State v. Hinman

• Decision Date: 26 July 1889
• Citation: 18 A. 194,65 N.H. 103
• Parties: STATE v. HINMAN.
• Court: New Hampshire Supreme Court

18 A. 194

65 N.H. 103

STATE

v. HINMAN.

Supreme Court of New Hampshire. Rockingham.

July 26, 1889.

On demurrer to indictment.

Samuel W. Emery, for the State. Calvin Page, for defendant.

CLARK, J. This is an indictment under chapter 132, Gen. Laws, for practicing dentistry without a dental degree or license. The respondent demurred upon the ground that the statute is unconstitutional. The object of the statute upon which the indictment is founded is to secure the possession of the requisite skill and learning by practitioners of medicine, surgery, and dentistry. The possession of such special qualifications as to knowledge and skill is so essential to the protection of the lives, health, and comfort of the people of the state that it can not be doubted that it is within the power of the legislature to secure it by the enactment of such reasonable conditions as are calculated to exclude from practice those unfitted therefor. Hewitt v. Charier, 16 Pick. 353; State v. Board, 32 Minn. 324, 20 N. W. Rep. 238; Eastman v. State, 109 Ind. 278, 10 N. E. Rep. 97. Is the statute repugnant to the federal or state constitution in any of its provisions? It is contended that it is in violation of section 2 of article 4 of the constitution of the United States, and of section 1 of the fourteenth amendment to the constitution, because it discriminates against persons engaged in the same business or profession, and denies to them the equal protection of the laws; and that it is in violation of article 2, pt. 1, of the state constitution, which declares that all men have the natural, essential, and inherent right of acquiring and possessing property, and seeking and obtaining happiness. Section 3 of chapter 132, Gen. Laws, upon which the indictment is founded, provides that "it shall not be lawful for any person who is not duly authorized to practice medicine or surgery to practice dentistry, unless such person has received a dental degree from some college, university, or medical school authorized to confer the same, or shall have obtained a license from the New Hampshire Dental Society." Section 6 provides that "each person receiving a license upon examination shall pay for the use of the society granting the same the sum of five dollars; upon diploma, one dollar." Section 8 declares that the "provisions of the preceding sections shall not apply to persons who have resided and practiced their profession in the town or city of their present residence during all the time since January first, eighteen hundred and seventy-five, nor to physicians residing out of the state, when called into the state for consultation with duly-licensed physicians, or to attend upon patients in the regular course of business." While the power of the legislature to impose restrictions upon the exercise of certain trades and professions for the protection of the public is unquestioned, it must be exercised in conformity with the constitutional requirement that such restrictions must operate equally upon all persons pursuing the same business or profession under the same circumstances. The constitutionality of a statute cannot be sustained which...