11 Utah 291 | Utah | 1895
The defendant in this case was convicted before Harmel Pratt, commissioner, of practicing medicine without a license, in violation of the provisions of the act of the territorial legislature entitled “An act to regulate the practice of medicine,” approved March 10, 1892; and was fined $50. On the 29th of May, 1893, an appeal was taken to the Third District Court of Dtah territory by the defendant. Thereafter, and on the 25th of January, 1894, the case was heard in the district court before the Honor.able H. W. Smith, presiding. A jury was waived and the defendant was tried on the following agreed statement •of facts:' “That the defendant Bichard A. Hasbrouck,-upon the 30th day of April, 1893, and from and after said ■date, continually, to the 6th day of May, 1893, practiced medicine and surgery at Salt Lake City, in Salt Lake county, Dtah territory, and has so practiced medicine and surgery in said city and county since prior to the 10th ■day of March, 1892. That said defendant had received from the Bennett College of Eclectic Medicine and Surgery, in the year 1882, a diploma as a physician and surgeon, and has practiced medicine and surgery ever since receiving the same. That after the passage and approval of the act of the governor and legislative assembly of the
Upon the question whether the complaint is sufficient in form the authorities are somewhat in conflict; but it is not necessary to pass upon that question, for it is stated by appellant’s counsel that any objection to the form of the complaint was waived in the court below, and it was agreed between the prosecution and the defendant that, the case should be tried upon the question of the validity of the statute upon which the complaint is founded, and of the .validity of the appointment of the board of medical examiners by the governor. The agreed statement of facts,, signed by the defendant, admits in so many words that upon the 30th day of April, 1893, and from and after said date, continuously to the 6th day of May, 1893, the time charged in the complaint, at Salt Lake City, in Salt. Lake county, Utah territory, — the place charged in the complaint, — he practiced medicine and surgery without any license or certificate from the board of medical examiners. This was an admission of the ultimate fact to be proved by the prosecution, and dispensed with the necessity upon the part of the prosecution of producing evidence of the probative facts, from which the ultimate facts would be-adduced, and dispensed also with any further consideration of the formal requisites of the complaint. “That, the defendant, at the time and place named, practiced medicine without a license,” if it could be held a conclusion, is the defendant’s own conclusion, couched in the-language of the statute, and set forth in the agreed statement of facts. Under these circumstances, an objection to the sufficiency of the complaint in form, raised for the-first time on appeal, will not be considered.
The statute upon which this prosecution is founded is of the same general character as the statutes of a large num
That legislation of the general character enacted in this ■statute — namely, legislation to protect the community against the effects of ignorance and incapacity, as well as ■deception and fraud, in the practice of medicine, by requiring a certain degree of learning and skill upon the part of the practitioner, “ ascertained upon an examination by competent persons, or inferred from a certificate in the form of a diploma or license from an institution ■established for instruction on the subject” — is a legitimate exercise of the police power of the state, and that ■depriving persons not so qualified of the right to practice is not obnoxious to the inhibition of the federal constitution against the deprivation of property without due process of law, are propositions which are thoroughly ■settled. Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231; Tied. Lim. §§ 87, 88; Cooley, Torts, p. 289. 'This general proposition is admitted by the appellant, but he attacks the statute as violative of the constitutional provisions that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states, in that graduates of respectable medical ■colleges who were at the time of the passage of 'the act •engaged in actual practice of medicine in the territory may be licensed, under section 4 of this act, without examination, and upon the payment of a fee of only $5; while •citizens of a state or other territory who were likewise .graduates of respectable medical colleges, but who were not engaged in actual practice in this territory at the time of the passage of the act, are not entitled to such privilege, but, in addition to presenting their diplomas .and making proof of their identity, must also submit to
It is contended by the appellant that the statute is unconstitutional, because, as he claims, no disposition is ■directed of the fees authorized by sections 3, 4, and 11 of the act. The act creates a treasury and a treasurer of the board. It provides fees shall be paid to the treasurer; "that is, into the treasury of the board. The hoard is a board of public officers, created for a public purpose, charged with the performance of important public duties,
The objection that the statute attempts to confer judicial power on the board is not well founded. Many executive officers, even those who are spoken of as purely ministerial officers, act judiciously in the determination of facts in the performance of their official duties; and in so doing they do not exercise “judicial power,” as that phrase is commonly used, and as it is used in the organic act, in conferring judicial power upon specified courts.. The powers conferred on the board of medical examiners are no wise different in character in this respect from those exercised by the examiners of candidates to teach in our public schools, or by tax assessors or boards of equalization in determining, for purposes of taxation, the value of property. The ascertainment and determination of qualifications to practice medicine by a board of competent experts, appointed for that purposé, is not the exercise of a power which appropriately belongs to the judicial department of the government. It does not trench upon the judicial power. Williams v. State, 113 Ind. 514, 16 N. E. 192; State v. State Board of Medical Examiners, 34 Minn. 387, 26 N. W. 123. This act entitles every person whose qualifications to practice medicine, in point of learning and skill, or in point of moral character, is in any manner drawn in question, to a hearing before the board. It would be absurd to contend that the courts must be converted into boards of medical examiners to ascertain and decide whether an individual posesses such technical knowledge or such moral character that he may be permitted to practice medicine with safety to the public, or whether
To assume that the legislature intended to create offices which could not be filled until the next biennial session, to make a law which could not be executed for two years, .although legally in effect on the 1st day of June next following its enactment, would be an absurdity. But the power of the appointing executive, under such a provision .as that contained in this act and in section 7 of the •organic' act, to fill a vacancy, when such vacancy occurs during the recess of the confirming legislature or legislative body, has been frequently recognized as a necessary incident of the executive power. Such an appointment by the governor of this territory, without the advice or consent of the council to an office validly created by the legislature, but which had never been legally filled, was recognized by the supreme court of the United States in the case of Clayton v. Utah Territory, 132 U. S. 632, 10 Sup. Ct. 190. The-validity of the appointment made by
For the reasons stated in this opinion, the judgment of’ the court below is affirmed.