State v. Randolph

• Decision Date: 17 October 1892
• Citation: 23 Or. 74,31 P. 201
• Parties: STATE v. RANDOLPH et al.
• Court: Oregon Supreme Court

31 P. 201

23 Or. 74

STATE v. RANDOLPH et al.

Supreme Court of Oregon

October 17, 1892

Appeal from circuit court, Multnomah county; LOYAL B. STEARNS Judge.

R.H Randolph and W.E. Morand were each convicted of practicing medicine without a license therefor, and appeal. Affirmed.

McGinn, Sears & Simon, for appellants.

George E. Chamberlain, Atty.Gen., W.T. Hume, Dist.Atty and John H. Hall, for the State.

LORD, C.J.

The defendants were severally indicted for practicing medicine without having first obtained a license for that purpose, in violation of the act of the legislature regulating the practice of medicine and surgery in this state. To these several indictments the defendants each interposed a demurrer that the same did not state facts sufficient to constitute a crime, which the court below overruled, whereupon the defendants each entered a plea of not guilty, and subsequently, upon being tried by a jury, were found guilty and sentenced by the court to pay a fine of $50 each, from which several judgments the defendants have prosecuted this appeal.

The defendants challenge the validity of the act of 1889 (Sess.Laws 1889, ^[1] ) and the amendments thereto, (Sess.Laws 1891, ^[2]) regulating the practice of medicine and surgery in this state, as in violation of section 20, art. 1, of the state constitution , and also as in conflict with the second section of article 4 of the constitution of the United States, and the fourteenth amendment to the same. Under the statute in question and its amendments, every practitioner of medicine and surgery is required to obtain a certificate from the state board of examiners that he is a graduate of a medical institution in good standing, to entitle him to practice his profession; or, if he is not a graduate, that he has been found, upon examination by the board, to be qualified to practice medicine or surgery; or that he was a practitioner of medicine or surgery, and was so engaged at the passage of the act; and that statute also provides that any person practicing medicine or surgery without obtaining such certificate shall be deemed guilty of a misdemeanor, and punishable by a fine or imprisonment or both, in the discretion of court. Corresponding to these classes, the act provides that the board shall prepare three forms of certificates,--one for persons in possession of diplomas or licenses, one for candidates examined by the board, and one for those who were engaged in the practice at the passage of the act, and have registered, etc., in conformity with section 13 of the act. The objections are directed to that section of the act as unconstitutional which permits any person to obtain a certificate of qualification to practice medicine or surgery who was so engaged in the practice of his profession when the act took effect, upon making the registry required by its provisions. These objections are (1) that the act discriminates between the citizens of this state, by permitting one to practice medicine or surgery who was so engaged when the act took effect, without examination, while it denies the privilege to another, who may wish to engage in the practice after the passage of the act; and (2) that it discriminates between residents and nonresidents of the state, by permitting a physician who was a resident and engaged in the practice when the act took effect to continue the pursuit of his profession without examination, while it denies the privilege to a nonresident, who may seek to engage in the practice, unless he undergoes an examination by the board, or is a graduate and in possession of a diploma. The first point is based on the assumption that this act or section 13 of the act is in conflict with section 20, art 1, of the state constitution, which provides that "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;" and the second point is based on a like assumption, that section 13 of the act is in conflict with section 2, art. 4, of the constitution of the United States, which provides that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states;" and also in conflict with that portion of the fourteenth amendment thereto 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." Both of these contentions involve the same principle, and the discussion of one necessarily includes the other, so that their separate consideration is not necessarily to be pursued. Both proceed upon the hypothesis that the act grants privileges or immunities to one class of persons, while it denies the same privileges or immunities to another class. It is not thought that either of these contentions is tenable, or that the section referred to is in conflict with the constitution of the state or of the United States. The right of every person to pursue any lawful business, occupation, or profession he may choose to pursue, subject to such restrictions as the government may impose for the protection of the health, welfare, and safety of society, is unquestioned. This paramount right, inherent in every government, to provide such regulations in regard to various avocations as the public welfare may require, is very broad and comprehensive. It has been said: "All laws for the protection of the lives, limbs, health, and quiet of persons, and the security of all property within the state, fall within this general power of the government." State v. Noyes, 47 Me. 189. REDFIELD, C.J., said that under the "general police power of the state, *** persons and property are subjected to all kinds of restraint and burdens in order to secure the general comfort, health, and prosperity of the state; of the perfect right in the legislature to do which no question ever was, or, upon acknowledged general principles, ever can be, made, so far as natural persons are concerned." Thorpe v. Railroad Co., 27 Vt. 140. "Whatever difficulty, therefore, there may be in defining the precise limits and boundaries by which the exercise of this power may be governed, all agree that laws and regulations necessary for the protection of the health, morals, and safety of society are strictly within the legitimate exercise of the police power." Singer v. State, 72 Md. 464, 19 Atl.Rep. 1044.

Among the various occupations of life, there are many which may be pursued by a person without danger to the public health or detriment to the public welfare, and need, therefore, no regulations to control them; but there are other occupations or callings which require special knowledge or training or experience to qualify a person to pursue them with safety to the public health and interests; and when the occupation or calling is of this character no one can question the power of the state to impose such restrictions and to provide such regulations as it may deem proper for the protection of the health and welfare of its citizens from the evils resulting from ignorance and incapacity. "The power of the state," said Mr. Justice FIELD, "to provide for the general welfare of its people, authorizes it to prescribe all such regulations as, in its judgment, will secure or tend to secure them against the consequences of ignorance and incapacity, as well as of deception and fraud." Dent v. West Virginia, 129 U.S. 122, 9 S.Ct. 231. There are few professions that require more careful preparation to qualify a person to practice than medicine; and certainly there are few that more nearly concern the comfort, health, and life of every citizen. In view of the important interests committed to the charge of the physician, the necessity that he should possess the necessary qualifications of learning and skill is so great, and his want of them likely to be attended with results so injurious to health and destructive of life, that the power of the state to enact such laws regulating the practice of medicine and surgery as are calculated to exclude and protect the people from ignorant pretenders and charlatans has been established by repeated adjudications, and is now too firmly settled to admit of doubt. In State v. State, etc., Board, 32 Minn. 324, 20 N.W. 238, the court says: "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." For the accomplishment of this...