No. 447.
SUPREME COURT OF WASHINGTON
June 23, 1892, Decided
Appeal from Superior Court, Spokane County.
Information against George W. Carey, charging him, on the
14th day of July, 1891, with practicing medicine without
having first obtained the license required by law. From a
judgment of conviction defendant appeals.
Court: Judgment reversed and cause remanded.
Syllabus: APPEAL--CERTIFICATE TO STATEMENT OF
FACTS--CONSTITUTIONAL LAW--RIGHT TO PRACTICE MEDICINE--HOW
MISDEMEANOR CHARGED--ARREST OF JUDGMENT.
The certificate of the trial judge to a statement of facts
that it contains all the testimony on which the cause was
tried below, and that certain papers attached to the
statement of facts are true and correct copies of the papers
writing used on the trial of said cause, is insufficient
under the provisions of Code Proc., § 1423, requiring the
judge's certificate to show that the statement contains all
the material facts in the cause.
The "act to regulate the practice of medicine and surgery in
the State of Washington," etc., (Laws of 1889-90, p. 114)
providing that thereafter no person should be licensed to
practice medicine except after examination by the state
medical examining board to be appointed by the governor, is
not in violation of the provisions of either the state or
United States constitutions, as such statute is an exercise
of police power inherent in the state.
Under the provisions of "an act to regulate the practice of
medicine and surgery in the State of Washington, and to
license physicians and surgeons, to punish all persons
violating the provisions of this act," etc., (Laws 1889-90,
p. 114) an information or complaint against a person for
practicing without a license is defective unless it charge
him or her with appending "the letters M. D. or M. B. to his
or her name, or for a fee" prescribing, directing or
recommending "for the use of any person (naming such person)
any drug or medicine or agency for the treatment, care or
relief of any wound, fracture, or bodily injury, infirmity
or disease." (HOYT, J., dissents.)
Under § 1107, Code, providing that judgment may be arrested
when "the facts as stated in the indictment do not
constitute a crime or misdemeanor," the rule of aider by
verdict does not apply to such a defect. (HOYT, J.,
dissents.)
Counsel: Jones & Voorhees, for appellant.
W. C. Jones, Attorney General, S. G. Allen, Prosecuting
Attorney, and Turner, Graves & McKinstry, for The State.
Judge(s) DUNBAR, J. STILES, J., concurs. ANDERS, C. J.,
concurring. HOYT, J., dissenting. SCOTT, J., concurs.
Opinion By: DUNBAR
The opinion of the court was delivered by
DUNBAR, J.--Respondent moves to strike from the record the
document purporting to be a statement of facts, because the
said statement is not certified as required by law. The
certificate of the trial judge is that the statement
contains all the testimony on which the cause was tried
below, and that certain papers, attached to the statement of
facts, are true and correct copies of the papers writing
used on the trial of said cause in said superior court." The
law requires that the certificate of the judge must show
that the statement contains all the material facts in the
cause or proceeding. See § 1423, Code Proc. This certificate
evidently falls short of the requirement of the law. There
may be other material facts in the case beside the
testimony; one of which might be the ruling of the court on
testimony that was excluded, beside many others, which might
be enumerated. The motion to strike must be sustained.
This leaves the case to be considered here on the
sufficiency of the complaint, a motion having been made in
arrest of judgment, on the ground--(1) Of the
unconstitutionality of the law under which the defendant was
prosecuted; and, (2) that the facts stated in the complaint
do not constitute a crime or misdemeanor, in that the
offense sought to be charged is not sufficiently described,
and that said complaint is too vague, indefinite and
uncertain.
It is urged, in support of this position, that the law
under which this prosecution is urged, is obnoxious to § 12
of art. 1 of the constitution of the State of Washington,
which is as follows:
"No law shall be passed, granting to any citizen, class of
citizens, or corporation other than municipal, privileges or
immunities, which, upon the same terms, shall not equally
belong to all citizens or corporations."
The contention of the appellant is, that the law under
consideration is unequal within the purview of the
constitutional provision, because--(1) The governor alone
furnishes the test of the qualifications of the nine
physicians comprising the returning board by the arbitrary
exercise of the appointing power; (2) that the nine
physicians comprising the board are not subject to an
examination or to the payment of the examination fee of ten
dollars required of applicants for examination, and that,
consequently, privileges and immunities are, by this law,
accorded to a certain portion of that class engaged in
practicing medicine and surgery in the State of Washington
which are not on the same terms equally accorded to all
citizens belonging to such class. We think the law in
question affords no substantial basis for these objections.
From the very necessities of the case, the test of the
qualifications of the examining board in the first instance
must arbitrarily rest somewhere. This is true of every
examining board in every department of the government, and
to deny the right of the legally appointed tribunal to thus
arbitrarily exercise this discretion, is practically to deny
the right of the state to enact and enforce the law. In this
instance the legislature has invested the governor with this
power of selection. There might possibly be something in the
second proposition of appellant if it were conceded that his
premises were correct, but we are unable to find anything in
the act which warrants the conclusion that the members of
the examining board are exempt from any of the burdens which
are imposed upon other physicians who desire to practice
medicine and surgery in the state. The fact that a person
who practices medicine in the state is a member of the
board, will not release him from the necessity of obtaining
the license and paying the fee required. A majority of the
board may grant the license, and it can as consistently be
granted to a member of the board as to any one else.
It is also contended by the appellant that the law is in
violation of § 2 of article 4 of the constitution of the
United States, which provides that "citizens of each state
shall be entitled to all the privileges and immunities of
citizens of the several states," and of § 1 of the 14th
amendment of the constitution of the United States, which
provides that no state shall make or enforce any law which
shall abridge the privileges or immunities of the 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 right of the legislature to
enact a law of the character of the one in question is
founded upon the police power of the state, and the scope of
this power has been the subject of much controversy, and the
term has been variously defined by courts and text writers.
It is defined by the supreme court of Illinois, in the case
of Lake View v. Rose Hill Cemetery, 70 Ill. 191, as--
"That inherent and plenary power in the state which
enables it to prohibit all things hurtful to the comfort,
safety and welfare of society."
Many definitions have been announced by the courts, but
the above, it seems to us, is so terse and comprehensive
that we need look no farther for a definition. Under our
form of government, especially, all the personal liberty
possibly consistent with the general welfare is conceded to
the individual and, while, as a general proposition, it is
doubtless true that any citizen has a right to pursue any
lawful calling, yet, in respect to certain occupations not
in themselves unlawful, this right is necessarily subject to
legislative restrictions from considerations of public
policy. In the profession of medicine, as in that of law, so
great is the necessity for special qualifications in the
practitioner, and so injurious the consequences likely to
result from the want of it, that the power of the
legislature to prescribe such reasonable conditions as are
calculated to exclude from the profession those who are
unfitted to discharge its duties cannot be doubted. Hewitt
v. Charier, 16 Pick. 353; Wright v. Lanckton, 19 Pick. 288;
Cooley, Const. Lim., p. 745.
The practice of medicine and surgery is a vocation that
very nearly concerns the comfort, health and life of every
person in the land. Physicians and surgeons have committed
to their care the most important interests, and it is an
almost imperious necessity that only persons possessing
skill and knowledge should be permitted to practice medicine
and surgery. For centuries the law has required physicians
to possess and exercise skill and learning, for it has
mulcted in damages those who pretend to be physicians and
surgeons who have neither learning nor skill. It is,
therefore, no new principle of the law that is asserted by
our statute, but if it were it would not condemn the
statute, for the statute is an exercise of police power
inherent in the state. It is, no one can doubt, of high
importance to the community that health, limb and life
should not be left to the treatment of ignorant pretenders
and charlatans. It is within the power of the legislature to
enact such laws as will protect the people from ignorant
pretenders, and secure them the services of respectable,
skilled and learned men, although it is not within the power
of the legislature to discriminate in favor of any
particular school of medicine. When intelligent and educated
men differ in their theories the legislature has no power to
condemn the one or approve the other, but it may require
learning and skill in the school of medicine which the
physician professes to practice. Eastman v. State, 109 Ind.
278 (10 N.E. 97); White v. Carroll, 42 N.Y. 161.
Our statute does not undertake to discriminate between
rival or different schools of medicine, nor can we see that
it invades or abridges any citizen's constitutional right.
No one is proscribed or prevented from practicing medicine.
All that is required of the applicant is that he shall
possess the necessary qualifications, and the test of
qualification is prescribed by the law. That test may not be
the best that could have been devised; it may be exceedingly
imperfect and faulty, and in some respects we think it is,
as it is difficult to see how a practitioner's
qualifications can be affected by the mere accident of his
residence in the state at the time of the passage of the
law, or why the community should not be protected from
resident as well as nonresident charlatans and quacks. Yet,
conceding the right of the legislature to legislate upon the
subject, the wisdom of the act, its reasonableness or
unreasonableness is a question for legislative discretion,
and not for judicial determination. Judge Cooley says, in
his work on Constitutional Limitations (5th ed., page 201):
"The judiciary can only arrest the execution of a statute
when it conflicts with the constitution. It cannot run a
race of opinions upon points of right, reason and expediency
with the lawmaking power."
As sustaining the theory that the qualification of
residence does not affect any constitutional right, we cite
a decision of our Territorial Supreme Court, viz., the case
of Fox v. Territory, 2 Wash. Terr. 297 (5 P. 603); State v.
Van Doran, 109 N.C. 864 (14 S.E. 32); Dent v. West Virginia,
129 U.S. 114 (9 S. Ct. 231, 32 L. Ed. 623); People v.
Phippin, 70 Mich. 6 (37 N.W. 888). The law sustained in the
last case cited was much more objectionable than the one in
question, for, while it exempted those who had practiced
medicine in Michigan for a period of five years immediately
preceding the law, it prohibited all others who had not
received a diploma from some medical college, no board of
examination being provided, while our statute excludes no
one who is actually qualified, and who is willing to submit
himself to the examination prescribed by law; and to guard
against any arbitrary or captious action of the examining
board the law provides for an appeal to the courts of
justice, where a license is refused or revoked. We are of
the opinion that the law is not in conflict with any
constitutional right, and, therefore, it must be sustained.
We will next notice the objection that the facts stated in
the complaint do not constitute a crime or misdemeanor. The
body of the complaint in question is as follows:
"Comes now C. S. Penfield, who, after being first sworn in
due form of law, charges G. W. Carey with the crime of
misdemeanor committed as follows: That the said G. W. Carey,
on the 14th day of July, 1891, in the city and county of
Spokane and State of Washington, did then and there
unlawfully practice medicine with the State of Washington
without having first obtained a license provided for in an
act entitled 'An act to regulate the practice of medicine
and surgery in the State of Washington, and to license
physicians and surgeons; to punish all persons violating the
provisions of this act, and to repeal all laws in conflict
therewith, and declaring an emergency,' contrary to the form
of the statutes," etc.
Sec. 8 of the act alluded to in the complaint, after
providing that any person who practices medicine or surgery
within this state without first obtaining the license
provided for in the law, shall be fined in a certain sum,
provides further that "any person shall be regarded as
practicing within the meaning of this act who shall append
the letters M. D. or M. B. to his or her name, or for a fee
prescribe, direct or recommend for the use of any person any
drug, or medicine or agency for the treatment, care or
relief of any wound, fracture or bodily injury, infirmity or
disease." It is argued by the respondent that this is not a
definition of the crime, but is simply an enumeration by
statute of the probative facts which need not be alleged in
the complaint, but we think it was the intention of the
legislature to define the crime by the use of the language
quoted, and that it would be a defense to an indictment
under this act to prove that the party charged had neither
appended to his name the prescribed letters or for a fee
prescribed, etc. Or to state it affirmatively, it is
necessary to allege and prove the commission of one of these
acts to justify a conviction. This is a crime not known to
the common law, it is purely statutory, and if the statute
has failed to define it, it is not defined at all, and the
defendant is called upon to answer to an undefined crime
where no particular act constituting the crime is charged.
To meet this objection, it is contended by the respondent
that everybody knows what the term "practicing medicine"
means. Every person may know what his particular idea of
practicing medicine means, but one person's idea as to what
it means may differ from another's; it may as well be
claimed that everybody knows what murder means, or theft, or
arson, but it will not be claimed for a moment that an
indictment charging a person with having, on a certain day
and at a certain time, committed the crime of murder, or
theft, or arson, without any further description of the
crime, would be sufficient, and yet these are terms with a
well defined and well understood meaning compared with the
term "practicing medicine." The fact that one is a common
law crime, and the other is statutory, cannot affect the
defendant's right to be informed of the precise nature of
the offense with which he is charged, so that he may be
enabled to intelligently prepare his defense. In this
instance the defendant was compelled to deny a conclusion of
law rather than a statement of fact. It is urged by the
respondent that it is sufficient in an indictment for a
statutory crime to charge the crime in the language of the
statute. This proposition we are not inclined to controvert,
but the complaint in this instance does not meet the
requirements of the proposition stated. Bishop on Criminal
Procedure lays down the rule thus in § 611:
"Where a statute defines the offense which it creates, it
is ordinarily adequate, while nothing else will in any
instance suffice, to charge the defendant with all the acts
within the statutory definition, substantially in the words
of the statute, without further expansion."
So that it will be seen that if the theory of the
respondent be true, that the statute in this instance does
not define the crime, the rule limiting the indictment to
the statutory words does not apply. For it only applies
where the statute does define the offense which it creates,
and if in this case the statute does define the crime, then,
certainly the complaint falls short of the requirements, for
it does not pretend to charge the defendant with the
commission of the acts constituting the crime, viz.: the
signing of the letters M.D. or M.B. to his name, or
prescribing for a fee. The supreme court of the United
States, in United States v. Simmons, 96 U.S. 360, 24 L. Ed.
819, in quoting the proposition stated by Bishop, says:
"But to this general rule there is the qualification,
fundamental in the law of criminal procedure, that the
accused must be apprised by the indictment, with reasonable
certainty, of the nature of the accusation against him, to
the end that he may prepare his defense, and plead the
judgment as a bar to any subsequent prosecution for the same
offense. An indictment not so framed is defective, although
it may follow the language of the statute."
And this principle runs through all the cases, viz., that
the indictment must be so specific in the description of the
charge that the defendant will be able to avail himself of
his acquittal or conviction for protection against a further
prosecution for the same cause. Supposing this defendant had
seen fit to plead guilty to the indictment, and had paid the
fine imposed, and had afterwards been indicted for
practicing medicine on the same day, there could have been
nothing in the record to show that it was not for the same
offense, and no plea in bar could possibly have been made,
for there would have been no way to determine that fact
unless it be concluded that a man cannot practice medicine
but once in a given day, which is a conclusion unfortunately
not warranted by the common experience of mankind. If
defendant Carey practiced medicine on that day by
prescribing for a fee for somebody, that fact should have
been stated with the name of the person for whom he
prescribed. It is no hardship on the state to be held to
this particularity, and it is nothing more than common
justice that the defendant should know the particular
unlawful acts he is charged with committing. In fact,
outside of the authority of the cases cited, and the great
weight of authority is opposed to sustaining this kind of an
indictment, it seems to us that the requirements of our
statute are not met by this indictment, for while our
statute happily does away with many of the technical
refinements which needlessly hampered and retarded the
administration of justice under the common law practice, it
has not gone to the other extreme of forcing a man to trial
without informing him of the crime he is charged with
committing. But it has substituted for such technical
refinements the simplicity of a statement of facts. The code
requires that the indictment must contain: First, The title
of the action, specifying the name of the court in which the
indictment is presented, and the name of the parties; second,
a statement of the acts constituting the offense in
ordinary and concise language, etc., not the name of the
offense, but a statement of the acts constituting the
offense. These are mandatory provisions, and the second
requirement of the "statement of acts constituting the
offense" is just as important and essential as the first
requirement that the indictment must contain the title of
the action and the name of the parties. There is no room for
the construction of this statute, the language is plain and
unequivocal, and tested by this statutory requirement the
complaint in this case must fall.
It is, however, contended by the respondent that even
admitting the complaint to have been bad as against a
demurrer the defect was cured by the verdict, the objection
in this case having been made by motion in arrest of
judgment. On this proposition many cases were cited both by
the appellant and respondent, but on this proposition also
the provisions of our own local laws must not be lost sight
of in an investigation of reported cases. Sec. 1107 of the
Code is as follows:
"Judgment may be arrested, etc., for the following causes:
(1) No legal authority in the grand jury to inquire into the
offense charged, by reason of its not being within the
jurisdiction of the court. (2) That the facts as stated in
the indictment do not constitute a crime or misdemeanor."
It would seem that if any effect whatever is to be given
to the plain provisions of the statute, that the mere
citation of this law is sufficient to determine this
controversy. The right to demur to the complaint could not
be more plainly bestowed on the defendant than the right to
arrest the judgment where the facts stated in the indictment
do not constitute a crime or misdemeanor. Whether based on
good or bad reasoning, this is a right vouchsafed the
defendant by the law, and the court has but one duty to
perform, and that is to see that the law is enforced.
The judgment in this case is reversed, and the cause
remanded to the lower court with instructions to proceed in
accordance with this opinion.
STILES, J., concurs.
ANDERS, C. J.--As I entertain some doubts as to the
constitutionality of the law upon which this prosecution is
founded, I do not desire to be understood as expressing an
opinion on that question; but I concur in the judgment
because I think the complaint is insufficient.
HOYT, J. (dissenting).--To the complaint filed in this
action defendant pleaded not guilty, and trial was had on
the merits. After such trial and verdict had thereon,
defendant for the first time attacks the indictment for
insufficiency. With the conclusions of the majority of the
court in sustaining such attack I am unable to agree. When
aided by the liberal rule of construction commanded by our
statute, and further aided by the rule for the investigation
of pleadings after verdict, I think the indictment
sufficient. The judgment should be affirmed.
SCOTT, J., concurs.