100 A. 55 | R.I. | 1917
This case comes before this court on certification from the District Court of the Sixth Judicial District for the determination of certain constitutional questions raised by the defendant in his special plea in bar.
The defendant was arrested on a warrant dated November 6, 1912, issued on the complaint of Gardner T. Swarts, Secretary of the State Board of Health, charging that the defendant "did open an office with intent to practice medicine, and did hold himself out to the public as a practitioner of medicine by appending to his name the title `doctor,' and an abbreviation thereof, to wit, `Dr.,' and by appending to his name the title of `Neuzopathic Physician,' also by appending to his name the title of `Neuzopath,' and by representing that he was versed in and willing to practice for compensation the art of preventing, curing and alleviating disease and pain, and did *124 attempt to and did practice medicine and surgery after having received therefor, and with intent to receive therefor, directly and indirectly, a bonus, gift and compensation, said defendant not being then and there legally authorized to practice medicine within this State, and not being then and there registered to practice medicine according to law."
On arraignment the defendant pleaded not guilty, but thereafter was permitted to withdraw his plea and to demur to the complaint. His demurrers being overruled, he thereupon filed a special plea in bar wherein he sets forth "that although he may be competent to practice a system or systems of medicine, and although he has been and is willing to be examined as to his qualifications by a board of examiners legally constituted, according to the provisions of any law of this State which is not in conflict with the Constitutions of the State of Rhode Island or of the United States, nevertheless, it is impossible for him to conform to the requirements of the statutes in such case made and provided, for the reason that the said Thomas J. Heffernan is not a graduate of any college or school of medicine; that the system of medicine or therapeutics in which he has always been willing to be examined was originated by the said Thomas J. Heffernan, and said system is not taught in any school or college of medicine, so that it is impossible for the defendant to present to the State Board of Health satisfactory evidence of graduation from any college or school or medicine. Thus the said defendant is forbidden by statute to practice a system originated by himself or any other system included in the complaint and warrant, unless he has graduated from a college or school of medicine. For this and for other reasons to be pointed out herewith the said Thomas J. Heffernan says that Chapters 193 and 115 of the General Laws of the State of Rhode Island are unconstitutional, being in violation of the provisions of the *125 Constitutions of the State of Rhode Island and of the United States in making it impossible for the said defendant to pursue his lawful occupation, and he specifies his objections as follows:" stating ten different specifications wherein said chapters are unconstitutional. The first five charge that Section 3 of Chapter 193 of the General Laws is unconstitutional, and the fourth and fifth make a similar claim as to Section 5 of the same chapter. The sixth, seventh and tenth specifications allege that Chapter 193 in its entirety is unconstitutional. The eighth alleges that Chapter 115 of the General Laws is unconstitutional and particularly Section 1 thereof; the ninth makes the same charges as to said Section 1.
Such portion of Section 3 of Chapter 193 as it becomes necessary to consider is as follows: "Sec. 3. Authority to practice medicine under this chapter shall be a certificate from the State Board of Health; and said board shall, upon application, after examination, issue a certificate to any reputable physician who intends to practice medicine or surgery in this State, who presents satisfactory evidence of graduation from a medical school in good standing, and who shall present himself before the State Board of Health and pass in a satisfactory manner such examination as said board may require:Provided, however, that the provisions of this section shall not apply to any person lawfully engaged in the practice of medicine or surgery in this State on the twenty-second day of May, nineteen hundred and eight."
The first specification of unconstitutionality contained in defendant's special plea is in the following words and figures: "1. Section 3 of Chapter 193 of the General Laws, which says that any person must present satisfactory evidence of graduation from a college or school of medicine in good standing before he will be permitted to take an examination to practice medicine, is unconstitutional because it is in conflict with Section 2 and Section *126 10 of Article I of the constitution of the State of Rhode Island, and with Section 1 of Article 14 of the Amendments to the Constitution of the United States in this: Section 3 of said Chapter 193 prohibits persons from qualifying to practice medicine and surgery who are not graduates of a college or school of medicine, and makes no provision for persons who are not graduates of such schools or colleges but who are qualified to practice medicine, nor does it make any provision for persons who desire to practice a system of medicine which is not taught by any school or college. Said Section of said Chapter is not therefore made for the benefit of the whole people as required by Section 2 of Article 1 of the Constitution of Rhode Island; said Section 3 of said Chapter deprives this defendant of the right to pursue his lawful occupation, and thus deprives him of his liberty and property without due process of law."
It is apparent that the provision in Section 3 of Chapter 193 that a candidate for examination must present "satisfactory evidence of graduation from a medical school in good standing" makes such graduation a qualification essential to the lawful practice of medicine or surgery within this State by anyone not thus in practice on May 22, 1908, and in effect excludes all persons without this qualification from such examination. This statutory bar to the practice of medicine by the defendant raises the important question in this case. The defendant in his plea admits his lack of this qualification, but claims that the statute is invalid in that it deprives him of his constitutional rights.
Section 2 of Article I of the Constitution of Rhode Island is as follows: "Sec. 2. All free governments are instituted for the protection, safety and happiness of the people. All laws, therefore, should be made for the good of the whole; and the burdens of the state ought to be fairly distributed among its citizens." *127
The defendant in his brief quotes the portion of Section 10 of Article I of the State Constitution with which he deems Section 3 of Chapter 193 in conflict, as follows: ". . . nor shall he be deprived of life, liberty, or property, unless by the judgment of his peers, or the law of the land;" and that portion of Section I of Article XIV of the Amendments of the Constitution of the United States, with which said Section 3 is claimed to conflict as follows: ". . . No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws:"
The defendant apparently does not question the authority of State legislative bodies to regulate in some manner and to a certain extent the practice of medicine, as in his brief he states that "Statutes regulating the practice of medicine have been passed in all the states and have generally been upheld as being valid police regulations to protect the public health." His claim, however, is that in Chapters 115 and 193 the General Assembly has exceeded its constitutional powers. This legislative authority to enact such statutes and the right on which it rests are well stated in State v. Vandersluis,
Dent v. West Virginia,
Few professions require more careful preparation by one who seeks to enter it than that of medicine. It has to deal with all those subtle and mysterious influences upon which health and life depend, and requires not only a knowledge of the properties of vegetable and mineral substances, but of the human body in all its complicated parts, and their relation to each other, as well as their influence upon the mind. The physician must be able to detect readily the presence of disease, and prescribe appropriate remedies for its removal. Every one may have occasion to consult him, but comparatively few can *130 judge of the qualifications of learning and skill which he possesses. Reliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he possesses the requisite qualifications. Due consideration, therefore, for the protection of society may well induce the State to exclude from practice those who have not such a license, or who are found upon examination not to be fully qualified. The same reasons which control in imposing conditions, upon compliance with which the physician is allowed to practice in the first instance, may call for further conditions as new modes of treating disease are discovered, or a more thorough acquaintance is obtained of the remedial properties of vegetable and mineral substances, or a more accurate knowledge is acquired of the human system and of the agencies by which it is affected."
Other cases of a similar import might be cited, but these two sufficiently state in a general way the rules by which the constitutionality of such statutes is to be determined. The question is whether the particular qualification required by Chapter 193 for the practice of medicine is one fit and appropriate to the medical profession and designed for the protection of the public, or is unreasonable and arbitrary. This court has said that "The object of the statute in question is to secure the safety and protect the health of the public." State
v. Mylod,
The first specification of unconstitutionality states two grounds therefor, one, in that it "makes no provision for persons who are not graduates" of a medical school, "but who are qualified to practice medicine;" the second, in that it makes no "provision for persons who desire to practice a system of medicine which is not taught by any school or college." If the first ground be interpreted to mean simply that the statute excludes from practice persons otherwise qualified and able to "pass in a satisfactory manner such examination as" the State Board of Health "may require," because they are not graduates of a medical school, it is evident from the special plea in bar that the defendant does not claim to belong to the class thus excluded. He does not profess to be qualified or able to pass such examination, and evinces no desire to take it. As he does not belong to the class excluded on this first ground, he is not affected by it and can, therefore, as already appears, raise no question as to unconstitutionality on that ground. He does bring himself within the class affected by the statute on the second ground, namely, those persons excluded from the practice of medicine, who desire to practice a system of medicine not taught in any medical school. In his special plea in bar the defendant says that "he has always been willing to be examined" in a "system of medicine or therapeutics" originated by himself and "not taught in *132 any school or college of medicine." This raises a question which he is entitled to have considered.
It might naturally be expected from the nature of things that the "healing art" would early be in evidence. This appears to have been the fact. History shows that there was a practice of medicine in some form by the Egyptians and Greeks centuries before the beginning of the Christian era. Books and treatises on medicine and its practice were written at any early date and in time its practice was recognized as a distinct art. In Bragg v.State,
The defendant urges that he is deprived of pursuing his lawful occupation as if he had lawfully hitherto practiced medicine, and had by Chapter 193 been deprived of a vested property right. But unless he was engaged in the practice of medicine on January 1, 1892, or has since passed the examination required by the Board of Health, which he was eligible to take prior to May 22, 1908, he has never lawfully practiced medicine, and, therefore, is by the act deprived of no vested property right. Moreover it has been held that a new and stricter requirement for the practice of medicine, which excludes some hitherto lawfully practicing, is not an unconstitutional exercise of legislative power. See Dent v. West Virginia, supra; State
v. Vandersluis, supra; Meffert v. Medical Board,
Section 3 of Chapter 193 recognizes two classes qualified to practice medicine lawfully, namely, those who, *135
being graduates from a medical school in good standing, pass in a satisfactory manner the examination required by the State Board of Health, and those lawfully engaged in the practice of medicine or surgery in this State, May 22, 1908. The clause at the end of Section 1 of the Fourteenth Amendment to the Federal Constitution referring to "the equal protection of the laws" governs classification in legislation. The classification must be reasonable under the circumstances. See Sayles v. Foley,supra, and cases cited on pages 491 and 492 of 38 R.I. on this point. The defendant urges that he is denied "the equal protection of the laws" without in terms attacking the classification made by Chapter 193 or pointing out in what respect otherwise he is denied such protection. A similar classification has been held constitutional in Watson v.Maryland,
There are many cases in which the constitutionality of a statutory provision requiring the production of a diploma from a school in good standing as preliminary to practicing the profession has been upheld — some in dentistry and others in the medical profession. As for example, Dent v. West Virginia,supra; State v. Vandersluis, supra; Scholle v. State, supra;Kettles v. People,
We are of the opinion that specification 2 raises no constitutional question, but simply a question as to the interpretation of the words "reputable physician." Whatever their meaning, it does not appear in the present case that they in any way are the cause of the defendant's exclusion from practice, or that they affect him.
Specifications 3, 4 and 5 relate to the powers of the State Board of Health and charge the delegation of arbitrary powers, and legislative and judicial powers to the board. Inasmuch as the defendant is excluded from practice by the terms of the law itself, that is, by direct act of the legislature, and not by the exercise of the board of any power given to it, he is not affected by any of the powers conferred upon the board and, therefore, as already appears, he cannot raise questions as to the constitutionality of the portions of Section 3 of Chapter 193 which confer these powers. Specification 6 charges that Chapter 193 conflicts with Section 10 of Article I of the State, and Section 1 of Article XIV of the Amendments *137 to the Federal Constitution in that it fails to define the "practice of medicine."
As has heretofore appeared, this court in State v. Mylod,supra, held that the words "practice of medicine" must be construed to relate to the practice of medicine as ordinarily and popularly understood. On page 637 of 20 R.I. the court discusses the rule of construction to be followed and reaches the result already stated, summed up in this sentence, "Popularly it" (the practice of medicine) "consists in the discovery of the cause and nature of disease, and the administration of remedies or the prescribing of treatment therefor." This interpretation was reaffirmed in Swarts v. Siveny,
Specification 7 charges that Chapter 193 is in effect an expost facto law and thus in conflict with Section 12 of Article I of the State Constitution and with Section 10 of Article I of the Federal Constitution because "What is forbidden varies from time to time as medical science progresses and also varies with the personnel of the court." If this were to be conceded to be true in a limited sense, we do not see that the defendant in the present case has actually been so affected by any change in interpretation that he can raise the constitutional question suggested. It does not appear that the changes in the personnel of this court have effected any changes in the interpretation of the law, and to say that since the passage of the act the words "the practice of medicine" have acquired a meaning essentially unlike their original meaning seems no more than the making of a guess. We think he should show that he has been actually affected in the respects alleged and not simply a possibility that he may be so affected at some time or other, in order to raise such question. But in this connection it will not be amiss to call attention to the recent case of Ross v. Oregon,
Specifications 8, 9 and 10 may be said in general terms to allege the unconstitutionality of Chapter 115 of the General Laws, and as resulting therefrom the unconstitutionality of Chapter 193. While perhaps it may be argued that inasmuch as by the express terms of Section 3 of Chapter 193 the defendant is excluded from the right to practice medicine because he is not a graduate from a medical school and is not excluded by any act of the State *139 Board of Health, he is in no way affected by the fact of whether or not the board is legally constituted in conformity with the two constitutions and, therefore, is not entitled to raise the questions contained in these three specifications. Without deciding this suggested question, inasmuch as the criminal complaint in the present case was instituted by the secretary of the board elected under and by authority of Chapter 115, and as the broad question raised is important and far reaching in its effect, the constitutional question or questions will now be considered. To refer to the matter with greater particularity, specification 8 is that Chapter 115, and especially Section 1 thereof, is in conflict with Section 2 of Article I of the State Constitution "and is made for the benefit of a class of persons and not for the whole people" in that at least four of seven members of the State Board of Health must be members of some medical society incorporated in this State, which societies, it is alleged, are "organized among other purposes to suppress new and rival systems of medicine, and to promote the general welfare of their members against competition from schools of medicine other than the two schools to which the members of said society must belong." The ninth specification alleges a conflict of Section 1 of Chapter 115 with Section 10 of Article I of the State Constitution and Section 1 of Article XIV of the Amendments to the Federal Constitution in that the right of the defendant to practice medicine is to be determined by a board selected from a private society and not from the whole people, thus abridging his privilege and depriving him of liberty and property without due process of law, and denying him the equal protection of the laws. Specification 10 charges that Chapter 193 is in conflict with Sections 2 and 10 of Article I of the State Constitution and Section 1 of Article XIV of the Amendments to the Federal Constitution in this that the right to practice medicine is to *140 be determined by a State Board of Health created by a void and unconstitutional act, in consequence of which Chapter 193 is unconstitutional because all the rights and obligations thereunder are wholly dependent upon the existence of a board created in an unconstitutional manner. It is evident that the basic fact underlying all these allegations of unconstitutionality is the provision that a majority of the board must be selected from the "members of some medical society incorporated by the State."
The provisions of Section 1 of Chapter 115 objected to are, "There shall be a State Board of Health which shall consist of seven persons, two from the county of Providence, one from each of the other counties, and one from the state at large. At least four members of said board shall be well-educated physicians, and members of some medical society incorporated by the state."
The members of the board are appointed by the Governor, with the advice and consent of the Senate for a term of six years each. Their duties in general are set forth in Section 2 of Chapter 115, as follows: "The board shall take cognizance of the interests of life and health among the citizens of the state; they shall make investigations into the causes of disease, and especially of epidemics and endemics among the people, the sources of mortality and the effects of localities, employments, conditions and circumstances on the public health, and shall do all in their power to ascertain the causes and the best means for the prevention of diseases of every kind in the state. They shall publish and circulate, from time to time, such information as they may deem to be important and useful for diffusion among the people of the state, and shall investigate and give advice in relation to such subjects relating to the public health, as may be referred to them by the General Assembly, or by the Governor when the General Assembly is not in session." *141
Section 3 requires them to investigate the subject of diseases among cattle or other animals, and their duties also have been enlarged by subsequent enactments. See Chapters 386, 728, 1070 and 1226 of the Public Laws. See, also, General Laws (1909), Chapter 113, Section 4, Chapter 114, Sections 13, 14, 15, Chapter 116, Chapter 121, Sections 20 to 23, Chapter 276, Section 7, Chapter 356, Sections 30 to 32.
The board was established by Public Laws, Chapter 680, passed at the January Session, 1878. It was then composed of six persons, three of whom were required to be "well educated physicians and members of some medical society incorporated by the State." From the beginning their duties included those set out in Sections 2 and 3 of Chapter 115, supra. Prior to the passage of Chapter 680 the several town councils and boards of aldermen were ex officio boards of health in their respective towns and cities. The creation of the State Board of Health did not divest the local boards of their powers and it may reasonably be inferred that the former was expected to cooperate with and to supplement the activities of the latter. By Chapter 794, passed January, 1880, the board was authorized "to elect a well-qualified physician as their secretary," who became exofficio a member of the board, although since January, 1915, he has not been such member. He was not by statute required to be a member of any medical society. By Chapter 1519, passed March, 1908, Section 1 of Chapter 96 of the General Laws (1896) was amended to read as Section 1 of Chapter 115 of the General Laws of 1909 now reads. The situation from time to time has been this: from 1878 to 1880 of the board of six, three were required to be physicians who were members of a medical society of the State; from 1880 to 1908 the board consisted of seven members, four of whom were required to be physicians, three of them members of a state medical society; from *142 1908 to 1915 the board consisted of eight members, five of them physicians, four of whom were required to be members of a state medical society; and since 1915 seven members have composed the board, four of whom are to be physicians who are members of a medical society. An examination of the defendant's brief, in discussing Chapter 115, discloses no objection to the act creating the State Board of Health, because for the most of the thirty-eight years since its passage the provision has been that the majority of the members must be physicians. An inspection of the act itself and the various amendments thereto setting forth the powers and duties of the board relative to the measures to be taken for the prevention and spreading of disease and for the guarding of the public health would seem to put it beyond discussion that a majority of the board ought to be men trained to deal with such matters. The provision that such majority should be physicians is, therefore, in our opinion a reasonable exercise of legislative power. The real objection is to the requirement that the physicians must be "members of some medical society incorporated by the State," in that it is legislation for a class, and not for the public welfare, and is thus obnoxious to the State and Federal Constitutions. It is to be borne in mind that in 1878, when the State Board of Health was created and long after, that is, until 1895, there was in Rhode Island no statute regulating the practice of medicine or defining the qualifications of a practitioner. The term "physicians" was used in the statutes and certain duties were imposed on them, but any man, irrespective of whether or not he had prepared himself therefor might practice medicine, if he could find people willing to trust their health and lives to his head and hands. Under such conditions it might be expected to be and undoubtedly was the fact that some poorly educated and ill-trained, but well-meaning men, and some unscrupulous pretenders and quacks *143 were practicing medicine and were popularly classed as physicians.
Prior to 1878 charters had been granted to three medical societies and no question is made as to their previous incorporation and to their existence in 1878. The first was the Rhode Island Medical Society. The act was passed in February, 1812, and names forty-six incorporators, and their names would indicate that they represented the different portions of the State. The preamble to the act is as follows: "As the medical art is important to the health and happiness of society, every institution calculated to further its improvement, is entitled to public attention; and as medical societies, formed on liberal principles, and encouraged by the patronage of the laws, have been found conducive to this end: Be it therefore enacted," c. Section 7 of the act is as follows: "The president and members of said society or such officers or members as they shall appoint for that purpose shall have full power and authority to examine all candidates for the practice of physic and surgery (who shall offer themselves for examination) respecting their skill in their profession; and if upon examination said candidates shall be found skilled in their profession and fitted for the practice of it they shall receive the approbation of the society in letters testimonial under the seal of said society, signed by the president, or such other person or persons as shall be appointed for that purpose."
At the October session in 1827 the Rhode Island Central Medical Society was incorporated, nineteen persons being named as corporators. Its Section 7 is in effect the same as Section 7 just quoted from the earlier charter. The Rhode Island Medical Reform Society was incorporated at the October session of 1854 (p. 36). Its preamble runs thus: "Whereas certain persons have associated themselves together, for the purpose of aiding and encouraging the medical reform practice, which excludes in *144 a great measure the use of the lancet, and also the use of mercury and antimony and have petitioned this assembly to grant them a charter of incorporation, with the privileges and powers following:" This charter contains no provision similar to Section 7 of the last two charters. By an act of amendment passed at the January Session, 1872 (p. 207) the name of this corporation was changed to Rhode Island Liberal Medical Association and the preamble of the original act was made to read: "Whereas certain persons have associated themselves together for the purpose of mutual improvement and protection in the practice of medicine and surgery, and have petitioned," etc.
The first two charters provide for the election of "suitable persons" as members by a majority of those present at any legal meeting. The expression "suitable" implies that membership in the two older societies called for qualifications of some kind. We think this is also implied in the amended preamble of the third society in the words "associated . . . for mutual improvement and protection in the practice of medicine and surgery." The provision of Section 7 giving authority "to examine all candidates for the practice of physic and surgery (who shall offer themselves for examination) respecting their skill in their profession" and to issue letters testimonial to those "found skilled in their profession" is a recognition by the General Assembly of qualifications on the part of society officials to examine candidates and to determine their skill in the profession. This section seems to point to an effort to improve and in a mild way to standardize the practice. The examinations were wholly voluntary and the testimonial was an endorsement of fitness in practice, which would be of such value to the holder as the public might give to it. In the light of all the surrounding circumstances it does not seem unreasonable to presume that at least a *145 great majority of the more eminent, skilful and experienced practitioners of medicine would be members of these societies, and that most of the poorly trained, unskilful and ignorant practitioners would not be included in such membership. In other words membership in such societies would afford to a certain extent a test of professional standing and ability in that at least the quacks and those least qualified for practice would not be found in them. Having regard to the prevailing conditions and the objects to be accomplished, was the requirement of the original act that the physicians on the board should be "members of a medical society" in the State reasonable or arbitrary and capricious? We have hereinbefore referred to the rule governing classification with citation of cases from the Supreme Court of the United States illustrative of the application of the rule. It is sufficient to say that the reasonable inference is that the General Assembly was providing for the selection of physicians likely to be competent for the duties assigned them as members of the board, and named membership in a medical society as a qualification, because it tended to ensure competency. Our attention is called in the brief for the State to the fact that since 1878 eight medical societies have been incorporated in this State, five by special act and three under the general corporation law passed in 1896. Inasmuch as that law now requires but five persons to form such a society, it is plain that any school of medicine in the State having as many as five members may form such a medical society, and its members thus become eligible for appointment to the Board of Health, if they also be "well-educated physicians." As under Chapter 115 the duties of the State Board of Health do not include any relating to the regulating of the practice of medicine, and as by legislative enactment since 1878 the list of eligible for appointment to the *146 board as physicians may now include practitioners in the State of every school of medicine, if they number as many as five, we think there is no sufficient ground for the claim that Section 1 of Chapter 115 was passed not in the interest of the public welfare but for the benefit of a particular class. The history of the origin and development of this legislation indicates a legislative intent the reverse of that claimed by the defendant.
We find no ground for holding Chapter 115 and especially Section 1 in conflict in any respect with either the State or Federal Constitutions. The defendant's allegation of the unconstitutionality of the State Board of Health really rests on the grant of the power to it to examine candidates for the practice of medicine and to issue or withhold certificates, as such power is conferred by Chapter 193 and particularly Section 3 thereof. But even if Section 3 of Chapter 193 or the whole chapter were open to this objection of unconstitutionality as to this grant of power, it would not affect the validity of Chapter 115 in any respect. And as to whether the powers conferred upon the State Board of Health by said Section 3 are valid or not, as already pointed out, the defendant is not in a position to question, as he has been in no particular affected by any act of the board. In his failure to apply to the board for an examination and for the issuance of a certificate, the defendant recognizes that his exclusion from practice is due entirely to the provision of the law requiring, as a necessary qualification for practice, "satisfactory evidence of graduation from a medical school in good standing." The validity of that provision we have already considered.
We are of the opinion that none of the objections properly raised by the defendant to the constitutionality of Chapter 193 and especially Section 3 thereof are well founded and valid. *147
The papers in the case will be sent back to the District Court of the Sixth Judicial District with our decision certified thereon for further proceedings.