State v. Fleischer

• Decision Date: 17 June 1889
• Parties: State of Minnesota v. H. J. Fleischer
• Court: Minnesota Supreme Court

42 N.W. 696

41 Minn. 69

State of Minnesota v. H. J. Fleischer

Supreme Court of Minnesota

June 17, 1889

Appeal by defendant from a judgment of the municipal court of St Paul.

Judgment affirmed.

C. D. & Thos. D. O'Brien, for appellant.

Moses E. Clapp, Attorney General, J. J. Egan, and Fayette Marsh for the State.

OPINION

Collins, J.

The defendant stands convicted of the offence of practising medicine in this state without first obtaining license, as prescribed by the terms of chapter 9, Laws 1887. On appeal he alleges the unconstitutionality of the entire chapter because section 3, after specifying the various branches in which the applicant must be examined by the board, which consists of nine members, and the number of courses of lectures he must have attended, provides that "after examination said board shall grant a license to such applicant to practise medicine and surgery in the state of Minnesota, which said license can only be granted by the consent of not less than seven members of said board," etc. The appellant's position is that by means of the language quoted, and especially by the use of the noun "consent," the legislature intended to and did clothe the board of examiners with the right and power to absolutely disregard the learning and qualifications of the applicant, to unreasonably and arbitrarily reject his claims, and, at will, grant or refuse the contemplated certificate. No such construction should be given the statute unless the design is unmistakably manifest, and we do not think it is. From the spirit and object of the act, plainly seen in its several sections, it is obvious that the law-makers intended to establish a high standard of qualification and fitness for the medical profession, whereby the people might be protected from ignorance and quackery. In creating the board, before which all persons desiring to practise medicine must appear for an investigation as to skill and ability, it was within the legislative discretion to require that all, or more or less than a majority, of its members should participate in the examination, and, before issuing a certificate, affirmatively pass upon the merits of each applicant. The requirement that at least seven of the nine members must concur and approve, is a slight innovation upon the majority rule found in subdivision 3, § 1, c. 4, Gen. St. 1878, which would prevail in the absence of another. It is a mere declaration of...