In re Smith

10 Wend. 449 | N.Y. Sup. Ct. | 1833

By the Court,

Sutherland, J.

I see no constitutional objections to the law, 1 R. S. 452, under which the proceedings in this case were had; it undertakes to regulate, by some general provisions, the practice of physic and surgery in this state ; and with a view to the moral character, as well as the learning and skill of the members of this most useful and responsible profession, it gives to the county medical societies the right to try any of their members against whom specific charges of gross ignorance or misconduct in his profession, or of immoral conduct or habits, may be brought.

It is contended, in the first place, that this law violates that provision of the bill of rights and of the constitution of this state which declares that no person shall be held to answer for a capital or otherwise infamous crime, (except, &c.) unless on presentment or indictment of a grand jury, 1 R. S. 53, § 7; id. .93, § 72 ; 2. That it conflicts with those provisions of the constitution of the United Slates and of this state which secure to the citizens the right of trial by jury, and prohibit the establishment of any new court, except such as shall proceed according to the course of the common law ; and it is also contended that the law could not be properly applied to the offence charged in this case, inasmuch as it is alleged to have been committed in June, 1828, whereas the law did not go into operation until January, 1830. In the opinion of the court, the answers given by the district attorney to these various objections are entirely satisfactory.

When the constitution speaks of a person not being held to answer for a capital or otherwise infamous crime, unless on presentment or indictment, &c. it means to answer in a course of criminal proceedings—to answer criminaliter, with a view to punishment under the criminal law, and has no reference whatever to those collateral or incidental proceedings which are disciplinary in their character, or have exclusive regard to some special character or relation which belongs to the individual.

The provision in the constitution of the United States, in relation to the trial by jury, applies only to the federal courts; and our state constitution secures the right in all cases in which it has heretofore been used. Now it never was in use, before or since the adoption of the constitution, in cases like this. It applies only to cases of trials of issues of fact in civil and criminal proceedings in courts of justice. 8 Cowen, 815, note 6. 3 id. 701. 8 Wendell, 85. 3 Paige, 45. The proceedings under this statute are not a trial as for an offence with a view to punishment, but a mere summary inquiry to ascertain facts for a collateral purpose.

Nor is this a court proceeding differently from the course of the common law. The provision of our constitution, which forbids the creation of such courts, refers, as was correctly urged in argument, to courts exercising the usual jurisdiction of courts of law, but proceeding by modes unknown to the common law ; but it does not prohibit, and never has been considered as prohibiting the organization of various tribunals, as commissioners, &c. for other purposes than the administration of civil or criminal justice.

The power conferred by this statute is similar in its character and consequences to that which is possessed by the courts of record of this state over counsellors, solicitors and attorneys. They may by statute, 1 R. S. 108, § 23, 24, be removed or suspended by the several courts to which they belong. The 24th section prescribes the mode of proceeding in such cases. They are strictly summary. A copy of the charges is to be delivered to the patty, and he is to have an opportunity of being heard. But there is no grand jury to indict, or petit jury to try, nor any of the usual concomitants of a trial by jury ; and yet I believe no constitutional objections were ever raised to this jurisdiction.

The practice of physic and surgery in this state was regulated bylaw as early as 1760, 2 R. L. 219, note, and such regulations have been altered and extended from time to time, down to the passing of the act in question. Under the law, •as it previously existed, the county medical society were authorized to make such by-laws and regulations relative to the admission and expulsion of members as they thought fit and proper, not inconsistent with the constitution and laws of the state. 2 R. L. 222, § 14. The present act only regulates the exercise of a power which previously existed ; it does not, that I perceive, in any respect increase the power which those societies before had a right to exercise over their members; it prescribes a more formal mode of investigating any imputations against its members, before the right to suspend or expel them shall be exercised; it essentially increases, instead of diminishing their security. This observation is also a sufficient answer to the objection that the law is retrospective in its operation ; it merely changes the form of proceeding. But the legislature, by the act of 1813, 2 R. L. 224, § 23, reserved the right to alter, modify or repeal its provisions at pleasure.

Without stopping to inquire whether any error, which may have been committed by the medical society in the preliminary proceedings in this case, can be reached by this certiorari, or whether the judges had a right to inquire into the regularity of those proceedings, or how much of the proceedings before the judges themselves is regularly brought up, and is now before us, I shall content myself with saying that I see no error or irregularity in any part of the proceedings, either of the medical society or the judges.

The medical society were not ousted of their jurisdiction in the matter, by having once refused to prefer these charges. In that proceeding they are but accusers, like a grand jury, and may receive additional testimony or re-consider the case, and change their determination upon the original evidence. The trial and acquittal of the defendant upon the indictment for producing the abortion was no bar to this proceeding; they are entirely distinct and independent proceedings, having different objects and results in view; the one having regard to the general welfare and criminal justice of the state; the other simply and exclusively to the respectability and character of the medical profession, and the consequences connected with or necessarily flowing from it. It is immaterial therefore, in my judgment, whether the offence mentioned in the charge was indictable or not, and whether the indictment was disposed of upon its merits, or upon some matter of form.

Proceedings of Judges affirmed.