supreme court of Illinois in the case of Lake View v. Rose Hill Cemetery, 70 Ill. 192, as "that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort and welfare of society." Many definitions have been announced by the courts, but the above, it seems to us, is so terse and comprehensive that we need look no further for a definition. Under our form of government especially, all the personal liberty possibly consistent with the general welfare is conceded to the individual, and while, as a general proposition, it is doubtless true that any citizen has a right to pursue any lawful calling, yet in respect to certain occupations not in themselves unlawful, this right is necessarily subject to legislative restrictions from considerations of public policy. In the profession of medicine, as in that of law, so great is the necessity for special qualifications in the practitioner, and so injurious the consequences likely to result from the want of it, that the power of the legislature to prescribe such reasonable conditions as are calculated to exclude from the profession those who are unfitted to discharge its duties cannot be doubted. Hewitt v. Charier, 16 Pick. 353; Wright v. Lanckton, 19 Pick. 288; Cooley, Const. Lim. p. 745.

The practice of medicine and surgery is a vocation that very nearly concerns the comfort, health, and life of every person in the land. Physicians and surgeons have committed to their care the most important interests, and it is an almost imperious necessity that only persons possessing skill and knowledge should be permitted to practice medicine and surgery. For centuries the law has required physicians to possess and exercise skill and learning, for it has mulcted in damages those who pretend to be physicians and surgeons who have neither learning nor skill. It is therefore no new principle of the law that is asserted by our statute, but if it were it would not condemn the statute, for the statute is an exercise of police power inherent in the state. It is, no one can doubt, of high importance to the community that health, limb, and life should not be left to the treatment of ignorant pretenders and charlatans. It is within the power of the legislature to enact such laws as will protect the people from ignorant pretenders, and secure them the services of respectable, skilled, and learned men although it is not within the power of the legislature to discriminate in favor of any particular school of medicine. When intelligent and educated men differ in their theories, the legislature has no power to condemn the one, or approve the other, but it may require learning and skill in the school of medicine which the physician professes to practice. Eastman v. State, (Ind. Sup.) 10 N.E. 97; White v. Carroll, 42 N.Y. 161. Our statute does not undertake to discriminate between rival or different schools of medicine, nor can we see that it invades or abridges any citizen's constitutional right. No one is proscribed or prevented from practicing medicine. All that is required of the applicant is that he shall possess the necessary qualifications, and the test of qualification is prescribed by the law. That test may not be the best that could have been devised; it may be exceedingly imperfect and faulty; and in some respects we think it is, as it is difficult to see how a practitioner's qualifications can be affected by the mere accident of his residence in the state at the time of the passage of the law, or why the community should not be protected from resident as well as nonresident charlatans and quacks; yet, conceding the right of the legislature to legislate upon the subject, the wisdom of the act, its reasonableness or unreasonableness, is a question for legislative discretion, and not for judicial determination. Judge Cooley says, in his work...