State v. Wilcox

• Decision Date: 05 April 1902
• Docket Number: 12,956
• Parties: THE STATE OF KANSAS v. M. W. WILCOX
• Court: Kansas Supreme Court

68 P. 634

64 Kan. 789

THE STATE OF KANSAS v. M. W. WILCOX

No. 12,956

Supreme Court of Kansas

April 5, 1902

Decided January, 1902.

Appeal from Barton district court; ANSEL R. CLARK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

PHYSICIANS AND SURGEONS -- Act of 1901 Upheld. Chapter 254 of the Laws of 1901 (Gen. Stat. 1901, §§ 6669-6677) "An act to create a state board of medical registration and examination, and to regulate the practice of medicine, surgery and osteopathy in the state of Kansas, prescribing penalties for the violation thereof, and repealing chapter 68 of the Session Laws of 1870," is a constitutional enactment.

A. A. Godard, attorney-general, Clad Hamilton, and James W. Clarke, county attorney, for The State.

D. A. Banta, for appellant.

JOHNSTON, J. CUNNINGHAM, POLLOCK, JJ., concurring.

OPINION

JOHNSTON, J.:

M. W. Wilcox was convicted upon a charge of practicing medicine in Barton county without a license, in violation of chapter 254 of the Laws of 1901 (Gen. Stat. 1901, §§ 6669-6677), and he was sentenced to pay a fine of fifty dollars. On this appeal, as in the court below, he urges that the act was unconstitutional for several reasons, and that a compliance with its provisions cannot be enforced.

He first assails the act on the ground that it contains more than one subject -- one the creation of a board of medical examination and registration, and the other the regulation of the practice of medicine. An examination of its provisions shows clearly enough that only a single general subject is embraced in the act, and that is the regulation of the practice of medicine. To accomplish this the machinery and means of regulation are provided, among which is the appointment of a board to determine the qualifications and fitness of those who hold themselves out as practitioners. If the title had been "An act to regulate the practice of medicine and surgery," instead of the more elaborate one used, it would have covered every provision of the statute, and, under numerous decisions, would have been considered as a single subject, and not void because of its generality. (Woodruff v. Baldwin, 23 Kan. 491; The State v. Stunkle, 41 id. 456, 21 P. 675; Blaker v. Hood, 53 id. 499, 36 P. 1115, 24 L. R. A. 854, and cases cited; Wilson v. Clark, 63 id. 505, 55 P. 705.)

It is next contended that the act is prohibitive in its effects, and operates to exclude some persons from following their chosen vocations. It will operate to exclude those not qualified to practice, or, rather those who cannot show that they possess the standard of qualifications prescribed by the legislature. The provisions, however, fixing the standard and testing the qualifications of medical practitioners are not prohibitive in their nature, because, as was said in The State v. Creditor, 44 Kan. 565, 24 P. 346, 31 Am. St. Rep. 306, where the same question was raised, "the profession and practice are open to every citizen of the United States who is qualified, and who can produce evidence of the same." The police power of the state, upon which such legislation is founded, may be exercised in regulating the practice of medicine so as to protect the people from ignorance and incapacity, as well as from deception and fraud. It is true, as is contended, that an arbitrary discrimination against a citizen or a deprivation of the right to follow his calling or profession cannot be upheld. But it is not an arbitrary discrimination, nor an invalid deprivation of right, to provide that only those possessing a knowledge of the human system, of its ailments and diseases, and who possess the skill to apply remedies and practice the art of healing, shall be allowed to practice. It was said in the case of Williams v. The People, 121 Ill. 84, 11 N.E. 881:

"It is the common exercise of legislative power to prescribe regulations for securing the admission of qualified persons to professions and callings demanding special skill; and nowhere is this undoubtedly valid exercise of the police power of the state more wise and salutary, and more imperiously called for, than in the case of the practice of medicine. It concerns the preservation of the health and the lives of the people."

So it was held in The State v. Creditor, supra, that it was competent for the legislature to prescribe the nature and extent of the qualifications required of those practicing medicine, dentistry, or surgery, and to prescribe rules for ascertaining whether those professing to practice come up to the legislative standard. If such regulations and conditions are adopted in good faith and operate equally upon all who may desire to practice, and who possess the required qualifications, the fact that the tests and conditions imposed by the legislature may be rigorous will not invalidate the legislation. In the case of Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623, it was said:

"The nature and extent of the qualifications required must depend primarily upon the judgment of the state as to their necessity. If they are appropriate to the calling or profession, and attainable by reasonable study or application, no objection to their validity can be raised because of their stringency or difficulty."

Statutes regulating the practice of medicine and surgery were enacted as early as 1760, and they have been uniformly upheld when their validity was assailed in the courts. (In the matter of Smith, 10 Wend. 449; The State v. Creditor, supra; Harding v. The People, 10 Colo. 387, 15 P. 727; The People v. Blue Mountain Joe, 129 Ill. 370, 21 N.E. 923; Driscoll v. Commonwealth, 93 Ky. 393, 20 S.W. 431; People v. Phippin, 70 Mich. 6, 37 N.W. 888; State v. State Medical Examining Board, 32 Minn. 324, 20 N.W. 238, 50 Am. Rep. 575; State v. Fleischer, 41 Minn. 69, 42 N.W. 696; Craig v. Medical Examiners, 12 Mont. 203, 29 P. 532; In re Roe Chung, 9 N.M. 130, 49 P. 952; State v. Van Doran, 109 N.C. 864, 14 S.E. 32; France v. The State, 57 Ohio St. 1, 47 N.E. 1041; Barmore v. State Board of Medical Examiners, 21 Ore. 301, 28 P. 8; People v. Hasbrouck, 11 Utah 291, 39 P. 918; State v. Carey, 4 Wash. 424, 30 P. 729; State v. Buswell, 40 Neb. 158, 58 N.W. 728, 24 L. R. A. 68; The State, ex rel. Burroughs, v. Webster et al., 150 Ind. 607, 50 N.E. 750, 41 L. R. A. 212; People v. Fulda, 4 N.Y.S. 947; State v. Mosher, 78 Iowa 321, 43 N.W. 202.)

It is said that the board of examination and registration may act arbitrarily and unjustly in passing upon the sufficiency of the diplomas presented and in determining the qualifications of proposed practitioners, but this is a presumption which the courts cannot indulge. On the contrary, we are to presume that this board, like all other tribunals vested with such powers, will act with judgment and...