Scholle v. State , 90 Md. 729 ( 1900 )

The appellant was indicted for unlawfully practicing medicine and surgery, in the State of Maryland, without being registered as a physician or surgeon in the Registry of Physicians and Surgeons.

The question presented by the appeal is the validity of the Acts of 1892, ch. 296, 1894, ch. 217 and 1896, ch. 194; all of which are incorporated in Mr. Poe's Supplement to the Code as Article 43, secs. 39 to 63, sub-title Practitioners of Medicine. These statutes are the final results of a series of successive enactments, which have created a well-defined system for the regulation of the practice of medicine in the State. Inasmuch as extended reference was made to them in the case of Manger v.The Board of State Medical Examiners, decided at the present term, ante p. 658, we need refer here, to only so much of the system now in force, as is required for a proper consideration of the questions involved in this appeal.

The Acts provide for two boards of examiners; one to be appointed by the Medical and Chirurgical Faculty of the State of Maryland, the other by the Maryland State Homeopathic Medical Society. Each of these boards is empowered to grant licenses to practice medicine in the State, and no one is allowed so to practice unless he has first obtained such license. The 49th section of the Article contains an exception to this general rule, by the provision that the sub-title shall not apply "to commissioned surgeons of the United States Army, Navy or Marine Hospital Service, to physicians or surgeons in actual consultation from other States, or to persons temporarily practicing under the supervision of an actual medical preceptor." It is contended on the part of the appellant that these exemptions from the burden of obtaining a license to practice is an unjust and unreasonable discrimination between persons engaging in the medical business or profession, and that its effect is to render the whole Act invalid as being in contravention of the Fourteenth Amendment of the Constitution of the United States. It is not questioned, as indeed it could not be, that the State under the police power has authority to pass such reasonable laws for the protection of the health, morals and safety of the public as its Legislature, in the exercise of its discretion, may deem necessary and proper. But the contention is that the provisions of the section by which the exemptions from licensing are declared are not just and reasonable and bear no proper relation to the objects sought to be accomplished; and the argument is that while a certain class of physicians are not required to register, it is an infringement of the principle of equality to require registration of others who do not belong to the favored class. This objection, therefore, amounts to no more than to affirm that the classification made by the statutes is purely arbitrary; for all the authorities agree that if a classification be just and reasonable and bears a proper relation to the subject-matter of the Act, no objection to its validity can be raised. The Fourteenth Amendment was not intended to restrain the Legislature from such reasonable provisions as are necessary for the protection of the public health, and in doing this conditions may exist that make it most essential to impose upon some persons greater burdens than upon others not similarly situated. "The great purpose of the amendment is to exclude everything that is arbitrary and capricious in legislation affecting the rights of the citizen." Dent v. The State of W. Virginia,129 U.S. 114-124; Broadbelt v. State, 89 Md. 579; State ofMaryland v. Knowles (decided Feb. 15th, 1900), ante p. 646;Singer v. The State, 72 Md. 464; Barbier v. Connolly,113 U.S. 27; Mugler v. Kansas, 123 U.S. 623; Yick Wo. v.Hopkins, 118 U.S. 356.

Here the purpose of the Acts in question was the protection of the public from the consequences of ignorance and incapacity in the practice of medicine and surgery. As a means of effecting this they exact from the persons proposing to engage in the business a certain degree of skill and learning, to be evidenced by a certificate upon which the public may rely. If the conditions surrounding all persons who desired to practice were alike, there could be no differences made as to the terms upon which a certificate could be obtained. But if there are differences as to conditions and situations, by which it becomes reasonable that greater precautions are required in some cases than in others, classes may be formed by which certificates can be granted to some without examination, and by which others may be exempted altogether from the burden of being registered. But these classes must be created upon considerations only that are promotive of the public interests; and if they are so created, they do not constitute an unlawful discrimination and do not impair the "equal right which all can claim in the enforcement of the laws". The case of The State of N.H. v. Pennoyer, 65 N.H. 113, 5 L.R.A. 709, relied upon by the appellant to sustain his contention, is nowise in conflict with what has just been said. In that case the Act was pronounced invalid because the exemption from the burden of obtaining a license was made to depend, "not on integrity, education and medical skill, but upon a continuous dwelling in one place for a certain time." Such a discrimination was undoubtedly arbitrary and founded upon no reason having relation to the subject. It had no regard to competency or to any material difference of situation, and if maintainable, no reason could be assigned why "a monopoly of the business might not be given" to favored physicians. But that cannot be said of the provisions of the section and the law, now being considered. Those to whom the provisions of the Acts do not apply are, 1st, commissioned surgeons of the U.S. Army and Navy, and Marine Hospital; 2nd, physicians and surgeons in actual consultation from other states; and 3rd, persons temporarily practicing under the supervision of an actual medical preceptor.

The reasons for these exemptions from the operation of the Act are apparent and are entirely of a public character. The competency of the first class is assured by the exactions required of them before they could become commissioned in the service of the United States as physicians or surgeons. So also physicans in a Marine Hospital are selected for their special adaptation and skill for that work. There could be no public reason therefore that these medical officers should be required, for the protection of the public, to be registered. Nor can any reason, having in view the public protection, be assigned for requiring certificates of the remaining classes. Neither of these classes can be said to be practitioners within this State. The physcian from another State, "in actual consultation," has co-operating with him a registered physician. To require him to license as for general practice, would have no other effect than occasionally to deprive the patient and the local physician of the benefits of the advice of some of the most eminent and skillful gentlemen in the profession. Moreover, as to both the second and third classes the public are fully protected from the incompetency of the foreign physician and the student by the presence and supervision and restraints of the certified physicians of the State. This section therefore cannot be objected to as in any respect arbitrary or unreasonable, or as in any manner creating any unjust discrimination.

Another objection raised, is that these Acts commit the execution of the law to "a body corporate not an officer or agent of the government."

One of the bodies charged with the duty of appointing one of the Boards of Medical Examiners, is the Medical and Chirurgical Faculty of the State of Maryland. It was incorporated in 1798, and by the 105th chapter of the Acts of that year, it was clothed with authority to elect twelve persons to be styled "The Medical Board of Examiners for the State of Maryland," whose duty it was to grant licenses to persons qualified to practice medicine and surgery. In referring to the power thus conferred upon the Medical and Chirurgical Faculty, this Court in The Regents'case, 9 G. J. 388 et seq, said, that "a corporation may be private, and yet the Act or charter of incorporation contain provisions of a purely public character introduced solely for the public good and as a general police regulation of the State." The Court cites as instances, the English statutes creating the College of Physicians in London and founding "The College of Barbers and Surgeons." It then proceeds; "The Legislature possesses power to regulate the internal police of the State * * * and having regard to the health and lives of the citizens of the State, to adopt from time to time such wholesome regulations as may be deemed best calculated to guard against the evils and mischiefs attendant upon the practice of physic and surgery by ignorant and incompetent persons. That the Legislature might at any time, without the intervention of a corporation, have provided for the organization of a board or boards for the examination of persons applying for admission to practice physic or surgery and imposed a penalty upon any who should practice without having first obtained a license from such board and afterward from time to time have adopted other means more or less efficient for the promotion of the desired end, or, whether wisely or not have removed the restriction altogether, is a proposition not to be questioned." The Court further proceeds to observe that the Legislature, with the object of encouraging the acquisition of knowledge and of shielding the community from the pernicious effects of the ignorance of unskillful pretenders, had authorized the Medical and Chirurgical Faculty, "as it had the right to do," to appoint a board of examiners who should examine and issue licenses, as a means of effecting the end in view, and who, "for that purpose may be considered as agents or officers of the State." In the Slaughter House cases, 83 U.S. 36 to 130, where it was contended that the Legislature had exceeded its power in creating a private corporation for the special purpose of maintaining the Slaughter House for the City of New Orleans, the Court said: "If this statute had imposed on the City of New Orleans precisely the same duties, accompanied by the same privileges which it has on the corporation which it created, it is believed that no question would have been raised as to its constitutionality: * * * Why cannot the Legislature confer the same powers on another corporation, created for a lawful and useful public object, that it can on a municipal corporation already existing. That wherever a Legislature has the right to accomplish a certain result and that result is best obtained by means of a corporation, it has the right to create such a corporation and to endow it with powers necessary to effect the desired and lawful purpose, seems hardly to admit of debate."

Nor does the method of the appointment of the Medical Boards affect the validity of the law. Section 10 of Article 2 of the Constitution of the State, confers upon the Governor the authority "to nominate and by and with the advice and consent of the Senate, appoint" all civil and military officers, whose appointment or election is not therein otherwise provided for; "unless a different mode of appointment be prescribed by the law creating the office." This provision simply means, as was said inDavis v. The State, 7 Md. 161, "that the Governor shall have the power to fill all offices in the State, whether created by the Constitution or by Act of Assembly, unless otherwise provided by the one or the other. When, therefore, the Legislature has created an office by Act of Assembly, the Legislature can designate by whom, and in what manner the person who is to fill the office shall be appointed."

Some comment was made upon the effect of the 61st section, but inasmuch as that was fully considered and passed upon in Manger v. The Board of Medical Examiners, decided by this Court at the present term, ante p. 658, we need only to refer to that case. We have now considered all the questions that were pressed upon us at the hearing or are contained in the briefs of the respective counsel. We may add to what has already been said, however, that we find nothing in any of these statutes that is obnoxious to constitutional objection. Laws similar to those regulating the practice of medicine or of surgery and of many trades have frequently been under consideration in this and other courts, and have been maintained as valid enactments. We refer to some of the cases, to which many more could be added. Dent v.West Va., 129 U.S. 114; Wilkins v. State, 113 Ind. 514;State v. Knowles, ante p. 646, and cases there cited; Exparte Frager, 54 Cal. 94; Ex parte McNulty, 77 Cal. 164; IowaMed. As. v. Schrader, 87 Iowa 659; State v. Broadbelt,89 Md. 579, and other cases already cited above.

Finding no error the judgment will be affirmed.

Judgment affirmed.

(Decided March 21st, 1900).