State v. Doran

• Decision Date: 17 January 1912
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. JOHN EDMOND DORAN, Defendant and appellant.
• Court: South Dakota Supreme Court

28 S.D. 486, 134 N.W. 53 (1912)

STATE OF SOUTH DAKOTA, Plaintiff and respondent v JOHN EDMOND DORAN,

Defendant and appellant

South Dakota Supreme Court

Appeal from Circuit Court, Grant County, SD

Hon. Frank McNulty, Judge

Reversed

Geo. H. Fletcher

Attorney for appellant.

Royal C. Johnson, Atty. Gen.

M. Harry O'Brien, Asst. Atty. Gen.

Thad. L. Fuller, State's Atty.

Attorneys for the State.

Opinion filed January 17, 1912

SMITH, J.

Appeal from the circuit court of Grant county. Appellant was convicted of practicing medicine as an itinerant physician without first having obtained a license from the board of medical examiners as required by section 19, c. 176, Laws 1903. The act provides that any physician attempting to practice as an itinerant physician shall, in addition to the ordinary physician's license required under the act, procure an itinerant's license from the state board of medical examiners, for which he is required to pay the sum of $500 per annum. Section 22 of the act provides:

"This act shall not apply to resident physicians and surgeons of this state regularly licensed and practicing in this state at the time of the taking effect of this act."

Section 20 of the act prescribes a penalty of not less than $500 nor more than $800 or imprisonment in the county jail not less than 30 or more than 90 days for violation of the provision of the act requiring an itinerant's license. The information charges the accused with a violation of this act, and brings him within the exception by alleging that

"the said John Edmond Doran was not a resident physician and surgeon of the state of South Dakota regularly licensed and practicing as such in the state of South Dakota at the time of the taking effect of chapter 176 of the Session Laws of South Dakota for the year of 1903."

Appellant, in what purports to be a statement of the facts in his brief, says:

"Defendant admitted that he was an itinerant physician, and that he had not paid the license by law required, but claimed that he was exempt from the provision of said law, for that he was on the 5th of March, 1903, at the time of the passage of said act, a resident of this state duly and regularly licensed and practicing in this state, ... and that the evidence of the state showed that he was duly licensed to practice on the 1st day of October, 1901, and was practicing in this state on or before March 5, 1903."

Appellant further says:

"The contention of the state was that the defendant was not a resident of the state of South Dakota on March 5, 1903, and therefore not within the exception of the statute, and the only evidence in support of this contention is the testimony of one witness, supported by the advertisement of defendant in the Sioux Falls Journal."

Neither the testimony of the witness referred to as supporting the state's contention, nor the advertisement, is made a part of appellant's statement of facts, nor is the attention of the court directed by proper assignment of error to the question of the sufficiency of the evidence to sustain the finding of the jury. It must be presumed that the question of fact as to whether or not the defendant was a resident of the state on March 5, 1903, was submitted to the jury under proper instructions. There is no assignment of error that the evidence is insufficient to sustain the verdict of the jury upon this issue.

Chapter 15 of the Laws of 1911 has not in any manner modified or changed the requirements of the law and of the rules of this court relating to assignments or specifications of particular errors upon which a party will rely on a motion for a new trial or upon appeal to this court. The provision of the statute requiring that careful reference shall be made therein to the particular page or pages of the transcript of the record where the alleged error is to be found was clearly designed for the convenience of the opposing counsel in examining the record and to assist the court in the examination of conflicting statements of fact in the briefs of counsel, and not for the purpose of requiring the appellate court to search through the original record to find specifications of error and the grounds thereof, which should be contained in the statement of facts required to be contained in the brief. The statement of facts in the brief under the provisions of chapter 15 of the Laws of 1911 .should contain every fact and proceeding as well as assignments of error which were formerly required to be contained in the abstract, to the end that the appellate court may have before it so much of the facts and proceedings as may be necessary to a full understanding of the alleged errors relied upon and discussed in appellant's brief.

Appellant prints in his brief four assignments of error, but discusses only assignment numbered four, which is as follows:

"That the court erred in overruling the motion for a new trial, for that the law under which the defendant was found guilty of the crime charged in the information herein is unconstitutional and void, and the verdict of the jury was contrary to the law and the evidence. (See transcript motion for new trial.)"

This assignment does not present for review the question of the sufficiency of the evidence to sustain the verdict, and, even if it were presented, we could not sustain appellant's contention that the allegation of defendant's non-residence was not proven beyond a reasonable doubt.

It is conceded in appellant's brief that the state offered the testimony of at least one witness, together with certain documentary evidence, tending to show that the accused was a non-resident at the time of the taking effect of chapter 176, Laws of 1903, under which this prosecution was instituted. We must presume that this issue of fact was submitted to the jury under proper instructions, and, as it is conceded that there was at least some competent evidence to sustain the finding, this court will not review the sufficiency of the evidence. This rule has been so long established in this court that a citation of authorities is unnecessary. Appellant's statement of facts does not disclose whether the appeal was taken from an order denying appellant's motion for a new trial or from the judgment, or both, and, in fact, does not state that any appeal has ever been taken. It does, however, recite that defendant was convicted of the crime of practicing as an itinerant physician without a license, and the brief of appellant's counsel challenges the constitutionality of the law under which the conviction was had. The act is alleged to be unconstitutional because in violation of section 18, art. 6, of the Constitution of this state, which is as follows: "No law shall be passed granting to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens." Appellant's brief also refers to section 17, art. 6, of the Constitution of this state: "All taxation shall be equal and uniform."

The enactment of laws regulating the practice of medicine is clearly within the police power of the state, and is sustained by judicial decisions of the highest authority. In the case of In re Rahrer, 140 U.S. 545, 11 Sup. Ct. 865, it is said:

"The power of the state to impose restraints and burdens upon persons and property in conservation and promotion of the public health, good order and prosperity is a power originally and always belonging to the states, not surrendered by them to the general government, nor directly restrained by the Constitution of the United States, and essentially exclusive. And this court has uniformly recognized state legislation, legitimately for police purposes, as not, in the sense of the Constitution, necessarily infringing upon any right which has been confided expressly, or by implication, to the national government.'"

It is well settled that the state may prescribe qualifications which persons must possess to lawfully practice medicine and surgery, and may require persons desiring to enter such practice to obtain a license or certificate of proficiency. The method or means by which these qualifications are to be evidenced is very largely, if not wholly, within the exercise of legislative discretion.

The Legislature may permit those practicing in the state at the time the act was passed to continue without diploma or other evidence of competency upon the theory that the fact that they had been engaged in the practice within the state is sufficient evidence of proficiency, and equivalent to an examination and license by the tribunal established by law for that purpose, and such a law will not be held unconstitutional as discriminating between persons or classes. State v. Creditor, 44 Kan. 565, 24 Pac. 346, 21 Am.St.Rep. 306; State v. Call, 121 N.C. 643, 28 S.E. 517; Ex parte Spinney, 10 Nev. 323; Foo Lun v. State, 84 Ark. 475, 106 S.W. 946; Ex parte McNulty, 77 Cal. 164, 19 Pac. 237, 11 Am.St.Rep. 257; Parks v. State, 159 Ind. 211, 64 N.E. 862, 59 L.R.A. 190; State v. Kendig, 133 Iowa, 164, 110 N.W. 463; Webster v. State, 130 Ky. 191, 113 S.W. 415; Commonwealth v. Jewelle, 199 Mass. 558, 85 N.E. 858; State v. Davis, 194 Mo. 485, 92 S.W. 484, 4 L.R.A. (N.S.) 1023; State v. McCleary, 130 Mo. App. 527, 109 S.W. 638; Little v. State, 60 Neb. 749, 84 N.W. 248, 51 L.R.A. 717; Gulley v. Territory, 19 Okl. 187, 91 Pac. 1037; Deaton v. Lawson, 40 Wash. 486, 82 Pac. 879, 2 L.R.A. (N.S.) 392, 111 Am.St.Rep. 922.

Section 1 of chapter 176, Laws of 1903, creates a medical hoard of seven members for the examination, regulation, licensing, and registration of physicians and surgeons in the state of South Dakota. Section 7 of the act provides that "on and after the taking effect of this act all persons desiring to begin the practice of medicine or surgery or obstetrics in any of their branches in this state shall make application to said board for a license to practice;" and...