State v. Pennoyer

• Decision Date: 26 July 1889
• Citation: 65 N.H. 113,18 A. 878
• Parties: STATE v. PENNOYER.
• Court: New Hampshire Supreme Court

18 A. 878

65 N.H. 113

STATE

v. PENNOYER.

Supreme Court of New Hampshire. Rockingham.

July 26, 1889.

Indictment for practicing medicine without a license. Defendant moved to quash.

S. W. Emery, for the State. Geo. E. Hodgdon, for defendant.

CARPENTER, J. "It shall not be lawful for any person to practice medicine, * * * unless such person shall have obtained a license from some medical society organized under the laws of this state." "Every medical society organized under the laws of this state shall * * * elect a board of censors, consisting of three members, * * * which board shall have authority to examine and license persons to practice medicine. * * * The board shall issue licenses without examination to all persons who furnish evidence, by diploma from some medical school authorized to confer degrees in medicine, * * * when said board is satisfied that the person presenting such diploma has obtained it after pursuing some prescribed course of study, and upon due examination." "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." "If any person shall practice medicine * * * without being duly authorized as provided in this chapter, * * * he shall be punished by fine of not more than three hundred dollars for each offense." "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 1, 1875, 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." Gen. Laws, c. 132, §§ 1, 2, 6-8. The General Laws, by which chapter 18, Laws 1875, was repealed, took effect January 1, 1879. Gen. Laws, c. 291, §§ 1, 14. All physicians except those who practiced all the time between January 1, 1875, and January 1, 1879, and during that period did not remove from one town to another, are required to obtain a license, and to pay therefor five dollars, or one dollar, according as it may be issued upon examination or upon diploma.

The law cannot discriminate in favor of one citizen to the detriment of another. The principle of equality pervades the entire constitution. The bill of rights declares expressly that all government is "instituted for the general good," "for the common benefit, protection, and security of the whole community, and not for the private interests or emolument of any one man, family, or class of men;" that "every member of the community has a right to be protected by it in the enjoyment of his life, liberty, and property. He is therefore bound to contribute his share in the expense of such protection," and "entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character." Bill of Rights, arts. 1, 10, 12, 14. All the declarations of right are imbued with the same spirit. With them the body of the constitution is in full conformity. To secure to all as perfect equality of privilege and of burden as human wisdom permits was the chief end sought by the framers of the instrument. To this all other purposes were incidental and subordinate. "The bill of rights is a bill of their equal private rights, reserved by the grantors of public power." State v. Express Co., 60 N. H. 250. "The reservations could not be more clearly expressed. If the right of equality is not secured by them, it can never be secured by any written instrument. * * * The legal value of the reservations is in their ability, not to suggest or advocate a theory of human rights, but to carry a theory into practical effect, and insure the enjoyment of the rights reserved." Gould v. Raymond, 59 N. H. 275. All taxation must be equal. Opinion of Justices, 4 N. H. 565; Smith v. Burley, 9 N. H. 423, 427; Morrison v. Manchester, 58 N. H. 538, 548, 550; Edes v. Board man, Id. 580; Carpenter v. Dalton, Id. 615; Bank v. Concord, 59 N. H. 75, 77, 78; Berry v. Windham, Id. 288; Robinson v. Dover, Id. 521; Railroad v. State, 60 N. H. 87, 94; Mills Co. v. Location, Id. 156; State v. Express Co., Id. 219; Society v. Manchester, Id. 342, 347; Curry v. Spencer, 61 N. H. 624; Telephone Co. v. State, 63 N. H. 167, 169; Railroad v. State, 63 N. H. 571, 573, 4 Atl. Rep. 571; Boody v. Watson, 64 N. H. 162, 9 Atl. Rep. 794; Holt v. Antrim, 64 N. H. 284, 9 Atl. Rep. 389. This is merely an example of the universal equality of right which the constitution secures to all. The legislature cannot by special act authorize a particular guardian of a minor to make a valid conveyance of his ward's estate because the exercise of such a power by the legislature "is in its nature both legislative and judicial," and "under our institutions all men are viewed as equal, entitled to enjoy equal privileges and to be governed by equal laws. If it be fit and proper that license should be given to one guardian, under particular circumstances, to sell the estate of his ward, it is fit and proper that all other guardians should, under similar circumstances, have the same license. This is the very genius and spirit of our institutions." Opinion of the Justices, 4 N. H. 572, 573. For similar reasons, the legislature cannot grant a new trial in a particular action. Such an act is "not to promulgate an ordinance for a whole class of rights in the community, but to make the action of a particular individual an exception to all standing laws on the subject in controversy." "An act which operates on the rights or property of only a few individuals, without their consent, is a violation of the equality of privileges guarantied to every subject." Merrill v. Sherburne, 1 N. H. 199, 212; Clark v. Clark, 10 N. H. 380, 385. It cannot authorize the foreclosure of a mortgage by a method not applicable to other like mortgages, (Railroad Co. v. Elliot, 52 N. H. 387, 393, 400,) require or empower some towns, and not others, to relieve federal military conscripts from the performance of their public duty by the payment of money, or compel some jurors to perform jury service for a less compensation than is paid to others for the same service, (Bowles v. Landaff, 59 N. H. 164, 194, 195; Gould v. Raymond, Id. 260, 277, 278.) No one citizen or class of citizens can by law be charged with the performance of duties or subjected to burdens not by law made incumbent upon all other citizens in the same circumstances. The fourteenth amendment of the constitution of the United States, providing that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States * * * nor deny to any person within its jurisdiction the equal protection of the laws," adds nothing to the rights and liberties of the citizens of this state. It merely confirms to them, by federal sanction, the rights secured to them by the action of their ancestors a century ago. It has wrought no change in the law of the state. An enactment obnoxious to this provision of the national constitution is in New Hampshire no more ineffective than it would be in its absence. The decisions of the federal court are conclusive on the question of the validity of statutes under the federal constitution, and are authority to be weighed on the question of their validity under the constitution of the state. In Missouri v. Lewis, 101 U. S. 22, 31, the court say the amendment "has respect to persons and classes of persons. It means that no person or class of...