Thompson v. Van Lear

• Decision Date: 27 January 1906
• Parties: THOMPSON v. VAN LEAR
• Court: Arkansas Supreme Court

92 S.W. 773

77 Ark. 506

THOMPSON v. VAN LEAR

Supreme Court of Arkansas

January 27, 1906

Appeal from Garland Chancery Court; ALPHONZO CURL, Chancellor reversed.

Judgment reversed.

Wood & Henderson, Greaves & Martin and Leland Leatherman, for appellants.

1. The act is not in conflict with the Constitution, either State or Federal. 39 Ark. 357 and cases cited. See, also, 50 La.Ann 1358; 58 L. R. A. 925; 79 P. 706; 159 Ind. 211; 54 N.E. 862; 59 L. R. A. 190; 113 U.S. 27. It provides for due process of law, affects all alike who are similarly situated, and is not invalid on account of injust discrimination. 79 Pac. and 113 U.S. supra; 101 Ind. 564; 73 N.E. 1063.

2. It is within the police power of the State to prohibit all things hurtful to society, and to promote its safety, comfort and welfare. 58 Am. Rep. 400; 137 U.S. 86; 18 Am. & Eng. Enc. Law, 818; 137 U.S. 784; 97 U.S. 501; 48 L. R. A. 775; 27 Id. 718; 67 Id. 938; 32 L.Ed. U. S. 253 257; 30 Id. 229; 31 Id. 205; 67 L. R. A. 920; 1 Black (3 Ed.), § 126; Id. 125. In matters affecting the public welfare the police power stands above private rights. 6 L. R. A. 613. The intendments of the State and Federal constitutions were to promote the public welfare. 65 L. R. A. 56 et seq.; Id. 424; 177 U.S. 183. The State in the exercise of its police power may regulate the practice of medicine and surgery, impose such reasonable restrictions thereon as it may deem advisable, revoke a physician's license, and define the qualifications of one who seeks to practice. 129 U.S. 114; 80 P. 544; 52 Ark. 228; 47 Ark. 562; 54 Cal. 94; 86 S.W. 1029; 10 Col. 387; 58 Am. Rep. 400; 78 Iowa 12; Id. 321; 87 Iowa 659; 66 Kans. 710; 93 Ky. 393; 16 Pick. (Mass.) 353; 70 Mich. 6; 12 Mont. 203; 10 Nev. 952; 49 P. 952; 25 N.Y. 123; 10 Wend. 449; 52 Hun, 65; 4 N.Y.S. 495; 14 S.E. 42; 28 S.E. 517; 47 N.E. 1041; 29 P. 8; 31 P. 514; 5 Tex.App. 306; 39 P. 918; 18 Am. & Eng. Enc. Law, 749; Cooley on Const. Lim., 3 Ed. 745; 39 Ark. 357; 21 L.Ed. U.S. 394; 94 U.S. 77; 17 Ga. 323; 67 Ill. 37; 113 Ind. 514; 63 Kan. 494; 50 N.E. 750; 22 Am. & Eng. Enc. Law, 584; 106 Iowa 28; 34 Tex. 21; 109 Ind. 278; 112 Ill. 289; 68 Ill. 444; 123 U.S. 623; 136 U.S. 436; 137 U.S. 86; Id. 624; 169 U.S. 365; 191 U.S. 297; 197 U.S. 11; 42 L. Ed., 1002; 4 Wall. 277; 6 Tex.App. 202; 10 Wend. 449; 28 P. 643; 34 Am. Rep. 298; 170 U.S. 189; 105 Iowa 529; 42 N.Y. 161; 25 Me. 104; 121 N.C. 643; 51 L. R. A. 719.

3. Acts of the Legislature are presumed to be valid until it is clearly shown that they violate some constitutional restriction. 65 L. R. A. 47; 11 Pet. 138; 191 U.S. 223; 40 L.Ed. U. S. 849; 11 Ark. 486; 174 U.S. 96; 3 R. I. 289; 94 U.S. 113; 6 L. Ed., U.S. 97; 118 U.S. 356; 4 Wheat. 316; 16 N.E. 193; Cooley on Const. Lim., 6 Ed. 220; Cooley, Const., 5 Ed. 187. Whether or not a statute is a reasonable one is a legislative question, not judicial 52 Ark. 232. If a state of facts could exist which would justify the legislation, it will be presumed that it did exist. 3 L. R. A. 295; 61 L. R. A. 613; 65 L. R. A. 428; 127 U.S. 678.

4. The act of the Legislature ceding to the United States exclusive jurisdiction of that part of the Hot Springs Reservation described in the act of Congress accepting the same and providing for rules and regulations, and the rules and regulations of the Interior Department over the same, are constitutional and valid. Kirby's Digest, § 3475; sec. 8, art. 1, Const. U. S.; 2 Mason, 60, 91; 6 Wheat. 422; 6 Ops. Atty. Gen. 577; 2 Wall. 526; 22 U. S. Stat. L., 121; 31 Id. 215; Ib. 907; 122 F. 518. See also 114 U.S. 525; Ib., 542; 92 U.S. 698; 167 U.S. 518; 8 Wall. 533; sec. 3, art. 4, Const. U. S.; 106 U.S. 466; 144 U.S. 677; 82 U.S. 214.

R. G. Davies, for appellee.

The act is unconstitutional, because, after conviction, it prohibits a physician from practicing or offering to practice pending appeal from the judgment; because it denies trial by jury; because it violates secs. 2, 3, 17, 18 and 21, Art. 2, Const. 1874; and 14th Amendment Const. U. S. See also 13 Ark. 262; 5 Ark. 359; 6 English (Ark.), 619; 39 Ark. 356. The practice of medicine is an ordinary, lawful and useful occupation, and to make it a crime to solicit custom for it is an unwarranted interference with constitutional rights. 34 Ark. 557. See also Herbert Spencer's Social Statics, 403, 404; 24 L. R. A. 68; 198 U.S. 45. The practice of medicine may be regulated, but cannot be suppressed. 64 Ark. 424.

The act of Congress is unconstitutional and void, (1) because in conflict with the Constitution as to "the right of life, liberty and pursuit of happiness." 64 Ark. 424; 98 N.Y. 98; 97 U.S. 501; Am. Law. Rev. Nov. and Dec. 1891; Id. Nov. and Dec. 1903; 16 Am. & Eng. Enc. Law, 1109; 133 N.C. 729. (2) Because it does not provide for due process of law. 5 App. Ct. (D. C.) 241; 11 Mont. 429; 125 Ill. 296; 187 Ill. 587; 97 U.S. 501; 38 F. 555; 10 Nev. 323; 129 U.S. 114; 11 Col. 523; 5 Sawyer, 553; 177 U.S. 188; 111 U.S. 391! 22 F. 701; 43 Ark. 32. No general powers to make needful regulations can include special rights to interfere with lawful business. 31 Ark. 464; 27 Ark. 467; 34 Ark. 553; 7 Cal. 164; 63 Cal. 21; 77 Cal. 166; 78 Cal. 141. See also 85 Cal. 274; 117 Ill. 294; 99 N.Y. 377; 33 W.Va. 188. (3) Because it is a bill of attainder--inflicts punishment without a judicial trial. 4 Wall. U. S. 277. See also 53 N.J.Eq. 101; 2 Q. B. Div. 333; 9 A. 559; 63 F. 321; 4 Wall U. S. 277. (4) Because it deprives a defendant in a criminal case of the right of trial by jury. Act April 20, 1904, sec. 5; 7 F. 193 et seq.; 13 F. 413; 127 U.S. 450. (5) Because in conflict with sec. 8, art. 1, Const. U. S. The United States can not exercise exclusive jurisdiction over territory within a State only for a temporary purpose. 56 F. 630; 71 F. 550; 37 Wis. 379; 53 Wis. 65; 19 N.W. 782; 54 F. 604; Fed. Cas. No. 16,373; Id. No. 6312; 4 Dil. 380; 48 F. 669; 27 F. 616; 34 F. 86; Id. 729. (6) Because the law applies only to citizens within the State. 92 U.S. 220.

OPINION

RIDDICK, J.

This is an appeal from a judgment of the Garland Chancery Court enjoining the defendants, M. G. Thompson and others, from instituting any prosecution against the defendant, S. C. Van Lear, under the statute prohibiting physicians from soliciting patients through paid agents or drummers, and enjoining them from otherwise interfering with the business and practice of the plaintiff.

The facts are as follows: In 1903 the Legislature passed an act forbidding physicians and surgeons engaged in the practice of medicine to solicit patients by agents. Acts 1903, p. 342. Congress, which claims jurisdiction over a portion of the Hot Springs Reservation, has also provided by statute that physicians, before prescribing the waters of the springs, shall be registered with the Superintendent of the Reservation, but that no physician shall be allowed to register who was engaged in soliciting patronage through the medium of paid agents. Act of Congress of April 20, 1904, § 4.

To aid the officers of the law to enforce these provisions against the practice of soliciting patients by hired agents, a number of the physicians of Hot Springs formed an Association, called the "Visitors' Protective Association." The meetings of this association were public, membership in it was open to all physicians of the city, and it was supported by the voluntary contributions of its members. The chief purpose of the association, as before stated, was to aid in suppressing the practice among certain physicians of soliciting patients by hired agents or by "drumming," as it was called; the members of the association believing that this method of securing patronage was not only illegal and unprofessional, but that it was highly injurious both to the profession and the general public. The efforts of the association to suppress this evil were not directed especially against plaintiff or any particular physician or school of medicine. On the contrary, the agent or detective of the association, employed to look up evidence against physicians violating the statutes, was instructed to investigate and report to the officers of the law evidence against any physician who was guilty of such practice, without regard to who he was, or whether he was a member of the association or not.

The evidence shows that the plaintiff, Van Lear, was not permitted to register with the Superintendent of the Hot Springs Reservation as one of the physicians authorized to use the waters of the hot springs, or prescribe the use thereof by his patients. The reason for this refusal to permit the plaintiff to register was that he was suspected of having solicited patients by hired agents, though it was not shown that the defendants were responsible for this act of the Federal authorities. But the agent of defendants employed to look up evidence against physicians, it seems, discovered evidence against Van Lear, tending to show that he was guilty of hiring agents to solicit patients for him, and that he was prescribing the waters of the springs to his patients without being registered, and he reported this evidence to the officers, which resulted in prosecutions against Van Lear, and injury to his business as a physician. Van Lear thereupon brought this action in equity against M. G. Thompson and other members of the association to enjoin them from further prosecutions or interference with his business.

On the hearing the chancellor held that the law prohibiting physicians from soliciting patronage by hired agents was unconstitutional and void. He further held that the act of the State Legislature ceding jurisdiction to the United States over part of Hot Springs Reservation was void on the ground that Congress had no authority to accept such jurisdiction, and that Congres...